REVISED, June 28, 1999
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________
No. 97-50904 ____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASON W. MULLIN,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas
_________________________________________________________________ June 10, 1999
Before GARWOOD, BARKSDALE and BENAVIDES, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Military Police having arrested Jason W. Mullin, a civilian,
after seeing him commit a crime at an open military base, primarily
at issue is the legality of Mullin’s subsequent interrogation and
21-hour detention by the Military Police prior to his being
released to local police. We AFFIRM.
I.
In April 1996, Military Police were investigating a number of
break-in burglaries of vehicles at a parking lot at Fort Hood,
Texas. Fort Hood is an open post; in general, persons can enter
freely without restrictions.
-1- At 8:00 p.m. on 2 April, Military Policemen conducting
surveillance of the parking lot observed Mullin and a female
attempting to break into an automobile. The female was later
identified as Mullin’s sister, Teresa Bronner, a private in the
United States Army, who was stationed at Fort Hood but had an
apartment in the adjoining city of Killeen, Texas.
When Military Policemen approached Mullin, he fled. They
apprehended him shortly thereafter and took him to the Military
Police station at Fort Hood.
Bronner, who remained in her vehicle as Mullin fled, was
apprehended and taken to the Military Police station; her vehicle
was impounded. She was read her rights, requested an attorney, was
released to her unit, and was placed on barracks restriction.
At the station, Mullin told the Military Police that he was
“Jason J. Boe”, age 16 and homeless. When Sergeant Hatfield, who
was investigating the burglaries, arrived, he told Mullin that he
was a military police investigator; displayed his credentials; and,
prior to questioning Mullin, advised him of his rights, using the
section for civilian suspects on the military’s rights warning
form. Mullin responded that he understood those rights and did not
request a lawyer.
-2- Sergeant Hatfield talked to Mullin about the incident that
evening, other break-ins, and the misuse of a bank debit card taken
during one of them. When the card misuse occurred, the bank
automatic teller machine photographed the perpetrator. Sergeant
Hatfield showed the photograph to Mullin, noting that the person
pictured was dressed identically to Mullin.
Because Mullin claimed to be 16, Sergeant Hatfield contacted
the Texas Child Protective Services Agency; it refused to assist
because the Military Police could not establish Mullin’s identity
or age. Sergeant Hatfield contacted the Bell County Juvenile
Detention Center; it refused custody. And, the Sergeant contacted
the local police (Killeen, Texas), knowing that they were
investigating the debit card misuse; the police declined custody.
At 12:30 a.m. on 3 April, approximately four hours after his
arrest, Mullin gave a written statement (still using the name
“Jason Boe”), stating that he had broken into two vehicles,
including the one witnessed by the Military Police; that he took
the debit card from the first of the two vehicles; that a different
female had helped in the first burglary; that Bronner was unaware
of, and had nothing to do with, the other break-ins; that he did
not know her last name or address and had met her at a store.
-3- When Sergeant Hatfield ended the interview after 12:30 a.m.,
he instructed the watch manager that Mullin was a juvenile; that he
was to be placed in a detention cell with the door open at all
times; and that he was to have the opportunity to rest while the
Military Police continued their investigation. The open cell had
a restroom, a sink, and a shower.
The Military Police next searched Bronner’s impounded vehicle.
They discovered photographs of Mullin and Bronner, which indicated
that he had known her for more than the claimed 24-hour period.
Around 1:30-2:00 a.m., Sergeant Hatfield returned to the
station, had Mullin escorted back to the interview room, and
readvised him of his rights. When confronted with the newly
discovered photographs, Mullin stated that he had known Bronner for
two or three weeks; that she had been involved in the burglaries;
and that property stolen from the vehicles could be found in
Bronner’s apartment. Mullin continued to lie about his identity
and age.
At 2:30 a.m., Sergeant Hatfield obtained Bronner’s consent to
search her apartment in Killeen. There, the Military Police found
items stolen in the burglaries and Mullin’s wallet, which provided
his true identity.
-4- At approximately 6:30 a.m., following the apartment search,
Sergeant Hatfield again retrieved Mullin from the detention cell
and readvised him of his rights, using Mullin’s actual name.
