US v. Roberts

• Decision Date: 17 June 1996
• Docket Number: Criminal Action No. 95-00161-09-CR-W-3.
• Citation: 928 F. Supp. 910
• Parties: UNITED STATES of America, Plaintiff, v. Marilyn ROBERTS, Defendant.
• Court: U.S. District Court — Western District of Missouri

928 F. Supp. 910

UNITED STATES of America, Plaintiff, v. Marilyn ROBERTS, Defendant.

Criminal Action No. 95-00161-09-CR-W-3.

United States District Court, W.D. Missouri, Western Division.

June 17, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Patrick McInerney, United States Attorney's Office, Kansas City, MO, for plaintiff.

Phillip Greenfield, Rouse, Hendricks, German, May & Shank, Kansas City, MO, for defendant.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

SMITH, District Judge.

On May 10, 1996, the Honorable Robert E. Larsen, United States Magistrate Judge, issued his Report and Recommendation (the "Report") that determined, inter, that (1) a photo spread shown to Mark Lograsso was impermissibly suggestive, (2) Lograsso's identification of Defendant lacked independent reliability, (3) Defendant's arrest was pretextual, (4) Defendant's arrest was not supported by probable cause, (5) Defendant's arrest violated Rule 5(a) of the Federal Rules of Criminal Procedure, and (6) all information obtained during Defendant's detention was the result of coercion. Plaintiff has filed objections to the Report; the Court has reviewed the Report, the motions and responses that preceded the Report, the transcripts of the hearings held by Judge Larsen, and the Plaintiff's objections to the Report. The Court concludes that Judge Larsen's careful and thorough analysis of the law and his application of the law to the facts of this case are correct, and the Report is therefore adopted as the opinion of this Court. The Court reinforces Judge Larsen's legal conclusions with the following observations and comments.

Photo Spread

Based upon the record, there appears little doubt that the photo spread was impermissibly suggestive. The fact that Defendant was the only participant in the array that wore a paper suit and spit mask demonstrates this point. Beyond this, the varying ages and hair colors of the photos' subjects presents additional concerns, particularly in light of the nature of the crime in question and Agent Gasvoda's testimony that to avoid suggestiveness, one does not want a brunette suspect to be included in an array with only blonde participants. Tr. 295-96. Furthermore, as Judge Larsen aptly stated, suggestiveness of an array "does not depend upon the inventory of pictures the police department happens to have available as filler photos."

With respect to the identification's independent reliability, see Neil v. Biggers, 409 U.S. 188, 199-200, 193 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); United States v. Rundell, 858 F.2d 425, 426-27 (8th Cir.1988), the Court is persuaded that Judge Larsen's assessment of the identification's independent reliability is correct. In addition, the Court notes that Lograsso himself stated that he might not have been able to identify the Defendant if all of the women in the photo spread were blondes. Given the witness' admission that a non-suggestive array might not have resulted in identification of the Defendant, the Court cannot conclude that the witness' identification has independent reliability.

Probable Cause

There is no need to add anything to Judge Larsen's discussion of this issue. However, the Court feels compelled to respond to this discussion contained in footnote two of Plaintiff's Objections. The Court concludes that Plaintiff's intimation that it was somehow surprised by the topic of probable cause is not well-taken. The issue was raised at the November 9, 1995 hearing on co-defendant Maude Clarke's suppression motion. More importantly, prior to this Defendant's hearing, counsel for Defendant twice declared his intention to raise issues relating to the constitutionality of Defendant's arrest. Tr. at 3-4, 8. Judge Larsen indicated that he would keep the record open if additional evidence or testimony were needed. Tr. at 8-9. At the conclusion of the hearing, Judge Larsen adhered to his statement at the beginning of the proceeding and kept the record open. Tr. at 331. It does not appear the Plaintiff was blindsided by this issue.

Pretextual Arrest — The 20-Hour Hold

Subsequent to Judge Larsen's Report and Recommendation, the Supreme Court decided Whren v. United States, ___ U.S. ___, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), which held that the test for reasonableness of a search or seizure under the Fourth Amendment is objective and not subjective. The Court does not believe Whren to be applicable to this case because in Whren the defendants were arrested and charged after an allegedly pretextual search; here, the Defendant's arrest was nothing more than an investigative tool designed to coerce Defendant's cooperation in Plaintiff's effort to gather evidence. Moreover, the Court notes that Judge Larsen correctly forecasted and utilized an objective standard. Report and Recommendation at 44-45 ("the Court, if presented with the question, would adopt what has been termed the `absolute objective approach.'").

