*1 rely strongly upon involved, deputy Appellants acting Jones v. here the was not by Buckelew, in either of 247 Ala. “virtue office” or “color of So.2d Alabama, reasoning Supreme of which the Court office” the of the Ten- construing almost nessee herein de- Alabama statute decisions cited. The 3), (see puty 8-1920 identical T.C.A. note sheriff in the instant case was § deputy undertaking held of a or the official bondsman to arrest Waters Mrs. injuries personal any papers upon sheriff to be serve the of liable her at time driving negligent by operation negligence of an the the in caused accident. His by deputy “ferret- automobile while automobile across the line of center highway striking here ob- crime.”5 should be out It the Waters us is served that action before automobile was not in committed the act conduct, duty performing Ms of the sheriff own an official with re- spect capacity and therefore need not consider Mrs. in Waters his surety deputy bond exercising whether his official sheriff or in emphasize or would be holden. too of his office. We find no deputy authority authorizing is no official bond Tennessee of the us sheriff enlarge us, as involved matter official bond of the sheriff ques- policy liability in the case Jones Buckelew. No into a of insurance ren- liability dering surety every tion was raised about the liable for act negligence surety of the deputy sheriff acts his of a while help deputy, operating county-owned so the decision offers little automobile on deciding present question. patrol. in our routine Supreme Ivy v. Court of Alabama cited Affirmed. Osborne, along supra, with the decisions states, of a number of other but refused them, recognizing
to follow a dif- prevails
ferent rule in Alabama from applied say Tennessee. Suffice by
this court Ten- bound law of case, nessee instant not the America, UNITED STATES jurisdictions. law of other Appellee, Many of deci the Tennessee MIDDLETON, Appellant. Jr., H. Herbert sions contain extended discussions No. Docket 29453. common law distinction between the acts deputies by of a sheriff and his “virtue Appeals United States Court of of office” and “color of office.” doWe Second Circuit. necessary apply find it to discuss or this Argued March 1965. distinction because it is held now April 5, Decided 1965. the distinction is abolished in Ten nessee the terms T.C.A. 8-1920 §
(see 3). Dunn, supra, note State v.
Tenn.App. 203. With S.W.2d
respect relationship plaintiffs his
at the time the automobile accident 203; shooting fleeing person Osborne, Ivy in the rule as stated flight arrest, supra, stop Surety to avoid v. National State State Com- Fisher, pany, supra. 193 Tenn. S.W.2d and State Hartford Accident & Indem Co., Dunn, nity Tenn.App. 405, supra, In 314 S.W.2d State v. it is stated
161;
shooting
occupant
and the
of an
Tennessee Code Section now
8-§
T.C.A.
constable,
of an automobile
drunken
the Alabama Code
State,
Tenn.App. 238,
change.
Marable v.
§
without
39 Tenn.
App.
234. All
fall
S.W.2d
of these cases
with-
part. Rosner, City,
Jonathan L.
York
New
appellant.
Peloso,
Atty.,
John F. X.
Asst. U. S.
(Robert Morgenthau,
City
New York
M.
Atty.
U. S.
for the
District of
Southern
York,
Hurwitz,
New
Atty.,
J.
U.
Neal
Asst.
S.
brief),
appellee.
MOORE,
Before
KAUFMAN
Judges.
MARSHALL, Circuit
KAUFMAN,
Judge:
Circuit
Contending that certain
unlawfully
material
obtained
fed-
eral officers and therefore inadmissible
Jr.,
Middleton,
H.
Herbert
conviction,
appeals
judgment
non-jury trial, entered after a
vio-
lating
by stealing
a cal-
U.S.C. §
culating
belonging to the Unit-
machine
guilty,
Navy.
