United States v. Gayden, 84-578.

• Decision Date: 20 May 1985
• Docket Number: No. 84-578.,84-578.
• Citation: 492 A.2d 868
• Parties: UNITED STATES, Appellant, v. Mark K. GAYDEN, Appellee.
• Court: D.C. Court of Appeals

492 A.2d 868

UNITED STATES, Appellant, v. Mark K. GAYDEN, Appellee.

No. 84-578.

District of Columbia Court of Appeals.

Argued December 19, 1984.

Decided May 20, 1985.

Daniel S. Seikaly, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Charles W. Brooks, Asst. U.S. Attys., Washington, D.C., were on brief, for appellant.

James M. Lenaghan, Washington, D.C., for appellee.

Before NEWMAN, TERRY and ROGERS, Associate Judges.

ROGERS, Associate Judge:

The government appeals the suppression of appellee's oral and written confessions, which the trial court found were obtained in violation of the Fifth Amendment. Because we conclude the oral confession was the product of an arrest made without probable cause and the written confession was obtained by exploitation of the illegal arrest, Dunaway v. New York, 442 U.S. 200, 216, 99 S.Ct. 2248, 2258, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 600-01, 95 S.Ct. 2254, 2260-61, 45 L.Ed.2d 416 (1975), we affirm.

I

The evidence presented at the suppression hearing established that on March 2, 1983, the police responded to a call about a shooting in the vicinity of the 700 block of 19th Street, N.E., and found a man who had been shot several times. The victim, identified as Bart Black, named Poochie and Rabino or Rabinol as his assailants. The Washington Area Law Enforcement computer showed 17 listings for Poochie, and the modus operandi section of the Metropolitan Police Department contained 21 listings for that nickname; there were no listings for Rabino or Rabinol. The police interviewed several of Black's friends for information about "a Poochie." One friend told Detective Helwig that he knew several Poochies and only one Rabino, who was also called Rabbit.¹ Another friend, Greg Torrell, told Helwig that Mr. Black knew appellee Gayden, who was nicknamed Poochie, and directed the officer to Gayden's home.

On March 10, 1983, around 11 a.m., Detectives Helwig and McGinnis went to Gayden's home. They told Gayden that they were investigating Mr. Black's death.² Gayden said that he knew Mr. Black, was disturbed by his death, and would help in any way possible to learn who was responsible. The officers asked Gayden to accompany them to the police station for questioning, but told him that he did not have to go. Gayden agreed, saying he would be happy to get everything cleared up. The detectives told Gayden's grandmother that it was unnecessary for anyone to go with him, and that Gayden would be back in approximately 15 minutes. The police then drove Gayden to the homicide office, arriving at approximately 11:30 a.m., and going directly into an interrogation room.³ Detective Helwig did not remove his gun when they entered the room.⁴

The first interview began at approximately 11:40 a.m. when Detective Helwig informed Gayden that he would like to take a statement of what Gayden knew. He told Gayden he could read and sign the statement, and that he was free to leave at any time. Gayden then related general information about the shooting, including the name of the alleged killer, Greg Torrell, who Gayden said had remained mute when asked about the murder. He based his information on what he had heard and denied any direct knowledge or involvement in the killing. The interview lasted until 1:05 p.m.

Detective Helwig began a second interview at 2:20 p.m. because he was dissatisfied with Gayden's first statement, which he thought contained inconsistencies, and because he thought Gayden was not telling all he knew. Helwig began the interview with the question: "Poochie, do you want to tell me the truth about Bart's murder?" In his second statement, Gayden admitted that he was present at the scene of the murder and described a 1978 beige LTD car that allegedly had been used to flee the murder scene and had caused damage to other cars. He also named several individuals who were present, including the alleged killer, "Turk" (Howard Owens), who owned the LTD car. This interview ended at 3:05 p.m.

From the beginning of the first interview to the conclusion of the second, Gayden was told repeatedly that he was free to go at any time and did not have to say anything. Helwig testified that at the conclusion of Gayden's second statement he would have been "happy to drive [Gayden] back right [then]." No offer was made however, although Detective McGinnis was going to Gayden's neighborhood to check the car mentioned in Gayden's second statement. During the time Detectives Helwig and McGinnis were checking the first and second statements, Gayden remained in the interrogation room; no one questioned him further, and he was alone most of the time. The door to the interrogation room was unlocked and may or may not have been open while Helwig and McGinnis went in and out. The interrogation room was located behind the anteroom in the back of the building, and any stranger in the anteroom would have required permission to be there, and any unfamiliar person walking through the homicide branch would have been questioned by police officials. When Gayden left the interrogation room, he was taken through a back door by Detective Helwig to the locked bathroom across the hall.

