U.S. v. Mullin

• Decision Date: 10 June 1999
• Docket Number: No. 97-50904,97-50904
• Citation: 178 F.3d 334
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jason W. MULLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 334

178 F.3d 334

UNITED STATES of America, Plaintiff-Appellee, v. Jason W. MULLIN, Defendant-Appellant.

No. 97-50904.

United States Court of Appeals, Fifth Circuit.

June 10, 1999.

Joseph H. Gay, Jr., U.S. Atty., Mark Randolph Stelmach, Asst. U.S. Atty., San Antonio, TX, for Plaintiff-Appellee.

James Ashley Endicott, Jr., Harker Heights, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, BARKSDALE and BENAVIDES, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Military Police having arrested Jason W. Mullin, a civilian, after seeing him commit a crime at an open military base, primarily at issue is the legality of Mullin's subsequent interrogation and 21-hour detention by the Military Police prior to his being released to local police. We AFFIRM.

I.

In April 1996, Military Police were investigating a number of break-in burglaries of vehicles at a parking lot at Fort Hood, Texas. Fort Hood is an open post; in general, persons can enter freely without restrictions.

At 8:00 p.m. on 2 April, Military Policemen conducting surveillance of the parking lot observed Mullin and a female attempting to break into an automobile. The female was later identified as Mullin's sister, Teresa Bronner, a private in the United States Army, who was stationed at Fort Hood but had an apartment in the adjoining city of Killeen, Texas.

When Military Policemen approached Mullin, he fled. They apprehended him shortly thereafter and took him to the Military Police station at Fort Hood.

Bronner, who remained in her vehicle as Mullin fled, was apprehended and taken to the Military Police station; her vehicle was impounded. She was read her rights, requested an attorney, was released to her unit, and was placed on barracks restriction.

At the station, Mullin told the Military Police that he was "Jason J. Boe", age 16 and homeless. When Sergeant Hatfield, who was investigating the burglaries, arrived, he told Mullin that he was a military police investigator; displayed his credentials; and, prior to questioning Mullin, advised him of his rights, using the section for civilian suspects on the military's rights warning form. Mullin responded that he understood those rights and did not request a lawyer.

Sergeant Hatfield talked to Mullin about the incident that evening, other break-ins, and the misuse of a bank debit card taken during one of them. When the card misuse occurred, the bank automatic teller machine photographed the perpetrator. Sergeant Hatfield showed the photograph to Mullin, noting that the person pictured was dressed identically to Mullin.

Because Mullin claimed to be 16, Sergeant Hatfield contacted the Texas Child Protective Services Agency; it refused to assist because the Military Police could not establish Mullin's identity or age. Sergeant Hatfield contacted the Bell County Juvenile Detention Center; it refused custody. And, the Sergeant contacted the local police (Killeen, Texas), knowing that they were investigating the debit card misuse; the police declined custody.

At 12:30 a.m. on 3 April, approximately four hours after his arrest, Mullin gave a written statement (still using the name "Jason Boe"), stating that he had broken into two vehicles, including the one witnessed by the Military Police; that he took the debit card from the first of the two vehicles; that a different female had helped in the first burglary; that Bronner was unaware of, and had nothing to do with, the other break-ins; that he did not know her last name or address and had met her at a store.

When Sergeant Hatfield ended the interview after 12:30 a.m., he instructed the watch manager that Mullin was a juvenile; that he was to be placed in a detention cell with the door open at all times; and that he was to have the opportunity to rest while the Military Police continued their investigation. The open cell had a restroom, a sink, and a shower.

The Military Police next searched Bronner's impounded vehicle. They discovered photographs of Mullin and Bronner, which indicated that he had known her for more than the claimed 24-hour period.

Around 1:30-2:00 a.m., Sergeant Hatfield returned to the station, had Mullin escorted back to the interview room, and readvised him of his rights. When confronted with the newly discovered photographs, Mullin stated that he had known Bronner for two or three weeks; that she had been involved in the burglaries; and that property stolen from the vehicles could be found in Bronner's apartment. Mullin continued to lie about his identity and age.

At 2:30 a.m., Sergeant Hatfield obtained Bronner's consent to search her apartment in Killeen. There, the Military Police found items stolen in the burglaries and Mullin's wallet, which provided his true identity.

