United States v. Robert Vigo and Carmen Pagan
487 F.2d 295
2d Cir.
1973
Check Treatment

*2 LUMBARD, and TIM- Before HAYS Judges. BERS, Circuit Judge: LUMBARD, Circuit government appeals or- from an District, der entered’ of the Southern January suppressed 18, 1973, cer- relating prosecution tain evidence to the Yigo of Robert Carmen who and August for were indicted on possession with intent to dis- of heroin in’ §§ tribute violation U.S.C. 841(b)(1)(A), 841(a)(1), and conspiracy for violate these sections 2). Prior defend- trial U.S.C. § tangible suppress ants evidence moved to during obtained search of the auto- riding mobile in arrest, suppress time of their other tangible obtained from defend- sup- Pagan’s pocketbook, ant and also to press oral de- statements made both shortly fendants after arrest. court, hearing, denied respect the motion to the evidence with automobile, granted seized from the but respect it with evidence seized re- from Miss spect statements, F. to the oral see-357 gov- Supp. (S.D.N.Y. 1972). The challenge suppres- ernment does not Pagan’s statement, sion of Miss appeal- suant it to 18 U.S.C. sup- ed the order extent to the p.m. pressed p.m. evidence seized about At 9:45 re- 9:00 Pagan telephone oral statement. ceived a call at his office from informant, advised him that he who reverse, hold that de- We both calling from the bar oral statement and and an unidentified cus- Pagan from Miss evidence seized Vigo’s. report- tomer of The informant having properly admissible. *3 Vigo difficulty ed that with hearing, the at the the From regarding heroin the customer some following the court found facts. with the customer was dissatis- spe- April Smith, Thomas On a fied, Vigo unwilling and to that agent cial with Federal of the Bureau conduct until the other further business Dangerous Drugs Narcotics and customer was satisfied. The informant (BNDD), information an received asked whether he Smith Vigo unidentified informant1 that had ested in heroin which the other cus- the kilogram up offered to sell him to one of returning, tomer of was desirous reported cocaine. The that informant purchase cocaine, whether the as the following Vigo he was to the meet with originally contemplated, should be Amigo’s day Bar, located at 8th in the sued. Smith then heard a man and D Manhattan. Street Avenue background paid say, Tell “I $8000. informant instructed the to con- Smith in- him he it for The can have that.” Vigo again arrange attempt tact to and formant stated that the was that voice delivery for the of the cocaine to take and custom- customer that the place meeting. at that just package er had the of heroin said April the informant told On good” (in in- was “not he would the Vigo he and that had contacted Smith words) you “let it for formant’s Vigo agreed to deliver the co- that it, just get price paid the for to his day to for an unde- caine him later that money told informant back.” the Smith price. termined and infor- Smith agents purchase that the would mant decided the latter would tele- that package, heroin should continue agents phone or other BNDD Smith negotiate cocaine, to for the and that Vigo, he was that he would when Vigo attempt should to discover what Vigo calling inform his custom- tended to do with the heroin. cocaine, ers for the try and he would again p.m. At the informant 11:00 arrange meeting place to a where telephoned Agent him told Smith and completion of the transaction could take Vigo package to take the intended place. The informant advised Smith supplier of heroin to his and back Vigo Amigo’s driving would be Amigo’s leaving he would Bar short- Bar in a 1965 Lincoln Continental with ly. He also said believed gave plates. New York license He also heroin in the trunk of Vi- was located description Vigo. a Smith go’s this, car. Informed 12th, evening April On the BNDD agent joined another left his office and agents Agent (not including Smith) es- Vigo team. was ob- surveillance Amigo’s tablished surveillance of Bar. p.m., ac- served to leave the bar 11:45 ob- Members the surveillance team companied by unidentified men. two Vigo up served drive bar in the team of the surveillance members informant, by the automobile described Vigo companions followed watched enter bar seizure had resulted 1. The record reveals that Smith had other ease which kilogram kilogram January, and a half a of heroin known the since informant suspect. registered arrest one Bu of cocaine and the The informant was concerning supplied Dangerous Drugs as He had information reau of Narcotics