United States v. Joel P. Bekowies

432 F.2d 8

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 1970
• Docket: 25407_1
• Status: Published

Opinions

WRIGHT, Circuit Judge:

Joel Bekowies appeals from his conviction for harboring and concealing a federal fugitive, 18 U.S.C. § 1071, and for conspiring to do so, 18 U.S.C. § 371. Concurrent sentences were imposed. We reverse for failure of the law enforcement officers to give defendant his Miranda warnings.

The record shows that on February 14, 1969, three agents of the F.B.I. and a Portland police officer went to Bekowies’ residence. They were armed with an arrest warrant for one James Nolen Davidson, wanted for violations of the Selective Service Act. Agent Hixon was assigned to cover the front of the residence “to make sure that nobody climbed out windows or doors.” (R.T. 6, 7.) Agents McLeod and Kaspar, and Police Officer Boggs entered the rear of the residence and, after checking out several other apartments, entered that of Bekowies. (R.T. 30, 41, 81).

The officers identified themselves and were admitted by one Jeffrey Weil,¹ who was living in the apartment with Mr. and Mrs. Bekowies, but claimed that he knew nothing about Davidson. He stated that he, Bekowies, and Mrs. Bekowies were the only persons in the apartment. Weil’s conversation with the officers took about fifteen minutes. (R.T. 57-58).

During this time Bekowies was in a bedroom of the apartment, with the door closed. Agent McLeod asked Weil to request Bekowies to come into the living room. (R.T. 8-9, 57). When the latter did so, Agent McLeod apparently thought that Bekowies might be Davidson, the fugitive. He carefully compared Bekowies to a photograph of Davidson, asked Bekowies to produce his identification, and examined Bekowies for scars that Davidson was known to have. Agent McLeod then concluded that Bekowies was not Davidson. (R.T. 21-23).

At this point he advised Bekowies that there was a warrant outstanding for the arrest of Davidson, read him the provisions of the federal harboring statute, 18 U.S.C. § 1071, showed him the photograph, and asked if he knew anything of Davidson’s whereabouts. Bekowies said he did not. The agents then searched the apartment, with the exception of the bedroom. Bekowies told the officers that his wife was in bed, sick with the Hong Kong flu. (R.T. 58-59).

Agent McLeod then took Bekowies to the porch of the apartment. Again he read the provisions of the federal harboring statute, and pointed out that Davidson’s car was parked at the curb in front of the house. Bekowies said that Davidson had perhaps been in the apartment at a party the night before, but was not then in the apartment. (R.T. 59).

The agents had come to Bekowies’ apartment reasonably certain that Davidson was hiding there.² After his first questioning of Bekowies, Agent McLeod was “fairly well convinced that Mr. Bekowies was being quite untruthful with me.” (R.T. 14). Agent Kaspar was also convinced of Davidson’s presence in the apartment and, on learning that Bekowies would not allow a search of the bedroom, told Agent McLeod that, “I can’t leave this room — this apartment— without searching the bedroom.” (R.T. 82).

The conversation on the porch followed Agent Kaspar’s talk with Agent McLeod. After Bekowies had once again denied that Davidson was in the apartment, McLeod, according to his own statement, “insisted that we needed to search the apartment. We had already —prior to going out onto the porch, we had searched everything except a bedroom, and I insisted that he allow us to search the bedroom area.” (R.T. 18). Faced with Agent McLeod’s insistence, Bekowies yielded, and the agents found Davidson hiding under the bed. (R.T. 18, 82).

After Davidson was arrested and handcuffed, Agent McLeod telephoned the Portland Police Department “to insure that they had nothing of a wanted nature” on Bekowies. He discovered that Bekowies had an outstanding jaywalking ticket, and Officer Boggs placed him under arrest. (R.T. 19).

Bekowies was later released on the jaywalking charge, and was not arrested on the harboring charge until four days later, on February 18. (R.T. 23). At no time prior to his second arrest was he given his Miranda warnings or otherwise advised of his constitutional rights.

Bekowies moved to suppress the statements made to Agent McLeod.³ At the hearing on the motion, Bekowies testified that although the agents were polite and courteous to him, and although none of them had ever explicitly told him he could not leave, nevertheless he felt that “as long as they had questions to ask me, I was to stay and answer them.” (R.T. 45). He said he “never felt like I should leave,” in view of the presence of the two or three agents in the room and the one he knew to be outside. (R.T. 46).

The District Court seems to have accepted Bekowies’ testimony, stating that “apparently [Bekowies] thought he couldn’t leave, but he had no reasonable reason.” The motion to suppress was denied.

The District Court purported to apply the doctrine of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as interpreted by our decision in Lowe v. United States, 407 F.2d 1391 (9th Cir. 1969). In Miranda, as is well known, the Supreme Court held that a suspect must be warned of his constitutional rights prior to any custodial interrogation.