Because of inconsistencies between Gayden's first and second statements, Detective Helwig was dissatisfied with Gayden's second statement and decided to "stall." He checked the information about the car and conferred with Sgt. Daly and another police officer about Gayden's statements and the police investigation of the murder, including McGinnis' report that the LTD car had not caused damage to the parked cars at the murder scene. Helwig thought Gayden was lying, but still considered him a suspect and did not think he had probable cause to arrest him. Helwig suggested it might be a useful "technique" for another officer with whom Gayden had not established a rapport to confront Gayden. Sgt. Daly therefore reviewed Gayden's statements. Daly concluded Gayden was lying and went into the interrogation room and confronted him.

Sgt. Daly, accompanied by Detective Clark, entered the interrogation room and confronted Gayden, at approximately 5 p.m. Daly told Gayden that he knew he was lying, that he obviously had lied in the first statement and was lying in the second statement. He also told Gayden that the reason he knew Gayden was lying was because Mr. Black had not died immediately, had told the police about the murder, and had identified Gayden as the killer. At this point, Gayden made his third statement, admitting, "Yes, I shot him." A couple of minutes later, Daly informed Helwig that Gayden had confessed. Helwig and McGinnis immediately went into the interrogation room and advised Gayden of his Miranda⁵ rights for the first time. Gayden was then placed under arrest and waived his rights by answering "yes" to the questions on the "Defendant Suspect Statement." Gayden then made a fourth statement, which Helwig put in writing and Gayden signed.⁶ This interview ended at approximately 6:30 p.m.

Gayden did not testify at the suppression hearing. He called as witnesses his grandmother and Dr. Zeligman, a clinical psychologist who had administered intelligence and personality tests to Gayden. The psychologist testified, as an expert in intelligence testing, that Gayden was functioning in the borderline rank of intelligence, with an IQ of 78, and tended to become disorganized in threatening situations. He was of the opinion that Gayden did not believe he was free to leave the homicide office on March 10, was confused, and did not understand the consequences of waiving his rights.

The trial court suppressed Gayden's oral and written statements on Fifth Amendment grounds. A review of the evidence reveals, however, that "this case turns on proper application of policies underlying the Fourth Amendment exclusionary rule, not on the Fifth Amendment or the prophylaxis added to that guarantee by Miranda."⁷ Brown v. Illinois, supra, 422 U.S. at 606, 95 S.Ct. at 2263 (Powell, J., concurring). Thus, our initial inquiry is whether Gayden was "seized" within the meaning of the Fourth Amendment and, if so, at what point the seizure occurred. This is a question of law which we must answer based on our assessment of the evidence, United States v. Allen, 436 A.2d 1303, 1308 (D.C.1981); Giles v. United States, 400 A.2d 1051, 1054 (D.C.1979), while giving due deference to the trial court's findings of fact, which are supported by the evidence, surrounding Gayden's encounter with the police. Giles, supra, 400 A.2d at 1054; see Calaway v. United States, 408 A.2d 1220, 1225 (D.C. 1979).

A.

The Fourth Amendment applies to "seizures" of a person which do not result in a full scale arrest. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). It is well-settled that "not all personal intercourse between policemen and citizens involves `seizures' of persons. Only when an officer, by means of physical force or a show of authority has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Terry v. Ohio, supra, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16, cited in United States v. Allen, supra, 436 A.2d at 1309. This court has said there is a restraint of freedom when there is an actual or constructive seizure or detention which has been undertaken with the objective of effectuating an arrest and is so understood by the person being detained. Giles, supra, 400 A.2d at 1053 (quoting Jenkins v. United States, 161 F.2d 99, 101 (10th Cir. 1947)). Whether the officer announced or expressly disclaimed an intent to arrest is not determinative of whether an arrest has occurred, and neither is a defendant's subjective belief. Id. at 1054. The test is whether under all of the circumstances a "reasonable man" innocent of any crime would have thought he was not free to leave. See Hicks v. United States, 127 U.S.App.D.C. 209, 212, 382 F.2d 158,...