*1 America, STATES UNITED Plaintiff-Appellant, GUANA-SANCHEZ, Defendant-
Pascual Appellee. 72-1784.
No. Appeals, Circuit. Seventh
Argued Jan. July 18, 1973.
Decided Aug.
Rehearing Denied Atty., Thompson, Wil- R.
James Huyck D. Michael Steven- T. liam Chicago, 111., Attys., son, Asst. U. S. plaintiff-appellant.
591 passengers, Pro- and Beeler, chez his Partin Joseph Defender whom Federal defendant-ap- police illegal entry Chicago, 111., told the had admitted gram, for the into United men States. The four pellee. up picked overnight, were locked KILEY, and FAIRCHILD Before immigration up by authorities the next Judges. PELL, Circuit morning, subsequently and Sanchez was proceeding indicted. The before us fol- Judge. KILEY, Circuit lowed. charged Defendant, Sanchez, was steps Three in time can delineated knowingly with indictment one count origi- (1) from the facts us: the before unlawfully transporting aliens with- and interrogation ending nal with the deter- 8 violation of U. the United States validity mination of driv- Sanchez’s evidentiary 1324(a)(2). an After S.C. § ownership er’s license and granted hearing the San- district beginning car; (2) period the with suppress un- motion to chez’s return to Sanchez of his and of license govern- lawfully by police. The seized upon the restraint his movement there- appealed. ment has affirm. after; and, (3) period beginning approxi- On November at trip police station. Illinois, Park, mately m., 2:30 a. Villa judge The district conducted an evi police and officers Tenuto Hall observed dentiary hearing parties at which the sitting wagon, Sanchez in a station stipulated that no arrest or search war away, about 150 to in a vacant 200 feet rant had Officer issued. Tenuto was light headlights lot, and interior with only government witness.1 After shining. approached officers When the hearing, judge the district read his car, Sanchez seat was driver’s 2 findings of fact and law conclusions reading map. and Illinois an road police which he decided that the offi At time the officers observed three this suspicion justify cers had a reasonable car, other males also in the one them interrogation, step their in the first sleeping, bags shopping and filled three police activity, but that there was “clothing in the rear or material” probable justify cause to activi of the car. ty thereafter. began inquiry The officers then valid disclosed that had a Sanchez sergeant appeared When the license, passengers were that his driver’s appraised car Sanchez’s and the situa probably Mexican, led to the and further tion, he said Hall, to officers Tenuto and registered disclosure that the car was bring them into the station and “[l]et’s Sanchez’s name and that he was are, them they check out see and who if police.” police The then “wanted they by anybody.” are wanted Two sergeant. supervising radioed for their passengers were then out of ordered sergeant’s Upon and, arrival at his police Sanchez’s car into a car for direction, two of Sanchez’s trip police station. Under police were directed to enter a car and circumstances we take officer Tenuto’s were driven station. Sanchez testimony that Sanchez was “invited” to third “invited” to follow with the to mean he follow was ordered. Of passenger. ficer Tenuto did not testified that “[w]e sergeant anything bring
At
them into the
station the
spoke
proper
Captain
judge
telephone
station for.” The
district
immigration
ly
Partin,
Chicago
official,
into
noted that
was taken
“Sanchez
custody
spoke
passengers.
who
.
.
then
.
officers
Sanchez’s
investigation
Partin directed
.
to detain San-
[and] [t]here
government
he
that officer Hall’s
written
from which
The
stated
The
memorandum
record,
substantially
would be
similar
is not in the
read
to Tenuto’s.
”
‘investigation.’
States, 361
U.S.
S.Ct.
See Davis
crime of
721, 726-727,
Mississippi,
4L.Ed.2d
(1969);
government’s
upon
reliance
Foust,
court’s
v. Chai-
decision United States
(7th
had no
dez-Castro,
greater
arrested
when
1970),
Madril,
*3
they
the end of
Sanchez than
had after
(9th
1971), misplaced.
