David Matthew Lathers v. United States
396 F.2d 524
5th Cir.
1968
Check Treatment

*3 Winona, Miss., Liston, for William morning July 25, On the Lath- appellant. approached ers Daughtery, Ben C. a used Hauberg, Atty., Jackson, Robert E. Mississippi, E. U. S. car dealer in attempted Strange, Atty., Jack- Donald Asst. U. S. him sell a 1965 maroon son, Miss., appellee. pick-up bearing for Chevrolet truck a Vir- ginia license. In 1965 the truck had a RIVES, Before GOLDBERG price Daugh- $1595, listed retail but AINSWORTH, Judges. Circuit tery began bargaining a the with low (Daughtery $500 estimate. testified at Judge: GOLDBERG, Circuit trial that his true estimate of the truck’s legality consider both of an $1100.) Daughtery’s worth was To sur- Mi- arrest without a warrant prise, accepted Lathers the estimate and finding caveats, and, randa while offered the truck sale without en- impeach con- cause to we are gaging customary trading in the dia- precepts that Miranda were tra- vinced logue. overeager- Because Lathers’ duced. prove ness and ership he because could not own- Daughtery truck, Lathers, a sent him resident of David Matthew to another Arlington, Virginia, used car lot and then notified was arrested Agent Roy F.B.I. H. Mississippi, McDaniel. McDan- Jackson, officers in state relayed iel attempting the information to the Jack- after to sell truck a which Department son Police issued possession a inwas which had his stop (described bulletin to the driver stolen from a used been car lot Wash- bulletin) of 1965 ington, a maroon Chevrolet C.D. He was convicted in the pick-up Virginia truck awith license.1 federal court district under 18 U.S.C. police Lathers, spotted Two state transporting a stolen motor § stopped and, informing him, after him vehicle in interstate commerce. Lathers’ suspicions, police of their took him to substantive defense was as follows: day headquarters. On his arrest had he obtained a week’s leave from interrogated only by Lathers was Arlington work to visit his sister interrogated by He officers. F.B.I. Orleans; hitchhiking in New that while Agent following day McDaniel the through Tennessee he a ride was offered prosecuted in federal court. previously mentioned; truck night spending Tupelo, while near doubt, police Without the two state of- Mississippi, belongings he lost when ficers arrested Lathers a without war- driver the truck absconded with proof rant and without conclusive gather suspected 1. We description content of the bulletin stolen and the ”* * * testimony arresting from the of the two the driver officers. One of the two officers testi The other officer testified: fied : “We received all-car broadcast over put patrol pick-up “There been a out bulletin our ear that a 65 maroon regard Pick-up to a 1965 Chevrolet somewhere in South Jackson had tried Virginia being price.” license as stolen to sell the truck at too low a as re- police Lathers construes Section felony committed. had been felony knowledge Washington, quiring absolute report did obtain truck, been Reasonable concerning committed. C., the theft D. enough. grounds, asserts, morning. His following not but until not interpretation, though having plausible exclude must contends that we comply with the acceptability, does not result of obtained as a evidence all following interpretation reached know not officers did arrest because the Mississippi Supreme felony Court: committed. had been that a police the alternative contends may ar- “An without a warrant officer cause for even have person reasonable he has rest a when arrest. felony has been cause to believe that a committed, cause to be- and reasonable

