United States v. Escobedo

11 M.J. 51, 1981 CMA LEXIS 15145

• Court: United States Court of Military Appeals
• Decided: May 4, 1981
• Docket: No. 34,635; ACM 22182
• Status: Published

Opinions

OPINION OF THE COURT

FLETCHER, Judge:

The evidence of illegal drugs undergirding appellants’ joint general court-martial¹ stems from factually intertwined apprehensions, searches and confessions. We are called upon in this grant of review (4 M.J. 98) to examine the sufficiency of probable cause for these apprehensions and, if any illegality is found, the taint of the entire evidence produced from the searches and confessions related thereto. Additionally, we must examine for prejudice flowing from a denial of a mutual request for severance after a failure to redact stipulated portions of confessions of each appellant. Our consideration of these issues leads us to conclude that the illegal apprehension of appellant Guerrero tainted the evidence used to convict him and requires reversal. For reasons made explicit hereafter, we are unable to conclude either that appellant Escobedo may vicariously assert this violation of Guerrero’s constitutional rights or that Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), ineluctably compels relief under these facts.

I

A detailed review of this factual situation is necessary. Following a successful controlled purchase of marihuana by an informer from Sergeant Lyon, he was arrested and advised of his rights by Agent Per-singer. Lyon admitted the sale and admitted giving certain marked bills to one “Bedo,” a resident of the barracks. On each occasion when he purchased marihuana from “Bedo,” his roommate had been present. Lyon gave the agent a physical description of both. Although Lyon did not know the room number, he knew the location and took Agent Persinger and Security Police Investigator Jenning to this room. There Persinger saw the names Escobedo and Guerrero and noted the similarity of “Bedo” to Escobedo. Guerrero answered the door and, being identified by Lyon as “the roommate,” was apprehended. The agents entered the room, alleging it would not be feasible to conduct a narcotics search in the hallway. There was no consent by Guerrero to enter the room. After advisement of rights, Guerrero denied involvement in the sales, but admitted being present during Lyon’s purchases from Escobedo. His person was searched, but nothing was found. Escobedo, seen leaving the latrine and attempting to leave the barracks, was apprehended in the hallway, returned to the room, searched, and found in possession of a bag of marihuana. Guerrero then produced a bag of marihuana from his drawer. The room was locked and the five went to the security police office.

Information concerning the operation was given to the base commander, who gave verbal permission to search the room. The commander authorized a search for the marked bills, marihuana and paraphernalia. Later, the commander signed an authorization to search and a formal search warrant.

Returning with Escobedo and with a limited search warrant, Persinger and other agents searched the room. Seizing clothing bearing Escobedo’s name tag, he found the marked bills and two checks, one of which was a signed draft with the payee blank. Also seized were marihuana butts, scales and certain other items on a table.

Returning to Headquarters, Persinger initiated another interview after advising Escobedo of his rights. Escobedo confessed to the sale to Lyon and also informed the agents of the location of marihuana on a C-130 aircraft. Appellant Escobedo accompanied the agents to the aircraft and, after being readvised of his rights, showed them the location of three packages of marihuana. While there, Escobedo told Persinger of another stash of marihuana in a latrine. In the barracks after another advisement of rights, Escobedo produced a paper bag filled with 14 individual bags of marihuana. At the security police headquarters, after lunch and readvisement of rights, Escobedo confessed to other facts which were reduced to prosecution exhibit 21.

Earlier at the security police office, Guerrero, waiving his rights, made a written statement, but denied participation with Escobedo in sales. During the search of their room, Agent Persinger observed an envelope directed to Guerrero. This he seized and scanned. Confronting Guerrero with this information in a second interrogation after advisement of rights, Guerrero admitted a greater involvement and executed prosecution exhibit 20.

The first legal question to be answered is whether the agents had sufficient probable cause to apprehend Guerrero. Appellate defense counsel urges that there was not, citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); and United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). Contrariwise, the Government seems to argue that as Lyon had given information that Guerrero was always present, it is therefore reasonable to assume his participation, thus supplying probable cause.

Probable cause exists where “the facts and circumstances within their knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed.

Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949), quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). The law is well-settled that mere presence of a person on premises which law officers have reason to believe are being used for criminal activities does not in itself constitute probable cause for an immediate arrest. United States v. Di Re, supra; United States v. Branch, 545 F.2d 177 (D.C.Cir.1976); United States v. Rodriguez, 525 F.2d 1313 (10th Cir. 1975); Arellanes v. United States, 302 F.2d 603 (9th Cir. 1962); Banks v. Pepersack, 244 F.Supp. 675 (D.Md.1965). “Guilt [may] not be established by mere association.” Diaz-Rosendo v. United States, 364 F.2d 941, 944 (9th Cir. 1966); see United States v. Myers, 20 U.S.C.M.A. 269, 43 C.M.R. 109 (1971); United States v. Mehalek, 42 C.M.R. 744 (A.C.M.R.1970). Other factors must reasonably establish that such a person manifested sufficient participation in the criminal activities. United States v. Chadwick, 532 F.2d 773 (1st Cir. 1976), aff’d. on other grounds, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Holloway v. Wolff, 482 F.2d 110 (8th Cir. 1973); United States v. Bazinet, 462 F.2d 982 (8th Cir. 1972), cert. denied, 409 U.S. 1010, 93 S.Ct. 453, 34 L.Ed.2d 303 (1972); United States v. Williams, 325 F.Supp. 1283 (S.D.N.Y.1971). It is also well established that association with known or suspected criminals does not, in itself, establish probable cause. Sibron v. State of N. Y., 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Finally, it has been held that a person being arrested must be “a participant” in the crime and not “merely a knowing spectator.” United States v. Garguilo, 310 F.2d 249, 254 (2d Cir. 1962).

The principal evidence leading to Guerrero’s apprehension consisted of testimony from Lyon that Guerrero was present in the room during various drug transfers. No evidence suggested that the roommate was anything more than a mere spectator to the drug transactions. Accordingly, there was insufficient probable cause to apprehend Guerrero.

The Government has, in this instance, failed to show any probable cause to arrest Guerrero and, in fact, made no attempt to obtain a warrant to enter his barracks room to accomplish Guerrero’s arrest; and furthermore, has not made any assertion before us nor below that these actions were compelled by a set of exigent circumstances. It is clear, therefore, that the instant apprehension was illegal.²

We turn then to the effect of the illegal apprehension of Guerrero on the incriminating evidence used to convict him. At trial this consisted of the following items: the bag of marihuana Guerrero produced from his drawer while arrested and a stipulated portion of his confession. During the limited search authorized by the commander, the agent illegally perused a letter written by Guerrero. This information was used to confront him during his illegal apprehension after he had already executed a written statement. It is true that Article 31, 10 U.S.C. § 831 warnings were given him before the confrontation with the illegally obtained information in the letters, just before his execution of prosecution exhibit 20. It will be remembered that, likewise, he had been adequately warned before he produced the bag of marihuana while under illegal apprehension. In order to resolve this matter, we turn to the Supreme Court’s analysis in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). There the appellant was “seized” in the Fourth Amendment sense, although not under arrest, and taken involuntarily to the police station. Interrogated there, he ultimately waived counsel and eventually made statements and drew certain sketches that incriminated him in the crimes. The State conceded on appeal that the police lacked probable cause to arrest the appellant before his incriminating statement during the interrogation. The Court concluded that the treatment of Dunaway under the facts of that case was not supported by probable cause. It then examined whether, notwithstanding the unconstitutional police conduct, the incriminating statements were “sufficiently attenuated” as to be useable at trial. Id. at 216, 99 S.Ct. at 2258. See Wong Sun v. United States, 371 U.S. 471,83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

Miranda³ warnings had been given and appellant had conceded that the statements were voluntary for Fifth Amendment purposes; yet this was not sufficient to overcome a Fourth Amendment violation. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The Court in Dunaway v. New York, supra, applied Brown’s mandate and held that:

[w]hen there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence is more likely to compromise the integrity of the courts.