By custodial interrogation, the Court said, it meant “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way,” 384 U.S. at 444, 86 S.Ct. at 1612. The Court thus abandoned the inquiry, begun in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), as to whether a criminal investigation had focused on the accused.

After Miranda, the sole question is whether, at the time of his questioning by the police, the person questioned is “in custody.” Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968). Custody will be found if the person questioned is effectively deprived of his freedom of movement, even though the interrogation occurs in his own home. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).

In Lowe v. United States, supra, Judge Carter in a carefully considered opinion held for this court that we would determine the existence of custody by applying the objective, reasonable man test earlier formulated by the California Supreme Court in People v. Arnold, 66 Cal.2d 438, 58 Cal.Rptr. 115, 426 P.2d 515 (1967) . Under it a suspect will be held to be in custody if the actions of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably have led him to believe he could not leave freely. Lowe, supra, 407 F.2d at 1397; cf. People v. Rodney P. (Anonymous), 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255 (1967); Myers v. State, 3 Md.App. 534, 240 A.2d 288 (1968) .

Applying our rule, we have consistently refused to find custody in the usual tax-investigation case, since those interrogated by the Internal Revenue Service are normally free to come and go as they please. United States v. Chikata, 427 F.2d 385 (9th Cir. 1970); Simon v. United States, 424 F.2d 1049 (9th Cir. 1970); Spahr v. United States, 409 F.2d 1303 (9th Cir. 1969).

Similarly, we have held that a highway patrolman may properly stop a motorist to ask for his driver’s license and registration without giving the Miranda warnings, interrogations of that kind being so commonplace that it would be unreasonable under the circumstances for a motorist to conclude he was in custody. United States v. Edwards, 421 F.2d 1346 (9th Cir. 1970); United States v. Chase, 414 F.2d 780 (9th Cir. 1969); Lowe v. United States, supra.

We have also recognized that custody is to be determined under all the facts of the case, and that “for one to be in custody, it is not required that he be in handcuffs or even that he be advised in express terms that he is under arrest.” Rosario v. Territory of Guam, 391 F.2d 869 (9th Cir. 1968).

In the case presently before us, Bekowies testified that at the time of Agent McLeod’s questioning, he believed that he was not allowed to leave the room. That testimony apparently having been accepted by the District Court,⁴ the only question for us is whether, under the objective test of Lowe, supra, Bekowies’ belief was reasonable. We conclude that it was.

In reaching our conclusion, we have not been influenced by any single circumstance but by the cumulative effect of this record. We set forth below the various considerations that have led to our conclusion that Bekowies, while talking to Agent McLeod, reasonably believed himself not free to leave. But we emphasize that we do not hold — and indeed do not necessarily think — that any of the facts we refer to, standing alone, would be sufficient to demonstrate that a suspect reasonably believéd he was in custody.

First, we note that the agents were armed with a warrant for the arrest of Davidson when they entered the Bekowies’ apartment. When officers are looking for a fugitive, and have reason to believe he is in a specific place, at least one circuit considers such an arrest warrant to be the equivalent of a search warrant. United States v. McKinney, 379 F.2d 259 (6th Cir. 1967).⁵ And it has been held that a suspect whose home is being searched pursuant to a warrant is in custody for Miranda purposes. People v. Wilson, 268 Cal.App.2d 581, 74 Cal.Rptr. 131 (1968).

Second, Agent McLeod at first thought that Bekowies was Davidson. While McLeod’s belief persisted, Bekowies had of course ample reason to expect that McLeod would not let him leave the room.

Third, the agents had staked out Bekowies’ apartment and this fact was known to Bekowies. Agent Hixon, placed in front of the residence, was specifically charged with assuring that no one left through the windows or doors. It cannot have been unreasonable for Bekowies to infer from Agent Hixon’s presence an intention to interfere with his freedom of movement.

Fourth, the agents requested Bekowies to accompany them to several areas within the apartment. At the beginning of the interrogation, Agent McLeod got Weil to ask Bekowies to come out of the bedroom. Later he asked him to go out on the porch, where he continued the interrogation.

Fifth, the search of the bedroom was made only after Agent McLeod had “insisted” to Bekowies that it be made. The record does not show exactly why McLeod thought he had a right to “insist” on a search of the bedroom. But the fact that Bekowies’ consent occurred only after McLeod had “insisted” suggests at the very least that it was not unreasonable for Bekowies to believe that he was no longer master in his own house.

Sixth, Agents McLeod and Raspar were quite certain of their information that Davidson was in Bekowies’ apartment. McLeod was confident, from the beginning of his interrogation of Bekowies, that the latter was not telling the truth. He therefore warned Bekr owies of the provisions of the federal harboring statute, 18 U.S.C. § 1071, and questioned him closely and persistently. Recognizing as we do that the test is not whether the suspect is a focus of suspicion but whether he is in custody, it is neverthless true that close and persistent questioning, accompanied by a warning as to the provisions of a criminal statute and an evident belief by the interrogating officers that the suspect is lying, may reasonably induce in a suspect the belief that he is no longer free to go about his business without significant restraint. Cf. People v. Merchant, 260 Cal.App.2d 875, 67 Cal.Rptr. (1968); Windsor v. United States, 389 F.2d 530 (5th Cir. 1968).