Cir.
suspi-
the
intrusion on reasonable
initial
were,
support
In
Chaidez-Castro
contrary, they
cion.
the
had addi-
On
arrest,
of the warrantless
Texas license
knowledge
prob-
most
tional
ably
that he was
plates on
truck
the
and extra Texas li-
any
innocent of
connection
plates
cab,
cense
the
on
floor of the
they
“hunches” of
crime.3 At best
had
persuasive
po-
“the most
was the
[fact]
criminality
sufficient.
that
is not
lice officer’s observation of
a number
1, 21-22,
Terry Ohio, 392
88 S.
v.
peering
faces
from the inside of a
(1967).
Ct.
‘home-made’
box
the back
the
truck.”
In Madril the court sustained
showing by
was no
the
There
arrest,
the warrantless
the
where
initial
exigencies
“.
the
evidence
that
stop
by
speeding
was occasioned
a
viola-
warrantless
of the situation” made the
tion and thereafter
un-
the driver was
Coolidge
“imperative.”
v.
arrest
New
produce proof
able
ownership
to
as
Hampshire,
403 U.S.
91 S.
required by
Moreover,
law.
there was
(1971).
Ct.
outstanding
warrant
for defendant
justifying
police
had the
burden
which
during
was discovered
the course
Burhannon,
the
v.
arrest. United States
checking
the status of the vehicle and
(7th
1968).
388 F.2d
And
occupants.
its
the standards for
arrests
warrantless
considered,
have
pass
We
but need not
stringent”
ap-
“are at
as
as those
least
upon,
points
other
raised.
plicable
magistrate’s
to
assessment.
560, 566,
Whiteley Warden, 401 U.S.
v.
1031,
conclude
the
We
that
district
L.Ed.2d 306
deciding
court did not err in
that the ar
This record falls far
the re-
short
rest was unreasonable under the Fourth
showing.
quired
Amendment and that
gained
poi
thereafter was “fruit of the
The warrantless arrest must be
Wong
sonous tree.”
v.
Sun
judged as of the time it was made.
It
471, 488,
post
could
aided
facto de
(1963).4
L.Ed.2d 441
velopments
immigration
official Par-
Affirmed.
police
tin’s statement
that San
illegal
passengers
probably
chez’s
were
PELL,
Judge (dissenting).
Circuit
entrants into
nor
Being
opinion
passen-
reason
search of
warrantless
San
that
gers,
gun
produced
crime,
chez’s car
a hand
to
which
should not
glove compartment.
Henry
suppressed witnesses,
have
been
e.,
See
i.
as
police
speaking Spanish
being
3.
arrest
knew
When the
was made the
crime in
or
Sanchez owned the car and had
valid
Mexican or Puerto
See United
Rican.
Mallides,
no reason
driver’s
had
license
committing
that he
or
to believe
probably connected
an offense. The
government
learned
before
had
observation
concedes
testi-
spoke,
and his
arrest
Sanchez
of witnesses discovered
an il-
passengers
responded in,
language
illegal
suppressed
can
search
as to a
person having standing
object.
“did not understand” but which was
to
probably Spanish
and that
think the same is true in the
of an
event
illegal
probably
Mexican or Puerto Rican.
See
arrest.
United States Mal-
properly
lides, supra.,
p.
there is
But
the court
noted
473 F.2d at
tangible
being
sionary
any
incompetent to tes-
rule
item
made
as to
in effect
knowledge
found in
tify
the automobile
state-
matters within
to
activity
part
by any
concerning
on the
ment that
made
criminal
persons
else,
respectfully
Here,
dissent. of
automobile.
of someone
I
however, the
effect of
district court
entirely
clear to me as
It is not
ruling is to make witnesses to a crime
thought the ille-
district
when the
incompetent
testify.