Mullin stated again that he understood his rights and did not
request an attorney. Mullin gave his true identity and admitted
that he and his sister, Bronner, were involved in the burglaries.
Mullin gave a second written statement around 7:00 a.m.,
admitting that: he worked with his sister on the vehicle break-ins;
they used the stolen debit card to obtain cash; they kept the
stolen property in Bronner’s apartment; and he had lied in his
earlier written statement.
Finally having confirmed Mullin’s identity, Sergeant Hatfield
conducted a criminal history check and discovered that Mullin was
a convicted felon in California, on probation for assault with a
deadly weapon. Sergeant Hatfield contacted California authorities
to discuss extradition; but, they advised that “the bond was not
high enough for extradition”. Accordingly, Sergeant Hatfield
concluded that he could not release Mullin to California
authorities.
Later that morning, the Military Police provided the debit
card evidence to the Killeen police. That afternoon, around 5:30
-5- p.m., Mullin was turned over to them pursuant to a Texas arrest
warrant for debit card misuse.
Following the state court charge, Mullin was charged in
federal district court in November 1996 with the following
misdemeanor offenses within the jurisdiction of the United States
at Fort Hood: conspiracy with Bronner to commit theft of personal
property, 18 U.S.C. § 371 (count 1); such theft from vehicles, 18
U.S.C. § 661 (counts 2, 3, 4, and 5); and knowingly entering Fort
Hood for the purpose of committing such theft, 18 U.S.C. § 1382
(count 6).
After seeking unsuccessfully to suppress evidence (including
the statements at issue here), followed by a jury trial before a
magistrate judge, see 18 U.S.C. § 3401, Mullin was found guilty on
all six counts. He was sentenced to concurrent terms of ten months
imprisonment on counts 1 through 5, and to a consecutive term of
six months imprisonment on count 6. The district court affirmed.
Mullin began serving his federal sentence in February 1999,
following incarceration on his state sentence.
II.
Mullin does not challenge his conviction on count 5,
pertaining to the 2 April break-in observed by the Military Police.
But, for the other five counts, he challenges his convictions,
-6- claiming that, on three alternative grounds, his statements given
the Military Police were inadmissible: the Military Police lacked
authority to detain and interrogate him; the statements were not
voluntary; and his arrest violated the Posse Comitatus Act.
A.
Regarding the authority of the Military Police to arrest,
detain, and question him, Mullin maintains that, on these facts,
Military Police had only “citizen’s arrest” authority; and asserts
that, accordingly, after the Military Police observed the break-in
and properly arrested him, they should have surrendered him to
civil authorities immediately.
1.
Acknowledging that there is no express statutory authority for
the arrest at issue, the Government claims it can be inferred from
the trespass statute Mullin was convicted under on count 6, 18
U.S.C. § 1382, discussed infra. The Government’s contention is
less than half-hearted. We need not decide whether, on the facts
before us, Military Police had statutory authority to arrest
Mullin; at the very least, they could make a citizen’s arrest. As
noted, Mullin concedes this.
The Texas Code of Criminal Procedure states:
A peace officer or any other person, may, without a warrant, arrest an offender when the
-7- offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.
TEX. CODE CRIM. PRO. art. 14.01 (West 1979) (emphasis added).
Restated, although Military Police are not designated peace
officers under TEX. CODE CRIM. PROC. art. 2.12, they can make an
arrest when Texas law authorizes such an arrest by a “private
person”. See United States v. Johnson, 815 F.2d 309, 313 (5th Cir.
1987) (discussing such authority concerning federal secret service
agents); United States v. Garcia, 676 F.2d 1086, 1093 n.22 (5th
Cir. 1982), vacated on other grounds, 462 U.S. 1127 (1983) (“Of
course, an employee of the Parks and Wildlife Department may, like
any other private citizen, effect a citizen’s arrest. A private
citizen may arrest without warrant a person who has committed a
felony or offense against the peace in the arresting person’s
presence or within his or her view”); Sanchez v. State, 582 S.W.2d
813, 815 (Tex. Crim. App. 1979) (federal border patrol agent could
arrest individual for public drunkenness when Texas law authorizes
such an arrest by a private citizen).
