United States v. Charlie Tucker

agents holding pen until several hours a VAN Before OAKES and GRAAFEI ar- Investigation Federal of the Bureau LAND, CARTER, Dis Judges, Circuit agents told him that he rived. Judge.* trict robbery, April arrest for the right, got you “All which he blurted out OAKES, Judge: Circuit immediately Miran- gave me.” This is an from a appeal judgment warnings appellant and obtained da 2, 1979, February conviction on entered They spot. on the confession from him the United States District Court for the following a further confession obtained York, Henry Eastern District of New his morning, transported when him to Bramwell, trial, Judge, jury after arraignment. robberies, in three armed bank violation April on Appellant released bail on 2113(a), 2113(d), Appel 18 U.S.C. and 2. §§ was a August there 1978. On urges lant lacked Brooklyn. robbery of a different bank in prior eliciting detaining cause for him testimony, eyewitness on Based inculpatory statements that certain appellant robbery for the later arrested trial statements introduced at were the in morning. fruit admissible of an unlawful arrest. For follow, we the reasons that reverse the evi- suppress physical Appellant moved to court judgment the district and remand concern- post-arrest statements dence and proceedings with cause consistent respect to three But with ing all robberies. opinion. robberies, appellant explicitly April the two to two facts, grounds for his motion limited the briefly, follows. On 17, 1978, issues, inadequate warnings and Miranda April two tall black males robbed Bank, influences to make improper government 3126 Avenue Chase Manhattan disavowing U, talk, Brooklyn, specifically On two April New York. bank; During the illegal argument. any black males the same a bank arrest robbed motion, how- recog- hearing on employee testified at trial that she December * York, sitting designation. theOf Southern District of New ever, First, to be judge permitted questioning on the decision nonretro issue of arrest over Govern- actively principle must establish a new objection. Appellant ment’s raised ille- law, by overruling past prece either clear gal argument fruit arrest/poisonous relied, litigants may dent on which have hearing, end of the and the court considered see, Shoe, g. e. Hanover v. United [Inc.] summarily rejected it. 481, 496, Machinery Corp. Shoe U.S. [392 Fourth princi Under 20 L.Ed.2d 1231 ples recently restated in v. New (1968)], deciding issue first an York, impression was not whose resolution the Government has not foreshadowed, e. Allen g., v. State record, on this its prov satisfied burden of 544, 572, Board of Elections [393 ing by preponderance evidence, see (1969)]. Illinois, Brown v. Second, it has “we been stressed that 2254, (1975), 45 L.Ed.2d 416 that the confes * * * must weigh the merits and sions on April 27, 26 April 1978, and were by looking demerits each case to the admissible and were not the fruit an of prior history question, of the rule in its First, arrest. the detention appel of effect, purpose and and whether retro lant in holding pen apparently did con spective operation will or further retard “arrest,” stitute an requiring finding of operation.” its Linkletter v. Walker [381 degree cause, usual probable of not 1731, 1738, U.S. 85 S.Ct. at 14 lesser degree permitted by the stop-and- (1965)]. Finally, 601 L.Ed.2d we have frisk Terry Ohio, cases such as 1, 392 U.S. 1868, weighed imposed by 88 S.Ct. the inequity 20 retroac (1968), L.Ed.2d 889 and progeny. As in Dunaway, tive application, for of told decision “[w]here to come to down the station this produce ineq Court could substantial for questioning, leaving him with im applied retroactively, uitable results if pression that until through were with ample there is basis in our cases him, he was not free to leave. See Duna ‘injustice avoiding hardship’ by 208, way, supra, 442 at 99 U.S. S.Ct. holding nonretroactivity.” Cipriano 2254. 701, City of Houma U.S. 89 S.Ct. [395 argues Dunaway dissent should (1969)]. 23 L.Ed.2d 647 applied retroactively not be de because it cides a new law and broadens The proper application of this three-fold rule, exclusionary and the policy standard in Fourth Amendment exclusion- deterrence said to the exclusionary underlie ary rule cases is to be found by rule1 would not applying be served it Peltier, 422 U.S. retroactively while administration (1975), 45 374 L.Ed.2d in which the Court justice unduly would be such burdened give declined application to retroactive application. Dunaway pur But does not States, v. United Almeida-Sanchez 413 U.S. port expand protec Fourth Amendment (1973) 93 37 S.Ct. L.Ed.2d 596 beyond tions pri contours established in (warrantless searches, Border Patrol auto Thus, although or cases. de cause, without unconstitutional). subsequently argument cided to the oral In Peltier the Court held that where law principle it establishes no “new enforcement pursuant acted to a law,” Huson, Chevron Oil v.Co. validly enacted federal authorizing statute 92 (1971), and predecessor whose “sup- dated back apply general we should it here. The stan ported by longstanding reg- administrative dard for nonretroactivity is discussed in judicial ulations Oil, approval,” and continuous Chevron U.S. S.Ct. at 355: U.S. 95 S.Ct. at a new Welsh, Up Exclusionary But see Schrock & from Calandra: The Rule as a Constitutional Re- quirement, 59 Minn.L.Rev. 251 ex- several cases which dissent cites violates conduct finding that such “investigative detentions” condone pressly requires applica- and Amendment Fourth conditions, implies by this under certain should not be exclusionary rule tion of the cases were over- that these argument either The rationale retroactively. if were not Dunaway or that ruled enforcement offi- the law that in such cases have been Dunaway it would overruled know, reasonably could not not cers did think, Dunaway, that before reasonable to knowing, that their con- charged be with properly applied to principles their therefore nei- improper and that duct was analysis re- Closer present fact situation. integrity” purpose, nor “judicial ther sug- veals, however, neither of these the Fourth purpose, the deterrent most, that, at Duna- gestions is correct and exclusionary rule would be holding of these cases way limits the application. by retroactive served similar, own, substantially fact their 537-38, 541-42, situations. stated as may here The issue 129, 397 Morales, 42 N.Y.2d People v. in a station whether a detention N.Y.S.2d hours, for investi several “holding pen” for brought within purposes, may be gative enforce (1978), held “[l]aw Ohio, Terry v. expanded of an some sort person upon may detain a ment officials prob exception supra, stop-and-frisk for a principal issue requirement. able-cause period of time under and brief Illinois, the supra, concerned in Brown v. which are carefully conditions controlled warnings in dis of Miranda per efficacy se Fifth and protect the individual’s ample to illegality. prior police pelling the taint N.Y.2d at rights.” 42 Sixth however, in Brown was an illegality, The at 366 N.E.2d at 397 N.Y.S.2d detention, which the Court improper about However, standard the applying this say: had this to excep mentioned various specifically court was obvi- impropriety of the arrest that obtained: tional circumstances ous; virtually of that fact was awareness felony had been A brutal and heinous when by conceded the two detectives indications raised All of the committed. in their testi- repeatedly acknowledged, police square” of by the “checkerboard their action purpose that the mony, pointed at the defendant. investigation investigation” “question- or for was “for was the of the defendant Interrogation ing.” technique investigative practical only of deten- police. period open to the While the at 2262. and de- was brief tion minutes] [fifteen that the man- also mentions the fact fendant, police procedures, experienced in causing aim appeared to ner of arrest his constitutional fully advised of was id., confusion,” the “surprise, fright, and rights. analysis of the emphasis of its principal 397 N.Y.S.2d investigative 42 N.Y.2d at appears arrest to lie in its has been no 249. There good would be 366 N.E.2d at purpose. Brown alone special circumstanc- showing any similar conclusion that the deten- precedent for the course, (nor, any illegal, present in the case case was unless es present tion in the contrary).2 showing to the probable cause can be established. majority posit broad Morales to passing read when Dun- be noted in It should police all away Appellate conduct Division in test of reasonable was decided York, sets Morales Instead 402 N.Y.S.2d 490 the circumstances. New 61 A.D.2d carefully tightly articulat- (1978) (the subsequently forth a drawn overturned decision exceptional strongly Court), circumstances. Supreme ed rule limited to dissent suppression reversing or- improperly majority the trial court’s was In contended that der, majority Morales the ambit of broadening extend the rule of Morales: ever, prior

