U.S. v. Ritchie, 93-1329

• Decision Date: 21 September 1994
• Docket Number: No. 93-1329,93-1329
• Citation: 35 F.3d 1477
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert James RITCHIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1477

35 F.3d 1477

UNITED STATES of America, Plaintiff-Appellee, v. Robert James RITCHIE, Defendant-Appellant.

No. 93-1329.

United States Court of Appeals, Tenth Circuit.

Sept. 21, 1994.

Michael G. Katz, Federal Public Defender, and Stephanie B. Boyer, Asst. Federal Public Defender, Denver, CO, for defendant-appellant.

Henry L. Solano, U.S. Atty., and Kyra Jenner, Asst. U.S. Atty., Denver, CO, for plaintiff-appellee.

Before SEYMOUR, Chief Judge, McKAY, and BALDOCK, Circuit Judges.

SEYMOUR, Chief Judge.

Defendant Robert James Ritchie was convicted on four counts resulting from an armed robbery of cash from an army base in Colorado. A jury convicted Mr. Ritchie of robbery within a special territorial jurisdiction in violation of 18 U.S.C. Sec. 2111, use of a firearm during the commission of a crime of violence in violation of 18 U.S.C. Sec. 924(c), assaulting, resisting, or impeding a military law enforcement officer in violation of 18 U.S.C. Secs. 111(a)(1), (b) and 1114, and theft of a motor vehicle in violation of 18 U.S.C. Sec. 2119. Mr. Ritchie asserts on appeal that the district court erred by denying his motion to suppress evidence and by imposing restitution as a part of his sentence. We affirm the denial of the motion to suppress, and we remand to the district court with instructions to vacate the restitution order. ¹

I.

Most of the facts surrounding the seizure of Mr. Ritchie are not in dispute. Important differences in the parties' versions of events are noted where relevant. On March 29, 1993, an assailant matching the description of Mr. Ritchie and later identified as Mr. Ritchie, robbed Private Rodney Stevens, an army cashier, of $36,000 in cash as Stevens was taking the money from the Army Finance Command Center to another building on the Fort Carson Military Reservation in Fort Carson, Colorado. Wearing the military uniform of a staff-sergeant, grade E-6, ² and wielding a short-barreled shotgun, the assailant ordered Stevens and his military police escort, Private David Blonke, to hand over the cash box. Along with the $36,000, the cash box contained ten twenty-dollar bait bills that were paper-clipped together and kept in the side of the cashier's box. The Army had previously recorded the serial number of these bait bills to aid in tracing the bills in the event of robbery or theft.

At gunpoint, the robber ordered Stevens and Blonke to Blonke's nearby police car, obtained the keys, and fled in the car. He then drove a short distance before leaving the police car and entering a two-door gray Datsun with distinctive markings. Blonke ran after the gunman as he fled and was able to identify the license plate number of the Datsun when the robber switched cars. Within hours of the incident, the FBI traced the getaway car through the department of motor vehicles and learned it was a Datsun 240-Z registered to Mr. Ritchie of nearby Colorado Springs.

The FBI immediately began their investigation of Mr. Ritchie, and later that afternoon several agents stopped Mr. Ritchie, driving a different vehicle, in a mall parking lot to ask him some questions. ³ Mr. Ritchie admitted owning the identified Datsun but denied having used it that day. Driving his own vehicle, Mr. Ritchie led the agents back to his residence and showed them his Datsun. It matched the description and the license plate of the getaway car used by the assailant. The FBI agents did not arrest Mr. Ritchie at that time.

The next day FBI Agent Benedict Cruise drove to Denver to obtain search warrants for Mr. Ritchie's residence and car while other agents kept Mr. Ritchie and his house under surveillance. In possession of warrants issued by a U.S. Magistrate Judge in Denver, Agent Cruise drove toward Colorado Springs to execute the warrants. A few minutes prior to Agent Cruise's actual arrival at Mr. Ritchie's home, the agents surveilling the house contacted Agent Cruise by radio and told him that Mr. Ritchie had begun backing out of his garage. ⁴ Agent Cruise advised them to tell Mr. Ritchie that he was en route with search warrants and to ask Mr. Ritchie to wait there so he could be present during the search. Before Mr. Ritchie left his premises, several FBI agents blocked his path with their vehicles. Without any guns drawn, the agents asked Mr. Ritchie to exit his vehicle. They performed a quick pat-down search and explained the purpose of the stop. The agents did not formally arrest Mr. Ritchie, and it is undisputed that they did not administer Miranda warnings at this time. Mr. Ritchie testified at the suppression hearing that he felt "under apprehension." Rec., supp. vol. I, at 116. He also testified that, when informed that Agent Cruise was en route with search warrants, "I suggested that I would go ahead and sign a waiver, stating that they could search me, the house, my storage area, anything they wanted...." Id. Mr. Ritchie did sign a consent to search form.

