United States v. Fallon

• Decision Date: 03 April 1972
• Docket Number: No. 71-1642.,71-1642.
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Kearn FALLON, Defendant-Appellant.

457 F.2d 15 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. John Kearn FALLON, Defendant-Appellant.

No. 71-1642.

United States Court of Appeals, Tenth Circuit.

April 3, 1972.

Peter Adang, Albuquerque, N. M., for defendant-appellant.

Mark C. Meiering, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., and Ronald A. Ginsburg, Asst. U. S. Atty., on the brief), for plaintiff-appellee.

Before HILL, BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

Defendant was convicted by a jury on July 28-29, 1971, for violation of the Dyer Act. The charge was the interstate transportation of a stolen vehicle, a 1971 Jeep station wagon, with knowledge that it was stolen.

The defendant, who was then age 19, was arrested in Grants, New Mexico, on May 25, 1971, by a member of the Grants Police Force, Officer Monette. He was driving the subject 1971 Jeep station wagon on West Santa Fe Avenue or U. S. Highway 66 at the time. There were four other young people, two boys and two girls, accompanying him. The officer noticed the car and its occupants in heavy traffic and had some difficulty reaching them, but when he did so he ordered them to stop for a license and registration check. Defendant produced a valid Wisconsin driver's license, but had no proof of registration or ownership and because of this the officer requested that they follow him back to the police station so that a check could be run on the vehicle.¹ Defendant complied with the request, and the officer thereupon contacted the National Crime Information Center inquiring as to each of the occupants in the vehicle and the license plates. The response on this was negative. The officer, having become suspicious on close examination of the vehicle, pursued his investigation. He noticed that it had a recent paint job which in his words appeared to have been applied with a broom. He further said this is often associated with a stolen car. He checked the vehicle in quest of an identification number and discovered that the plate was not in its place. He returned to the station and asked defendant where the number was and was told by defendant that it had been removed, and when the officer asked, "Why," defendant said "I think it is probably stolen." At that point the officer removed Fallon to a separate room and advised him of his Miranda rights.

Following this advice defendant accompanied the officer to the vehicle and located the identification plate, searching through his clothing and belongings in order to find it. He handed it to the officer who again inquired through the Crime Information Center and learned that the vehicle was stolen.²

Following receipt of information that the automobile was reported stolen, defendant was placed under arrest and booked on state charges of misuse of registration plates and illegal possession of marijuana. It was then between 2:00 and 3:00 p. m. in the afternoon, whereas the original detention occurred at 12:30 p. m. The FBI Office in Albuquerque was telephoned and informed of the situation. However, the Special Agent from Albuquerque did not arrive until the next morning at about 9:30.³ FBI Agent Volney advised defendant of his rights and proceeded to interrogate him. Defendant merely repeated the account which he had given to Grants Officer Monette to the effect that he had bought the vehicle in Wisconsin for $750.00 and a rifle. He further told Agent Volney that he had received no registration, bill of sale or other evidence of ownership, and when asked by the Agent why not he stated that he figured the vehicle was stolen. The approximate time of this statement was 10:30 a. m. on May 26, 1971. Following the giving of this statement an FBI hold was placed on defendant at Grants and the authorities there were told that a federal charge would be filed. Such a charge was filed on May 28, and defendant was taken before the magistrate on May 29, or four days after his initial arrest.

A pretrial suppression hearing was held and the trial court denied the motion of defendant. At that hearing the officer testified that he had originally stopped defendant and his companions because they were hippies and because he thought they might be runaways. He also testified that he checked the vehicle and its occupants through the National Crime Information Center to find out if they were wanted since a couple of them had no identification and to find out whether the vehicle was stolen. He said that he thought that it might be stolen. The trial court ruled that 18 U.S.C. § 3501 was not applicable since the defendant was in lawful state custody through the time that he was interrogated by the FBI Agent. The court further found that there was no working arrangement between the state and federal officers whereby the detention could have been considered federal. The court further found that the interrogation was valid and that the requirements of Miranda v. Arizona were satisfied.