The dissent cites a one incorrect holding by number of Second a lower establishing Circuit that Morales cases as state court does not make a many years past. reflects “was for the law break” “sharp what decision with the circuit,” of this dissent at 1017. All the There are no other cases cited in the dissent cited, however, precede cases here clearly by Dunaway. Brown v. which were overruled Illinois, fact, recent, supra. In the most We compelled are thus find on the Thomas, F.Supp. record, present has failed Government aff’d, (S.D.N.Y.1966), (2d 396 F.2d 310 to show that and FBI 1968) (statements Cir. reasonably made on street cor- could have their believed ner entering police vehicle), before precedes principles conduct lawful. stat- was Under Brown over half a decade. Dunaway, ed in Brown and reiterated in an involuntary prolonged detention in a One, More recent cases are mentioned. requiring station is an usual “arrest” Oates, United States v. 560 F.2d 45 degree probable cause. 1977) (airport patdown), clearly is distin- guishable from and from the record, On this there a serious case, present as it involved what the court question whether frisk,” there described as “a stop classic appellant cause to arrest when 560 F.2d at 58. Dunaway Whatever else brought Although him to the station. does, it certainly Terry does not disturb the question is a closer than the stop standard as to the “classic arrested, appellant whether was Rico, frisk.” Another United States v. connecting evidence him to the crime was 1979) 594 F.2d 320 (investigative apparently3 (like robbers) one of stop airport), supporting is cited as male, trying he a tall black that he was legality, pre-Dunaway, investigative de- automobile, to enter an and that there was however, Again, tentions. Rico is substantial reason to believe that the auto distinguishable from and from mobile robbery had been used in the bank Rico, present case. In the brief investi- day before. gative stop justified which was under the If the detention of rationale, Terry explained as in Adams v. supported probable cause, because not Williams, 143,146, 407 U.S. 32 the Government has not shown that “rapidly developed evi- dissipated taint had when the FBI secured dence justify sufficient appellant’s ar- appellant confessions from afternoon rest.” 594 F.2d at 326. following his day. arrest and the To decide view, then, In our there is no basis for the whether the statements were obtained position Dunaway that past “overrules clear exploitation arrest, illegality of the of the precedent” or “decides an issue of first im- we temporal proximity must examine “[t]he pression whose resolution was confession, not pres- of the arrest and the True, foreshadowed.” the New York circumstances, intervening ence of . Appeals had held that and, under limited cir- particularly, purpose flagrancy and investigative cumstances detention was le- of the official misconduct . . . .” gal probable cause, without Illinois, supra, and Brown v. Su- preme Court in reviewed (footnote omitted). and re- Appellate versed the application Here, Division’s although in Dunaway, as the official of that standard to a fact situation similar egregious, misconduct was not the arrest present that in the Surely, time, case. very how- were confession close beyond parameters or, fortiori, Dunaway. ques- these established and in ed after On that doing Dunaway’s rights light express opinion. so violate tion we no Illinois, supra. Brown v. only agent’s hearsay 3. We have the FBI testi- (dissenting Id. at opin- 402 N.Y.S.2d at 495 mony point. did not on this The Government

ion). say Morales, supra, This is not to arresting because call the local good law after Brown v. ground. Illinois was decid- suppress was not on this the motion to robbery, a conviction of a third police cus- convicted was in continuous the defendant by the other convic whether untainted turns on which was The issue thus tody. Although tions, notes. significance,” the Government intervening event “any — 218, 99 twenty-year general received a appellant robberies, suggests of the three The Government on each occurred. sentence agents several does not FBI concurrently, of the Government that the arrival run doctrine, brought appellant see state sentence hours after the concurrent invoke event Follette, (2d was such an Cir. “holding pen” 414 F.2d 417 Weems probable had cause to because the FBI then 1969), suggestion is not may But this appellant.