Finally, there is the fact that at the conclusion of the interrogation, Bekowies was indeed taken into custody. Had the agents simply arrested him for harboring a federal fugitive, we would draw no inference from their conduct, for at that time they had (Miranda problems aside) more than ample probable cause. But instead they went out of their way to discover some reason (we hesitate to say pretext), apart from the harboring charge, for keeping Bekowies in custody, and arrested him finally for a petty traffic offense.

It is true that this arrest occurred after the completion of the interrogation. But the subsequent arrest necessarily colors what went before, and it is difficult indeed to say that Bekowies was unreasonable in believing himself in custody when, as it turned out, his belief was correct.

Since we hold that the District Court erred in failing to exclude statements made by Bekowies to Agent McLeod during the course of interrogation, it is clear that a new trial will be required on both the harboring and conspiracy counts.⁶ But we think it appropriate to point out that in this record there was insufficient evidence to submit the conspiracy count to the jury even had Bekowies’ statements been properly admitted.

The indictment alleged a conspiracy between Bekowies and Weil to harbor Davidson in violation of 18 U.S. C. § 1071. To sustain a conviction under the latter statute, it is necessary to show that the defendant had “notice or knowledge of the fact that a warrant or process has been issued” for the fugitive. It is hornbook law that when knowledge of a fact is required to convict for a substantive offense, knowledge is also required to convict for conspiracy to commit the substantive offense. Ingram v. United States, 360 U.S. 672, 678, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959); United States v. Ausmeier, 152 F.2d 349 (2d Cir. 1945); Fulbright v. United States, 91 F.2d 210 (8th Cir. 1937).

The only evidence in this record from which the jury could have inferred knowledge of the Davidson arrest warrant by either Weil or Bekowies was Agent McLeod’s testimony that he had shown it to them. Hence the conspiracy cannot have begun before McLeod entered Bekowies’ apartment.

From that time forward, there is no evidence of any communication between Weil and Bekowies — except for the occasion when Weil, at Agent McLeod’s direction, asked Bekowies to come out of the bedroom. Nor was it possible to infer any such communication between the two, the F.B.I. agents having been in the apartment the whole period.

Without communication between Weil and Bekowies, however, there could have been no agreement between them. Without agreement, of course, there can be no conspiracy. Ingram v. United States, supra; Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954).

Reversed.

1 . Weil was indicted for liarboring Davidson and for conspiring to do so. He pleaded guilty to the harboring charge, and the Government dismissed the conspiracy count.

2 . Their information came from an informant whose identity is not disclosed in the record.

3 . He also moved to suppress several statements made after Davidson’s arrest, and one statement made after his own arrest February 18. These statements do not appear to have been made in response to questioning initiated by law enforcement officials. We do not hold these statements inadmissible.

4 . In considering Bekowies’ testimony that he believed himself not free to leave we do not, as the dissent suggests, depart from the objective standard of Lowe. Bekowies’ statements are relevant to the existence of his own subjective belief, not to the crucial legal question of whether that belief was reasonable. Sinee, as the trial court found, Bekowies subjectively believed himself not free to leave, we have no occasion in this case to determine when, if ever, a suspect might be held to be objectively in custody despite his subjective and unreasonable belief that he was free to leave.

5 . We express no opinion as to whether the law of this circuit is in accord with that of the Sixth on this point. The only question before us is the reasonableness of Bekowies’ belief, and we find it imprudent to say that a layman could not reasonably believe what three federal judges have held.

6 . We are unpersuaded by the suggestion in dissent that the error in admitting Bekowies’ statements was harmless beyond a reasonable doubt. Bekowies could not have been guilty of the offense of harboring Davidson until “after notice or knowledge of the fact that a warrant or process [had] been issued” for Davidson. 18 TJ.S.C. § 1071. On this record, the only evidence of such notice was Agent McLeod’s reading of the warrant to Bekowies. Hence, if the statements made to Agent McLeod be suppressed, there is slight evidence that Bekowies’ conduct in connection with the search was other than exemplary at any time after he had notice of the outstanding arrest warrant. Absent such evidence, Bekowies’ other statements are as compatible with innocence as with guilt.

In any event, it is hard to believe that evidence as damning as that contained in the statements improperly admitted— evidence that Bekowies had lied to and deliberately misled the agents — did not strongly influence the jury’s verdict. See Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). Nor is this a case where the challenged evidence was merely cumulative of facts overwhelmingly established aliunde, as in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). We note that the government’s brief does not suggest that the error was harmless, nor challenge the appellant’s statement in his opening brief that a new trial is required if any of the statements be excluded.