United States v. Harrison

• Decision Date: 19 June 1972
• Docket Number: No. 71-1853.,71-1853.
• Citation: 461 F.2d 1127
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Wesley HARRISON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

461 F.2d 1127 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. James Wesley HARRISON, Jr., Defendant-Appellant.

No. 71-1853.

United States Court of Appeals, Fifth Circuit.

June 6, 1972.

Rehearing Denied June 19, 1972.

Robert J. Stamps, New Orleans, La. (Court Appointed), for defendant-appellee.

Gerald P. Gallinghouse, U. S. Atty., Robert L. Livingston, Michael H. Ellis, Mary Williams Cazalas, Asst. U. S. Attys., for plaintiff-appellee.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

WISDOM, Circuit Judge:

James Wesley Harrison appeals from his conviction on four counts of transporting forged money orders in interstate commerce in violation of 18 U.S.C. § 2314. We affirm.

On June 30, 1970, a warrant was issued for Harrison's arrest because of parole violations. The arrest warrant was secured by the New Orleans office of the Federal Bureau of Investigation at the request of the United States Board of Parole. It was not until November 9, 1970, when the F.B.I. finally located Harrison, that the arrest was made. On that date F.B.I. agents went to Harrison's apartment, found Harrison lying on a mattress, placed him under arrest for parole violations, and advised him of his rights. Harrison claimed that he was "Darryl Vail" but later admitted his identity.

After making the arrest, the F.B.I. agents searched the area around Harrison for weapons. In a cigar box on a table next to the mattress where Harrison was lying, the agents discovered a wallet. The wallet contained several pieces of false identification and a forged money order in the name of Samuel H. Collins.

Harrison was taken directly to jail. The following day, November 10, 1970, F.B.I. agents visited Harrison at the jail. Harrison was again advised of his rights although he refused to sign a waiver-of-rights form. After being questioned, Harrison signed a written confession, executed partially by an agent and partially by Harrison, to having cashed four forged money orders. On November 13, 1970, Harrison was taken before a United States Commissioner.

On February 25, 1971, the federal grand jury indicted Harrison on four counts of transporting forged money orders in interstate commerce in violation of 18 U.S.C. § 2314. Prior to the indictment, Harrison had unsuccessfully sought to have the evidence seized as a result of the search of his apartment on November 9, 1970, suppressed. After the indictment was returned, Harrison sought unsuccessfully to have his confession suppressed. A jury found Harrison guilty on all four counts, and he was sentenced to serve two years on each count with the sentences to run concurrently.

I.

On appeal, Harrison argues, first, that the district court erred in denying his motion to suppress the evidence seized as a result of the search on November 9, 1970.¹ Harrison contends that the search was conducted in violation of his Fourth Amendment right to be free from "unreasonable searches and seizures". We hold that the search was a reasonable search incident to a lawful arrest and that the district judge was correct in denying the motion to suppress the evidence seized as a result of the search.

In Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, the Supreme Court, overruling Harris v. United States² and United States v. Rabinowitz,³ severely limited the permissible scope under the Fourth Amendment of a search incident to a lawful arrest. The court said:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer\'s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee\'s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee\'s person and the area "within his immediate control"—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

395 U.S. at 762-763, 89 S.Ct. at 2040. See also Preston v. United States, 1964, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777;⁴ Peters v. State of New York, 1968, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917; ALI Model Code of Pre-Arraignment Procedure, § .230.5 and commentary, Proposed Official Draft No. 1.