arrest there Since 25 L.Ed.2d As an abstract mat- convincing. altogether consequences, prejudicial some collateral ter, cause would intervening probable such Hines, 256 F.2d see United States taint, dissipate the see United probably 1958), rely we decline to Morris, 1979) F.2d 341 the doctrine. doubt here (per curiam). But there is some Notwithstanding the inad- Government’s probable cause to that the FBI had the case because it equate proof, we remand so, they appellant they when did arrest was not the fault Government’s several bank subsequently appellant showed (as the Government record is so “barren” asked him to photographs surveillance for recon- admits). We therefore remand himself, been stating that identify sideration, findings, after further which one was Mr. Tucker.” “confused as to following matters: on this record that evidence appellant detention of 1. Whether the cause to arrest him be- probable FBI had 26,1978, prior to his April on (and was under arrest fore told him he requir- an “arrest” agents, FBI constituted right, you’ve got “All before he blurted out probable high degree of ing ordinary photo- me” himself from and identified cause; testimony: graphs) Agent Kaminski’s station], I had on “When I arrived requisite [at Whether the State had photo- my possession bank surveillance appel- degree probable cause to detain photo- graphs . . . Based on lant; Eastern District of New graph, I called the not, statements If whether arrest got York and authorization to Char- after his detention obtained from vague lie is too Tucker.” This statement exploitation of were obtained in demonstrate cause. detention, attention to giving particular suggests Government whether, arrested formally FBI when the suppressi April even if the statements so. probable cause to do appellant, they had ble, appellant adopted the admissions six proceedings for further Cause remanded 31, 1978, in the months later on October opinion. with this consistent prose lawyer first and the presence of his the fail But we do not believe that cutor. GRAAFEILAND, Judge, Circuit VAN suppress ure to the earlier statements dissenting: error. The defense had therefore harmless opinion in of its opening the sentence In objection to the introduction at a colorable 200, York, 442 U.S. v. New Dunaway statements, pursu trial of those later 2248, 2251, 824 202, 60 L.Ed.2d 99 S.Ct. did not stipulation ant to a the Government said: (1979),1the Court trial. The introduce these statements at re- question the trial, in this case We decide earlier confessions were introduced New in Morales v. years ago 10 served heavily upon relied and the Government 291, 102, 24 York, 396 S.Ct. April U.S. prosecution for the two [90 them in its ques- namely, “the (1969), course, L.Ed.2d appellant was also robberies. Of 299] argued. was decided after this case was briefed and 1014 111, Cir.), 975, question- (2d denied, 118 legality the of custodial cert. 440

tion of U.S. 1545, 1801, a 985, 794, for than cause 99 59 60 ing on less S.Ct. L.Ed.2d id., at Diaz, 106 S.Ct. at full-fledged (1979); arrest” L.Ed.2d 248 United v. States [90 821, 1978); 577 F.2d 824 Cir. United 293]. Reda, 510, 511-12 (2d v. Cir. States instant case as if My brothers decide the denied, 973, 1977), cert. 435 U.S. 98 S.Ct. ago ten years had question the “reserved” 1617, (1978).2 56 65 L.Ed.2d doing, they In so been decided. actually justification for the purported distort the 97, Huson, Co. v. 404 92 Chevron Oil U.S. rule, which is the deterrence exclusionary 349, (1971), upon 296 S.Ct. 30 L.Ed.2d relied misconduct. United States v. official See majority, exclusionary the is not an rule Ceccolini, 268, 281, 1054, 435 98 S.Ct. 55 U.S. case. Where the conduct of officers J., (1978) (Burger, C. L.Ed.2d 268 concur- issue, is at is not whether a Powell, ring judgment); 428 Stone lays new Supreme Court decision down a 465, 3037, 486, 49 L.Ed.2d U.S. 96 S.Ct. 1067 clearly departing from prior rule authori (1976). ties, whether, pre but which under law Peltier, decision, In 422 United States v. U.S. existed 45 95 S.Ct. L.Ed.2d 374 might properly charged knowledge be with said: the Court their conduct unconstitutional. Peltier, purpose exclusionary If United States 422 rule is U.S. conduct, 2313; Industries, to deter then 95 unlawful S.Ct. Savina Home Labor, evidence from a search Secretary obtained should Inc. v. F.2d suppressed only be if it can be said that (10th 1979); 1363-65 United States the law enforcement officer had knowl- denied, (7th Cir.), Berry, 571 F:2d edge, may properly charged with 840, 99 knowledge, search was unconsti- tutional under Fourth Amendment. The officers who took into cus Applying involving this doctrine to cases tody City were members of the New York retroactivity, the Court said: Department. year prior Police Just one teaching retroactivity of these cases question, New York incident if the law enforcement officers Appeals Court of held that enforce “[l]aw reasonably good believed in faith that may detain ment officials an individual evidence had seized was admissible trial, “imperative judicial integ- brief period a reasonable and of time rity” is not offended the introduction carefully controlled conditions which

