United States v. Donahue

Decision Date02 June 1971
Docket NumberNo. 358-70.,358-70.
Citation442 F.2d 1315
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William Noel DONAHUE, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Michael P. Watkins, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., on the brief) for plaintiff-appellee.

Scott McCarty, Albuquerque, N. M., for defendant-appellant.

Before BREITENSTEIN and HILL, Circuit Judges, and LANGLEY, District Judge.

LANGLEY, District Judge.

The defendant-appellant, William Noel Donahue, was convicted by a jury of robbing a federally insured bank at Albuquerque, New Mexico, in violation of 18 U.S.C. § 2113(a) and (b), and has appealed. His contention is that the trial court erred in refusing to suppress evidence obtained in a search of his motel room without a warrant or valid consent and in permitting witnesses to identify the defendant at the trial after seeing him in an improper police line-up.

The evidence at the hearing on the motion to suppress is largely undisputed. The Fidelity National Bank of Albuquerque, New Mexico, a national bank insured by the Federal Deposit Insurance Corporation, was robbed on December 8, 1969. The robbery was accomplished by a lone male individual who approached a teller with a revolver and demanded money. The teller handed him some $2800.00 in bills, including five $20.00 bills the serial number of which had been recorded. After leaving the bank the robber was observed to enter a small white station wagon and drive off. Investigation developed that a vehicle of the same description belonging to a Sharon Fernandez, a friend of Donahue's, had been seen at a nearby service station where Donahue worked, and Donahue therefore became a suspect. On December 9, about 9 o'clock P. M., five Federal Bureau of Investigation agents went to Donahue's room at a motel and knocked on the door. After being told by Donahue to enter they opened the door and saw that Mrs. Fernandez and her daughter were also present in the room. They then identified themselves and asked Donahue if he would come out to their car so they could talk to him alone, to which he agreed.

Two of the agents remained with Mrs. Fernandez and talked to her but did not search the room. The other three went with Donahue to the car. There, one of the officers, Agent Cameron, asked Donahue his age, where he was from, and how long he had been in town, which Donahue answered. Agent Cameron thereupon advised Donahue that he was not required to answer any questions, that any statement he made could be used against him, that he was entitled to an attorney while they questioned him, and that he was not under arrest. He then told Donahue they wished to search his room and car and asked if he had any objections. Donahue replied that he had no objection and commented that if he did not consent "they would just get a search warrant." To this remark another officer present, Agent Jordan, replied that they might try to get one. Donahue then signed a written consent to the search of his room and car and an acknowledgment of his "Miranda rights," both of which had been read to him and given to him to read.

A search of the defendant-appellant's room uncovered a brown paper sack...

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11 cases
  • U.S. v. Rios
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 21, 1979
    ...and conclusions fairly and reasonably to be drawn from the evidence, are to be determined by the trial judge." United States v. Donahue, 442 F.2d 1315, 1316 (10th Cir.).14 We are not limited to considering only the evidence introduced at the suppression hearing. This court may also consider......
  • U.S. v. Recalde
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 10, 1985
    ...voluntarily. Mendenhall, 446 U.S. at 557, 100 S.Ct. at 1878; Schneckloth, 412 U.S. at 222, 93 S.Ct. at 2045; cf. United States v. Donahue, 442 F.2d 1315, 1316 (10th Cir.1971). In determining the specifics necessary to sustain the burden of showing that consent was voluntary, this court has ......
  • U.S. v. Axselle, 78-1213
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 31, 1977
    ...of the witnesses, the weight to be given the evidence, and the drawing of inferences are for the trial judge. United States v. Donahue, 442 F.2d 1315, 1316 (10th Cir.). In view of the procedure followed at the motel we cannot say that overhearing the first remark must be held willful. And a......
  • U.S. v. Alonso
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 16, 1986
    ...trial court's finding of probable cause is clearly erroneous, it must not be disturbed. Rios, 611 F.2d at 1344; United States v. Donahue, 442 F.2d 1315, 1316 (10th Cir.1971). There is some confusion in Alonso's brief as to whether he is challenging the posse deputies' detention or the sheri......
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