Defendant seeks reversal on these grounds:

1. That the defendant was arrested without probable cause and that the evidence which was obtained following his arrest was tainted and should have been excluded—that the statements made by defendant should have been suppressed;

2. That defendant was illegally detained because he was not taken before a magistrate during the five days that he was held in the Grants jail and hence that the statements obtained should have been suppressed;

3. That the statement made to Agent Volney should have been suppressed because it was given more than six hours after defendant's arrest and hence it was in violation of 18 U.S.C. § 3501;

4. That the defendant's Miranda rights were violated.

I. VALIDITY OF THE ORIGINAL INVESTIGATIVE DETENTION

The government relies on the New Mexico detention statute, §§ 64-3-11 and 64-3-1, N.M.Stat.Ann. (1953) which requires all operators of motor vehicles to exhibit registration and driver's license upon the demand of an officer. We need not determine whether an arbitrary arrest pursuant to this statute would be justified since there was some basis for the officer's, temporarily at least, detaining defendant and the occupants of the vehicle for the purpose of a license and registration check.

The fact that the occupants appeared to have been "hippies" in and of itself did not justify even a preliminary investigation, and it is doubtful whether the statute contemplates purely arbitrary stops, for even an investigatory detention must be based on reasonable ground, if not probable cause. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In United States v. Self, 410 F.2d 984 (10th Cir. 1969), this court approved such routine police detention and investigation. The facts in Self were almost identical with those presented here. In the case at bar the individuals and the vehicle were conspicuous. The occupants were young and the car was a new and very expensive one. Whether the unusual paint job was initially noticed is not clear from the record. Nevertheless, there are articulable facts which serve to render the limited investigation reasonable.

II. THE LACK OF RELATIONSHIP BETWEEN THE ARREST AND THE ADMISSIONS

The defendant's first inculpatory statement to the effect that the vehicle was "probably stolen" was given in connection with the officer's preliminary investigative check in which he sought to ascertain whether an offense had been committed. This statement, according to all the evidence, was given spontaneously, and after that the defendant voluntarily searched the vehicle and produced the identification plate from among his belongings. It was only after Miranda warnings had been given that the defendant stated that the Wisconsin license plate on the Jeep had been transferred from his old vehicle.

Accordingly, the assumption that the evidence which developed following the initial investigatory detention should have been ruled tainted and ought to have been suppressed has no merit. The decision of the Supreme Court in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), relied on by counsel, is wholly inapposite. The statement which was there held to have been tainted was obtained following an arrest without probable cause and under highly aggravated circumstances. This was a middle of the night invasion of the defendant's home and involved the breaking down of the door followed by pursuit of the accused to his bedroom where six or seven officers handcuffed him and then obtained the statement held by the Supreme Court to have been tainted by the illegal invasion. After reciting these facts the Supreme Court said:

* * * Under such circumstances it is unreasonable to infer that Toy\'s response was sufficiently an act of free will to purge the primary taint of the unlawful invasion. 371 U.S. at 486, 83 S.Ct. at 416.

The Supreme Court did not, therefore, hold that every admission or confession obtained after illegal arrest was thereby tainted so as to be subject to exclusion. Rather, the significance of the case is the Court's recognition that the exclusionary rule is to be applied to a confession in circumstances in which the confession is attributable to the unlawful arrest. Almost equally significant is the Court's indication that the taint of the arrest can be overcome if it is superseded by an intervening act of free will by the accused. A distinction is thereby drawn between absolute suppression of the fruits of an unlawful search and qualified suppression of a confession given following an unlawful arrest. Such distinction is not surprising because a search is ruled by the Fourth Amendment which is rigid and absolute in its terms, whereas the confession is governed by the privilege against compulsory self-incrimination standard of the Fifth Amendment which operates with at least some flexibility.

The cases which have considered Wong Sun have not always recognized the mentioned distinction.⁴ But most of the decisions have...