into evidence of that material even if ample protect individual’s Fifth subsequent decisions search or sei- rights.” People Sixth exclusionary zure have broadened Morales, 129, 135, N.Y.2d N.Y.S.2d rule encompass evidence seized in that (1977); cert. manner. Id. at 2317 (emphasis supplied). (1978).3 This opinion followed reargument This is the the same in which the doctrine has case applied. heretofore See reserved decision Sotomayor, 24 L.Ed.2d 1979); Corcione, (1969). My United v. 592 charge F.2d 299 brothers now the Walker, 618, Wise, 321, 330, People 2. See also Linkletter v. 381 U.S. 3. See also v. 46 N.Y.2d 636-40, 1731, 334, (1965); (1978); 85 S.Ct. 14 L.Ed.2d 601 413 1262 Peo- N.Y.S.2d 385 N.E.2d Shipyards Labor, 840, 841, Corp. Secretary ple Boyer, Todd v. v. 65 410 N.Y.S.2d A.D.2d 683, (9th 1978); 299, (1978); People Dunaway, 689-91 61 167 v. A.D.2d Walker, rev’d, 502, (9th (1978), States v. 442 402 490 N.Y.S.2d Cir.), 976, 1625, 200, 98 S.Ct. 2248 99 S.Ct. (1978); v. United States Mont gomery, 1977). (5th 558 F.2d 311

