United States v. Ward

• Decision Date: 13 November 1973
• Docket Number: No. 72-3176.,72-3176.
• Citation: 488 F.2d 162
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Portsche WARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

488 F.2d 162 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Portsche WARD, Defendant-Appellant.

No. 72-3176.

United States Court of Appeals, Ninth Circuit.

April 5, 1973.

On Hearing November 13, 1973.

James L. Vonasch (argued), Seattle, Wash., for defendant-appellant.

Irwin Schwartz, Asst. U. S. Atty. (argued), Stan Pitkin, U. S. Atty., Jerald E. Olson, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.

Before CHAMBERS and TRASK, Circuit Judges, and SCHNACKE*, District Judge.

On Hearing En Banc November 13, 1973.

SCHNACKE, District Judge:

Defendant was convicted of knowing possession of a false Selective Service registration card, 50 U.S.C. App. § 462(b)(5).

The evidence and defendant's stipulations in the trial court fully support the court's written findings that defendant had manufactured a false identity for himself under an assumed name, and that, as part of the scheme, he obtained and completed a falsely made Selective Service registration certificate which he had in his possession at the time of his arrest. The contention that the evidence is insufficient to support the charge is totally without merit.

The principal contention on this appeal is that the court below erred by receiving in evidence the false documents carried by defendant at the time of his arrest, and in denying defendant's motion to suppress directed to that evidence. The precise basis upon which defendant relies has not been succinctly stated either here or below, but the contention appears to be that the false documents were seized from, or involuntarily produced and displayed by defendant at a time when he was, or thought he was, under arrest, and prior to the time he was given the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).

The evidence, taken most favorably to the government, fails to support the contention.

FBI agents wanted to question defendant privately concerning some federal fugitives. No federal charges were outstanding against defendant. The agents knew defendant had been using the name "Gerald Clayton Washburn". While driving about in an unmarked car they saw defendant alone in a car and signalled him, by siren, to pull over, which he did. The agents approached his car, identified themselves, stated that they wanted to interview him about the fugitives and asked him to identify himself. Defendant asked if he was under arrest, and was told he was not. Defendant produced a driver's license in the name of Washburn and was told by an agent there was no such person. Defendant then handed the agent a group of cards, as though to prove the agent wrong.

This was a mistake, because the top card was a Selective Service registration card also issued in the name of Washburn. Defendant was then placed under arrest for the crime here asserted.

The investigating officers stopped defendant to seek information from him, not to arrest him. Officers must be allowed to exercise their ingenuity and judgment, in the light of their training and experience, in deciding when, where, how, and even with what flair or dramatics they question a witness they expect to be reluctant. It was entirely reasonable, and certainly no invasion of any right of defendants, to decide to question him when they found him alone, rather than at his residence (under the view of those being investigated) or at the office of the attorney for whom he worked.

Defendant complains most vigorously of the fact that he was signalled to stop by the siren of the FBI car. This certainly led him to believe that law enforcement officers wanted to see him, and might well have caused him to wonder if he were to be arrested. But when he asked if he was under arrest, he was told that he was not, and thereafter, he produced the false identification documents. It is implicit in the rulings of the trial judge that he found, on evidence conflicting but adequately supporting the findings, that up to that time there was no arrest, no search, and no compulsion, but rather a voluntary display of the counterfeit identification.

It is made plain by Miranda, supra, at pp. 477-478, 481, 86 S.Ct. at p. 1629, that its limitations were not designed to "hamper the traditional function of police officers in investigating crime". The evidence here obtained during investigation was properly received. See Lamb v. United States, 414 F.2d 250 (9th Cir. 1969).

The name a person is using, like his voice or his fingerprints, is a publicly displayed characteristic. Compelling the giving of handwriting or voice samples is not violative of the Fourth or Fifth Amendments. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 99, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). However, the view we take of the case makes it unnecessary to consider whether Dionisio and Mara have application.

The judgment of conviction is affirmed.

