United States v. Chadwick

• Decision Date: 19 August 1969
• Docket Number: No. 144-68.,144-68.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Garry M. CHADWICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

415 F.2d 167 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Garry M. CHADWICK, Defendant-Appellant.

No. 144-68.

United States Court of Appeals Tenth Circuit.

August 19, 1969.

COPYRIGHT MATERIAL OMITTED

John A. Babington, Albuquerque, N. M. (John Quinn, U. S. Atty., with him on brief), for plaintiff-appellee.

Douglas T. Francis, Albuquerque, N. M., for defendant-appellant.

Before MURRAH, Chief Judge, and LEWIS and HOLLOWAY, Circuit Judges.

MURRAH, Chief Judge.

Appellant Garry M. Chadwick was convicted at jury trial for violation of the Dyer Act, 18 U.S.C. § 2311. On appeal, he first contends that a federal officer failed to arraign him before the nearest available United States Commissioner "without unnecessary delay", as required by Rule 5(a),¹ Fed.R.Crim.P., and that incriminating statements made to the federal officer during the alleged delay were consequently inadmissible.

Following the explicit teachings of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 (1948); and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), it has been repeatedly asserted that the purpose of Rule 5(a) is to prevent prearraignment detention of an arrested person for the purpose of securing a confession and to have such person fully advised of his rights by a judicial, instead of an enforcement, officer.²

Courts have, however, generally recognized an exception to the applicability of Rule 5(a) to arrested persons in state custody for the simple reason that such persons cannot be conveniently arraigned while in state custody.³ Interviews of persons in state custody by federal officers have been permitted and extra-judicial statements made during such interviews have been generally held admissible, provided, of course, they are otherwise constitutionally admissible, see Thomas v. United States supra, and provided also that the interviews and resulting confessions are not in pursuance of a collusive "working arrangement"⁴ between state and federal officers whereby the salutary purposes of Rule 5 are subtly circumvented. If, from an objective appraisal of the surrounding circumstances, it appears that an arrested person is detained in state custody for the purpose of allowing federal officers to obtain a confession before he is taken to a commissioner for arraignment in accordance with Rule 5, the confession is ipso facto inadmissible.⁵

Our facts tell a familiar story. Chadwick was stopped at approximately 11:30 o'clock, Saturday night, March 2, 1968, in Gallup, New Mexico, by a state policeman because his car's license plates were expired. The state officer took Chadwick to the sheriff's office and issued a citation for expired license plates. When Chadwick could not produce any evidence of ownership of the car, the state officer, as was his "custom" in cases like these, notified FBI Agent Walton about 12 midnight that he had stopped a car that he "might be interested in." Agent Walton arrived at the Sheriff's office about thirty minutes later, Sunday morning, and the state officer, in his own words, "turned the case over to Walton." Chadwick was taken before the Justice of the Peace, who found him guilty of driving with expired license plates and sentenced him to five days in the county jail when he could not pay the fine. It is not clear from the record whether Agent Walton was present before or during this hearing, but immediately thereafter he proceeded to question him about the ownership of the car, having identified himself and given the Miranda warnings. Chadwick explained that the car had been leased from a Mr. Undsinger at the Frolic Bar in San Francisco and that "he had nothing to hide." Agent Walton left to check his story.

On Monday morning, March 4, Walton received an official report that the car had been stolen. He again interviewed Chadwick, and after informing him of his rights, confronted him with the fact that he knew the car was stolen. Chadwick then freely confessed in detail how he stole and transported the car. On the morning of the following day, Tuesday, March 5, after receiving authorization from the United States Attorney to prosecute, Agent Walton filed a Dyer Act complaint and took Chadwick to the United States Commissioner, a block and a half away, where he was apparently informed of his rights in accordance with Rule 5(b).

