U.S. v. Maez
| Citation | 872 F.2d 1444 |
| Decision Date | 19 April 1989 |
| Docket Number | No. 88-1128,88-1128 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Arthur MAEZ, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Stephen P. McCue, Asst. Federal Public Defender (Ann Steinmetz, Federal Public Defender, Albuquerque, N.M., was also on the brief), for defendant-appellant.
Paula Burnett, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and Robert J. Baca, Asst. U.S. Atty., Albuquerque, N.M., were also on the brief), for plaintiff-appellee.
Before HOLLOWAY, Chief Judge, BRORBY, Circuit Judge, and ANDERSON, District Judge *.
Defendant Maez (Maez) was charged with armed bank robbery, a violation of 18 U.S.C. Sec. 2113(a) & (d) (1982) and aiding and abetting, a violation of 18 U.S.C. Sec. 2 (1982). He filed a pretrial motion to suppress evidence seized during a search of his home and truck and incriminating statements he made thereafter. That motion was denied after a suppression hearing and the evidence was admitted at trial. Maez was convicted. He appeals, arguing that the motion to suppress should have been granted.
The paramount question presented is whether a violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), occurred when a number of armed officers and a SWAT team, having no warrant for an arrest, surrounded a mobile home occupied by Maez, his wife and children, and over loud speakers asked the occupants to remove themselves from the home, which they did, Maez then being taken into custody. We hold that a violation and unlawful arrest occurred. Because evidence obtained after the arrest and admitted at trial over Maez' objection was tainted, we reverse.
Two men robbed an Albuquerque bank on Friday, August 14, 1987. A bank customer reported that an early 1960's Ford or Dodge pickup truck with a wooden tailgate and a New Mexico license plate number KO-1919 was involved in the robbery. There was no such number, but an FBI dispatcher found that license number KD-1919 belonged to a 1959 Ford pickup truck registered to Maez. A description of the truck, both robbers, and Maez' address was given over the radio.
Deputy Sheriff Pacheco heard the broadcast at 3:00 p.m. He knew Maez and contacted a confidential informant who knew where Maez lived. The informant directed Pacheco to the Maez' home. At the home he saw a truck matching the description he had been given. By now it was 3:30 p.m. II R. 18-19. Pacheco left and the Albuquerque police department and FBI were contacted. The Maez home was left unguarded between approximately 3:30 and 4:30 p.m. Pacheco returned at approximately 4:30 p.m. after meeting with his supervisor. From that point on the trailer (which had only one exit--the front door) was under surveillance. The truck at the residence was later identified as the getaway truck.
By the time Mrs. Maez had left the trailer it was approximately 6:45 p.m. II R. 49-50; III R. 75. She was escorted, with her two month old baby, outside the trailer park fence, past approximately ten police officers and into the presence of five more. Shortly thereafter, she was asked to read and sign consent forms authorizing a search of the trailer. She owned the trailer. Police officer Whitson filled in the blanks on an Albuquerque police department consent form and explained the form to Mrs. Maez before she signed it. 2 Mrs. Maez was given time to read the form. 3 No evidence was seized pursuant to this consent. II R. 44-45.
After she had signed the Albuquerque police department consent form, Mrs. Maez was asked to sign an FBI consent to search form. Agent Guyman explained that they would be looking for money, weapons, or clothing. He told Mrs. Maez that her husband had been arrested. Guyman filled out the form and had Mrs. Maez read it out loud. Agent Marrero, who was present when the form was signed, testified that Mrs. Maez was visibly upset when she signed the form. She said that she signed the forms only because she had to. III R. 97, 157. 4 A bag containing $5,800, a blue stocking cap, a box of ammunition, and two red bandannas were seized. Mrs. Maez signed a third consent to search form relating to her personal automobile; no evidence was seized from the automobile. 5
Maez was taken into custody by the Albuquerque Police Department and turned over to the FBI at approximately 7:15 p.m. The officers asked if they could search the trailer and vehicles and when they indicated they had no search warrant, Maez said no. 6 He was then taken to an interview room where he was given Miranda warnings and signed a waiver of rights form. There was no conversation prior to their arrival. It was now 8:00 p.m. Maez' interrogation lasted for an hour and one half. II R. 35. He signed a consent to search form relating to his truck during the interrogation. Guyman was called and he searched the truck.
During the interrogation FBI agent Garay asked Maez about the dark veins on his arm. Maez admitted that he used heroin three times a week and said that he had taken two valiums two hours before he was taken into custody. III R. 122. Maez explained that he had been driving his pickup in the vicinity of the bank (picking up pop cans) on the day of the robbery. He also admitted ownership of the cap found outside the bank doors. However, when Agent Denniston explained where it had been found, Maez denied that it was his. Agent Garay testified that about three quarters of the way through the interview, Maez vomited. III R. 135. The interview continued. Garay testified that Maez did not appear to him to be confused, frightened, or under the influence of drugs. Maez said that he felt dizzy from the valiums and that he was confused by the questions of the three officers. III R. 145-146.
The trial court orally denied the motion to suppress. The court found that "there was probable cause to arrest the defendant," a fact not disputed on appeal. II R. 162-164. The court further found that Maez was arrested "legally ... after he came out of his trailer." II R. 164.
The court found that "while the circumstances may have been tense and while the environment may not have been ... ideal ..., that nevertheless [Ms. Patsy Maez] voluntarily and willingly gave the officers a permission to search." II R. 164. The court concluded that all of the items which were seized from the trailer were "legally and validly taken under the permission to search...." II R. 164.
The court further found that after being given Miranda warnings, Maez willingly and knowingly gave permission to search the Ford pickup "in which the holster was found." II R. 165. The court held that the statements made by Maez, including the statements regarding his cap, were "knowingly and willingly given" after he had been given Miranda warnings. II R. 165.
At trial, bank teller Christina Carlsen testified that one of the robbers was wearing a hat and had a red bandanna over his face. The bandanna, which was found during the search of the trailer conducted pursuant to the FBI consent form signed by Mrs. Maez, was admitted into evidence. Carlson identified Maez as the taller of the two robbers and the one who struck Mariana Griego, another teller, unconscious with the gun he was carrying. Griego identified Maez as one of the robbers. IV R. 111. She said that he put a gun under her chin. Griego said that although she could not clearly see his face during the robbery (because it was covered by the bandanna and he On the way out of the bank, one of the robbers hit Ernest Harrison, Jr., vice president A box of .25 caliber ammunition, which was found in Maez' trailer during the search, was admitted in evidence, as were the bandannas, cash totalling $5,844, and various pictures of the items seized. The cash consisted of 294 one dollar bills, 118 five dollar bills, 71 ten dollar bills, 120 twenty dollar bills, 7 fifty dollar bills, and 15 one hundred dollar bills. The bank had baited four twenty dollar bills, but none were found in the trailer. No guns or bank wrappers were found.
was wearing a cap), she was able to see his eyes, a mustache, and dark graying hair. She remembered Maez being about five feet seven inches tall. Griego also said that she recognized a number of tattoos on Maez' arms and on the web of his thumb. IV R. 105-114 of the bank (and a former FBI agent) and knocked him to the ground. The taller robber's hat fell off. Harrison followed the robbers around a corner and saw them leaving in a light colored pickup with a wooden tailgate. He said that the taller robber was wearing grey pants and was approximately five feet nine inches tall. IV R. 42-43. At the same time, a bank customer, Michael Barnes, saw what he thought was a gun and followed the truck to see the license plate number. He reported the number and also described the...
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