(a) Mississippi Law person it. lieve that committed *4 here, Mis- These criteria existed under contention, support first To his sissippi, federal consti- Louisiana and encourages us read a Ann. 2470 law. Miss.Code § tutional Mississippi eye of the literal 2470 Section (1956); 15:60 La.Rev.Stats. § Code: (1950); of Cali- v. State Schmerber made without “2470. Arrests —when 1826, fornia, 757, 86 16 384 U.S. S.Ct. per- private warrant. An officer or (1966).” (Emphasis L.Ed.2d 908 any person may without son arrest added.) warrant, for com- an indictable offense State, 1966, Miss., 192 So. Bradshaw v. mitted, peace threat- a breach of the or 388, den., 1967, 387, 2d cert. presence; attempted ened or in his 299, 941, L.Ed.2d 293. See 88 19 S.Ct. person fel- or has committed a when a State, 1968, Miss., 207 So. also Nash v. though ony, presence; or in (at State, [1]); 104, 2d Craft v. 107 felony committed, when a has been 414, 1947, 43, 202 415- Miss. 30 So.2d ground and to sus- he has reasonable States, 5 Cir. 416. Cf. Barnett v. United person proposed pect and believe the 848, (at [4]).2 1967, 855 it; committed be arrested 1964, State, of Corn 250 Miss. case charge, upon or on made reasonable closely point. 177, 157, in 164 So.2d felony cause, of a of the commission by po The defendant Corn was arrested by party proposed to be arrested. (1) licemen a warrant because without without And in all cases arrests player sold a record $35 $5 warrant, making person ar- policemen one of the had seen bur rest must inform the accused of the glary tools in the defendant’s car. object except cause of Mississippi Supreme upheld the Court when he is in commission the actual arrest on these facts alone. offense, pur- on or is arrested (b) Cause Arrest a War- Without (Emphasis added.) suit.” rant Platter” “Silver Cases first Because Lathers bases his conten- by An state officers with con- arrest strenuously, entirely, most on tention sequent prosecution for a federal offense Mississippi jurisprudence, pause sovereign- involves interaction of two dispose of this claim on his own battle- legal complexities ties. re- (b) However, field. in section infra sult from this interaction are illustrated appropriate we will move to the arena following: by questions such as arresting of decision. Who vests whom with authori- position might support 1959, Draper 2. Some for Lathers’ tion to v. United Supreme gleaned Mississippi 329, be L.Ed.2d U.S. S.Ct. language State, 1737-39) (found in McCollum v. Court’s L.Ed.2d Miss., (at [2]), So.2d cau- which holds as sufficient “reasonable by path but we are reassured in our tion the belief a narcotics offense opinion excerpt [referring Draper] extensive the McCollum is be- been or Lawyers’ ing taken from the Edition annota- committed.” 197 So.2d at justifies ty? crux of conduct the exer- “The that doctrine is that a What authority? by search is a search offi- a Federal cise of that What it; obligations, cial if he had of arrest- a hand it is not rights, ing duties by under their search a federal official if evi- as to citizens jurisdiction? dence find secured state authorities is Lathers asks us to queries to the federal answers to this concatenation over authorities turned platter.” Mississippi His silver law. 338 U.S. at 78- reference unique rather contention that Mis- at 1374. exclusionary sissippi invokes the law In Elkins v. United rigorous stand- rule even if less federal L.Ed.2d Although ards would not. we dismiss Supreme Court overturned the “silver merits, requires this contention on the platter” doctrine held that evidence decision. choice law make that obtained a result of an unconstitu- avoiding explicitly hope choice arrest tional state officers must misconstruction. trials, regardless excluded from federal agents participated of whether federal Prior to 1961 evidence obtained The Court’s arrest. extensive and through exclusively state arrest could perceptive analysis concluded with the be admitted into a trial federal re- following pronouncement: gardless legality illegality “For these reasons we hold evi- quote the arrest. We from Weeks v. *5 by during dence obtained state officers States, 1914, 383, United 232 U.S. 34 which, by a if search conducted federal 341, (in S.Ct. 58 L.Ed. 652 which case officers, would have violated de- the exclusion rule was first established immunity fendant’s unreasonable from impede illegal action federal arrest- searches and seizures under the Fourth ing officers): Amendment is inadmissible over timely objection defendant’s in a fed- papers property “As to the seized eral criminal trial.” 364 U.S. at 223- by policemen, it does not [local] 224, (Emphasis 80 1447 S.Ct. at add- appear they any acted under claim ed.) authority of Federal as would such applicable make the amendment to such The Court continued: unauthorized seizures. record determining “In whether there has by way shows that what been an unreasonable search sei- arrest and search and done seizure was officers, by zure state a federal court finding before the of the indictment independent inquiry, must make an court; sup- Federal under what whether or not there has such been posed right authority ap- does not inquiry by irrespec- a state court, and pear. What remedies the defendant any may inquiry tive of how have may against have them need not in- turned out. test one of federal quire, as the 4th Amendment is not enlarged law, by neither what one state directed to individual misconduct of may countenanced, court have nor such officials. Its reach agen- limitations may diminished what another have government the Federal and its colorably suppressed.” 364 at U.S. Boyd Case, 616, cies. v. 116 U.S. 29 224, (Emphasis 80 S.Ct. at 1447. 746, 524, Sup.Ct.Rep. L.Ed. Twining 6 see added.) 78, Jersey, v. New 211 U.S. 53 Clearly, exception the Elkins to the 97, Sup.Ct.Rep. L.Ed. 29 14.” 232 prior immunity of state arrests lim- was 398, U.S. at 34 S.Ct. at 346. ited rights, violations of constitutional immunity gained This opposed exclusion rights granted ain fed- platter” following label “silver doctrine proceeding by judicial eral supervisory opinion Lustig power. Justice Frankfurter’s Moreover, such constitutional States, 1949, 74, rights v. United 338 U.S. 69 were be defined federal law. 1372, S.Ct. 93 specifics L.Ed. 1819: Elucidation on of the “fed-