cooperating previously had result- He had other narcotics traffickers informant. suspect. provided of one other information in an- ed the Bureau with East 5th and Avenue D Man- asked whether he Street understood what he housing hattan, response Vigo told, where entered had been pressed willingness and in ex- Pagan. project and returned with Miss to talk. He admit- packages ted that one of the contained agents subsequently followed belonged heroin and that him. Bronx, car to the and his Furthermore, appears in what to have companions stopped at bars. several protect compan- been an effort ions, shortly apparent that became although Pagan he stated that going any particular destination, ear, knew there was heroin in the she consequently, roughly a.m. 1:00 responsible was not for and that the agents morning 13th, occupants other two of the car did not stopped vicinity car in the even have of it. 163rd and Third All Street Avenue. occupants four were removed from the *4 We hold that the search car, they being were told that ar- were Miss proper was reasonable and rested, and were advised of the offense protective as a normal measure being for which arrested. of law enforcement authori gun just ties. A loaded concealed had agents participated arrest,, Six Vigo. companion found on her A and as a result the events described be- lady’s handbag likely place is the most happened simultaneously.2 nearly low similarly weap for a woman to conceal a agents frisked and found a Berryhill, on. United States v. 445 Cf. loaded .32 caliber revolver tucked (9th 1971). F.2d 1189 Cir. The search They Pagan’s belt. then took Miss handbag place directly of the took purse (they person) did not search her stopped. the defendants had been among discovering, and searched oth- circumstances fall well within limits things, thought by er some notes permissible protective search estab agents cutting to contain a formula for Ohio, Terry 1, lished in 392 88 v. U.S. narcotics, scale, a and some marihuana. 1868, (1968). S.Ct. 20 L.Ed.2d 889 They Cf. car, also searched and in Johnson, United v. States F.2d 630 467 the trunk Smith discovered a (2d 1972). spill Cir. did Nor the search containing packages briefcase several over into an unrelated and therefore un parapherna- heroin as well as narcotics reasonable search for evidence. The lia, including bands, spoons, rubber a agents Pagan’s per did not search Miss strainer, and a scale. They son. did no more than ascertain car, Agent After the search place the contents of the she Smith advised that “. . . likely would have been most hide right attorney, had a to have an had a weapon. Evidence of crime discovered right say anything all, by investigation virtue of such a limited right attorney present had a to have an is not the fruit of an unreasonable during anything might discuss, we if he search and is admissible. See United anything, wanted to discuss and advised Toro, (2d States v. Del 464 F.2d 520 court-ap- him he to have a 1972). Cir. pointed attorney if he so desired and attorney.” could not Defendant afford his own oral admis could not sions recall that he had in- made at the time of his anything Arizona, fornied also admissible. In he said could Miranda v. 436, 1602, later be used 384 him. U.S. 86 S.Ct. diately following transcript 2. Neither the arrest. But is clear hearing very that all nor the district events occurred within court’s Memoran- Opinion span suppress dum on short of time after the motion to automobile stopped. sequence dicates the exact of events imme- circumstances, admissibility (1966), the 16 L.Ed.2d 694 Su- precluded preme by Court stated: either the Fifth Amendment or Miranda. dealing In with statements obtained States, v. Stone United 385 F.2d 713 through interrogation, we do not cert, (10th 1967), den., Cir. port to find all confessions inadmissi- 966, 88 S.Ct. 20 L.Ed.2d 880 proper remain a ele- ble. Confessions (1968); States, Pitman v. United Any in law enforcement. state- ment (9th 1967); F.2d Cir. Parson voluntarily freely ment States, (10th United 1968); 387 F.2d 944 Cir. compelling is, influences without States, v. United Sablowski course, in evidence. The admissible (10th 1968); Cir. privilege import fundamental Tafoya, (10th 459 F.2d 424 [against while an self-incrimination] 1972); Cruz, United States v. custody individual is in is not whether F.Supp. (W.D. 1967); Tex., People police he is allowed to talk to the Gant, Cal.App.2d 420, Cal.Rptr. warnings without benefit (1968); State, Cameron v. 214 So. counsel, but whether can be (Fla.D.C.App. 1968). 