1015 possessed by judges was then the of New great- with a City York Police Officers New highest law than York State’s court.4 knowledge of constitutional er convicted, trial, jury upon says Defendant was after a Judge that the dissent relies Oakes court”, holding by degree. Appellate a lower state of murder in the first “one incorrect The being Appellate (27 court “lower” state Division affirmed his conviction A.D.2d Department, 904, 520) appeal Fourth which decided Division 280 N.Y.S.2d and a further 299, People N.Y. 61 A.D.2d our was taken to court. We sustained the S.2d 490 and that no other cases cited It was conceded that the record conviction. in the dissent were overruled Duna- support po- not a conclusion would that the will, sure, way. I am be of This statement probable lice had cause to arrest defendant at great attorneys prosecuting in comfort to the custody. police the time he was taken into Morales, 129, People supra, 42 N.Y.2d Further, appeal the record on did not estab- Wise, 587, 248, People v. N.Y.S.2d 366 N.E.2d being lish that the defendant consented to supra, 413 N.Y.S.2d N.Y.2d questioned by police. detained and How- Boyer, supra, People N.E.2d and ever, impression, in a case of first we held 167, and to the New A.D.2d 410 N.Y.S.2d suspect may upon “that a be detained rea- However, I am afraid that York courts as well. suspicion for a reasonable and brief sonable through Judge different Oakes and I read cases period questioning carefully of time for under engaging glasses. in dis- colored Instead of protecting his Fifth controlled conditions and colleague, my I include the course with following excerpts learned rights.” (People Sixth Amendment v. Mo- Morales, Wise, and from rales, 55, 64, 22 N.Y.2d 290 N.Y.S.2d Boyer, may determine for so that the reader 307, 314.) 238 N.E.2d are consistent with himself whether these cases whether, of their hold- and in view Having concluded that cause to ings, City police in the New York lacking, fully arrest was we adhere guilty taking instant were of bad faith in case opinion prior views articulated in in our this custody. petitioner into may case. Law enforcement officials detain Morales, People 42 N.Y.2d at 131— an individual 32, 135-36, 137, 587-588, 588, 397 N.Y.S.2d period for a reasonable and brief 590-591, 591-592, 248-249, 249, N.E.2d carefully of time controlled conditions 251-252, 252: ample protect which are the individual’s second time. In This case is here for the rights. Fifth and Sixth For a 4, 1964, early morning hours of October views, exposition full of our reference is viciously Addie Brown to death was stabbed opinion (People made to our earlier rales, v. Mo- County apart- in the elevator of her Bronx 290 N.Y.S.2d N.Y.2d building. eyewitnesses ment There were no supra.) stage At this N.E.2d police to the murder and an extensive gation investi- argument attention is directed to our any evidence failed to uncover direct defendant, accepted the dissenter at identity police as to the of the killer. Yet the Division, vitality Appellate that the Morales, did learn that Melvin a known nar- holding Morales has been undercut Brown addict, building, frequented the cotics had (422 v. Illinois building at time of had been inside the Martinez, People supra) L.Ed.2d homicide, and had not been seen since 37 N.Y.2d 376 N.Y.S.2d the murder Morales’ mother was a tenant 162, supra. disagree. We building sojourned with her Morales case, police In the Brown officers investi- Further, building from time to was time. gating that the a homicide had been informed activity frequent the scene narcotics acquaintance defendant an of the victim. was allegedly participated. which Morales information, this and this information On police attempted through to contact Morales only, the officers broke into defendant’s days his mother. October nine On it, apartment, the de- searched and arrested killing, after the Mrs. Morales a tele- received gunpoint. fendant at phone call her from son. She informed him subsequent concluded con- that defendant’s that the desired to him. Mo- suppressed be- fessions should have been agreed appear beauty rales parlor, at his mother’s cause the confessions were obtained as place police, her of business. The court, of an in lan- result arrest. The previous who had seen Mo- efforts to contact defendant, guage upon by fail, relied noted through rales his out mother staked arrived, premises. the officers were aware that lacked the police When Morales predicate speak for the arrest. a sufficient advised him that desired to “expe- “investigatory” “Yes, replied, and was an arrest was him. Morales I He know.” hope placed in the that some- dition for evidence and driven to the car (422 p. precinct house, thing might up.” U.S. at tum house. At the station Mo- 2262.) p. rales was informed of his constitutional rights questioned. relevance The Brown case has limited Within 15 min- course, utes, us. if the the case before Of he confessed to the murder. Detective Office. Defendant had a cut on the They proceeded