529 (at reviewing 212, [2]), given 354 214 v. State of in Beck F.2d was eral law” opin 223, other Ohio, 13 state conviction. Numerous 1964, 89, 85 S.Ct. 379 U.S. ions, including Supreme in our own at least one Court L.Ed.2d 142. ignored admissibility circuit, evidence law sub silen state Beck denied the 1966, States, tio. 5 Cir. used v. United officers and Potter seized state 497; 493, issue 362 v. proceeding. The sole F.2d United States criminal state Zimple, 1963, 676, 678-79, validity 7 Cir. the constitutional 128, den., cert. 868, 375 U.S. 84 S.Ct. stated: and the Court 95; States, 11 L.Ed.2d Schook United v. validity “The constitutional 564-66; 563, 1964, 8 Cir. F.2d 337 Unit depend case, then, must search Baxter, 1966, ed States 6 Cir. 361 v. validity of the upon constitutional (at 116, [2]), F.2d 119 cert. 385 den., that ar- Whether petitioner’s arrest. 69; 834, 79, U.S. 87 S.Ct. depends constitutionally valid rest Ford, 1966, v. 4 Cir. 363 States whether, the moment upon at in turn (at 375, [6]), F.2d States v. made, the officers arrest was 1967, 272, F.2d Freeman, 6 Cir. it —whether to make cause Minn.1964, comparable United sentiment rants seem irrelevant cases. state 4 Cir. 308 LEd.2d cert. [1]). . arrest U.S. at at that moment ting tion of stances within rant a man of the belief’ information were titioner committed. Carroll v. U.S. ry “When 1302, 1310-1311, the moment of Under 267 U.S. States, 69 prudent (at ****** v. United den., L.Ed. standards facts 1964, at Cf. an offense. States, And, 31; fn. they had the constitutional 96, had committed 379 U.S. Paige to 1); 543, 132, 162, 45 man United States 331 256 court to determine available challenged, 85 S.Ct. that an offense Elkins-Beck the case at bar. Gullett several 8 Cir. F.2d fact, such has United [39 their F.Supp. reasonably the arrest would v. the facts reasonable 93 L.Ed. believing sufficient arrests without 820, L.Ed.2d Brinegar Potts, 1967, A.L.R. at 228. 332, to in “silver knowledge and of cases with 175-176, 69 S.Ct. States or was 85 S.Ct. S.Ct. United v. 340 739, 387 validity of an amalgam is the 5 Cir. trustworthy Callahan, 1879; 790].” that the 134.” 379 to warrant caution in 98,102, (at v. United v. F.2d has been 280, 288, been the 742 whether commit- platter” circum- Hopps, States, fn. 39, func- 1965, ‘war- Hen- facts war 307, 379 pe- 8), (at D. 13 at v. tainly er, sence U.S. Nicholson tiorari 5 Cir. ute ing 385 U.S. fn. 355 F.2d Manuel United 274 L.W. of state arrests. Collins v. United Amador-Gonzalez v. United point United F.2d hart, January 795, 798 5 Cir. States v. 1967, See also ions is 1003, Cir. Cir. [3] [4] Jackson United , ); which 4), (at [11]); fn. 1967, 1967, 974, 344, 4 383 3398; 88 out in this 1967, state conviction. We distinguishable States, Cir. Hart The choice-of-law v. granted) Cir. U. S. 4); (at [3]); Johnson 10, 1968, 391 F.2d 825, S.Ct. 80, Williams, 86 S.Ct. 346-347 specific v. is most often 380 F.2d law F.2d 384 F.2d 1964, Sabbath United Stone v. United States, 83 87 v. United circuit, appeal pending, 570, 5 386, (at Barnett v. United e? determines (at S.Ct. v. see States, F.2d federal 326 F.2d ,h 1866, (at [5]) ; United [1], 6 387 19 713, Middlebrooks, 108, [3]), 1966, of the above Cir. v. 848, 36 L.W. 55, is that United L.Ed.2d 129, (at cert. 16 L.Ed.2d 716 5 5 Cir. 110 expressed, States, 17 arresting States Gear 1963, cert. guide, 855 Cir. 365 F.2d States, [1]), 308; 412, (at 130-131 5 Cir. L.Ed.2d (at Mendoza v. den., 1966, (at [6, 7], in the ab States, hasten (at [4]); 1966, 598 den., 389 3290, States, 314 v. legality 414 [1-3]); [5, 6]). review howev States, States, United obliga 5 5 Cir. 1966, opin stat (cer 684; F.2d U.S. 268, cer Cir. Cir. 384 355 *6 62; (at (at 36 10 9 530 existed decide whether state law violative of the Federal Constitution. tion 301, protective States, than federal law.3 Miller United 357 U.S.