Found
ed States
handwriting
allegedly
main, on
tainted
statements,
inculpatory
specimens and
enough
Middleton was sentenced to often
to know that
were not
thereafter,
imprisonment.1
nine months
We find on the fourteenth floor. Soon
some,
all,
if
at least
Lauth learned
that Middleton and Gil-
criminating
material
dur-
was obtained
liam had been seen in
arraign-
suspicious
an unreasonable
afternoon before under
cir-
ment,
5(a),
information,
violation
Fed.R.
cumstances. With this
*3
Crim.P.,
telephoned
superior, Inspec-
and that
its introduction at Lauth
his
compels
Kogel,
trial
reversal.
tor Martin
who directed that the
suspects
questioning
be held for
in the
morning
September 29,
On the
Inspectors’
Postal
fourth-floor office in
calculating machine,
the
$300,
at over
valued
building.
the same
missing
was discovered
from the
m.,
p.
fourteenth floor of the Federal Office
Between 6:00 and 7:00
Lauth
advising
Building,
interrogated
Street,
Middleton,
90 Church
Manhattan.
first
charged
investigating
right
Those
the him of his
to remain silent. After
(one
burglaries
inquiring
background
theft
of a series of
in the
into Middleton’s
building)
scrawlings
seeking
explanation
also
on unoffi-
found
and
a further
of his
correspondence
adjoining
presence
floor,
cial
in an
of-
on the fourteenth
he re-
fice,
phrase
misspelled
quested
handwriting sample.
Middle-
“yours turly.”
writing
approximately
complied,
ton
At
5:00
out certain words
Edgar
evening, Captain
Dibble,
by Lauth,
including “yours
dictated
charge
security
truly,”
proceeded
Naval Officerin
which Middleton
floors,
“yours
misspell
turly.”
fourteenth and fifteenth
observed
There is no in-
standing
questioned
Middleton and
near
dication that
ing
Gilliam
Gilliam was
dur-
period.
fourteenth-floor elevator. Dibble
this
asked
identify
men
two
themselves and
Inspector Kogel
p.
At
m.
arrived
7:00
gave
state their business. Middleton
his
immediately
and
informed Middleton and
name and said
he was
they
Gilliam that
need not answer
agent,
see a narcotics
stood
Gilliam
anything they
and that
said
Both
mute.
were taken to
the fifteenth-
be used
After
them.
this
duty
joined
floor
by
officewhere
admonition,
acknowledged
Middleton
Guards, Joseph
Lieutenant
handwriting specimen
previ-
Giordano,
Inspection
and two Postal
ously
gave
was his and
additional calli-
Aides,
Rudolph
Edward Lauth and
Nero. graphic samples. Kogel questioned Mid-
alternately
dleton and Gilliam
between
5:15,
approximately
At
one
the in-
9:00;
7:00 and
Gilliam
at
balked
answer-
vestigators called the Narcotics Bureau
ing questions,
gener-
but Middleton was
verify
story,
Middleton’s
but was un-
ally cooperative. During
this
both
agent
named,
able to contact the
he had
began to suffer narcotics withdrawal
Cleophus
one
Robinson. Not satisfied
syndromes
given
pre-
and were
a relief
explanation
pres-
with Middleton’s
of his
scription
turpenhydrate,
type
elixir
although
floor,
ence on the fourteenth
cough
codein,
ap-
medicine with
which
Narcotics
had its
Bureau
offices on
parently (and
without contradiction
sixth, the officers escorted
two sus-
appellant)
Burea,u
did not affect voluntariness.
pects to the Narcotics
to await
Agent
p.
word from
Robinson. At about
At about 9:00
m. Middleton told
5:35,
by telephone
he was reached
and Lauth that
and
Gilliam had stolen
investigating
evening.
advised the
Middleton,
previous
officers that
the calculator the
He
informant,
appoint-
repeated
had an
Inspector
the admissions to
Kogel,
ment meet
thereupon sought
with him
earlier
after-
who
further in-
agent added, however,
noon. The
structions
from an Assistant United
Attorney.