back of his left hand. then illegal, conduct here was then defendant he to the Detective Division where that, Office might cogently contend under Brown they investigating a was advised that were States, 471, Wong and Sun v. ” burglary, and advised him of "Miranda 441, his 83 S.Ct. 9 L.Ed.2d the confessions rights. empty if He was asked he would his suppressed of Morales should be as fruit of pockets Among which he did. the However, articles poisonous the tree. the basic dis- pockets which were in his watches, some were tinction gal; arrest is that the in Brown was ille- keys currency. foreign and a set of the limited of detention Morales was .prop- obtained a list The officers then of the not. . . . missing erty which was from the scene of the burglary stop which included two watches up, original To sum view in our Morales keys. stop Two and a set of watches and the case, today. remains valid No in our court or keys had set of which been in defendant’s Court, in the United States has the pockets were thereafter identified the vitiating principle effect of the we enunciat- having reported missing as been owner in the Morales, Actually, ed. since our court has burglary. thereafter Defendant admitted his right noted that the individual’s “to be free participation burglary signed the and a in by way from an official interference of in- sup- then moved to confession. Defendant quiry” (People Bour, is not absolute. v. De press and the the confession items obtained 375, 381, 40 N.Y.2d 386 N.Y.S.2d pockets. hearing, from After the 562, 568.) Rather, defendant’s policeman’s 352 N.E.2d right “a . the motion was denied request discharg- to information while ing hinge police his law duties will “Where enforcement on officer entertains rea intensity interference, particular the manner and of sonable person that a gravity committed, committing of crime has involved and or is to about attending (40 felony misdemeanor, circumstances the encounter.” commit a the CPL p. p. stop N.Y.2d at 386 N.Y.S.2d at authorizes a forcible and detention 1; 569.) person p. (CPL 140.50, Terry N.E.2d subd. see Ohio, People Boyer, supra, 65 A.D.2d 20 L.Ed.2d 840 - 167-168, 889; People 410 N.Y.S.2d at 168-169: v. Cantor [36 N.Y.2d Appeal judgment County 872,] supra).” from a N.Y.S.2d 324 N.E.2d Albany County, Bour, (People September 210, 222, Court of rendered v. De 40 N.Y.2d 22, 1977, 375, 384, upon convicting 562, 567.) a verdict 386 N.Y.S.2d defendant N.E.2d burglary police degree, justified of the crimes of in In this stopping the third were in grand larceny degree. investigate and in the second At the taxicab to the sus pected burglary. police about 4:30 A.M. on June two officer’s testimo ny patrol burglary in officers car noticed defendant he knew that a had occurred standing premises apparent burglary in the in street front of the relates when the Broadway City Albany, premises. call- confirmed the owner of the ing Knowing burglary for a apparently taxi which was about three that a blocks tak away. They proceeded slowly and, place past passenger en description him and that the taxi met the suspicions being aroused, their originally went around man observed Broadway location, the block burglary and returned to 345 and near the reasonably the officers act They gone. found stopping detaining defendant then found a the cab and Broadway, window passenger broken in 345 and other based “the common-law signs entry building. They power inquire purposes maintaining into then description quo broadcast a of defendant. The the status until additional information began checking neighborhood acquired”. (Peopl Dibble, e could 755.) defendant and went into Coulson’s News A.D.2d 398 N.Y.S.2d Broadway they justified stopping Center on detaining where were were ad- and de matching upon specific vised that someone defendant’s de- fendant based and articulable scription getting yellow which, together had been seen into a facts in taken with rational facts, reasonably colored cab. This information ferences was also from these war thereafter, Shortly patrol broadcast. ranted the another intrusion. denial of the mo suppress car saw a tion cab near the intersection of Madi- should be affirmed. People Wise, son Avenue Street and Green no- 46 N.Y.2d at appeared ticed a black in the male cab who N.Y.S.2d at 385 N.E.2d at 1267-68: description eyewitness to match the placing which had These of an been statements They stopped cab, broadcast. defendant and asked at the scene of the crime were step speak him to out could so sufficient to him. form basis for a custodial (see, g., People Morales, Defendant denied that he had been on Broad- detention e. way, 129, 135-136, description but since he matched the N.Y.2d 591, 397 N.Y.S.2d 590- broadcast, 248, 251-252). long that had been the officers who So had made the broadcast were called an- are solicitous of carefully individual’s him, rights, scope scene. These officers identified delimit the he intrusion, go predicated was asked if he would with them to the a custodial detention