was more v. 1332, supra; 1190, Thus, Elkins doctrine 78 S.Ct. 2 L.Ed.2d no case was 581, beyond propor Di Re, extended constitutional United States 332 U.S. v. (1948); 222, L.Ed. 210 S.Ct. tions. 10, Johnson United v. U.S. emphasis by Moreover, courts federal 15, 5, 367, 370, note 92 L.Ed. S.Ct. on the law of arrest not neces- state 436, (1948). A fortiori, the law- sarily Elkins Beck. inconsistent with by state of- fulness of these arrests by ancillary fact, prescribed In it is ficers for state offenses is be de- Supreme line Court cases. by termined Ker v. California law.” Re, 1948, 581, States v. Di U.S. S. California, 23, State Supreme Ct. L.Ed. 1632, by Court reviewed an arrest made 726, 740. accompanied by officer A. an O. P. investigator statutory who had no au- pronouncements The above do not con thority make arrests. The court con- Beck, Elkins flict with if cluded : Re, Miller, considered in context. The Di Congress lays gen- “No act of down a (cited and Johnson Ker decisions in the eral federal rule for arrest during without quote swpra) “silver arose warrant federal offenses. None Elkins, platter” in era before and all purports supersede state law. And actions federal volved as well as local applies which, none arrest while exercising officials. The Court was thus offense, for a federal was made also constitutional review but accompanied by state officer federal supervisory representa review of its own power officers who had no of arrest. prosecutions.4 common to federal tives pro- Therefore the New York statute Cf. McNabb vides the which this ar- standard U.S. 87 L.Ed. rest must stand or fall.” 819, 824, and cases train thereof. To 589-591, 68 S.Ct. at 227. sure, opinion the Ker Elkins followed spoke in constitutional terms. How years Fifteen Supreme Court, later ever, Clark, Justice who authored the reviewing through a state conviction ha- majority stating opinion, Ker before corpus, beas added a new dimension to engaged analyses above proposition, Di Re decision: “probable both of cause” constitutional “This in cases under the Fourth Cour% for an arrest and constitutional review Amendment, long recognized *7 supervisory (dur versus federal review the lawfulness of arrests federal for ing on, quoted, which he by relied in fact offenses is to be determined refer- ence decision). to state law insofar as it is not Elkins The above reference proposition by suggested 3. The the de- to constitutional issues. 335 F.2d at 131- States, (at [1, 2]). fendant in Jackson v. United 5 132 1965, 490, 491, Cir. 352 F.2d but unnnecessary interpreting court found it for the de- not uniform in Courts are Ralph Pepersack, cision. Cf. v. 4 Cir. Di Re focused as to whether the review 1964, 128, 335 F.2d where the Fourth on the state officer or the O.P.A. investi- corpus gator. Compare Circuit reviewed on habeas an ar- Alexander v. United by States, 1968, 101, (and rest the District of Columbia officers 5 Cir. 390 therein) led a conviction in the cases cited with v. Sabbath Maryland. 108, States, 1967, State of The court indicated 9 Cir. United point opinion (fns. accompanying at one in its if the 110-111 4 and 5 and Columbia, text). District of had had an ordinance one At least commentator ¡SaVbafh more emphasis restrictive than constitutional stand- indicated —on ards, such ordinance would have been fol- the state officer —is not the normal inter- (at 8]). [7, pretation. lowed. 335 F.2d at 135 But Moore Federal Practice § 8 compare language (fn. 18), (compare in the same case 4.01 edition 1967 with limiting corpus supplement). federal review in habeas 1967, exclusively 370 F. States, ricks 5 Cir. then, law, v. focused to state dism., 1015, entering 901, 2d cert. 386 U.S. a policeman’s method of 474; Swinney 1366, 18 L.Ed.2d v. making S.Ct. factor dwelling a when Cir., 7, 1968, March by in United court examined never before authority regard ar F.2d 190. light. it is But once In this constitutional opin- rest has been state law need established, Beck important in the to note that pro arresting not consulted as to be ion, Ker and which dealt which followed cedure unless federal has defaulted. cause,” law “probable no reference sufficiency not as Such is the case law of arrest. the state made to required of an arrest cause sustain in Mc- reference made Nor was by state-authorized 1967, without a warrant a Cray Illinois, v. State arresting 67, Beck officer. See v. State 87 S.Ct. striking by Ohio, supra, state an arrest opinion which dis- section McCray officers, of Illi and State tinguished v. sus- Beck and thus on its facts impose nois, supra. have no need to validity state arrest. a tained the analy upon Mississippi our the courts (and opinions line of The Di Re-to-Ker sis their law. opinions) following such circuit cases (c) Probable Cause pro- recognized state law that where only applicable again standards Beck vides the We refer v. State Ohio, 1964, consti- law does not violate where such 379 U.S. S.Ct. safeguards, even will be tutional used 13 L.Ed.2d 142: Implicit in the cases in federal courts. prac- rule of cause is a “The leg- (1) local are the dual rationales that tical, conception non-technieal afford- for islators courts are best suited ing compromise has been best * specific * * determining many details accommodating found police procedure federal opposing Requiring often interests. procedures be uniform state should unduly hamper en- more would law however, cases, possible. These wherever less be to forcement. To allow would calling interpreted be should not law-abiding mercy at leave citizens pefer- law the examination of state caprice.” of the officers' whim or guide- ence to established constitutional 226, quoting U.S. at Re Ker lines. In some instances Di Brinegar States, 1944, v. United engage may in a federal courts to allow 1302, 1311, 160, 176, 338 U.S. S.Ct. e., renvoi,” i. sort of “constitutional L.Ed. judg- where arrests state officers are compromise. cause, then, Probable ed standards federal constitutional probability. A Beck hunch is not a See which, void, are determined because of Henry supra; Ohio, v. State of the relevant Where state law. 98, 101, 80 however, filled, the renvoi void has been probability 4 L.Ed.2d 134. But a operate. should not beyond certainty or a conclusion course, only can need not law reasonable doubt. An officer Of state making precise astronomically before determine who are authorized as *8 McCray “arresting an arrest. of Il- See v. State officers” for what crimes 1056, authority. linois, 300, arresting 1967, 386 U.S. 87 such officers S.Ct. 67; 62, Draper Thus, 18 L.Ed.2d v. United must even federal courts look 1959, 307, My 329, States, points. 358 U.S. 79 state first S.Ct. law these 1961, following States, All Circuit have 5 cases our 5. In. Collins v. Cir. United 129, 130-131, Re, Collins, Di Hart. first relied on 289 F.2d our Circuit’s and/or Middlebrooks, (One post platter” case, exception, Johnson v. -Elkins “silver involving 1967, 387, only Re, 386, Mil Di Johnson and 5 Cir. 383 F.2d Court cited (see quote supra). corpus, only Ker, cites ler a review habeas 1963, States, Ker.) 316 Hart Cir. v. United 916, 919, Re. F.2d Di the Court cited 327; Brinegar got United v. thereof he from his three wallet States, 1949, 160, indicating 338 U.S. 69 S.Ct. 1302 documents different owner- 1879; States, ship Carroll United L.Ed. v. of three other than automobiles 132, they driving; (5) 267 U.S. L. the Buick were car- 543; States, cigarettes Ed. Harris United tons of v. Cir. were observed in the January 727; automobile; 11, 1968, (6) Vac the officers were burglaries caro v. States, Cir. 296 F. aware of recent in the vi- den., 1962, cinity cigarettes 2d cert. where coins were 289; 5. Ct. L.Ed.2d Flores taken. 234 F.2d Cir. “We find in facts and circum- these ample support stances for existence We constellate the facts and situ for cause a warrantless ar- police ation as viewed the state offi rest.” immediately they stopped cers before highway.6 Lathers on officers Our constitution does not re bargain quire were informed of a offer to sell an trial before arrest. And while supporting police out-of-state car without it not does sanction random cus anony title. todialism, permits sense, This is not the case of an hon common informer, judi judgments mous by police can take est their probable-cause cial notice used that car salesmen are deliberations. can knowledgeable judgment of the roots of offers not fault the case at quickly cheaply. sell Lathers’ sales bar. manship compatible legiti is not (2) Interrogation Custodial ownership. mate We live a time of Following Lathers’ arrest held was prices automobiles, per bluebook for used custody hours, during twenty-four haps people known to more than the interrogated which time he was exchange four prices. Though stock proof not Shortly times. guilt after his arrest Lathers beyond doubt, a reasonable Lath questioned briefly by free-wheeling detec- mood, state ers’ combined with tives, inculpatory but he made no papers state- lack of title and the out-of- they ments. The him license, state detectives told warrant a man of reasona they would hold him ble until run a caution in could the belief Lathers check on the stolen truck. Lathers the car. again questioned until nine o’clock Relevant is the case of Gullett v. Unit- morning. next detectives ed 8 Cir. 310- began interrogation by advising 311: they Lathers knew the truck was arresting stolen, again “We find here that of- quite but the interview was had, ficers at the time of brief inculpatory made following (1) information: The de- statement. purchased tires, fendants had a tire or The third interview with Lathers fol- paying quarters at least $7.50 there- lowed the second about an hour and for; (2) attempt- the defendants had Agent was conducted F. B. I. McDan- quantity cigarettes, ed to sell a in- According iel. to McDaniel’s trial tes- dicating had different brands timony, began the conversation in the sale; (3) the driver of the auto- manner; following mobile had no driver’s license which produced; myself, could be my defendant “I Gul- identified him showed lett claimed to be the owner au- card. I him credentials told who I was ; produce proof tomobile when asked to and told him I wanted to talk himto problem deciding papers *9 We thus avoid the of his and was then escorted to the actually placed police Henry whether Lathers was un- station. See v. United (1) States, 1959, der arrest at the moment his car was stopped produce or after he failed to 4 L.Ed.2d 134. Black concerning transportation On Detective of a re-cross examination specific: Washington, was more D. C. to Jack- truck from son, Mississippi. I told he him “Q. throughout entire time And did, me, if he not have to talk to but any of the benefit he had never against he whatever said could be used legal advice? told him he could talk him court. I any. He A. didn’t want attorney, he unable to an that if was Q. any? He didn’t want attorney hire the Commissioner to an Well, say I that. A. wouldn’t appoint or one for him. the Court would Q. didn’t the benefit of he have attorney But right He said he did not desire an counsel? rights.” he his knew Yes, A. he did. warning Following the above Q. him? Who advised confessed to his crime.7 He was Lathers he had a him that A. We advised brought then inter down one more right attorney if he wanted during officers, view with state which one, be his I it would and assume confessed. likewise prerogative if to call one pre-interrogation one. don’t furnish Whatever wanted We warnings may attorneys people for the we are have from Lathers received they they talking If one to. want obviously were prerogative to call one.” have the deficient Miranda standards. under only quote Miranda warnings need from ex extent the state inadequacy opinion in order to show by plained one of the interro at trial interrogation procedure: of the state gators, Sergeant L. Detective James summarize, Department. hold that when an “To Black of the Police Jackson custody taken into or individual following excerpt is an deprived his freedom otherwise direct examination: way any significant the authorities “Q. of his Was he advised subjected questioning, the and is rights you talked before against privilege self-incrimination him? safeguards jeopardized. Procedural priv- protect the employed to must be ilege, sir, he We told him he A. Yes was. fully effective other and unless silent, right every to remain notify person adopted means are counsel, ’phone call entitled to or right assure and to of silence of his anyone talk to he wanted be- or right will that the exercise talking fore to us.” Ari- Miranda v. of Law Enforcement: both the warn trial denied At Pro- of Criminal Code zona and tbe Texas appellate ing confession, our but (cid:127) cedure,” Law Journal 21 Southwestern disputes, review, factual as it relates to however, yet, (1967). what- As against “the view most favorable must take presumption uncorroborated ever Glasser v. United Government.” may testimony been created which 60, 80, 62 S.Ct. attained the Miranda has not decision 86 L.Ed. unfortunate per And see of a se conclusion. status plight lonely contesting defendant (1968 Moore, 44.03 § Federal Practice warning fact of his and confession Supp. page 81), concludes: recognized Miranda, and some commen interpreted Arizona, supra, tators have that case cre as Miranda v. “Note that ating po “presumption perjury” 16 L. on [384 U.S. testimony 694], provision which is for re- lice objective uncorroborated makes no Ed.2d (tape recording, signed interrogation. cording means While waiver, perhaps presence proving of a waiver voluntari- even burden lawyer). George, prosecution, Lim neverthe- See Constitutional ness is go- appears itations on Evidence in Criminal Cases less the courts quoted favorably plethora ing (1960), at Com be faced with ” Interrogation ment, ‘swearing “Custodial Tool contests.’ *10 scrupulously honored, following edge the right that he too has a to have required. measures are present. He must be counsel As with the warn- prior any questioning ings warned right to that of the remain to silent and right silent,, he has the general right to remain of by counsel, only the to anything says against he can be used express explanation effective and law, him in indigent a court of that he right has the to the of this can there right presence attorney, to the of an be truly assurance that he was in a and that if he cannot ney position afford an attor- to exercise it.” 384 U.S. at appointed prior one will be for him 86 S.Ct. at 1627. any questioning to he if so desires. One final section will suffice: Opportunity rights to exercise these “Accordingly throughout we must hold be afforded to him that an in- interrogation interrogation. dividual held for the After such warn- must clearly ings given, oppor- have informed that he been and such has right tunity lawyer to him, consult with afforded a and the individual to lawyer may knowingly during intelligently with him waive in- terrogation rights agree system ques- pro- these under the to answer tecting privilege or make a statement. we delineate tions But unless to- day. warnings warnings As with the such until and waiver right to prosecution any- are remain demonstrated silent and that thing trial, stated can evidence be used in at obtained evidence as a against him, interrogation warning