Agent Cruise arrived on the scene approximately five to ten minutes after the initial detention to find Mr. Ritchie sitting in a lawn chair in his front yard and three or four agents standing in the yard talking. Agent Cruise introduced himself, informed Mr. Ritchie that he had warrants to search the house and car, and told him that the other agents were going to begin the search. He asked Mr. Ritchie if he would come inside the house because Agent Cruise and another agent wanted to talk to him. Agent Cruise testified that Mr. Ritchie's demeanor was "[r]eserved, calm, almost as if he found it kind of humorous." Rec., supp. vol. I, at 85. According to Agent Cruise, Mr. Ritchie said "he'd be happy to" go inside and talk. Id.

Once inside, Agent Cruise and Mr. Ritchie sat in lawn chairs facing each other, and another agent sat against the wall to take notes. The other FBI agents searched the house and car. There is some debate as to the exact conversation that followed. Agent Cruise testified that he intended to do a pat-down search for weapons and asked Mr. Ritchie, "What do you have in your pockets?", to see if Mr. Ritchie had any weapons. Id. at 87. According to Agent Cruise, before he could do the pat-down Mr. Ritchie pulled some U.S. currency out of his front pants pocket and handed it directly to him. Agent Cruise had not expected to receive any currency. He placed the money on his briefcase, which was on the floor, and proceeded to ask Mr. Ritchie some questions. Agent Cruise told Mr. Ritchie about the robbery at Fort Carson, that a person meeting the description of Mr. Ritchie had been identified as the assailant, and that Mr. Ritchie's Datsun had been identified as the getaway car. He asked Mr. Ritchie where he was and what he was doing on the day of the robbery.

Mr. Ritchie's testimony is slightly different. He stated that Agent Cruise "accused [him] of robbing Fort Carson." Id. at 117. Mr. Ritchie also testified that Agent Cruise asked him several other questions prior to directly asking, "Do you have any money in your pockets?". Id. at 117. Mr. Ritchie testified that when he pulled the money out of his pocket, Agent Cruise took it from him. Id. at 118. On cross-examination, however, Mr. Ritchie contradicted himself by agreeing that he gave the money to Agent Cruise "on [his] own free will." Id. at 122. It is not disputed that Mr. Ritchie denied involvement in the robbery.

When Agent Cruise asked Mr. Ritchie if he would stand for a physical lineup, he replied that he would not unless he had an attorney present. At that point, Agent Cruise suspected that Mr. Ritchie wanted an attorney and told him the interview was over. Agent Cruise then reached down for the money Mr. Ritchie had given him earlier and compared the serial numbers of the five twenty-dollar bills to the serial numbers of the bait bills from the robbery cash box. The serial numbers of all five bills matched the bait bills. Agent Cruise then formally arrested Mr. Ritchie and gave him verbal Miranda warnings. The agents handcuffed Mr. Ritchie and took him into official custody.

II.

The district court found no Fourth Amendment or Miranda violation. It credited the testimony of Agent Cruise and, apparently assuming no arrest occurred until Mr. Ritchie was handcuffed, decided that discovery of the bait bills created probable cause justifying Mr. Ritchie's arrest. Mr. Ritchie contends the FBI violated his Fourth Amendment rights and his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He contends his initial detention in the driveway constituted an arrest, the agents lacked probable cause to make this arrest, and the agents failed to give him the required Miranda warnings. Mr. Ritchie argues that Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), is inapplicable on these facts and that, to the extent his actions or statements were voluntary or consensual, exploitation of his prior illegal arrest tainted any consent.

The government maintains that Mr. Ritchie was not "arrested" for Fourth Amendment purposes until after the agents discovered the bait bills. It does not argue that probable cause to arrest existed at the time the agents first detained Mr. Ritchie in his driveway. Rather, the government contends that (1) agents legally detained Mr. Ritchie pursuant to their valid search warrant under the rule in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), (2) Mr. Ritchie was not subject to custodial interrogation for the purposes of Miranda until after he was formally arrested by Agent Cruise, (3) Mr. Ritchie's statements were voluntary regardless of the applicability of Miranda, and (4) any error committed below is harmless.

We review the district court's factual findings under the clearly erroneous standard. United States v. Fernandez, 18 F.3d 874, 876 (10th Cir.1994). "The ultimate legal determination of reasonableness under the Fourth Amendment is subject to de novo review." United States v. Perdue, 8...