*1 grant refusing defendant’s mo- suppress obtained as the evidence tion of the search.
a result judgment court the district for is remanded and the case
reversed
new trial. (concur-
HASTINGS, Judge Chief
ring). in this reached
I concur the result
case. JENNINGS, Appellant,
Jacob America, STATES
UNITED Appellee.
No. 24358. Appeals States Court of
United Fifth Circuit.
March Fla., ap- Gifford, Miami,
Paul E. for pellant. Atty., Bierman, Donald I. U. Asst. S. Fla.,
Miami, appellee. SIMPSON, Before COLEMAN DAWKINS, Judges, District Judge.
COLEMAN, Judge: for it. He had been informed that question vehicle in awas 1962 Chevrolet age Jennings, twenty-five, Jacob Impala, stripe painted with a red down 40, Denmark, Route Box Caro- South center, South Carolin- license num- lina, previously attempted a convict of 13-133, ber E Virginia, murder in the State of joint At a transporting beer and wine unlawfully called “Across convicted a Ditch”, Street, Avenue E and 25th motor vehicle in interstate commerce Blakely Florida, officer Pierce, saw the automobile. Denmark Fort looking man, While he was at it a who U.S.C.A. affirm. § later Jennings, out to be turned Jacob Campbell, op- a James taxi and cafe joint asked, came out and “What Denmark, erator testified that while you do want? What’s the matter?” The transporting appellant and teen- this two officer asked him if he was the driver age boys “Johnny known as Mac” and car, of the replied to which he “Ungeraid” he was robbed of vehicle Blakely affirmative. then asked the man gunpoint. During course if license, he had a driver’s which was robbery flee, attempted he was shot likewise answered in the affirmative. fence, hip, jumped escaped in the a Blakely The man then handed a South into the woods. He the automobile saw bearing Carolina driver’s license being away. driven it re- When Campbell, name James born October painted stripe turned to him it had a red height. 5 feet 11 inches in Since on it. forty- this driver’s license called for a Nelson, Robert of a service owner year subject interroga- nine old and the Pierce, station in Fort testified that only tor twenty-five, not 5 feet Jennings, boys, Jacob with two other tall, 11 inches the officer then asked filling came to his station asked registration papers for the for the ve- keep security spare him to a tire as papers hicle. These were likewise in gas. Jennings for two dollars worth Campbell the name of James and de- spokesman group. for the scribed the automobile as a 1962 Chev- rolet, bearing South Carolina license rooming operated James Walker number E 13-133. The officer then Pierce, Jennings house in Fort where Jennings arrested but told him would teenage boys stayed and two for awhile. question any him further until Jennings saying car, claimed to own the got police Upon to the station. arrival bought Denmark, that he had it in South station, at the the officer advised Jen- rooming staying Carolina. While nings rights.1 Jennings After painted stripe house he it. a red on rapidly questions answered a few too Blakely police James was a officer for the officer write down the an- in Fort He Pierce. had served in swers, he announced that he would not capacity approximately years. fifteen answer further and the im- 1, 1966, On October he was “informed mediately stopped. [reliability someone not stated] meantime, In the stripe] an [the automobile with the red of the Investigation Federal Bureau of had been stolen” and look set out plained right to him 1. “1. it You have the to remain silent. what was and what meant. Anything you say “2. will be can and back, say: And on the (Reading:) I’d against you used in a court of law. “Waiver. After the and in or- talk have the “3. You der to waiver, secure a following you present while lawyer with him or have tions should be asked and an questioned. affirmative you are reply question: secured to each lawyer, you to hire afford “4. If cannot you “Do understand rights each of these you represent appointed to be will explained I you? have you any questioning, wish one.” if “Having rights you mind, these do him; I ex- I read sentence Each wish to talk to us now?” whip- hour an inflicted a been notified. Within about which ping. severe He police station. also came out that these two he arrived “Johnny know, boys, and neither Mac” and did not him, community told police [Denmark] lived in the same Pierce nor the defendant an un- had announced one of them had been Jen- that defendant dating ques- nings willingness further home two sister. The to answer teenagers Proceeding if there had been are not identified as