Kogel
Middleton had
10:00,
visited
Bureau’s offices At
was
case,
Gilliam,
close
At tlie
of the Government’s
R.
Charles
whom no self-
granted
the District Court
a motion for
co-defendant,
was
material
obtained.
acquittal by
Middleton’s
interroga-
subjected to considerable
only
and
and
Middleton
authorized
company of officers
in the constant
overnight
Detention
lodge
Federal
him
posi-
guards,
person in Middleton’s
Notwithstanding
these
Headquarters.
youth,
especially
low
Kogel persisted
instructions,
in interro-
tion —
telligence,
addiction —must
taking
and narcotics
typewritten,
gating Middleton,
believed that he
signed
11:-
have understood
11:00
confession between
custody
of the officials
p.
12:50 a. m.
until
45 m.
It was not
under arrest. See Seals
and therefore
lodged
De-
in the Federal
(D.C.Cir.
States,
F.2d 1006
Headquarters
West Street.
tention
States,
1963); Kelley
v. United
spending the remainder
After
(D.C.Cir.
App.D.C.
F.2d 310
night
arraigned
there,
before a
he was
Kogel,
1961).
Indeed,
officer in
morning. At the
Commissioner the next
admitted,
charge,
reluctantly
and the
handwriting specimens
and oral
concedes,
Middle-
Government now
admitted in
statements were
written
*4
ton,
after 5:35.
was not free to leave
evidence,
objection, and constituted
over
surely
that he
our
And
determination
conviction
basis
Middleton’s
real
for
hinge
the fact
was arrested should
Gilliam,
acquittal of
who
as shown
formally
“au-
that
the officers were
any cooperation
had refused
from the be-
p.m.,2 for
thorized”
arrest until 10:00
ginning.
to
factor
to consider
the relevant
I.
impression
present
con-
facts
here is the
5(a), Fed.R.Crim.P.,
requires
veyed
being
person
Rule
held. Other-
to the
“any
making
person
wise,
an arrest without a
no
reason
can conceive of
sound
person
supplied
why
warrant”
to “take
arrested
would have
the defendant
delay
unnecessary
without
before the
link —the mis-
that most
specimen.
pelled
To in-
nearest available commissioner.”
Rule,
compliance
sure
with this
the Su-
impelled
are
to conclude
We also
preme
Court has mandated that
evi-
delay
when ar
that the
between the time
during
unnecessary
dence taken
an
lawfully made
rest could have been
delay
may
3
unreasonable
airtight case
accumulation of
almost
an
pro-
not be admitted in federal criminal
arraignment,
viewed in the
when
ceedings.
States,
McNabb v. United
transpired,
was unneces
context what
332,
608,
U.S.
63 S.Ct.
ments”
mately
the arrest
ulti
The
is to
guilt;
delay
psychologically
the defendant’s
“the
check resort to
coercive or
give oppor
degree” practices,
must not be
tunity
nature
“third
see United
McNabb,
extraction of a
confession.”
318 U.S.
at
S.
Mallory
States,
simply
United
Ct. at
and not
insure
1359-1360, 1
454-455,
arraigned
77 S.Ct.
the accused is
at the earliest
possible
L.Ed.2d 1479.
time. And since the
point
p. m.,
at some
7:00
after
had
indicated,
already
weAs
have
objective
single
narrowed to
obtain
p.