At approximately 6:30 a.m., following the apartment search, Sergeant Hatfield again retrieved Mullin from the detention cell and readvised him of his rights, using Mullin's actual name. Mullin stated again that he understood his rights and did not request an attorney. Mullin gave his true identity and admitted that he and his sister, Bronner, were involved in the burglaries.

Mullin gave a second written statement around 7:00 a.m., admitting that: he worked with his sister on the vehicle break-ins; they used the stolen debit card to obtain cash; they kept the stolen property in Bronner's apartment; and he had lied in his earlier written statement.

Finally having confirmed Mullin's identity, Sergeant Hatfield conducted a criminal history check and discovered that Mullin was a convicted felon in California, on probation for assault with a deadly weapon. Sergeant Hatfield contacted California authorities to discuss extradition; but, they advised that "the bond was not high enough for extradition". Accordingly, Sergeant Hatfield concluded that he could not release Mullin to California authorities.

Later that morning, the Military Police provided the debit card evidence to the Killeen police. That afternoon, around 5:30 p.m., Mullin was turned over to them pursuant to a Texas arrest warrant for debit card misuse.

Following the state court charge, Mullin was charged in federal district court in November 1996 with the following misdemeanor offenses within the jurisdiction of the United States at Fort Hood: conspiracy with Bronner to commit theft of personal property, 18 U.S.C. § 371 (count 1); such theft from vehicles, 18 U.S.C. § 661 (counts 2, 3, 4, and 5); and knowingly entering Fort Hood for the purpose of committing such theft, 18 U.S.C. § 1382 (count 6).

After seeking unsuccessfully to suppress evidence (including the statements at issue here), followed by a jury trial before a magistrate judge, see 18 U.S.C. § 3401, Mullin was found guilty on all six counts. He was sentenced to concurrent terms of ten months imprisonment on counts 1 through 5, and to a consecutive term of six months imprisonment on count 6. The district court affirmed. Mullin began serving his federal sentence in February 1999, following incarceration on his state sentence.

II.

Mullin does not challenge his conviction on count 5, pertaining to the 2 April break-in observed by the Military Police. But, for the other five counts, he challenges his convictions, claiming that, on three alternative grounds, his statements given the Military Police were inadmissible: the Military Police lacked authority to detain and interrogate him; the statements were not voluntary; and his arrest violated the Posse Comitatus Act.

A.

Regarding the authority of the Military Police to arrest, detain, and question him, Mullin maintains that, on these facts, Military Police had only "citizen's arrest" authority; and asserts that, accordingly, after the Military Police observed the break-in and properly arrested him, they should have surrendered him to civil authorities immediately.

1.

Acknowledging that there is no express statutory authority for the arrest at issue, the Government claims it can be inferred from the trespass statute Mullin was convicted under on count 6, 18 U.S.C. § 1382, discussed infra. The Government's contention is less than half-hearted. We need not decide whether, on the facts before us, Military Police had statutory authority to arrest Mullin; at the very least, they could make a citizen's arrest. As noted, Mullin concedes this.

The Texas Code of Criminal Procedure states:

A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

TEX.CODE CRIM. PRO. art. 14.01 (West 1979) (emphasis added). Restated, although Military Police are not designated peace officers under TEX.CODE CRIM. PROC. art. 2.12, they can make an arrest when Texas law authorizes such an arrest by a "private person". See United States v. Johnson, 815 F.2d 309, 313 (5th Cir.1987) (discussing such authority concerning federal secret service agents); United States v. Garcia, 676 F.2d 1086, 1093 n. 22 (5th Cir.1982), vacated on other grounds, 462 U.S. 1127, 103 S.Ct. 3105, 77 L.Ed.2d 1360 (1983) ("Of course, an employee of the Parks and Wildlife Department may, like any other private citizen, effect a citizen's arrest. A private citizen may arrest without warrant a person who has committed a felony or offense against the peace in the arresting person's presence or within his or her view"); Sanchez v. State, 582 S.W.2d 813, 815 (Tex.Crim.App.1979) (federal border patrol agent could arrest individual for public drunkenness when Texas law authorizes such an arrest by a private citizen).

In this regard, counsel for Mullin stated at oral argument that, because the Military Police observed Mullin breaking into a vehicle, they had probable cause to arrest him; that the arrest was proper; and that this is the reason why, as noted, he is not challenging his conviction...