otherwise tions. *3 subpoenaed interrogation, in prior F. B. I. the record not no the and were warnings. again gave complete by as witnesses either the Government full and ap- warnings, the Subsequent or the defense. to these signed pellant and did waiver a by accepted proof, The the sum of the with discuss the matter hesitate to jury, example the constitutes a classic awhile, agent. talked After guilt. open of and shut appellant’s reduced was statement urged is now that before officer writing signed it. and he Jennings Blakely name could ask his defense, Testifying Jen- in his own ask for or take his driver’s license or Campbell nings the witness contradicted registration he papers the automobile night the sequence on the of events as to required of con- to warn him his was admitted taken. He the was vehicle rights required in the manner stitutional any partici- present, he disclaimed by Arizona, v. 384 U.S. Miranda of State 1602, robbery, that pation asserted in the 436, 694, 10 86 16 L.Ed.2d S.Ct. (for “Johnny Mac” and Moreover, (1966). it is A.L.R.3d 974 names) no other he he knew whom said Jennings into said that custody taken after He admitted the real robbers. were duly his he of warned from Denmark he in the vehicle rode rights. constitutional time, Pierce, driving part the of opinion are of the that under prompt- that this action was claimed but the circumstances of this case Miranda by other two. This ed fear of the require the did not a from of his statement the substance been prior officer the This was arrest. agent. had not He he the F. B. I. said interrogation.2 not custodial teenagers prior to with the other get “happened” to three the time the man, grown appellant, a together. con- his It was the into cab prior ex at unfortunate with perience least he was tention for three weeks law, approached the the with and was them harm from under fear of by opened episode ask officer and ing the police. go escape or to the afraid to was, of the the matter what what having Yet, he admitted alone ficer wanted. When officer asked possession at var- the automobile of sole him for the license and driver’s during period. times ious registration papers, freely he handed opera- identifying rooming over, him rebuttal, them after first house On appeared boys self name which knew three while the tor said that staying nothing papers. rooming on those There was house his at this, it fight, got in or unless' a forced coercive about into them one of person spelled taken into holding ficers after a has been out with be will “Our custody deprived pages of his free or otherwise specificity which fol- some way”. any significant pros- in briefly dom action is this: it but stated low statements, may U.S. 86 S.Ct. whether not use ecution stemming inculpatory, exculpatory or frequently Thereafter, opinion uses interrogation the defendant custodial pro- “in-custody” interrogation, term which use of unless demonstrates custody person in that a must be safeguards means to secure effective cedural deprived against or of his freedom privilege otherwise self-incrimination. way. significant interrogation, By mean we custodial of- tioning enforcement law initiated any manner, a traffic individual that even when indicates be said can high- stops prior during question- on an automobile time to or officer silent, give ing,- way the Miranda first that he he must wishes remain interrogation warnings name he can ask the At this must cease. production request point he intends driver and has shown that Evidently, officer priv- license. Fifth Amendment driver’s exercise reliability ilege; any about not satisfied after the statement taken car person privilege to the white information as be invokes his cannot bearing stripe ccmpulsion, indi- product until an the red other than the voluntarily him and confronted vidual or Without subtle otherwise. produced questioning, the driver but the set- said he was cut off clearly belonged ting op- papers in-custody some- which perfectly analo- This one else. case on the to overcome erates individual gous in Evans producing to the situation a statement factual free choice *4 States, Cir., 1967, F.2d in- 377 privilege 5 once United after the has been I. 535, except F. B. in that case the voked”. subject agents sought her the in out argues pres- the Appellant then that there was held that home. own We United v. is similar to ent case Westover interrogation that and no custodial 1602, 494, States, 436, 86 S.Ct. 384 U.S. apply.3 Miranda did not the 694, in included a case 16 L.Ed.2d given warnings by the Pierce The Miranda decision. clearly