“The rules
gal
activity
The ma-
commenced.
disqualify
witnesses who have
jority opinion
this court construes
knowledge of relevant facts and mental
holding
opinion
district court
capacity
convey
suspi-
a reasonable
officers had
serious
obstacles
ascertainment of
interrogation.
justifying
initial
cion
legal
century
truth. For a
the course of
agree,
dis-
and to the extent
evolution has been in the direction of
it would
trict court indicated otherwise
sweeping away these obstructions.”
*4
clearly wrong. Four men were
seem
parked
71,
McCormick on Evidence
at 150
§
in
industrial
in a vacant lot
an
(1954).
morning in a
area at 2:30 in the
Chica-
burglaries
go
had
suburb where recent
A reversal
direction in
of
this well de-
veloped
story
place.
obviously
of
taken
The defendant’s
trend of the law can
looking
by policy
did not
for a friend’s restaurant
be dictated
I
considerations.
find, however,
in
check out as all restaurants
the area
fail to
such a countervail-
here,
ing policy
closed for
hours. The
had been
several
amI
not unmindful
past expe-
respectable authority1
officer who testified had had
held
has
immigrants
illegal
exclusionary
rience with
who had the
rule should be carried
country
transported
present position
into this
and that the Gov-
automobile. The area had small facto-
ernment has conceded that if a defend-
“looking
cheap
pas-
ries
for
labor.” The
standing,
ant
testimony
has
of witnesses
sengers
Eng-
spoke
in
during
illegal
the automobile
discovered
search can
lish nor did
have
Nevertheless,
States
be excluded.
the rationale
identification cards. One of the occu-
exclusionary
my opinion
of the
rule in
pants
appeared
had a card
which
be a
does not call for its extension to the
Army
shopping point
Mexican
card. Three
excluding altogether
an other-
bags
clothing
competent
were
car.
stating,
wise
witness.
In so
I
suggest
weight
do not
of his
facts,
On the basis of these
I would
testimony
challenged by
could not be
faulting
difficulty
po-
have some
in
showing
impact
of the method of
lice conduct.
See United
Cata-
discovery on the likelihood of the wit-
lano,
1971).
The first of these is the extent to
which the
rule should be We do
Wong
not here have a
Sun2
Putting
extended.
the matter another
situation in which
evidence,
the excluded
way,
poisoned
how remote a branch of a
statement,
a verbal
is deemed to be
capable
bearing
tree is still
equated
tainted
“physical, tangible
materi
subject
plucking
fruit not
for tes-
als obtained either
or as a direct
here,
course,
timonial use? I am
as-
result of an unlawful
invasion.” We
suming arguendo
conduct here have
plain
witnesses who were in
bring
play
such as to
into
the exelu-
who,
view of officers
time,
at See,
example,
Wong
for
Smith v. United
Sun v. United
U.S.App.D.C.
160,
83 S.Ct.
9 L.Ed.
(1965) ;
Tane,
(1963).
2d 441
(2d
spoke
earetaking
in
engaged
earlier
which the court
“community
case
in their
through
Judge Burger worthy
Cady
Dombrowski,
then
functions.”
illustrating
quotation
extensive
as
U.S.
concepts
appli-
Essentially,
appears to
which believe should be
dealing
in
question of the
cable
situation.
we are
exclusionary rule
to which the
extent
gone
way
long
“Courts
might reasonably
expected to have a
suppressing evidence
case
proscribed
con
deterrent effect
jury
yet
de-
has held that a
should be
is not
the rule
ab
duct.
know that
eyewitness to
nied
of an
applied
solute,
in all circum
one to be
crime because
the circumstances
Supreme
Thus,
Court
stances.
identity
his existence and
York,
v. New
Harris
view,
However,
was learned.
in our
held
Ct.
relationship
between
inadmis-
was inadmissible
a statement which
testi-
sible confessions
Holman’s
against
prosecution’s
a defendant
the District
months
viola
case in chief because of a Miranda
is no
later is so attenuated
impeachment
for
tion
be used
excluding
basis
it. No
rational
pro
purposes.