1017 approved by law com- rule in this the common exclusionary In applying This and the . . . imputes also the New mentators courts. majority to police to detain legal prerogative acumen York officers more City police neces- questioning for is not capable persons possessed by very than order to to who, sary in enable authorities pre-Dunaway judge district arrest, charge those who apprehend, standards, “the have found that did implicated; protects it also those who are bring to in the defendants cause readily to exculpate able themselves robbery.” of bank concerning suspicion being having arrested formal from in Morales was That the law as enunciated charges against made them before their can years the law this circuit many explanations are considered. v. hardly disputed. See United be States Drummond, (2d 1965); 354 F.2d 145 Cir. years ago, this said that Only two Middleton, United v. 344 83 States F.2d deten “although every arrest is a form of Vita, (2d 1965); Cir. 294 United States v. tion, converse is not true.” United denied, (2d 1961), F.2d Cir. cert. Oates, (2d v. 560 F.2d 57 Cir. States 369 7 788 L.Ed.2d “a law en 1977). We there stated that (1962); LaVallee, 270 F.2d United States power, officer has indeed the forcement (2d 1959), 518 Cir. temporarily person to detain a obligation, (1960); him if the purpose interrogating for the Thomas, F.Supp. reasonably suspects the detain officer aff’d, (S.D.N.Y.1966), 396 F.2d 310 ee committed a crime.” Id. has ... Vita, 294 1968). In United States v. (footnote omitted).5 We 58 — 59 said that Judge F.2d then Chief Lumbard balancing a test should in deter be explained legal principles detention, applicable legality one mining the follows: weighed the seriousness of the deten suspected against tion the seriousness of the Moreover, even if Vita had been involun- Id. at 59. also offense. See United States tarily detained for or had be- Rico, 1979), accom- lieved that he had no choice but to where we found “reasonable” conduct