result of against this can be used an abso- prerequisite interrogation. lute 478-479, to him.” 384 U.S. at No amount of S.Ct. at 1630. circumstantial evidence that person may have been aware this “furnishing specific point On the law- right will suffice to stand its stead. yers people talking to,” we are Only through warning such a there quote following: ascertainable assurance ac- fully person apprise “In order to right.” cused was aware of this interrogated rights of the extent of his 471-472, U.S. at 86 S.Ct. at 1626. system then, necessary under this it is government to he warn him not relies on right attorney, Agent to F. consult but warning B. I. McDaniel’s indigent lawyer quoted if also that he is supra, to clothe con appointed represent will be him. sanctity. evidentiary fessions with As warning, the infra, Without this additional will be demonstrated we must right being admonition of the to consult with warning strike McDaniel’s itself insufficient; counsel would often be understood as therefore, we will not con meaning only whether, can consult with sufficient, sider if it had been lawyer warnings he has given enough if one or has the funds early right warning interrogation process obtain one. preserve rights. to counsel if not would be hollow Lathers’ Westover v. United convey States, would couched terms that 494-497, indigent person often to subjected most (in 735-736 —the interrogation knowl- opinion).8 cluded in the Miranda —the opinion Supreme over, custody Miranda he had been in for over interrogated Court reversed the federal conviction 14 hours and had been stating Westover, part: length during period. Carl Calvin FBI interrogation began immediately upon “We reverse. On the facts of interrogation case we cannot find that Westover the conclusion of the knowingly intelligently City police his waived Kansas and was conducted right right police headquarters. silent Although to remain in local prior consult with to the time counsel the two law enforcement authorities legally At made the the time statement. distinct and the crimes for which agents began questioning they interrogated FBI West- Westover were differ *11 rights. guidelines apply Because the Miranda extent of Lathers’ Lathers commencing only to after not advised that he could an attor- criminal trials have 13, 1966,9 ney appointed present appellant to June reaction him with be- coming. syllable. guidelines message fore he uttered a those has been slow The Nevertheless, judge recent in our cir- to him the cases indicated that a or uniformly Miranda line cuit have held that commissioner somewhere down the warning requires pre-confession appoint lawyer to the would for him if so specify requested. that is entitled “to a defendant attorney, presence the retained or of an warning effectively The Miranda must interrogation.” appointed during the convey he is entitled to the accused that States, Windsor United Cir. v. government-furnished here to counsel 530, 533, quoted in Chambers v. subject If the and now. words are the States, 20, 1968", United March Cir. that counsel construction will be indigent 455, 456. Windsor In the F.2d future, Miranda only in the available re- he could defendant was advised that Although obeyed. is no been there not attorney immediately tain an that talismanic or heraldic abracadabra attorney appointed by the an would be fulfilled, offer of counsel must the be was arrested. The the event he court firm, mere one of be clarion and must warning that confession which followed impressionism. must assev- words Similarly, was excluded court. any that accused erate conviction States, Fendley United 5 Cir. v. lawyer speaking.10 before can have excluded F.2d a confession was delusory Otherwise, warning is the that defendant was warned where the safeguards illusory. Miranda the attorney right “he had the to consult an super making In our constitutional anyone or a state- else before interrogation process we vision of the any ment,” he did not have “if irregular by petty not be obsessed should money attorney to obtain an must, syntax. We how ities sentence Judge, Court, appoint one for would ever, keenly semantics of both aware (Em- to court.” him when went Moreover, probabilities. and the law of added.) phasis prerogative of obscurantism when the warning provid- McDaniel’s government, the burden rests with hire an “if government’s ed he was unable on the squarely falls