While we here have
case has been cited to us which
posed use of
in the affirma
eyewitness
factual
of an
prosecution, I
cannot
tive case
witness has been excluded because
that the rationale of deterrence
conceive
identity was discovered as a
result
*5
misconduct will be furthered
disclosures made
an accused
“specu
the rule. The
this extension of
5(a) Fed.
detention violative of Rule
po
possibility
impermissible
lative
R.Crim.P.
.
.
(401
encouraged”
lice conduct will be
Judge correctly
“The District
read
by making
645)
S. at
91
Killough
holding
in
court’s
competent
present
situ
States,
U.S.App.D.C.
United
114
appears
ation
that a
so remote to me
(1962),
requiring
as not
F.2d
public policy
ex
sound
would draw the
testimony.
the exclusion of Holman’s
clusionary situation short
a mandato
Killough holding,
Neither the
lory holding
the Mal-
ry incompetency.
any
nor
other
would
case
excluding
Indeed,
holding
warrant
in
Holman’s
those
testimo-
cases
ny.
may
produce
The fact that the source of evi-
witness himself
be
poisoned
dence is ‘tainted’
not
violation of con-
tree and therefore
free
provisions
statutory
stitutional or
to
as to his
of the
has
precluded
crime,
not
use of that
exclusion is not
and
absolute
recognition
every
given
circumstance.
to
has been
what
might be called an “attenuation test.”
“Here
or
confessions
utterances
States, supra,
Smith v. United
appellants
against
were used
at
ty
conceptual
have some
difficul-
them;
tangible
evidence obtained
determining
exclusionary
how an
appellants,
from
such as the victim’s
designed
rule
to control
behavior
watch,
suppressed along
applied
case-by-case
can be
on a
basis
confessions.
not an
But witness is
Smith would have us do.
I am certain
object
inanimate
which like contra-
officers
an even
would have
narcotics,
pistol
band
stolen
greater difficulty
determining
wheth-
goods, ‘speak for themselves.’ The
possible
testimony
er witness’s
was at-
proffer
living
of a
witness
not to be
is
illegality.
tenuated from
mechanically equated
proffer
evidentiary objects
of inanimate
ille-
purport
did
While Smith
to over-
gally
circuit,
The
name
rule
earlier
seized.
fact that the
case
same
potential
to
of a
Smith and
witness is disclosed
Bowden v. signifi-
U.S.App.D.C.
evidentiary
(1963),
is of no
dence.” passengers in defendant’s automo- plain view,
bile, were discovered all in
initially course of what clearly valid inves- to have been a seems
tigatory stop. find stand- I cannot arising part defendant on the passen- transportation of the from the may gers They station. aggrieved standing sense
have been attempting it not who right suppression. The fact assert a in the de- had been not, ap- fendant’s should automobile
pears sort of vicari- create some standing. transpor- The defendant’s ous illegal immigrants
tation of should creating immunity the basis testimony.
for him from harmful Cf. F. Chaidez-Castro, United States v. pro- 2d He had no
prietary in their interest bodies—or sup-
minds. pression, I would the order of vacate
reverse, and remand for
trial. Riordan, Kelly,
John F. John F. Ed- Macie, Chicago, plain- 111., ward S. *7 tiff-appellant. Thompson, Atty., James Wil- R. ELWARD, Plaintiff-Appellant,
Joseph F. Huyck, Atty., liam T. go, Asst. Chica- U. S. Crampton, Atty. 111., P. Scott Asst. America, UNITED STATES Gen., Burnett, Atty., R. Charles Tax Defendant-Appellee. Div., Dept, Justice, Washington, D. No. 71-1773. C., defendant-appellee. Appeals, United States Court Seventh Circuit. PELL, Before STEVENS Argued SPRECHER, Judges. Jan. Circuit July 3, Decided Judge.
PELL, Circuit appeal The sole issue on this through whether, years Joseph taxpayer qualified Elward as a “head of a household” defined in 1(b)(2), 1(b)(2), Section § U.S.C.