442 U.S. at 218, 99 S.Ct. at 2259.

There is no per se rule that Miranda warnings break the effect of unconstitutional custody unless such custody is voluntary under the facts of the case. The burden of showing the admissibility of in-custody statements of persons illegally arrested rests with the prosecutor. Brown v. Illinois, supra.

If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. See Davis v. Mississippi, 394 U.S. 721, 726-727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969).

Brown v. Illinois, supra 422 U.S. at 602, 95 S.Ct. at 2261. Thus, we are compelled to conclude that neither Guerrero’s confession nor the production of the bag of marihuana was voluntary and could not be attenuated of taint merely by preceding them with adequate Article 31 warnings.

We turn then to the effect of these illegalities on the other joint appellant, Escobedo. Even if the apprehension of Guerrero was not based upon probable cause and the entry into appellants’ room to effect that apprehension was not justified, it does not follow that the entry was illegal as to Escobedo. One Agent testified that he could not tell if Sergeant Escobedo was in the room when Airman Guerrero came to the door, but that it was his intention to apprehend both men at that time. Escobedo was actually apprehended after being returned from the barracks latrine.

Clearly, there was probable cause to apprehend Escobedo flowing from Lyon’s information. Thus, the visit of the government agents to the barracks room was at least justified for the purpose of attempting to apprehend Escobedo. With respect to Escobedo, the apprehending authorities were properly on the premises when they noticed marihuana related paraphernalia in plain view and could properly include their observation of such in the information furnished the commander as a basis for probable cause to search the premises.

Thus, there was more than sufficient probable cause, exclusive of the information concerning paraphernalia, to authorize a search for the Pound-Sterling Notes and marihuana. Once properly on the premises to search for these items, the agents were then entitled to seize the paraphernalia as items in plain view without regard to whether they were specified in the search authorization. Hence, their ultimate seizure and admission into evidence against Escobedo was lawful.

Inasmuch as Guerrero’s arrest was illegal and tainted the evidence leading to his conviction, can Escobedo vicariously assert these violations under the Fourth and Fifth Amendments? As to the Fifth, United States ex rel. Falconer v. Pate, 319 F.Supp. 206, 210-11 (N.D.Ill.1970), is dispositive of this issue. The Court said:

We conclude that the confrontation between Doss and petitioner, even if assumed violative of Miranda, raises no constitutional deprivation to petitioner; any such deprivation that may have occurred was personal to Doss and may not be complained of by petitioner.

Fourth Amendment rights are personal and may not be vicariously asserted. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). The principle was stated in Wong Sun v. United States, supra 371 U.S. at 492, 83 S.Ct. at 419:

The exclusion of the narcotics as to Toy was required solely by their tainted relationship to information unlawfully obtained from Toy, and not by any official impropriety connected with their surrender by Yee. The seizure of this heroin invaded no right of privacy of person or premises which would entitle Wong Sun to object to its use at his trial. (Citation omitted.)

Escobedo’s apprehension was legally performed and he cannot now claim a violation of Fourth and Fifth Amendment rights by proxy.

II

This case was a joint trial where pretrial confessions had been made by both defendants. These confessions were not given to the jury directly; rather an attempted avoidance of Bruton v. United States, supra, was effectuated by defense stipulations to edited versions of the original confessions. Neither accused testified during the course of the trial and the stipulated confessions were corroborated by the testimony of witnesses for the prosecution.

The record details the presentation of these confessions. Initially the two confessions were offered as evidence for identification prior to admission into evidence. At this juncture the trial counsel had not masked all references by one defendant to the other, nor did he intend to. The military judge indicated in his comments that he considered the confessions to be interlocking and mutually supportive. Both defense counsel objected to their introduction.

The military judge proceeded, offering to mask references to uncharged misconduct and offering cautionary instructions on the uncharged misconduct. Both defense counsel objected and moved for severance, which was denied. Subsequently, a colloquy occurred where the trial counsel informed the military judge that the defense and prosecution had agreed to delete certain portions of the confessions. Counsel for Guerrero objected to the portion of his statement involving other criminal misconduct. The military judge overruled counsel, but stated that he would instruct on the misconduct. Escobedo’s counsel objected that Guerrero could not be cross-examined on this subject. Other objections were made and also overruled.