The Court also notes that the Plaintiff has directed the Court to an article written by Professor John Scurlock to demonstrate that "the concept of `arrest for investigation' in Missouri has been recognized for many years and the 20-hour rule likewise recognized as part of the practice." Plaintiff's Objections at 12 n. 8 (citing Scurlock, The Law of Arrest in Missouri, 29 UMKC L.Rev. 117, 127-29 (1961)). To clarify, Professor Scurlock actually stated that "`arrest for investigation' seems to have become an accepted institution, the legality of which would be beyond doubt if frequency of occurrence were the same as legitimation. But use does not make authority." Scurlock at 127. Professor Scurlock continued by opining that "an intention that the arrestee shall not be held on a criminal charge or brought before a judge would be manifestly in derogation of the arrestee's constitutional rights." Id. at 128. Thus, though there is no "iron-clad rule that the arresting officer must forthwith charge the arrestee with the commission of a determinate crime," the 20-hour hold was not intended to be an investigatory tool; "the evident design of the Twenty Hour Rule ... is to assure that no one shall be held in extended custody except upon process issued by a judge entailing the presentation of the arrestee before him...." Id. at 128-29. Although officers have obviously interpreted the rule as permitting "the apprehension of an individual for purposes of investigation, with the maximum period for which detention can endure for this purpose set at twenty hours," this is not what the rule is for. Here, there was never any interest in presenting Defendant to a judge; the sole purpose of the pick-up was to hold Defendant until she either cooperated or twenty hours expired. This is not permissible.

Rule 5(a)

The Court concurs in Judge Larsen's conclusion that the law enforcement officers were required to, but did not, comply with Rule 5(a).¹ In addition to the authorities relied upon by Judge Larsen, the Court adds the following statement of law as set forth by the Eighth Circuit:

The requirements of Rule 5(a) and the teachings of the Supreme Court in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) are designed to frustrate law-enforcing officers from detaining the arrested person for an unnecessary period of time to enable the officer to extract a confession from the arrested individual. But this salutary principle is not applicable where the person under arrest is in the custody and under the control of local and not federal officers, unless, of course, the state officers are acting at the direction of or in concert with the federal officers, or there is collaboration between the federal and state authorities.

United States v. Morris, 445 F.2d 1233, 1236 (8th Cir.), cert. denied, 404 U.S. 957, 92 S.Ct. 322, 30 L.Ed.2d 273 (1971) (citing cases) (emphasis added).

Accordingly, the Court grants Defendant's motion to suppress Lograsso's identification and all evidence obtained during her detention.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION TO SUPPRESS PHOTO IDENTIFICATION TESTIMONY AND ALL FRUITS OF THE UNLAWFUL ARREST

LARSEN, United States Magistrate Judge.

Before the court are defendant's motion and supplemental motion to suppress photo identification testimony on the grounds that (1) the photo spread was impermissibly suggestive, (2) the identifications lacked independent reliability, (3) defendant's arrest pursuant to a Missouri pick-up order was unconstitutional as it was a pretextual arrest and was not supported by probable cause and all of the fruits thereof are inadmissible, and (4) all evidence obtained during defendant's investigatory detention was coerced either by use of the Grand Jury subpoena or the length of the detention. I conclude that the photo array was impermissibly suggestive, Lograsso's identification was not independently reliable, defendant's arrest was not supported by probable cause, defendant's arrest pursuant to the Missouri 20-hour hold law was an unlawful pretext for investigative purposes, the government intentionally circumvented procedures in place to protect defendant's constitutional rights, Rule 5(a) applies to this case because of the working arrangement between the state police and federal agents, the requirements of Rule 5(a) were not met since defendant was never taken before a judge after her arrest, and defendant's consent to be photographed was the product of coercion. Therefore, defendant's motion to suppress evidence resulting from her unlawful arrest and detention and the fruits¹ of that unlawful detention should be granted.

I. BACKGROUND

On December 6, 1995, an indictment was returned charging defendant with one count of conspiracy to violate the Travel Act, in violation of 18 U.S.C. § 371, and one count of crossing state lines with intent to carry on a business...