attorney the Court or the Commissioner prove offer without shoulders sure, appoint for him.” To be one would case equivocation or ambivalence. flagrant warning not have such a does bar, proof come close. not even did at warnings either of the deficiencies offering be so clear must words Fendley. does But neither Windsor eustodially One distill doubt. all warning lay terms clear out in prelude to that as a must know detained ent, impact of a him was that 495- be assumed.” at cannot questioning. period There continuous at 1639. given any warning intending evidence note, as a com- without interrogation nor is prior FBI bar, Westover ment on the case at of an articulated recently by evidence distinguished there our cir- has been rights FBI com after waiver of cuit in cases which convictions interrogation. The record States, its menced Nobles United been affirmed: v. simply 602; the defendant shows that Cir. March after be short time confess a Jennings in fact March 5 Cir. v. following ing FBI over to 8, 1968, turned 391 F.2d 512. Despite police. interrogation local Jersey, v. of New 384 U. Johnson State gave agents warn the FBI fact that 719, 733, S. interview, ings of their the outset 882, 892. point of view the warn from Westover’s interrogation ings sample For end of the of an effective Miranda came at the warning, Hodge process. an in In these circumstances see rights telligent of constitutional Cir. March 392 F.2d 552. waiver interrogation government he can have a dence includes secret number on the attorney furnished if he is unable en- frame of the truck. It was that number gage one. identity which established truck with the stolen vehicle.1 It fol- edicts Miranda have been vio- *12 retried, lows that whether Lathers or lated. acquitted if retried whether he is or con- and Reversed remanded. victed, may depend upon legality well the of his and arrest confinement and the RIVES, Judge (concurring Circuit in search Hence, of the truck. that issue part dissenting part). and requires our most careful consideration. heartily part I concur that of the Supreme Under ruling the Court’s opinion majority and decision which holds Beck, validity the constitutional of Lath- repeated interrogations that the Lath- ensuing ers’ arrest depend and the search ers were violative his constitutional upon “whether, at the moment the arrest rights Miranda, as announced and made, probable was the officers had cause judgment hence the that of conviction to make it —-whether that at moment the must be reversed and the remanded. case facts and within their circumstances however, Reluctantly, I must dissent knowledge they and of which had reason- part opinion from deci- that ably trustworthy information were suf- sion holds that Lathers’ arrest prudent ficient to warrant a man in be- legal. my opinion Lathers’ arrest lieving petitioner the had committed particularly without a warrant committing or was an offense.” confinement and search the truck the 91, U.S. 85 S.Ct. at 225. constituted an unreasonable seizure and proof the search in violation of Amend- burden of Fourth has been well 1960, States, ment under Elkins United stated as follows: v. 206, 1437, L.Ed.2d 364 U.S. S.Ct. every “It is clear that case the Ohio, 1964, 1669, Beck v. State government has the burden of estab 89, 223, U.S. S.Ct. lishing the re cause quirement met, Wong has been v. Sun agree Judges judg- 471, 479-480, All the United three 371 U.S. 407, (1963); re- ment must be and the case reversed 9 L.Ed.2d 441 ground supra the Miranda manded on the Carroll v. [267 precepts 280, ; were That hold- not followed. 45 S.Ct. 69 L.Ed. 543] however, ing, Rivera, not us the does relieve United States v. 321 F.2d duty constitutionality upon 1963; rule 2 Cir. United States v. Dornblut, confinement and of Lathers’ arrest and 2 Cir. 1958. truck, upon for, government, Lath- however, may the search of not re-trial, the results initially ers’ in addition to validate an invalid arrest including interrogation, the claim- of his the fruits of the incidental search. under paper ed confession inadmissible oral The litmus reasonableness Miranda, potent and crucial evi- applied more must be when arrest made, hold and, if we positive, dence become inadmissible proves will unless it ille- confinement and search illegal pro arrest will be and its flowing gal. All of evidence ceeds inadmissible. United States illegal arrest, DiRe, confinement and search evi- (1948).” inadmissible. Such would then be L.Ed. 210 Sergeant found testi J. L. Black secret number on the frame of As Detective truck, which was C1545B114860. fied : you “Q. I will hand Ex- Government’s Roy Along Special Agent “A. you compare hibit No. 1 and ask Moore, my partner, J. D. McDaniels and you number found with this title certifi- plate door serial on the we checked the cate number and see if are the same. it had been removed. found Yes, “A. that is the same one.” being S.D.N.Y.1966, suspect that the truck Campos, was under States v. aff’d, Cir., stolen carry I him I F.Supp. told would have to investigation him the office F.2d 1011. Chapman gave matter.” Officer Jackson, by two was arrested Lathers no further information or cause Mississippi, R. policeman, B. Hall and J. for his swore out arrest. Neither officer According testi- Chapman. to their L. mony, a warrant booked Lathers with either information that charge. Jack- issued bulletin thinking, Indeed, my way Department. evidence most Police son majority important factor, which the or its itself disclose bulletin does overlooked, is no warrant was issued As footnote 1 exact contents. shown charge placed against and no formal majority opinion, the officers’ *13 meaning many his testimony hours ar- of Lathers until after differed as to rest, over to at which time he was turned recollec- Neither officer’s the bulletin. Agent Roy Mr. FBI McDaniel. Mc- sus- to more than bare tion amounted thought picion. de- Daniel testified: the bulletin One “being or scribed the truck as stolen initially “Q. But he had been ar- stolen”; thought suspected that the other in a state arrest rested and held by the truck at tried to sell someone “had police officers for about the Jackson price.” to the Footnote 6 low a too you twenty-four saw hours before majority opinion that assumes him? papers” produce after his also “failed to Well, about the “A. I don’t know truck, police stopped but his custody he or I know was in arrest. that was neither officer testified there Department Police from at the Jackson any request for discussion of the or 25th, Monday, July un- noon on about Lathers, testifying in papers. title him at til talked 9:04 I any request behalf, refer own by did not morning July 26th.” them the officers or conversation with any Up lack time the until that papers title but that: about charge clearly is formal or warrant “They up pulled testimony mo- behind me and of Detective shown pulled I Sergeant tioned me over and It over. Black: was a kind district and warehouse him, you “Q. you did told And said, your he ‘Let me li- see drivers holding not, you him on all were that said, cense.’ And I I ‘Did make some suspicion ? thought illegal violation?’ I it was an Investigation theft. of auto “A. something said, or turn like that. He “Q. all? And that was ‘.No, just your I want to see drivers license.’ He looked at the drivers is all. “A. That license I can’t remember whether many days you did “Q. And how kept handed back or it. I to me way? him that hold again why being stop- asked him I was ped. said, you He ‘We want to take jail placed about him We “A. question you.’ said, down-and I ‘What teletype came the 25th. noon of says, about?’ He do ‘To with the night FBI of- that back suspicion theft of a motor vehicle.’— confirming be- truck fice, FBI something or cause or of the theft of ing when then And stolen. a motor That is the ar- vehicle. what against charge him of placed was rest amounted to.” auto theft. Lathers, Like the officers themselves actually place you “Q. When testified in effect was arrest charges against him? suspicion investiga- made on bare for charges place tion. Officer Hall didn’t testified: “I informed “A. We placed against theft. put him We him auto information had been out

