U.S. v. Matthews

• Decision Date: 29 February 1980
• Docket Number: No. 78-1423,78-1423
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles N. MATTHEWS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1279

615 F.2d 1279

UNITED STATES of America, Plaintiff-Appellee, v. Charles N. MATTHEWS, Defendant-Appellant.

No. 78-1423.

United States Court of Appeals Tenth Circuit.

Feb. 29, 1980.

Nancy E. Rice, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Denver, Colo., was on brief), for plaintiff-appellee.

Michael G. Katz, Asst. Federal Public Defender, Denver, Colo. (Daniel J. Sears, Federal

Public Defender, Denver, Colo., was on brief), for defendant-appellant.

Before HOLLOWAY, BREITENSTEIN and DOYLE, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant Charles Nathaniel Matthews brings a timely appeal of his conviction and sentence ¹ under the Dyer Act, 18 U.S.C. § 2312. ² Trial was had to a jury on March 22, 1978, on a one-count indictment stating that on or about January 31, 1978, the defendant

did unlawfully, knowingly, and willfully transport in interstate commerce a motor vehicle, knowing the same to be stolen, to wit: a 1970 Ford belonging to and stolen from Dick Strauss Ford in Richmond, Virginia, on January 21, 1978, all in violation of Title 18, United States Code, Section 2312.

Because sufficiency of the evidence is not an issue only a brief summary of the evidence need be given at this point. The evidence showed that defendant was present on the grounds of Fitzsimmons Army Medical Center in Aurora, Colorado, on January 31, 1978. A car which defendant identified as his raised the suspicion of various military officers because it was a civilian car, a 1970 Ford, bearing military license plates. Military cars, the only cars which should legally bear military license plates, are painted distinctive colors. The only military cars not painted distinctive colors are those used by various military investigative units, but these cars use the license plates of the state in which they are used.

In response to a request for identification and information about the ownership of the car, the defendant produced an automobile registration form for a Chevrolet, explaining that such a form was interchangeable with a form for a Ford. Shortly after this, the defendant and the car were taken into custody. The defendant was questioned by various military law enforcement agents and the car was searched.

Defendant was released by military officers after some 10 hours. Shortly thereafter he was stopped by an officer of the Aurora Police Department because of suspicions relayed to the department by the military police; he was subsequently arrested after the police department had received information from an NCIC (National Crime Information Center) computer check that the car had been stolen earlier in Richmond, Virginia. The Aurora Police Department then notified the FBI which proceeded to investigate the incident for a possible Dyer Act violation.

Defendant gave various accounts of how he came into possession of the car and the military license plate, saying that he had the military plate because he was a special agent for the Marine Corps and later stating to an FBI agent that his brother-in-law was "Chief of Staff" and had arranged for the military plate. The license was subsequently determined to belong to the Colorado National Guard. Defendant also said that he had borrowed the car from a car dealer in North Carolina and later told the FBI agent that he bought it from a car dealership in Richmond, Virginia.

Prior to trial defendant moved to suppress "all property seized as a result of an unlawful search of a vehicle used by the defendant at the time of his arrest by local and military law officers," and to suppress "from use in evidence in this case the results of the search, (and) the interrogation of the defendant." (I R. 2-3). An evidentiary hearing was held on the motion and at the time the defendant specified exactly what evidence he wanted to suppress. This included "(a)nything that was within the automobile or on the person of Mr. Matthews." (II R. 97).

The motion to suppress was denied and defendant's trial and conviction followed. On appeal defendant argues that the trial court erred (1) in ruling that defendant did not have standing to challenge the search of the car; (2) in holding that defendant was lawfully arrested by the military police; and (3) in upholding the searches of the car and defendant's person and in refusing to suppress tangible evidence and statements said to have been obtained in violation of his Fourth Amendment rights.

I

At the hearing on the motion to suppress, the trial judge sua sponte raised the question of defendant's standing to challenge the lawfulness of the search of the car. The court questioned the defendant's standing to assert privacy rights in stolen property, (II R. 93-94), and finally opined that defendant lacked standing to claim any violation of Fourth Amendment rights with respect to the search of the vehicle. (Id. at 94-95). The defendant relies on Simpson v. United States, 346 F.2d 291 (10th Cir.) as support for his standing to press his Fourth Amendment claim.

