U.S. v. Scharf, s. 77-3080

• Decision Date: 07 December 1978
• Docket Number: Nos. 77-3080,77-3148,s. 77-3080
• Citation: 608 F.2d 323
• Parties: UNITED STATES of America, Appellee, v. Russell Eugene SCHARF, Appellant. UNITED STATES of America, Appellee, v. Lionel Gilbert COOLIDGE, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 323

608 F.2d 323

UNITED STATES of America, Appellee, v. Russell Eugene SCHARF, Appellant.

UNITED STATES of America, Appellee, v. Lionel Gilbert COOLIDGE, Appellant.

Nos. 77-3080, 77-3148.

United States Court of Appeals Ninth Circuit.

Dec. 7, 1978.

As Amended March 29, 1979.

Rehearing Denied July 31, 1979.

Robert H. Whaley (argued), Spokane, Wash., for appellants.

Carroll D. Gray, Asst. U. S. Atty. (argued), Spokane, Wash., for appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before HUFSTEDLER, WRIGHT and KENNEDY, Circuit Judges.

KENNEDY, Circuit Judge:

On April 25, 1977 a robbery took place at a federally insured bank in Cheney, Washington. Appellants were convicted of crimes related to that incident after a jury trial. Coolidge was found guilty of violating 18 U.S.C. § 3 (1976), accessory after the fact to bank robbery. He contends that unconstitutionally obtained statements made by him were used against him at trial and that the evidence was insufficient to convict him as an accessory to the crime. Scharf was found guilty of violating 18 U.S.C. § 371 (1976), conspiracy to commit bank robbery. His principal claim is that his conviction rested on evidence gathered during an unconstitutional search of his automobile.

On the morning of the robbery three men in an automobile stopped at the Farmers and Merchants Bank in Cheney. While one remained in the car, the two other men entered the bank and took $6,900 at gunpoint. The robbers put the money in briefcases and fled in the waiting car. A Cheney police officer was near the bank when the robbery was reported, and he followed the robbers' car out of town until it disappeared from his view.

After losing sight of the escape car, the officer saw fresh tire tracks leading to a heavily wooded glen. A state patrolman had arrived to assist him. A few minutes later two vehicles (neither resembling the escape car) came out of the glen. One, a white and green four-wheel drive vehicle, turned and drove away from the officers. The officers stopped the second car, which was driven by the appellant Coolidge. The officers ordered Coolidge to lie on the ground and searched him for weapons. ¹ In response to their questions, Coolidge explained that he had been in the glen looking for land to purchase and that he had been assaulted there by an unknown person. No Miranda warnings were given before these statements. The escape car was later discovered abandoned in the glen.

At the officers' request, Coolidge agreed to follow them to the bank in his own car. There he gave both oral and written statements, essentially repeating his earlier explanations for his presence in the glen and of the alleged assault. No Miranda warnings were given prior to the oral statement at the bank. The officer who took the written statement testified at a suppression hearing that he had not given Miranda warnings but at trial he claimed that he had done so.

Coolidge was allowed to leave the bank. When he arrived home, he found his house surrounded by four police cars and eight police officers, some of whom were holding weapons. Not surprisingly, Coolidge agreed to get in a police car and to talk with F.B.I. agent Dieckman. During this questioning Coolidge changed his story and claimed he had been in the glen to purchase marijuana. No Miranda warnings were given.

Agent Dieckman came alone to Coolidge's home the following night and challenged Coolidge's story. Coolidge changed his story once again, stating he had gone to the glen to sell marijuana. No Miranda warnings were given.

Coolidge argues first that all of his statements resulted from questioning conducted in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), so that they were inadmissible at trial. We need discuss only the last two statements given to agent Dieckman, one during the forty-five minute interrogation in the police car and the other the next day in Coolidge's living room. The Government introduced these statements to show their inconsistency with Coolidge's prior admissions and to show his intent to hinder the investigation.

Whether the environment of the questioning is custodial so that a Miranda warning is required is governed by an objective standard. We must determine whether the "questioning (was) initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444, 86 S.Ct. at 1612; Lowe v. United States, 407 F.2d 1391, 1396 (9th Cir. 1969). Under this test we think that Dieckman's questioning of Coolidge in the police car was custodial. Coolidge had spent considerable time responding to police questions at the bank earlier that day. When he arrived at the front of his home that evening, Coolidge was surrounded by the officers, who remained on the scene while Dieckman questioned him in the police car. We think the suspect in the circumstances faced significant restraints and that he was not free to leave. His statements were the product of police interrogation conducted without the Miranda warnings required by his custodial status, and they must be suppressed.

We rule that the statements given to Dieckman during the interview in Coolidge's living room the next evening were also made under custodial conditions and accordingly must be suppressed for failure to comply with the Miranda rule. A police car was parked across from Coolidge's house at all times during the interview, and he had noticed police officers watching him while he was at a local tavern a few hours before Dieckman conferred with him at home. The intensity of the surveillance, the repeated...