charges against right.” him hold him “A. That is Investigation. Bureau Federal None of dispute the witnesses “Q. Depart- the Jackson Police So testimony. brings I submit that it charge against placed no ment him squarely case within the Fifth Circuit hold him for the FBI? other than to cases of Collins v. sir, “A. none other than to Staples No v. United States, 1963, hold him for FBI. F.2d 820. See also, States, 1967, Barnett v. United just “Q. any held him You without 848, 855, against charge him? Indeed, held “A. him until the confir- We the factual situation in this back, mation came and—. case is more extreme than that in there ? Jackson Police him, jail. against that confirmation fore the case ment and removed came to the Jackson Daniels and the investigating for auto theft until the “Q. “A. [******] “Q. you no But And the man at held him until the charge held him on the an auto all that —. all came other members Department had with FBI had been these conversations him to a Federal theft back. Police going case, time, had preferred charge Roy *14 Marshals Depart- to take there- Mc- travels sanction such a able. without point the arrest. right stolen vehicle was discovered hours after exist. properly ical time at which stolen. The committed—that theft,” virtually those three eases. For here charge, except “investigation investigation to bail. That It means that a motorist who beyond charge, discovery So moment placed against admitted that charged fact long practice he that the truck had been was borders probable as of with a crime until this Court would the truck proceeded a crime arrest held seems inconceiv- of Lathers. without cause is his could not had been was the literally of auto to the awas state, must crit- held It emergency who is met with an investigation re- than “A. Other quiring car, must, the sale his charge. auto theft peril being jailed bond, without “Q. just holding You were him on foresight bring had the him the with suspicion, charge any being without papers place title to his car and must not made? any trust in a used car That dealer. sir, investigation “A. Yes on may part wisdom, be the but there charge. imposes law which such a drastic “Q. You hadn’t carried him before penalty failing wisely. to act so any Magistrate anything? majority treats the case as if “A. No sir. Dyer arrest were for violation of the “Q. just You held him? Act, respectfully which I submit is con- “A. sir. Yes trary to assumption, the facts. On the however, Dyer of a Act it none- “Q. long you How hold him? theless seems clear that there was no “A. I don’t know when the Mar- probable cause. got shals came and him. I know we day had him noon the about arrest To strongly pos- as case as day until at least the next after we sible for Government, go let us had talked to him he us he told step further and assume also that had stolen the truck. arresting officers had all of the infor- “Q. just holding You were him mation which the Depart- Jackson Police charge up possessed. there until without that ment See Williams v. States, 1962, time? U.S.App.D.C. States, 1966, 326; “A. Yes sir. Smith U.S.App.D.C. 202, F.2d 833. “Q. you And did determine it at $500.00. We must remember that burden justify rested on the Government to “A. Yes sir.” arrest without a warrant. Used car majority’s As I understand the hold- Daughtery recognized