We are mindful that doubt may exist as to the validity of Simpson in view of the statements in the Supreme Court's opinion in Rakas v. Illinois, 439 U.S. 128, 141 n.9, 99 S.Ct. 421, 429 n.9, 58 L.Ed.2d 387. However in the instant case the trial court, while indicating that standing was lacking, nevertheless ruled on validity of the search of the car in question. Since the record and this ruling on the merits are before us we need not consider the standing question and instead turn to the merits of the claims.

II

In pressing his Fourth Amendment claims, defendant argues that he was arrested by the military police, that this arrest was made without a warrant or probable cause and was unlawful, and that subsequently unlawful searches occurred of his person and the car so that the evidence resulting from these searches (the Army license plate Plaintiff's Ex. 3, the Chevrolet registration form Plaintiff's Ex. 4, and the buyer's order form Plaintiff's Ex. 5) were improperly in evidence, as was testimony concerning another registration form, for another person, taken from defendant's wallet. And defendant argues that testimony about statements obtained as a result of this unlawful arrest should have been suppressed. (Brief of Appellant 27-28).

Further defendant contends that the custody of the Aurora police was also a result of the original unlawful arrest so that again evidence obtained such as statements during that custody should likewise be suppressed as the fruit of the poisonous tree. (Id. at 29-30).

a. The military custody

Defendant does not contest the legitimacy of the very initial questioning which occurred, conceding that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, justified this action. (Brief of Appellant, 21-22). He does contend that he was unlawfully "arrested" by being taken to the M.P. station at the direction of Sergeant Sullivan after the initial on the scene investigation was unable to satisfy the M.P.'s as to the ownership of the car. (Brief of Appellant, 22).

There was no warrant for an arrest of defendant. Defendant says that the basis for the arrest was mere suspicion concerning the vehicle in light of defendant's inability to prove to the police that the car was his. Failure of the registration form to match the car and the presence of army license plates on the car were insufficient to establish probable cause, especially in light of defendant's cooperative conduct, his presenting a driver's license, and the absence of any report that the car was stolen. The officers thus detained defendant on "mere suspicion," which in itself is insufficient to justify arrest under Henry v. United States, 361 U.S. 98, 101, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (Brief of Appellant, 24-26).

The Government says that the initial detention was justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. It never really concedes that defendant was then arrested but states that, "assuming" that defendant was arrested and that evidence was obtained as a result of the arrest, the military officials had probable cause to arrest the defendant under the standards set forth in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. ³

An examination of the facts in each particular case is necessary to determine the existence of probable cause. See Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 412, 9 L.Ed.2d 441. The first military person to come in contact with the vehicle was Specialist Dean who thought the car was "unusual" because it was a civilian car with military plates. The car had a dealer sticker in the window and other decals, further indication that it was not a military vehicle. He reported the car to the desk sergeant at the military police station. (II R. 6-9).

The desk officer, Sgt. Sullivan, sent Specialist Masker, a military policeman, to check out the car. While Specialist Masker was investigating the vehicle (looking for a military decal on the outside of the car to determine what post the vehicle was from) the defendant approached and identified the car as his. (II R. 22-23). In response to a request for identification, specifically a military "log book" used for record keeping, the defendant produced only a registration form for a Chevrolet, explaining that the registration was interchangeable between vehicles. (II R. 23-24). The registration aroused Spec. Masker's suspicions, not only because it was for a Chevrolet rather than a Ford, but also because it appeared to be altered since it was typed in several different forms of typing rather than the usual method of one type. Defendant also produced his driver's license. Spec. Masker called the desk Sergeant, Sgt. Sullivan, to have a military police investigator continue the investigation since defendant had nothing to demonstrate ownership of the car, thus indicating the car might be stolen. (II R. 24-27).

Sergeant Sullivan contacted the military police...