United States v. Phelps

• Decision Date: 17 June 1971
• Docket Number: No. 30237.,30237.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Howard C. PHELPS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

443 F.2d 246 (1971)

UNITED STATES of America, Plaintiff-Appellant, v. Howard C. PHELPS, Defendant-Appellee.

No. 30237.

United States Court of Appeals, Fifth Circuit.

May 14, 1971.

Rehearing Denied June 17, 1971.

Seagal V. Wheatley, U. S. Atty., Haskell Shelton, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellant.

James M. Speer, El Paso, Tex., for defendant-appellee.

Before GOLDBERG and DYER, Circuit Judges, and GROOMS, District Judge.

GOLDBERG, Circuit Judge:

This is an appeal from an order of the court below suppressing certain statements made by the defendant during police questioning. The government appeals,¹ claiming that the statements should have been admitted into evidence because (1) the defendant was not "in custody" at the time the statements were made and thus had no right to the protections afforded by Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694, and (2) even if the custodial interrogation provisions of Miranda did apply, the defendant was properly warned of his rights and voluntarily waived those rights when he made the statements in issue to the investigators.

The defendant, Howard C. Phelps, owned the Dyer Loan and Trading Company in El Paso, Texas. On November 20, 1969, a special investigator with the Alcohol, Tobacco and Firearms Unit of the United States Treasury Department, his assistant, and two El Paso police officers went to the defendant's place of business. The purpose of their visit was to determine if Phelps had complied with the record keeping provisions of certain federal firearms legislation because a previous visit in September of 1969 had disclosed certain irregularities. Immediately upon entering the defendant's store in November the officers noticed a weapon in a showcase which appeared to be a cut down rifle. The investigator asked to see the weapon and Phelps complied. Upon examination the investigator determined that it was an illegal weapon. The investigator then had his assistant advise Phelps of his Miranda rights. A standard rights form was read and Phelps was offered an opportunity to sign a printed waiver of rights. Phelps declined to sign the waiver, but indicated that he did not want a lawyer present and that he knew his rights.

The officers remained in Phelps' establishment, and he later made certain statements to them which were incriminating. At his subsequent trial, a motion was made to suppress the introduction of these statements into evidence. After a hearing on the motion to suppress, the trial court granted defendant's motion, and the government now appeals from that decision.

The government initially contends that Phelps was not "in custody," as that term is used in Miranda, and that his incriminating statements are therefore not subject to suppression on the ground that he did not voluntarily waive his Miranda rights. In essence, the government seems to argue that it was permissible for the investigators to continue to question Phelps after he refused to sign the Miranda rights waiver form because in this situation the Miranda protections were wholly inapplicable. We need not decide the appropriate procedures applicable to non-custodial interrogations, however, since we find that under the circumstances Phelps was in custody within the meaning of Miranda, and that he was therefore entitled to the full protections afforded by that decision.

In Miranda the Court said that it meant by the term custodial interrogation "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way." 384 U.S. at 444, 86 S.Ct. at 1612. In subsequent cases in this circuit, when called upon to further elucidate this concept, our court has consistently refused to formulate a general rule to distinguish custodial from non-custodial interrogations. Instead, we have deliberately followed a case-by-case approach. See United States v. Akin, 5 Cir. 1970, 435 F.2d 1011; United States v. Montos, 5 Cir. 1970, 421 F.2d 215. Nevertheless, piecing together the cases in this court and others, some things have become clear. For example, it is now certain that the mere fact that interrogation takes place in the familiar surroundings of the defendant's home or place of business rather than in the police station does not necessarily mean the defendant is not being subjected to custodial interrogation. Orozco v. Texas, 1969, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311. Nor must the defendant be under formal arrest prior to the interrogation in order for Miranda rights to arise. Windsor v. United States, 5 Cir. 1968, 389 F.2d 530. On the positive side, we have noted several significant factors which should be considered in determining whether or not a defendant is in custody. For example, probable cause to arrest, subjective intent of the police, focus of the investigation, and subjective belief of the defendant have all been deemed relevant. United States v. Montos, supra. However, throughout the decisions one of these factors has consistently impressed our court: whether or not the focus of the investigation has finally centered on the defendant. In Miranda itself the Supreme Court explained that "in custody" was a short-hand phrase for what Escobedo v. Illinois, 1964, 378 U.S. 478, 490, 84 S.Ct. 1758, 12 L.Ed.2d 977, described as an investigation which has focused on an accused. Similarly, in Windsor v. United States, supra, 389 F.2d at 533, we held that Miranda was applicable since

"The obvious purpose of the agents interrogating him was to elicit an incriminating statement for `the investigation was no longer a general inquiry into an unsolved crime\' but had begun `to focus on a particular suspect\' namely, Windsor."

In Bendelow v. United States, 5 Cir. 1969, 418 F.2d 42, 47, we said:

"We agree with the trial judge that after Hart (the police officer) discovered the alterations in the license the investigation focused upon Bendelow and a Miranda warning was in order before any statement by Bendelow would be admissible."

See also, United States v. Montos, supra, 421 F.2d at 223, where we held that the defendant had not been subjected to custodial interrogation because the investigation, rather than focusing on the defendant, was still in the general investigatory stage of "screening crime from mishap," and United States v. Akin, 5 Cir. 1970, 435 F.2d 1011, where we held that Miranda did not apply because the investigation was still at an early nonaccusatory stage.

Evaluating the present case in light of these prior decisions, we think that Phelps was entitled to the privileges and protections of Miranda. Four policemen with prior knowledge of a firearms infraction went to the defendant's place of business, and, as they testified, "were expecting trouble." They clearly sought out Phelps for the purpose of investigating him in particular for these specific crimes. This was no general on the scene questioning of bystanders to determine whether a crime had been committed; this was accusatory questioning. Moreover, if the investigation was not focused on the defendant when the officers entered the building, it certainly focused on him a few seconds later when the investigators discovered the illegal weapon in the showcase. We think that the presence of four officers in a man's place of business holding a weapon which they discovered on the premises and which they have announced is illegal, presents a situation which is intimidating enough to warrant the application of the Miranda privileges and protections. The investigators had probable cause to arrest Phelps, and he had reason to believe that they would do so. Once the officers found the illegal weapon the investigation focused on Phelps, and the panoply of rights enunciated in Miranda became applicable. Bendelow v. United States, supra.

The government's next contention is that even if, as we have found, Phelps was entitled to the Miranda protections, he waived those rights. There may be some merit in this argument. In Miranda the Court said:

"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." 384 U.S. at 473-474, 86 S.Ct. at 1627.

In the present case the record shows that immediately after the investigators discovered the illegal weapon, they properly...