2d 370 rogated. requirement There is no People Dorado, 62 Cal.2d police stop person who enters a Cal.Rptr. 169, 179, 398 P.2d police station and states that wish- es to confess to a crime [footnote Inasmuch as we hold person po- defendant omitted], or a who calls the *5 Vigo’s voluntary and admis lice to offer a confession or other requirements sible under the of Miranda statement he to make. desires Volun- Arizona, supra, they similarly are vol teered statements kind are untary by and admissible under the re barred the Fifth Amendment and quirements of admissibility by 3501. It is U.S.C. § is not affected unnecessary ques therefore holding today. to reach the our application tion of the and constitution voluntary statements were within ality of 3501. § meaning language, of this and their sup- The order of the district court admission into evidence did not violate pressing the evidence seized from de- privilege against the Fifth Amendment suppressing fendant self-incrimination. Nor does it contra- the oral statements of defendant is purpose vene the behind Miranda of cur- accordingly reversed. tailing illegal interrogation by custodial law enforcement authorities. The state- TIMBERS, Judge (concurring Circuit immediately ments were made after Vi- part dissenting part): in in go’s arrest, at the scene the arrest judgment I in the concur of the Court any systematic inquiry and before majority opinion and in the to the ex- begun by arresting agents. None of part tent that reverse that inherently compelling factors of sta- sup- order of the district court which interrogation present. tion-house pressed the evidence seized from defend- arresting agents The did not coerce or Pagan’s purse. ant deceive him. He was aware the ille- deference, however, respectful- With I gality acts,3 of his addition ly from dissent the reversal of that given warnings been three of the four of the order of the district court which required by spoke Miranda. He in an suppressed the oral statements of de- protect companions, partic- effort to his Vigo._ ularly and with evident meaning majority of and conse- The holds that incul- quences patory what said. Under these statements are admissible. In among Vigo’s being were, 3. Smith testified that fii taken car words out you got “I what me for.” know acting solely holding been in his interest.” 384 U.S. statements to have these “voluntary” 469. therefore admissible finding “in- necessity an of majority, without the True, majority in the as instant waiver”, telligent it seems correctly recognizes, case a determina- me, ignored ra- unjustifiably an indi- tion under Miranda of whether holding Ari- of Miranda tionale and intelligently “knowingly and vidual zona, (1966). instant 384 U.S. against privilege self-inerimi- waived nation”, strikingly those is different precon- not a is 384 U.S. voluntary admitted exclama- have inculpatory an dition to admission of Vigo’s inculpatory state- tions. To hold initially if statement it can be shown “voluntary” ments to been so warnings Miranda need not have that the warnings Miranda need been not have given. types envis- of cases given, pre- effect is return to aged Supreme by as not re- Court Miranda to vali- test voluntariness and quiring warnings those date, silentio, sub Title II of the Omni- volving an absence bus Crime Control and Safe Streets Act statements”, result in “volunteered such 18 U.S.C. 3501 police as an “enters individual and states wishes to station con- Supreme In Miranda, the held Thus, fess to crime”. Id. 478. persons police custody are sub- Tafoya, United States v. 459 F.2d 424 ject “compulsion to a form of inherent 1972), although the Miranda surroundings”. in custodial warnings were not and there was protect In order the individual intelligent waiver, inculpatory no an compulsion, this inherent and to properly statement was admitted since safeguard “to remain silent “obviously product not the speak unless he in the unfet- eho.oses rogation spontaneous simply but was tered will”, exercise of his own id. at utterance volunteered the defendant”. 