U.S. v. Wilson

• Decision Date: 13 March 1978
• Docket Number: No. 77-5203,77-5203
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry Don WILSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 392

569 F.2d 392

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Don WILSON, Defendant-Appellant.

No. 77-5203.

United States Court of Appeals, Fifth Circuit.

March 13, 1978.

Jim J. Hatcher, Gainesville, Tex., M. P. Duncan, Decatur, Tex., for defendant-appellant.

Roby Hadden, U. S. Atty., T. J. Baynham, Jr., John H. Hannah, Jr., Asst. U. S. Attys., Tyler, Tex., for plaintiff-appellee.

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

Before COLEMAN and FAY, Circuit Judges, and KING, ^* District Judge.

COLEMAN, Circuit Judge.

The Grand Jury for the Eastern District of Texas charged that Jerry Don Wilson, a person previously convicted of a felony, did knowingly and unlawfully receive an 8mm Mauser bolt action rifle which had been transported in interstate and foreign commerce, a violation of Sections 922(h) and 924(a), Title 18, United States Code. ¹

A plea to the jurisdiction was overruled. Motions to suppress the rifle as evidence and to suppress a post arrest confession were also denied. The defendant then stood trial to the Bench and was found guilty as charged. He appeals, raising here the same issues that were unsuccessfully presented below.

In 1973 the Gainesville, Texas, police department informed the Bureau of Alcohol, Tobacco and Firearms, a division of the United States Treasury Department (ATF), that Jerry Don Wilson had firearms in his possession. Wilson's FBI records revealed that he had been convicted of statutory rape and of burglary. Nothing of any significance resulted from this 1973 report. It was not until 1976 that the ATF, in a one night effort, took up the trail.

On August 18, 1976, ATF agent Griffin received information that Wilson was carrying a firearm while at work as a security guard in the Sherwood Shores area of Texas. About a week later, August 26, the same informant told Griffin that he had seen Wilson with a weapon in his possession. The reliability of the informant does not appear of record.

In the meantime, Sergeant Bordner, of the Texas Board of Private Investigators and Private Securities Agencies, received a complaint that Wilson had a criminal record and was armed. Again, there is no indication in the record that this informant was known to be reliable.

Bordner contacted the ATF to determine if an investigation of Wilson was pending. After consultation, Griffin and Bordner decided to conduct a joint state-federal investigation of Wilson.

About eleven o'clock, p. m., August 27, Wilson was spotted, sitting in his security car with the door ajar and the dome light on. ATF agent Logan and Texas agent Bordner approached the car on the pretense of asking directions to a residence in the vicinity but with the real purpose of ascertaining if Wilson had any weapons in his possession. Caster, a resident of Sherwood Shores, was sitting in the car with Wilson. Logan testified that he saw what "appeared to be" the butt of a shotgun sticking from under the seat on the defendant's side of the car. However, he made no arrest and testified at the suppression hearing that he took this course because he had no tangible proof as to whether the gun (if it was a gun) belonged to Wilson or to Caster. By radio he reported the incident to his fellow ATF surveilling officers, Griffin and Spies.

Surveillance continued. Logan frankly admitted that the officers were hoping to apprehend Wilson transporting the gun across the nearby Red River bridge into Oklahoma, as he was known to frequent a place at the Oklahoma end of the bridge.

Past midnight, about one o'clock, Logan was listening to transmissions on his CB radio, when a voice was heard shouting that the Sherwood Shores security patrolman had shot away the back end of his car. Upon contact with this individual, however, there was no visible injury to the vehicle.

In any case, the ATF officer said, "We have got to stop this", and all the law men began searching for Wilson. About ten minutes later they found him and Caster. Approaching with a drawn gun, Logan identified himself as a federal officer and frisked Wilson. The car was inspected. No gun was found.

Although Wilson was not formally told that he was under arrest, the District Court found, and we agree, that an arrest was, in fact, accomplished.

The next question is the validity of the arrest.

The District Court held that the arrest had been made with probable cause. Our survey of the proof indicates that this finding was without adequate evidentiary support. The information received by the various officers prior to the night of the arrest is of no help because it was not shown to have come from a previously reliable source. The report of the car having been shot into must stand in the same class because prior to Wilson's arrest the officers saw that the back end of the car had no visible damage. Finally, when the arresting officer had first seen "what appeared to be" the butt of a shotgun, he was in doubt as to whether "the gun" was in the possession of Wilson or Caster and consequently had made no arrest.