Later in the proceedings, after some discussion of how the confessions could properly be masked, each accused agreed to a stipulation of fact of a limited portion of his original confession, in lieu of masking the original statements. Guerrero’s counsel mentioned his client’s concern that masking would raise questions in the minds of court members and be prejudicial to Guerrero. The stipulations were read aloud and given to the members. Thereafter the military judge instructed (inter alia):

You are advised that when counsel for both sides with the express consent of the accused stipulate and agree as to facts or the contents of a writing, the parties are bound by the stipulation and the stipulated matters are evidence to be considered by you in this case along with all other evidence in the ease.

* * * * sjs *

However, you will note that there is language in each of these out-of-court statements which may implicate the other accused. Such language which may implicate the other accused must be completely disregarded by you with respect to that other accused. In other words, an out-of-court statement may be considered by you in determining the guilt or innocence of the maker of the statement by him only. Language contained in these out-of-court statements which may implicate the other accused may not be considered by you in determining the guilt or innocence of this other accused, that is, the non-maker of the statement.

(Emphasis added.)

Guerrero’s original confession, prosecution exhibit 20, and Escobedo’s original confession, prosecution exhibit 21, were admitted in evidence. The two stipulated confessions denominated prosecution exhibits 28 and 29, were also received in evidence.

The rule in Bruton v. United States, supra, applies to courts-martial.⁴ United States v. Green, 3 M.J. 320 (C.M.A. 1977), and United States v. Pringle, 3 M.J. 308 (C.M.A.1977). The holding in Bruton overruling Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), considers that a confession by a co-accused is unlikely to be ignored by the jury; hence cautionary instructions insufficiently protect accused’s Sixth Amendment right to confrontation where the co-accused is not subject to cross-examination. Cited is Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), noting cautionary instructions cannot always be curative. Furthermore, paragraph 140b, Manual for Courts-Martial, United States, 1969 (Revised edition), calls for effective deletion of a co-accused’s name. The American Bar Association’s Standards Relating to the Administration of Criminal Justice, contained in ABA Standards, Joinder and Severance § 2.3(a) (1968), does not require all inculpatory references be “effectively deleted,” but rather that the statement “as deleted . . . will not prejudice the moving defendant.”

The standard provides that the prosecuting attorney is to elect one of three courses when the defendant moves for a severance because an out-of-court statement of a co-defendant makes reference to him but is not admissible against him. This does not mean that it is for the prosecutor to decide, when he elected joint trial with an edited version of the statement, that the statement can be edited as required by section 2.3(a)(ii). This is a matter for the court to pass upon, and if the court rules that the requirements of section 2.3(a)(ii) cannot be met, then the prosecutor would have to elect one of the two remaining alternatives: “a joint trial at which the statement is not admitted into evidence; ... or severance of the [implicated] defendant.”

The facts of this case show an attempt to comply with the Bruton rule elucidated in United States v. Green, supra, and United States v. Pringle, supra, not by redaction of the confessions but by limiting the confessions by stipulation of a portion of them. At an early point in this case, after the judge made clear his intention not to either sever or to redact, counsel objected to introduction of the confessions and then moved for severance. These motions were denied.

Do these stipulations qualify as out-of-court statements under United States v. Green, supra and United States v. Pringle, supra and the ABA Standards? Our answer is yes, because the stipulations on their face refer to themselves as stipulations of fact and include written out-of-court statements regarding involvement in the matter under investigation.

