United States v. Cavallino, 73-3334.

• Decision Date: 15 August 1974
• Docket Number: No. 73-3334.,73-3334.
• Citation: 498 F.2d 1200
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Anthony CAVALLINO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

498 F.2d 1200 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Anthony CAVALLINO, Defendant-Appellant.

No. 73-3334.

United States Court of Appeals, Fifth Circuit.

August 15, 1974.

Robert L. Moore, Asst. Federal Public Defender (court-appointed), J. V. Eskenazi, Federal Public Defender, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., J. Daniel Ennis, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.

KRAFT, District Judge.

Appellant, Ronald Anthony Cavallino (Cavallino), was indicted with John Edward Ames (Ames) and David Anthony Washburn (Washburn) for conspiracy to rob a federally-insured bank and for robbery of that bank.¹ His pre-trial motion to suppress was granted in part and denied in part. His motion for severance was granted and he was tried alone to a jury, which found him guilty. Following the imposition of sentence he has appealed, alleging error both in the trial and in the partial denial of his motion to suppress.

Cavallino first contends that the trial court erred in refusing to suppress his incriminating statements as the fruit of a "sham" arrest. We disagree.

Louisiana officers, having Cavallino under surveillance as a suspect in bank robberies in that state, observed him load a substantial amount of clothing in a car in what appeared to be evident preparation to depart with a female companion. That observation was communicated to their superior, who, aware of Cavallino's propensity to violate motor vehicle laws, directed the officers to follow Cavallino and arrest him, if they saw him violate the law. The officers did follow and, when Cavallino substantially exceeded the speed limit, they stopped him. Upon his refusal to produce his driver's license, they arrested him for both offenses, misdemeanors under Louisiana law. In these circumstances the trial court found, upon ample evidence, that there was probable cause to arrest Cavallino for the two offenses.

Appellant argues that the motive for his arrest was not to prosecute him for these offenses, but rather to interrogate him about bank robberies and that the principle of Mills v. Wainwright, 5 Cir. 1969, 415 F.2d 787, should be extended to hold this to be a "sham" arrest.

As appellant concedes, the underlying arrest in Mills, supra, lacked any causal basis and was truly a sham employed by the police as an investigatory device. Where probable cause for the arrest exists, however, the motivation is immaterial.

"Whether the arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it. . . ." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).

This court said, of a similar contention in United States v. Seay, 5 Cir. 1970, 432 F.2d 395, 402:

"Since the cause must be remanded, we deem it appropriate to comment on a contention raised in the briefs of the parties in this court. The subjective intention of the city police to use Seay\'s arrest only to hold him until federal officers could bring charges against him under the laws of the United States does not negate the objective validity of the arrest. If a police officer who makes a valid arrest thinks his jurisdiction will not ultimately continue with the processing of the arrest of a person, that thought on his part does not cause the arrest to then become illegal nor the charges to become pretextural or phony."

Appellant's second contention is that the trial court erred in refusing to suppress his incriminating statements relating to three Louisiana² bank robberies. He asserts that these were made in response to police interrogation after he had stated his desire to have a lawyer. Cavallino argues that once he expressed his desire to have a lawyer, a knowing and intelligent waiver of his Miranda rights was impossible, or, alternatively, that such a waiver could be found only if he expressly stated he no longer desired a lawyer.

We reject appellant's argument because the critical inquiry is whether the prosecution has sustained its heavy burden of establishing that Cavallino was fully informed of and understood his rights and whether, having once expressed his decision to exercise them, he later changed his mind and knowingly and understandingly declined to exercise them. Hill v. Whealon, 6 Cir. 1974, 490 F.2d 629; United States v. Anthony, 5 Cir. 1973, 474 F.2d 770; United States v. Collins, 2 Cir. 1972, 462 F.2d 792; United States v. Hopkins, 5 Cir. 1970, 433 F.2d 1041.