In the present case, Harrison does not contest the lawfulness of his arrest as a parole violator. He does, however, argue that the arrest was used as a "mere pretext" for a search of his apartment which went beyond the bounds of Chimel. We believe, however, that the search was a reasonable search incident to a lawful arrest and did not exceed the limits of Chimel. Harrison was found lying on a mattress in his apartment. Within "the area from within which the arrestee . . . might gain possession of a weapon or destructible evidence", 395 U.S. at 763, 89 S.Ct. at 2040, was a table. On the table was a cigar box. It was reasonable for the agents to search this box— "`within Harrison's . . . immediate control'", 395 U.S. at 763, 89 S.Ct. 2034, for weapons. "A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested". 395 U.S. at 763, 89 S.Ct. at 2040. It was also reasonable for the agents to search the box, and as a result seize the wallet and its contents, for "destructible evidence . . . something that could be used as evidence against the arrestee", 395 U.S. at 763 and 768, 89 S.Ct. at 2043. Harrison, denying his true identity, asserted that he was "Darryl Vail". Since the agents were executing a warrant for the arrest of a person they did not know, issued at the request of the United States Board of Parole in Washington, it was reasonable for them to ascertain the arrestee's identity and seize destructible evidence which could help in establishing that identity, as long as the search and seizure was within the Chimel area.

The search did not uncover weapons or evidence of Harrison's true identity. The search yielded evidence—false identification and a forged money order— linking Harrison to another crime. The search and resulting seizure were, however, reasonable as a search of "the area from within which the arrestee . . . might have obtained either a weapon or something that could have been used as evidence against him". 395 U.S. at 768, 89 S.Ct. at 2043.

II.

Harrison argues that the district court erred in denying his motion to suppress his confession. He asserts two reasons why the confession should have been suppressed. First, Harrison contends that the confession should be suppressed under the McNabb-Mallory Rule.⁵ Second, Harrison asks for suppression because the confession was involuntary and the product of coercion.

As to the first alleged basis for suppression, Harrison's reliance on the McNabb-Mallory Rule is misplaced. The Rule dictates that, when an arrestee is not taken before a magistrate "without unnecessary delay", F.R.Crim.P. 5(a), evidence, including a confession, obtained during a period when Rule 5(a) is being violated is inadmissible. The application of the McNabb-Mallory Rule to exclude evidence presupposes the applicability of Rule 5(a) and its requirement that an arrestee be promptly taken before a magistrate. Rule 5(a) is not, however, applicable to persons arrested under a parole violator warrant.⁶ Rule 5(a) is inapplicable, first, because a parole violator is not technically "arrested" as Rule 5(a) contemplates. Rather, he is, while on parole, constantly in the custody of the Attorney General, and, when arrested under a parole violator warrant, he is merely placed in actual custody rather than allowed constructive custody under a parole status. See Zerbst v. Kidwell, 1938, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399; 18 U.S.C. §§ 4201-4210.

Congress has designed a comprehensive scheme regulating the granting of parole, the terms of parole, the retaking of a parole violator, and the procedure for revocation of parole. 18 U.S.C. §§ 4201-4210. We find no evidence that Congress intended for the Federal Rules of Criminal Procedure to modify the comprehensive statutory scheme regulating parole procedure.

Finally, the Supreme Court has analogized the status of a parole violator to that of an escaped prisoner. See Carlson v. Landon, 1952, 342 U.S. 524, 72 S. Ct. 525, 96 L.Ed. 547; Anderson v. Corall, 1923, 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247. As such a person arrested under a parole violator's warrant would not be accorded the protection of Rule 5(a). See Rush v. United States, 5 Cir. 1961, 290 F.2d 709. Because Rule 5(a) is inapplicable to Harrison as an arrestee under a parole violator warrant, Harrison cannot invoke the McNabb-Mallory Rule to exclude his confession. Harrison was in lawful custody under a parole violator warrant at the time of his confession to violations of 18 U.S.C. § 2314; the McNabb-Mallory Rule will not operate to exclude his confession. See United States v. Carignan, 1951, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48.⁷

Harrison further contends that his confession should be excluded because the confession was the involuntary result of coercion by federal agents. He testified at trial, and pursues his allegations on appeal, that the agents threatened him with investigation and prosecution of his ill sister. Harrison admits that he was advised of his rights. See Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The trial court found, on the basis of...