Turning to the statements, we see that they are interlocking in the overall plan to sell marihuana and each makes reference to certain sales individually accomplished without reference to the other. We believe this case to be governed by the conclusion reached in Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979), where the plurality observed:

[T]he incriminating statements of a codefendant will seldom, if ever, be of the “devastating” character referred to in Bruton when the incriminated defendant has admitted his own guilt. The right protected by Bruton — the “constitutional right of cross-examination,” id., [391 U.S.] at 137 [88 S.Ct. at 1628] — has far less practical value to a defendant who has confessed to the crime than to one who has consistently maintained his innocence. Successfully impeaching a codefendant’s confession on cross-examination would likely yield small advantage to the defendant whose own admission of guilt stands before the jury unchallenged. Nor does the natural “motivation to shift blame onto others,” recognized by the Bruton Court to render the incriminating statements of codefendants “inevitably suspect,” id., [391 U.S.] at 136, [88 S.Ct. at 1628] require application of the Bruton rule when the incriminated defendant has corroborated his codefendant’s statements by heaping blame onto himself.

Even though we have ruled that Guerrero’s stipulated confession was tainted and improperly admitted, we see no prejudice to appellant Escobedo, as his stipulated admission of guilt stands before the general court-martial members unchallenged. The facts of the instant case, as in Parker v. Randolph, supra show that the stipulated confessions as admitted here with instructions tip the constitutional scales in favor of the premise that the members have followed the military judge’s instructions and no violation has occurred to Escobedo's rights under the confrontation clause.

As has been elucidated in this opinion, relief is warranted for appellant Guerrero in light of his illegal arrest and its taint of the evidence used to convict him.

The decision of the United States Air Force Court of Military Review as to Sergeant Escobedo is affirmed.

The decision of the United States Air Force Court of Military Review is reversed as to Airman Guerrero. The findings and sentence as to him are set aside. Airman Guerrero’s record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.

Chief Judge EVERETT concurs.

1 . Appellants, tried by a joint general court-martial sitting in RAF Mildenhall, England, were found guilty, contrary to their pleas, of the following offenses: Introducing nine pounds of marihuana into RAF Mildenhall, England, for purposes of use and sale; wrongfully possessing some quantity of marihuana; wrongfully selling marihuana to Sergeant Thomas Lyon; wrongfully selling marihuana to Sergeant Joseph Shelton; wrongfully selling marihuana to Sergeant Thomas Lyon. All six specifications were in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. Escobedo was sentenced to a bad-conduct discharge, total forfeitures, and reduction to Airman Basic; Guerrero was sentenced to a bad-conduct discharge, forfeitures of $270.90 pay per month until discharged, and reduction to Airman Basic. Except for rounding off Guerrero’s forfeiture to $270.00 pay per month, the convening authority approved the sentences. The United States Air Force Court of Military Review approved both sentences, except Guerrero’s forfeiture was reduced to $249.00 for one month.

2 . Appellate defense counsel alleged in his oral argument a violation of Guerrero’s constitutional protection from a warrantless entry into his barracks room in order to arrest him. The Fourth Amendment to the Constitution protects both the basic right of freedom from unreasonable searches and seizures and also requires that warrants be particular and supported by probable cause. “Unreasonable searches or seizures conducted without any warrant at all are condemned by the plain language of the first clause of the Amendment .... [' ] The simple language of the Amendment appiies equally to seizures of persons and to seizures of property.” Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639 (1980). The constitutional protection provided to the interest of privacy in one’s home is extended to a warrantless entry for the object of arresting a person as a search for the suspect may be required before his apprehension. Dorman v. United States, 435 F.2d 385 (D.C.Cir.1970). The Supreme Court in Payton v. New York, supra 445 U.S. at 588-89, 100 S.Ct. at 1381-82, found the following reasoning of the Second Circuit persuasive:

“To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present.” United States v. Reed, 572 F.2d 412, 423 (C.A.2 1978), cert. denied sub nom. Goldsmith v. United States, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259.

The High Court, thus, enshrines the “respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic” and holds that absent exigent circumstances the police may not enter a home to arrest without a warrant. Id. at 601, 100 S.Ct. at 1387. While there is evidence of record that Guerrero may have been arrested in the doorway of his room, because of the lack of probable cause to arrest him in any event, we find it unnecessary to rule on whether a barracks room arrest would be proscribed under Payton v. New York, supra.

3 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

4 . We note that the “interlocking confession” exception to United States v. Bruton, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), may conflict with paragraph 140b of the Manual for Courts-Martial, United States, 1969 (Revised edition), which was then in effect.