adequate. Appellant police were agree with these con do not I. F. B. admits in his that the brief It clear us that what seems tentions. warning adequate con- but further sought Miranda in the interdict Court already appellant that tends since person in situations which were those any questions refused to answer more his to exercise his desire has indicated improper, Miranda, for the under right the silence but constitutional question F. B. him. In I. police for an answer. take “no” refuse to appellant support of contention claim, Disregarding constitutional 436, quotes Miranda, from 384 U.S. they questions, see 384 continue to ask 1612, 444-445, 473, 1602, 86 S.Ct. 453, 1602, L.Ed.2d 16 86 S.Ct. U.S. any however, techniques not used “If in indicates These stage proc- that the manner and at of the in is admitted this case. interrogation imme police ess ceased that he wishes to consult with local expression an attorney speaking diately upon appellant’s an there can Likewise, unwillingness questioning. proceed be no if the further. in individual is alone indicates and Westover, ar- the defendant was In any manner that he does wish pre- police. by no With rested local interrogated, may police to be the rights, liminary question him. The mere fact custody fourteen kept for over him in may questions or have answered some length interrogated him hours and on his volunteered some statements They no during period. obtained deprive own does not him of the interrogation I. The F. B. statement. answering any to refrain further began immediately conducted and was inquiries he has consulted with until headquarters. police in the same attorney an thereafter consents said, “Despite fact the Supreme Court questioned”. to be warnings gave agents B. I. F. interview, from warnings given, West- the the “Once have been the outset of warning came subsequent point If the of view procedure clear. is over’s 260, Cir., 1957, States, surrounding in which F.2d 9 385 The factual circumstances surprisingly for a violation of 18 U.S. arrest of are similar a conviction appearing Keegan affirmed. in to those v. United 2312 § C.A. 516 Judge (concurring interrogation SIMPSON, process. at the end of intelligent specially). an In these circumstances rights cannot waiver constitutional Compare our I concur in the result. hand, Jen- the other assumed”. On be nings following in cases: recent decisions thoroughly warned first States, Cir. v. United 5 Williams police. He found out that Fort Pierce Holman, 669; 5 v. 328 F.2d Boulden immediately expressing unwill- upon an 1961), (November 3, F.2d 385 Cir. 1967 ingness proceed States, United Amador-Gonzalez v. stop. He had promptly
would 10, 1968), (January 391 5 1968 Cir. only hour, custody about an States, United F.2d Windsor v. 308 and tioning F. B. brief. When had been (January 31, 1968), F.2d 389 1968 Cir. appellant agent repeated warnings, I. Ninth Circuit 530 as well as recent himself, satisfactory to for some reason Keegan States, 385 case of United unwillingness express same failed to referred Footnote F.2d against theretofore exercised local majority opinion. police. long way The situation lacks a fast-developing This is a fluid coming rule. within Westover In law. constitutional field of federal There was no error admission case-by-case situation, cautious this approach of the F. I. statement obtained the B. develop- necessary proper is controlling precedent. ment of argued Lastly, it trial that the *5 judge charged jury, have as should requested, the un effect explained failure of Government “Ungerald” “Johnny call Mac” and that, presumption authorize
would testimony
if called their supported would not the indictment. have subpoenaed These were not witnesses LACAZE, Joseph Charles William Michael either the Jennings or the Government defendant. Acevedo, Douglas Arceneaux and Vir- subpoena claims did ginia Cain, Appellants, them did not know their because reject contention, be names. We America, STATES UNITED cause he had lived in the same small com Appellee. munity with them in South Carolina No. 23060. them had traveled with least three Appeals Court United States the car More weeks after was taken. Fifth Circuit. over, he testified them March been to his home had dated his “Johnny If sister on occasion. Mac” easily available custody, reason Federal any credulity shocks to assert
body ordinary dili exercise of
gence as could have had trouble learning
certaining real their names and
their com small whereabouts
munity Denmark, See South Carolina. Cir., States,
McClanahan v. United F.2d Judgment the District Court
is affirmed.