United States v. Harris, 71-1220

• Decision Date: 23 February 1972
• Docket Number: 71-1221.,No. 71-1220,71-1220
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: UNITED STATES of America, Appellant, v. Leroy HARRIS, Jr., Appellee. UNITED STATES of America, Appellant, v. Albert Joseph LONG, Appellee.

453 F.2d 1317 (1972)

UNITED STATES of America, Appellant, v. Leroy HARRIS, Jr., Appellee.

UNITED STATES of America, Appellant, v. Albert Joseph LONG, Appellee.

Nos. 71-1220, 71-1221.

United States Court of Appeals, Eighth Circuit.

January 12, 1972.

Rehearing and Rehearing Denied February 23, 1972.

Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., Bert C. Hurn, U. S. Atty., Charles E. French, Asst. U. S. Atty., Kansas City, Mo., for appellant.

Ronald Sokol, Kansas City, Mo., for appellee.

Before GIBSON, BRIGHT and ROSS, Circuit Judges.

Rehearing and Rehearing En Banc Denied in No. 71-1220 February 23, 1972.

GIBSON, Circuit Judge.

In these two cases, consolidated here on appeal, the Government appeals under 18 U.S.C. § 3731 from orders entered by the District Court for the Western District of Missouri suppressing as evidence certain handwriting exemplars taken from defendants prior to their being charged with federal crimes, on the basis that the taking of the exemplars violated the defendants' Fourth Amendment rights. Although there is a common question underlying both of these appeals, the facts of each are sufficiently different to warrant separate discussion.

United States v. Harris—No. 71-1220

Defendant Leroy Harris is charged with unlawfully taking a letter from the United States mails in violation of 18 U.S.C. § 1702; he has executed a consent to proceedings under the federal Juvenile Delinquency Act.

Harris lives with his mother at 3015 Forest, Kansas City, Missouri, a rooming house where his mother is landlady. On August 6, 1970, the State of Missouri sent an unemployment check payable to Roger Mays, at the above address; Mays was a former tenant of the rooming house, but was not living there at the time. Prior to August 10, 1970, the check was negotiated at a local grocery store by an unknown individual, at which time the check bore the endorsement on the reverse side of "Roger Mayes" followed by the endorsement of "Leroy Harris."

After the check was reported missing, postal inspectors called on the defendant at his home and informed him that they were investigating the theft and forgery of the check. They then asked him to give them handwriting samples using his own name and the name of Roger Mays. He was not informed that he had the right to refuse this request. He complied with the request, provided the samples, and this prosecution followed. At the time Harris was questioned, his mother and stepfather were present in the home.

United States v. Long—No. 71-1221

Defendant Long was indicted on two counts of violating 18 U.S.C. § 495, forging and cashing a United States treasury check payable to another; count II (cashing the check) has been dismissed.

According to the stipulated facts of this case, a United States treasury check was mailed to one Malvin T. Harris; Mr. Harris denied receiving the check. The check was negotiated at a liquor store. Clerks at that store informed Secret Service agents that the check was cashed by an unknown person in the company of the defendant Long. The clerks stated that Long was known to them and asked them to cash the check for the other person.

The Secret Service agents then went to Mexico, Missouri, in an attempt to locate Long. Inquiry of the local police revealed that there was an outstanding state arrest warrant for Long, and the local police, accompanied by the Secret Service officers, arrested him on the state warrant. Once in custody, at the local police station, the defendant was asked by the Secret Service agent to provide handwriting samples, which he did; no warnings of any kind were given at this point. After he had provided the exemplars, defendant Long was then advised of his Miranda rights. He refused to talk and demanded that an attorney be provided; no attorney was provided. The state charges were later dismissed.

Based on the above facts, the trial court concluded that Long's Fourth Amendment rights had been violated and granted the defense motion to suppress the handwriting exemplars. See, United States v. Long, 325 F.Supp. 583 (W.D. Mo.1971). In the case of defendant Harris, the trial court, by a different judge, felt that consistency with the Long case also required suppression.

