United States v. Brown
| Decision Date | 20 September 1972 |
| Docket Number | No. 71-1436.,71-1436. |
| Citation | 466 F.2d 493 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee BROWN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John W. Pattno, Cheyenne, Wyo., for defendant-appellant.
Jack Speight, Asst. U. S. Atty., Cheyenne, Wyo. (Richard V. Thomas, U. S. Atty., Tosh Suyematsu, Asst. U. S. Atty., Cheyenne, Wyo., with him on the brief), for plaintiff-appellee.
Before LEWIS, Chief Judge, DOYLE, Circuit Judge, and WINNER, District Judge.
The decision in this case has been delayed pending disposition by the Supreme Court of Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1. Although the factual backgrounds in Milton and the case at bar are comparable, the decision in Milton did not reach the merits, the high court concluding that no more than harmless error was therein involved. We do not have any aspect of harmless error and therefore are not aided by Milton.
Defendant was convicted after trial to the court in the District of Wyoming of making a false and fictitious statement likely to deceive a gun dealer in the acquisition of a firearm in violation of 18 U.S.C. § 922(a)(6). He contends that his conviction is premised on evidence obtained as the result of an unlawful police interrogation. The subject evidence was properly objected to at trial after a pretrial motion to suppress had been denied.
At about 2:35 a. m. on March 12, 1971, seventeen-year-old Danny Byers, a friend of defendant, was questioned by Casper, Wyoming city police. Byers informed the officers that defendant, who had been previously convicted of a felony, was in possession of a pistol. An hour later defendant was arrested at a Casper motel and charged with registering at the motel under a false name, a violation of a municipal ordinance. He was taken into custody, given the proper Miranda1 warnings, and indicated that he wanted to give no statement and did desire an attorney. He consented to a search of his motel room but the search produced nothing incriminating.
Notwithstanding defendant's clear indication that he did not wish to make a statement, at least three further attempts were directly made by Casper police to interrogate him. Although defendant made no statement, this police treatment was directly in contravention of the clear dictate of Miranda:
If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease . . .; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. 384 U.S. at 473, 474, 86 S.Ct. 1602, 1627.
The efforts of the police to obtain information from defendant through direct interrogatories having failed, the police then turned to Byers and "permitted" Byers to talk to defendant. The Captain of Police, testifying at the motion to suppress, described this event in his testimony:
Byers and defendant also testified at the hearing. Byers acknowledged that he had been told by police officers to find out where the gun was, that he had done so, and had given the information to the police. He stated that he did not ask where the gun was but was requested by defendant to get the gun and keep it until defendant got out. Defendant testified that Byers did ask him where the gun was and said he would get it and hide it for him. We do not pause to discuss any purported significance as to whether Byers obtained the information by direct question or otherwise. Form does not control the substance in determining the...
To continue reading
Request your trial
-
Holyfield v. State
...confidence of Holyfield because Jacobs was working directly as a police agent." The dissent overlooks the decision in United States v. Brown, 466 F.2d 493 (10th Cir.1972). This case clearly holds that it would be improper to place an undercover policeman in a prisoner's cell in the hope of ......
-
Com. v. Mahnke
...directly. If the defendant had shown that the group of kidnappers was 'functioning as an instrument of the police' (United States v. Brown, 466 F.2d 493, 495 (10th Cir. 1972); cf. Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)), or acting as an agent of t......
-
Com. v. Allen
...rules do not apply to the activities of a private citizen who is not " 'functioning as an instrument of the police' (United States v. Brown, 466 F.2d 493, 495 [10th Cir.1972]; cf. Coolidge v. New Hampshire, 403 U.S. 443, 487 [91 S.Ct. 2022, 2048, 29 L.Ed.2d 564] [1971] ), or acting as an ag......
-
State v. Manus
... ... Roman, 256 Cal.App.2d Supp. 656, 64 Cal.Rptr. 268 (Ct.App.1967). See also Suhay v. United States, 95 F.2d 890 (10th Cir. 1938), Cert. denied, 304 U.S. 580, 58 S.Ct. 1060, 82 L.Ed. 1543 ... Manus had not been arrested. He cites United States v. Brown, 466 F.2d 493 ... Page 287 ... [93 N.M. 102] (10th Cir. 1972), and Commonwealth v. Bordner, ... ...