The validity of the arrest depended on what the officer knew of his own knowledge, had personally observed, or had reasonably trustworthy information about at the time of the arrest not what he might have learned later. ² We are compelled to hold that at the time the agent drew the gun on Wilson and arrested him, probable cause for the action did not exist.

Soon after the arrest, officers Spies and Griffin arrived at the scene. Spies read Wilson the Miranda warnings. In response to Spies' questioning about the possession of a weapon, Wilson denied owning a shotgun but replied that he had an 8mm Mauser rifle in his pickup at his residence. Spies asked if he would take the officers to get it. Wilson agreed to do so.

Spies and Bordner accompanied Wilson to his home. Upon arrival at his residence, Spies cautioned Wilson that he did not have to let the agents have the gun and that it could be used in evidence against him. To which warning Wilson replied that he wanted "to do the right thing". Wilson opened the truck door, and Spies reached for the weapon.

Spies, Bordner, and Wilson returned to the location where Wilson had initially been detained. Spies again gave the Miranda warning and "officially placed Wilson under arrest". Upon further questioning, Wilson admitted that he had obtained the Mauser in the spring of 1975 in Woodbine, Texas.

Griffin and Spies took Wilson to jail where he was again advised of his rights. Wilson waived his rights and confessed to the possession of a shotgun and the rifle and to having previously been convicted of rape and of burglary.

I The Fruits of the Poisonous Tree

We next consider Wilson's argument that the weapons and confession obtained subsequent to his illegal arrest were inadmissible as fruits of the poisonous tree, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

We must inquire " 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint' ", Wong Sun v. United States, supra, 371 U.S. at 488, 83 S.Ct. at 417.

Evidence is admissible where the "connection between the arrest" and the means through which the evidence was secured "had 'become so attenuated as to dissipate the taint' ". Id. at 491, 83 S.Ct. at 419.

Where the taint arising from an invalid arrest has dissipated before a voluntary consent to search or prior to a voluntary confession, the evidence so uncovered is admissible. United States v. Owen, 5 Cir. 1974, 492 F.2d 1100, cert. denied, 419 U.S. 965, 95 S.Ct. 227, 42 L.Ed.2d 180 (search); Bretti v. Wainwright, 5 Cir. 1971, 439 F.2d 1042, cert. denied, 404 U.S. 943, 92 S.Ct. 293 30 L.Ed.2d 257 (search); Phelper v. Decker, 5 Cir. 1968, 401 F.2d 232 (search); Thomas v. United States, 5 Cir. 1967, 377 F.2d 118, cert. denied, 389 U.S. 917, 88 S.Ct. 246, 19 L.Ed.2d 273 (confession); Rogers v. United States, 5 Cir. 1964, 330 F.2d 535, cert. denied, 379 U.S. 916, 85 S.Ct. 265, 13 L.Ed.2d 186 (confession).

The critical question is whether the consent or other action was such an intervening act of free will that it purges the evidence of the taint of the unlawful invasion. Courts must not only examine the voluntariness of the confession but whether the statement or other action was a sufficient act of free will to eliminate the taint of the illegal arrest, Brown v. Illinois, 422 U.S. 590, 599, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Moffett v. Wainwright, 5 Cir., 1975, 512 F.2d 496, 502; see Thomas v. United States, supra, 377 F.2d at 120; Rogers v. United States, supra, 330 F.2d at 541.

There are well established guidelines to aid in determining whether the connection between the illegal arrest and the confession or search has become so attenuated as to dissipate the taint and ensure the admissibility of the evidence. Among the factors to be considered are (1) the temporal proximity of the arrest to the procurement of the evidence; (2) the presence of intervening circumstances between the arrest and the discovery of the evidence, e. g., giving of Miranda warnings, guidance of an attorney; (3) circumstances surrounding the arrest, e. g., intensive questioning, continuous interrogation, coercion and other official misconduct; Brown v. Illinois, supra, 422 U.S. at 603-04, 95 S.Ct. 2254; United States v. Owen, supra, 492 F.2d at 1107; Phelper v. Decker, supra, 401 F.2d at 237-238; see Moffett v. Wainwright, supra, 512 F.2d at 502-503. Of course, the voluntariness of the consent or confession is a threshold requirement, Brown v. Illinois, supra, 422 U.S. at 604, 95 S.Ct. 2254.

The absence or presence of one of these factors is not a per se indication of free will sufficient to break the causal connection between the illegality of the arrest and the evidence sought to be...