—to
9:00 m. when Middleton confessed to
the flat
admission
the accused’s
theft,
he had
several hand-
lips
calculating
had
stolen
ma-
writing
high-
samples, which included the
chine—the
became unreasonable.
ly incriminating misspelling
“yours
States,
See Ricks United
334 F.2d
turly.” Moreover,
the officers had
(D.C.Cir. 1964);
968-69
Coleman v.
story
ready verified his
with Narcotics
States,
U.S.App.D.C. 185,
Agent
defendants
Robinson
both
(D.C.Cir. 1962).
having left the
been identified as
suspicious
the after-
circumstances
We are not unmindful that continued
interroga-
persistent
inquiry
noon
before.
in some instances
after an
even
followed,
inquiry had
may
after the
permissible
be
but here it
investigatory
ac-
from the
to the
required
verify explanations
shifted
was not
justified
cusatory stage,
leads;
cannot be
solely
or run down
it was
a means
*5
to
of this
and
us
interesting
circumstances
case
leads
to
note,
a
elicit confession. It is
to
inescapable
the
conclusion that
was
only
it
example,
for
that
Middle-
after
in
ready
of an
to
permitted
furtherance
effort make an
agents
ton
the
their
achieve
airtight
by
ex- goal
securing
case ironclad
the
in
the confession that he
of a
traction
confession.4
committed the theft did the officers seek
lodge
overnight.
him
And
recognize
we
they
even after
the desired
delay for
is not
a
violated
authority by the Assistant United States
arraigning
the defendant
the
Attorney, they
signed type-
for a
waited
morning,
a
the next
Commissioner
actually lodg-
written confession before
524,
Vita,
529
United States v.
294 F.2d
ing him the
House of Detention.
(2
1961),
denied,
n. 1 Cir.
cert.
369 U.S.
823,
837,
(1962);
82 S.Ct.
7
788
Finally,
L.Ed.2d
Vita,
unlike United
Ladson,
supra,
United
294
States v.
F.2d
the
Government has failed
show
(2
1961),
denied,
1
continuing
n.
pursuing
proc-
Cir.
cert.
the need for
a
U.S.
and,
S.Ct.
investigation,
7 L.Ed.2d
ess of essential
even
(1962),
unavailability
assuming
did,
of a Commis
showing
it
no
there was
police
sioner does not license
con
acting
its officers were
interrogation through
tinue their
necessary expedition.
Rather, the record
agree
concurring
law,
“second-guess”
with our
brother
was to
lower
tlie
wary
using
that courts should be
“20-
courts
and law enforcement
officials.
hindsight
“second-guessing”
in
Moreover,
20”
in
to understand the function of
vestigator’s
prosecutor’s
appellate
recognize
or
determination
courts is to
post-arrest
interrogation
when
ex
must determine all
after
permissible
fact,
prob-
ceeded
limits. But
if such
whether
there was
over-simplified catchwords are taken too
for
able cause
arrest,
a search warrant or an
literally,
ap
police
there would be little left for
whether
used coercion
pellate
confession,
whether,
courts to review in criminal cases.
a
extract
or
as
Indeed,
might
delay
arraignment
we
not have such landmark
in
unneces-
was
Mapp
Ohio,
sary
decisions as
367 U.S.
and unreasonable.
deter-
These
(1961),
necessary
ju-
S.Ct.
L.Ed.2d 1081
minations are
diciary’s
to fulfill the
Wainwright,
and Gideon v.
372 U.S.
historic function
administer-
(1963),
justice
courts;
83 S.Ct.
Therefore, upon any new I would signed typewritten
exclude the confes- subsequent sion taken to 10:00 All P.M. statements,
other the hand-
writings, investiga- of normal required protection for the suspect public. well as With respect presenting facts, to cases different
I would reiterate the comments of Chief
Judge opinion Lumbard in his in United Vita, (2d States v. Cir. 1961): agree
“We cannot with the
that federal law enforcement officers rigidly are so confined Federal
Rule of Criminal Procedure they must, immediately upon
that ‘arrest,’ interrogation all cease
formally charge the accused committing magistrate. Such paralyze flexible edict would the in-
vestigative process and eviscerate law
effective enforcement.” DAVIS,
Archie Harold Petitioner- Appellant,
Lynn BOMAR, Warden, State Peniten-
tiary, Nashville, Tennessee,
Respondent-Appellee.
No. 15921 Appeals
United States Court of
Sixth Circuit.
April 20, 1965.