Active cooperation between state and federal authorities in the enforcement of criminal laws, especially involving moving vehicles, should be encouraged. As Judge Hill put it in Butterwood, supra, 365 F.2d at p. 385: "The state is fully justified in calling on the superior facilities and communication network of the federal government to ascertain the identity of an out-of-state car." So, too, federal authorities are entitled to rely upon state authorities for information and cooperation relating to federal violations. See United States v. Coppola, supra. In the very nature of interstate crime, cooperation between local and federal authorities is essential and desirable. The courts have been careful not to unduly interfere with cooperative activities of state and federal law enforcement officers;⁶ indeed, only one case has come to our attention wherein a court has excluded a pre-arraignment confession because of an improper working arrangement between state and federal authorities.⁷

The burden is on the petitioner to show that state custody was designingly utilized to circumvent Rule 5(a). See United States of America v. Rose (6th Cir.) 415 F.2d 742. But the law will not condone a subterfuge; neither will it ignore realities. Though the working arrangement be proper, the mere fact of state custody should not in and of itself excuse compliance with Rule 5(a). We do not understand the case law to say that because a confession obtained pursuant to an improper working arrangement is inadmissible under Anderson, that Rule 5(a) (the embodiment of McNabb) is inapplicable simply because and so long as an arrested person is in state custody. When the reason for the inapplicability of a rule is nonexistent, the rule should be applied. Rule 5(a) should surely be honored, unless for some reason compliance is prevented by state custody. The spirit and purposes of the rule require no less.

We may take judicial notice that federal officers do not patrol the interstate highways or the streets enroute; there are no federal jails in the states; and committing magistrates are conveniently available. In a typical case, as it comes to us, the first detention is by local authorities on a state or local charge. As here, the federal officer is immediately notified when the local authorities have reasonable grounds to believe that a federal offense has been committed. As in our case, the state prisoner is customarily turned over to the federal authorities for investigation and, upon probable cause, for arraignment before a commissioner in compliance with Rule 5(a). In no case coming to our attention have the state authorities ever declined to freely surrender one in state custody, with or without charge, to be duly arraigned on a federal complaint. Under this prevailing practice, there is no impediment to the application of Rule 5(a).⁸ And in this typical case, there is no suggestion that Walton was not free to take Chadwick before the Commissioner a block and a half away at any time after the case was turned over to him; indeed, as free as if he himself had made the arrest on the streets of Gallup and had taken Chadwick to the county jail.

Rule 5(a) speaks in terms "of an arrested person" and no one has a constitutional or Rule 5(a) right to be arrested. Enforcement officers are under no duty to make an arrest even in the face of probable cause. See Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374. The arrest of an underling may very well frustrate the investigation and ultimate arrest of the ringleader. And we will not second guess enforcement officers in their arduous task of investigating crime and detecting criminals. Our function is to make sure that the investigative procedures are conducted within the framework of our accusatorial and not an inquisitional process.⁹

Persistent interrogation of a person in state custody after probable cause for an arrest on a federal charge until a confession has been obtained may very well, indeed, raise a factual presumption that state custody was utilized for the purpose of obtaining the confession before taking the accused to a magistrate in compliance with Rule 5(a). In such circumstances state custody becomes constructive federal custody for the purposes of the rule. See United States v. Rose, supra. The question then is whether arraignment was unnecessarily delayed. But we do not believe the presumption is justified in the facts of our case. Rather, we think Walton proceeded prudently and with due regard to the requirements of Rule 5(a).

Some interrogation to determine probable cause is certainly proper, and reasonable time taken to check an alibi is permissible.¹⁰ In Heideman v. United States, 104 U.S.App.D.C. 128, 259 F.2d 943, 945-946, Chief Justice Burger, when he was a circuit judge, announced a standard of police conduct, which seems entirely apposite to cases like ours:

"At the outset, the police, assuming they have probable cause for arrest, are entitled to ask the arrested suspect what he knows about a crime. If he denies knowledge, they are entitled to state to him what evidence they have and ask whether he cares to comment upon it. A strong circumstantial case which would satisfy the U. S. Commissioner, prima facie, might well be explained away by a suspect who knew what information the police relied on — hence leading to no charge being made. If the suspect continues to deny knowledge, the police are entitled to conclude the interview by saying, in effect, `Do you have anything

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