The question before us, a question to which the Supreme Court has not yet spoken, is whether law enforcement officers must give a person warnings of his Fourth Amendment rights prior to obtaining a handwriting exemplar from him. While there are no appellate Fourth Amendment handwriting exemplar cases we have found, other Fourth Amendment case precedent in the Circuit Courts of Appeals is mixed; but in general these cases have held that no warnings of Fourth Amendment rights are required where the person is not in custody and there are no other coercive circumstances present which might render a consent to search involuntary; and conversely, where the defendant is in custody and has received full Miranda warnings (though not specifically directed to the Fourth Amendment), it has been held that consent to search may be voluntarily given. See, in general: Gorman v. United States, 380 F.2d 158 (1st Cir. 1967); Byrd v. Lane, 398 F.2d 750 (7th Cir. 1968), cert. denied, 393 U.S. 1020, 89 S.Ct. 625, 21 L.Ed.2d 564 (1969); Government of Virgin Islands v. Berne, 412 F.2d 1055 (3d Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 96, 24 L.Ed.2d 87 (1969); United States ex rel. Combs v. LaVallee, 417 F.2d 523 (2d Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1150, 25 L.Ed.2d 413 (1970); United States v. Goosbey, 419 F.2d 818 (6th Cir. 1970); United States ex rel. Harris v. Hendricks, 423 F.2d 1096 (3d Cir. 1970); Leeper v. United States, 446 F.2d 281 (10th Cir. 1971); United States v. Noa, 443 F.2d 144 (9th Cir. 1971). To the contrary, see Perkins v. Henderson, 418 F.2d 441 (5th Cir. 1969).

On the other hand, it has been held in several cases that where the suspect is in custody, has received no Miranda warnings, and is thus subject to the inherently coercive circumstances of custodial interrogation, a warning of Fourth Amendment rights is necessary to insure that a consent to search is informed and voluntary. See Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649 (1951) (Judge Clark dissenting); United States v. Nikrasch, 367 F.2d 740 (7th Cir. 1966); Bretti v. Wainwright, 439 F.2d 1042 (5th Cir. 1971); Bustamonte v. Schneckloth, 448 F.2d 699 (9th Cir. 1971) (state must show defendant gave consent for search, knowing that consent could be withheld). But see, United States ex rel. Lundergan v. McMann, 417 F.2d 519, 521 (2d Cir. 1969) (defendant while in custody of officers may voluntarily consent to search, though no warning similar to Miranda warnings were given).

As a preliminary matter, we note that the Government has suggested, though not very strenuously, that there is really no Fourth Amendment question in this case, that the taking of the handwriting exemplars should be considered in light of the Fifth Amendment, and that the Supreme Court has decided that such takings do not violate the Fifth Amendment, citing Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). It is true that in Gilbert a companion case to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Supreme Court held that the taking of handwriting exemplars from a defendant who was in custody at the time violated neither his Fifth Amendment privilege against self-incrimination nor his Sixth Amendment right to counsel. However, no Fourth Amendment question was raised in that case; and moreover, it appears that Gilbert had received substantial warnings as to his rights prior to the taking of the exemplars, though perhaps they were not specifically directed to the Fourth Amendment. See People v. Gilbert, 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365, 376 (1966).

We conclude that the taking of the handwriting exemplars in these cases was a search and seizure under the Fourth Amendment. "A search implies an examination of one's premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action." Haerr v. United States, 240 F.2d 533 (5th Cir. 1957) (emphasis added). As noted in Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966), "Such testing procedures plainly constitute searches of `persons,' and depend antecedently upon seizures of `persons,' within the meaning of that Amendment." It is clear that the officers were seeking evidence which would connect the defendants to a crime which it was known had been committed. This evidence could not be obtained in the absence of direct cooperation from the defendants. It certainly was not in "plain view," nor was it anything which the defendants had knowingly exposed to the public. The postal inspector who investigated the case against defendant Harris testified that had Harris refused to give the exemplars, "there wouldn't have been a whole lot that I could have done except went away without having handwriting exemplars." It seems difficult to escape the conclusion that the taking of the handwriting exemplars could be accomplished only by a search and seizure of the defendants' persons in the Fourth Amendment sense. The question remains of whether this intrusion was reasonable under the Fourth Amendment.

In Schmerber v. California, supra, the Supreme Court held that obtaining blood samples from a defendant constituted a search and seizure. While it could conceivably be argued that the taking of handwriting exemplars differs from taking blood samples in that it does not involve any intrusion beneath the body's surface, this, though a substantial distinction, does not appear to be a determinative one. The search is still for evidence of guilt, the evidence must be obtained from the person of the suspect himself,¹ and it involves some intrusion into the privacy of the person which the Fourth...