There can be no dispute that, as the trial court found, Cavallino was fully informed of his Miranda rights and fully understood them. Our review of the 427 page record of the proceedings on his motion to suppress reveals that he was first advised of his constitutional rights on the highway at the time of his arrest. He was again twice so advised at the police station, before any incriminating statement was made. Moreover, a sign posted in front of the detention cell block, in which he was temporarily confined, stated the same rights, as well as his right to use the telephone. There was testimony, too, to the effect that he had been "this route before" and knew "his rights", in apparent reference to his prior conviction and imprisonment for armed robbery, to which appellant testified.

The trial court found that, despite his earlier expressed wish to talk to an attorney, Cavallino later changed his mind and voluntarily, knowingly and understandingly forewent his right to consult with or have an attorney present and made the statements now challenged. Our review of the evidence indicates that it fully supports those findings.

About 6:30 P.M. on May 31, 1973, Sgt. Lyons had Cavallino brought from the detention cell to another room, advised him of his constitutional rights, which appellant said he understood, and then informed Cavallino that he wanted to talk to him about a certain local bank robbery. They conversed for twenty or thirty minutes, Sgt. Lyons recounting details to indicate to Cavallino that the police had a very knowledgeable informer and Cavallino stating that he knew nothing about any robbery. Finally Cavallino said he wanted to talk to an attorney, whereupon Sgt. Lyons immediately terminated the interview and Cavallino was returned to the "booking cage".

Cavallino's companion, a married woman with whom he lived, known as Miss Ketchim, had been brought to the police station at her request, because the car in which they were riding at the time of appellant's arrest was to be towed from the scene. She was not under arrest. Miss Ketchim asked to speak to appellant, who was again brought to a room to enable them to converse in privacy. Following that meeting of five to ten minutes Cavallino was returned to the "booking cage". Shortly thereafter, around 8:00 P.M., Cavallino sent a message to Sgt. Lyons that he wanted to speak with him. In the interval of about an hour following Sgt. Lyons termination of the earlier interview, Cavallino made no request to use the telephone.

Upon receipt of Cavallino's message Sgt. Lyons went to the "booking cage" and asked Cavallino what he wanted. He did not repeat the Miranda rights. Cavallino wanted to know what kind of a deal he could make, "if" he had done something and "if" he told about it. Sgt. Lyons told him he could make no deal. This conversation, interspersed with periods of silence, went on for nearly an hour, with Cavallino probing for possibilities of some deal on an "if" basis and Sgt. Lyons indicating his inability to make any deal and interjecting more details of the robbery to indicate to Cavallino the extent of the police informer's apparent knowledge. Cavallino made no incriminatory statements. Sgt. Lyons finally terminated the conversation, telling Cavallino that he was wasting Lyons' time, and walked away.

About half an hour later Miss Ketchim again asked to talk to Cavallino. The two were permitted to converse privately in a room for nearly ten minutes. At the conclusion of their conversation, about 10 P.M., Cavallino accosted Sgt. Lyons, who was nearby, and asked why Miss Ketchim was being held. Sgt. Lyons told him she was not under arrest and was not being held. Cavallino, who still had not availed himself of the right to use the telephone, told Sgt. Lyons that if Miss Ketchim was released he would tell them what they wanted to know.

Cavallino was then taken to another room. His constitutional rights were again read to him. With full knowledge and understanding of his rights he, nonetheless, told Sgt. Lyons and another officer that he had "pulled the job" in question with Washburn and Ames. He was placed under arrest on a warrant, which had arrived meanwhile, booked for robbery and transferred to the Detective Bureau at another police station. There, he was again read his constitutional rights, after which he orally recounted, with some hilarity, the details of three Louisiana bank robberies in which he had participated. Later, he signed written confessions to these robberies and a written waiver of his constitutional rights.

The trial court concluded that, after Cavallino first expressed his wish to see an attorney, he determined to and did engage in a course calculated to ascertain how much the police already knew and whether there were any prospects of some deal and whether, if he talked, he could limit the consequences of his admissions to the Louisiana crimes; that, having learned sufficient to decide what course he would pursue, he changed his mind about wanting to talk to an attorney and initiated the conversation embracing his incriminatory statements, which did not result from police interrogation. Waiver by a defendant of his constitutional right to consult with or to have an attorney present does not require an express statement or disavowal. Waiver may be inferred from the language, acts, conduct and demeanor of a...