460, the Court held that individuals in Similarly, 459 F.2d at other cases custody must made aware of their *6 recognized incriminatory have that “right silence”, of id. at and must statements were without the admissible given warnings prior be to in- custodial necessity finding of Miranda waiver terrogation. required ofOne the warn- where it was found that such admissions ings Vigo that the —not —is “spontaneous”, were made “before were person questioned any- to be be told that any questions asked”, had been were thing against said “can and will be used “entirely voluntary”, Pitman v. United the in individual court”. Id. at 469. States, (9 1967), Cir. Supreme emphasized Court the im- and, arresting “if the officer not at- has portance specific warning: of this tempted attempting or is not warning person “This is needed in arrested incriminate himself”. order to only privi- Cruz, F.Supp. make him not aware of the United lege [against (W.D.Tex.1967). self-incrimination], Parson foregoing consequences States, also of the F.2d 944 through only 1968). it. It is an awareness of consequences these that can there Here, it cannot be that said any understanding assurance intelligent real Agent Smith, Special statements privi- exercise of the Vigo custody, placed in made after was lege. Moreover, warning may this spontaneous or made before were were serve to make the individual more began. Vigo’s inculpatory acutely aware that he is faced with a during a discus- were made statements phase adversary system response sion in Smith —that sought presence persons admissions.1 is not elicit such in Vigo package that, advising “discussed the Smith testified rights, discussed wheth- . é. [and] . .i. also some of constitutional had. “totality requirements therefore are embraced of the circum The Miranda found, analysis prescribed by court applicable. district stances” Section As the 3501(b).4 validity majority’s F.Supp. was not at since gainsaid. anything could and he said criticism of Miranda cannot be that warned govern- against him, un It has result used been as a of occasional “heavy satisfied its burden rulings ment has not duly Miranda that this harsh demonstrating] de- . . . [of previously interpreted Miran has intelligently knowingly fendant having criminal “[t]he da to avoid privilege against self-incrimi- waived his go the constable because . free . . . Miranda, (quoting nation” Defore, People blundered.” 475).2 U.S. See, J.). (Cardozo, (1926) N.Y. majority has erred in I think the Lamia, 429 F.2d e.g., United States holding vol- were cert, (2 Cir.), denied, inherently untary because “[n]one (1970). Dissatisfaction a control compelling of station-house factors ling decision, however, Supreme Court terrogation present. The ar- were [sic] legislation. judicial does I not warrant resting agents did not coerce deceive sug my colleagues am sure that do Supra precisely him”. It gest application of But does. type of of voluntari- this determination ness, law, required by pre-Miranda which Miranda facts instant rejected was codified but which coming perilously close to strikes me as Furthermore, 3501(b).3 18 U.S.C. § frustrating control the rationale of this holding spoke “with evident ling Supreme Court decision. meaning and conse- I would affirm court’s quences supra said”, of what he of de- of the oral statements majority reject- to me to have seems Vigo. ed the rationale of Miranda and to have arraignment, (2) whether such any before people er or not the other the car ” knew the of the offense defendant nature knowledge. Transcript . . . charged lie was or of which Suppression Hearing at 14. is obvious making suspected the time of testimony from the that “a lot of confession, (3) or not such whether things said”, 14-15, id. at was advised or knew being questioned defendant detail. required statement to make government’s 2. This is consistent with the could be such statement and that position appeal. him, on this (4) It seeks reversal or not used whether *7 ground prior order not on the had been advised such defendant improperly applied, assistance to the ground but rather on the (5) Section not such whether or counsel govern. and not Miranda should See Brief assistance without defendant was Appellant giving questioned at 6. when when counsel such confession. provides 3. Section 3501 confession presence absence of “voluntarily is admissible if it is to be found taken into factors above-mentioned given”. 3501(a) U.S.O. judge not be need consideration provides statute further that: the issue of voluntariness conclusive on “(b) judge determining The trial the confession.” issue of voluntariness shall take con- into Section of whether 4. The difficult all sideration the circumstances surround- Miranda, and to overrule confession, intended ing giving including did, if it constitutional (1) elapsing whether it the time between arrest opin- Today’s presently us. before arraignment making of the defendant questions. addressed to those confession, ions are not if it was made