TRASK, Circuit Judge (dissenting):

I respectfully dissent. In my opinion the F.B.I. agents acted unreasonably in stopping appellant's car for the purpose of interrogating him. The stop violated appellant's Fourth Amendment rights against unreasonable searches and seizures and unreasonably infringed on appellant's right as a motorist to be free from arbitrary disruption of unrestricted lawful travel. Terry v. Ohio, 392 U. S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

There can be no question that appellant's motion to suppress was directed at all evidence obtained by the government as a result of the stop—identification documents, fingerprints, handwriting exemplars and testimony of what appellant said and did during the stop. The majority opinion ignores the legality of the stop issue determining that appellant's primary argument is without merit—that the evidence should have been suppressed because a Miranda warning was not given soon enough. I am also unpersuaded by appellant's interpretation of Miranda and the warning requirement under the circumstances of this case. This court should not bypass a consideration of the legality of the stop, however, merely because appellant has raised that issue with less vigor. If the stop was illegal, then the evidence obtained as a result of the stop should have been suppressed.¹

The stop of a vehicle can be an unreasonable seizure within the meaning of the Fourth Amendment because it intrudes on a driver's reasonable expectation of the right to proceed lawfully along the public streets and highways without molestation by authorities except for cause. Beck v. Ohio, 379 U.S. 89, 94-95, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). And that cause may be no less than a founded suspicion. United States v. Mallides, 473 F.2d 859 (9th Cir., 1973). When federal agents pull a motorist off the road by use of a siren there has been a seizure even though the agents only intended to make a routine investigation. The question must be raised in every stop case whether the seizure was reasonable under the Fourth Amendment. In determining the reasonableness of such a stop, the courts must weigh the need for police action against the inconvenience and intrusion which the stop entails. Terry v. Ohio, supra; United States v. Leal, 460 F.2d 385 (9th Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 154, 34 L.Ed.2d 146 (1972).

With these general principles in mind, a review of the facts of this case is crucial in assessing the reasonableness of the challenged stop. The evidence at the suppression hearing established that:

(1) F.B.I. agents knew where appellant lived and had known for a number of months prior to April 4, 1972.

(2) The agents knew appellant\'s car by make, model, color, year and license number.

(3) The agents presumably knew appellant had worked as a typist for a practicing lawyer, but no effort was made to contact the appellant at that office or through the attorney.

(4) The agents knew that appellant was using the name Gerald Clayton Washburn and had known for a number of months. Appellee acknowledges that it is not a crime in itself to assume a false identity.

(5) The agents knew that appellant had a Washington driver\'s license in the name of Gerald Clayton Washburn and had seen a copy of the driver\'s license in the state\'s records prior to April 4, 1972. (Washington driver\'s licenses have the driver\'s picture on them.) The agents were also aware that there were birth records in Seattle of a Gerald Clayton Washburn who had died as a child several years prior to April 4, 1972.

(6) Prior to April 4, 1972, the agents surveilled Ward on different occasions at his residence and wanted to interview him regarding a federal fugitive, William Ayres, who had been indicted in 1970 by a federal Grand Jury, but not in the presence of appellant\'s friends or acquaintances.

(7) On April 4, 1972, agents Woodlieg and Clark were driving around Capitol Hill with two other agents who were new to Seattle. The agents went by appellant\'s residence where appellant was spotted in his Volkswagen. The agents followed appellant to a co-op and then followed him after he left the co-op, catching up with him at a nearby intersection at a stop sign. The agents then turned on the siren in their unmarked car. Appellant turned around to look at them and they motioned him to go around the corner and stop. Appellant turned the corner and pulled over to the side of the road into a parking place. The agents stopped in the street behind appellant\'s Volkswagen but about five feet from the curb.

(8) All four F.B.I. agents exited the car and approached appellant. Agent Woodlieg testified that he and the other agents identified themselves, informed appellant that they wanted to interview him about federal fugitives and asked appellant to identify himself, already knowing that appellant was using the name Washburn and had a driver\'s license in the name Washburn. Appellant produced the driver\'s license and agent Woodlieg informed appellant that Washburn did not exist

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