salesman as ing, Daughtery passed is that Mr. possessed of all the information source the FBI and thence the Jackson the FBI and then second hand Department Police the three elements of Department. the Jackson Police Mr. (1) license, (2) out-of-state lack of title Daughtery never claimed that his infor- papers cheaply, offer to sell mation was sufficient to do more than coming such information from a suspicion: arouse used car salesman his assumed ex- “A. Oftentimes in the car business enough pertise in car consti- sales is you price establish seller many There tute cause. agree buyer upon, you and the can will things wrong synthesis, with this just exactly bid low and see he what First, I few. which will mention will take. Our was discussion according testimony, has been I he asked him what for the wanted seen, Daughtery merely suspicious, truck and he said didn’t know be- nothing Second, Daughtery did more. cause he said, I didn’t know market. testify any request for or conver- you ‘Surely know somewhere papers. wit- The first sation about title And, you around what would take.’ Heard, testify Mel ness to so you said, I ‘Would take He $500.00?’ manager of the other used ear lot. So yes, said would take $500.00. shows, however, testimony far as “Q. you When he said that is when with either Heard did not communicate suspicious? Depart- became FBI or Jackson Police *15 Department ment. So Jackson Police “A. Yes sir.” information of a lack title no Daugh- Lathers’ conversation Mr. (and, Third, papers. Daughtery did tery barely sufficient to arouse even not) testify submit, that the out- I could suspicion of theft: suspicion. license aroused his of-state “Q. you And asked him he what merely descriptive of the truck. That was would take for it? Daughtery’s sus- Thus the sole basis for acceptance picion of his was Lathers’ “A. Yes sir. cheap circumstances offer under made “Q. And he said didn’t know he himself, Daughtery according when, to of the truck? the value the market didn’t know Lathers said he “A. Yes sir. Daughtery trusting him to tell and was “Q. up you And left to he it to Fourth, meet of the truck. the value determine the value? no burden, introduced its the Government reported Daughtery of what evidence “A. Yes sir. relayed the FBI FBI nor of what “Q. you And fixed the value Department. Police Jackson to the Daughtery $500.00? than: more no testified to just sir, him “A. Yes I made you Q. FBI. What I called the “A. offer. report it.” We A. To for? call them you “Q. trusting You knew was terms su3mise the are left the real of it to tell him what value McDaniel, Mr. report can. as best we you he didn’t know and he told testimony of Agent, gave no FBI was, didn’t he? what the value nor Daughterty FBI told the what correct. “A. That is Jackson passed on to the FBI what the Department. sources you “Q. up Police And left it any inferences can draw determine ? testimony Daughtery as to what contradictory and the tes- knew himself given by timony about bulletin arresting quoted in officers

two majority opinion.

footnote to the Department Police Jackson

When the sought on the basis a warrant

never information, they clear it their seems probable cause existed that no

knew Further, the issuance of a warrant. Department the Jackson conduct of Police holding arresting and of suspicion simply in- or for recognized vestigation shows probable cause for a there was charge theft or violation

warrant or deference, Dyer I sub- Act. With conceive mit is difficult lack of cause. clearer ease of overcome, that hurdle

And if were even illegal because arrest would charge offense but criminal was not a I, therefore, investigation.

merely for part

respectfully dissent concur part. OWENS,

John Appellant, Daniel America,

UNITED STATES of *16 Appellee.

No. 9910. Appeals States Court of

Tenth Circuit.

June

Certiorari Denied Nov.

See 89 S.Ct. 299.