pany headquarters, the F.B.I. to agent taking in to a DEA defendants we necessarily not hold deten- would such verify station to Rico’s assertion that meaning tion an “arrest” to be within the bag powder plastic in was not certain Rule of Federal Criminal Procedure heroin.6 5(a). in The rule does not a case apply suspect rejected which federal officers detain a Dunaway, In narrowly- for a order period balancing except short and reasonable test question The right him. defined intrusions. that, in Judge says so early English has at 2254. Oakes practice its roots 5.Ct. Security they were asked Customs stant hardly can accompany and DeAlfi Officers Fromkin Morales, (People “unreasonable” termed nearby F.2d at office.” 57. them to a record, therefore, supra). defend- On pretrial suppression was cor- motion ant’s Rico, the Court said: In rectly denied. plastic bag bag found a In the Whitmore People A.D.2d at In containing powdery a brown substance 492, 402 N.Y.S.2d at Court said: asked Rico him like He looked to heroin. We believe that this case is controlled nothing. and Rico it was At what it was said Appeals recent decision of Court of point three that Whitmore advised [, People v. Morales N.Y.2d 397 N.Y. go have to with him would S.2d 366 N.E.2d 248] .... desk, quarters of which was least three City Judge says po- that the York Oakes New away, to obtain and took outside mile them reasonably lice had the officers could not have police assistance. respectfully disagree. same I belief. at 323. Oates, appellants unsuccessfully In contend- ed that “were under arrest from the in- doing, simply “restated” BLADES, INC., However, principles.

Fourth UFI Amendment RAZOR Plaintiff-Appellant, Brennan, who Justice wrote for granted stated the Court “clarify” Fourth certiorari 65, WHOLESALE, RETAIL, DISTRICT requirements. 442 U.S. at UNION, OFFICE AND PROCESSING 2253. I suggest that the difference ter- Affiliated With the Distributive Work minology than is more mere semantics. America, Defendant-Appellee. ers of Application the exclusionary rule im No. Docket 79-7511. poses upon society. an enormous cost Appeals, States Court of Williams, 387, 421-22, Brewer v. Second Circuit. (1977) (Burger, C. Argued Sept. 1979. J., “The dissenting). particularly cost is Decided Oct. high exclusionary because the rule ‘deflects truthfinding process and often frees the ”7 Henderson, guilty.’ Gates v. 1977) (en banc), cert. de nied, U.S. 54 L.Ed.2d Powell, (1978) (quoting Stone v. (1976); see United States v.

Ceccolini,

1976) Graafeiland, J., (Van dissenting),

rev’d, Because “neither deter judicial

rence nor integrity, pur two

poses rule”, exclusionary served will application furthered retroactive

Dunaway’s clarifying holding, and because

of the “obvious burden on the administra justice”

tion of that will be created such application,

retroactive see United States

Reda, supra, 563 F.2d at respectfully I

dissent. retroactively, gravely This is better nowhere than in should illustrated it consider Dunaway itself, defendant, murder, many persons where the convicted how convicted of other felony attempted robbery, robbery rape murder returned to the streets will be walking now holding. streets a free man. Before as a result of its this Court decides should be

Case Details

Case Name: United States v. Charlie Tucker

Court Name: Court of Appeals for the Second Circuit

Date Published: Oct 23, 1979

Citation: 610 F.2d 1007

Docket Number: 985, Docket 79-1068

Court Abbreviation: 2d Cir.