In this regard, counsel for Mullin stated at oral argument
that, because the Military Police observed Mullin breaking into a
vehicle, they had probable cause to arrest him; that the arrest was
proper; and that this is the reason why, as noted, he is not
-8- challenging his conviction for the observed break-in (count 5).
See Johnson, 815 F.2d at 313.
2.
In support of his claim that, following his arrest, he should
have been turned over immediately to civil (state or federal)
authorities, and that, therefore, the Military Police lacked the
authority to interrogate or further detain him, Mullin relies
primarily on Alexander v. United States, 390 F.2d 101 (5th Cir.
1968), which involved an investigation by postal inspectors of a
postal employee. The inspectors misled the employee as to the
purpose of their investigation, extracted a confession, and then
told the employee to report back to the office the following day.
Id. at 107-08. Our court held that the statements were not
voluntary:
We are not reviewing the actions of one specifically authorized to protect the public. The inspectors’ chameleonic tactics, i.e., arresting as federal officers and claiming legality as state citizens, cannot vest them with more rights than those granted by the Texas statutes. These statutes are careful in prescribing safeguards which must be respected in a citizens’ arrest, and rigid compliance must be required when citizens detain others for what may constitute even a putative arrest.
-9- Id. at 108-09. Mullin asserts that this means that detention and
interrogation by persons vested only with citizen’s arrest
authority (such as the Military Police here) is improper.
Relying on Kennedy v. United States, 585 F. Supp. 1119, 1123
(D.S.C. 1984), the magistrate judge rejected this argument, stating
that “the Military police are law enforcement officers who possess
the power to make arrest for violations of Federal law”. In
affirming, the district court relied instead on United States v.
Banks, 539 F.2d 14 (9th Cir.), cert. denied, 429 U.S. 1024 (1976).
Kennedy was an action under the Federal Tort Claims Act (FTCA)
concerning an arrest by Military Police. In addressing whether the
Military Police were “persons with the power ‘to make arrest for
violations of Federal Law’”, Kennedy, 585 F. Supp. at 1123 (quoting
28 U.S.C. § 2680(h)), the court stated:
Military police are law enforcement officers who possess power to make arrest for violations of Federal law. While they normally confine their activities to enforcement of military law, they do possess all powers that civilian law enforcement officers have, on military property. See Army Regulation 210-10 paras. 2-9; Army Regulation 600-40 para. 3.
Id.
But, neither of the cited Army Regulations stated that, on
military property, Military Police have the same powers as civil
-10- law enforcement officers. Along this line, Army Regulations are
not cited here by the Government.
Likewise, the precedent used by the district court in
affirming Mullin’s convictions, Banks, is distinguishable because
“[t]he arrest [in Banks] followed a search, made pursuant to a
warrant for the search of the room [in the barracks] and the
persons found there issued by the base commander”. Banks, 539 F.2d
at 15. Additionally, an affidavit by an investigator provided the
probable cause for the search warrant. Id. Finally, the Ninth
Circuit relied upon the Air Force’s interpretation of the earlier-
referenced 18 U.S.C. § 1382 (proscribes entering a military base
for an unlawful purpose) as authorizing the detention of civilians
who commit crimes on military bases. Id. at 16 n.2. In the case
at hand, there was no warrant authorizing Mullin’s arrest; as
noted, no Army Regulation interpreting § 1382 in a comparable
manner has been identified; and, as also noted, § 1382 does not, on
its face, authorize the arrest and detention of civilians.
This notwithstanding, the Military Police acted legally in
questioning and otherwise detaining Mullin. Title 10 U.S.C. §
809(e) provides a framework for when members of the military may
make arrests. It states generally that arrests may be made when an
order to arrest has been given and there is probable cause to
-11- arrest. See § 809(a)-(d). However, as noted by the Ninth Circuit
in Banks, § 809(e) provides that “[n]othing in this article limits
the authority of persons authorized to apprehend offenders to
secure the custody of an alleged offender until proper authority
may be notified”.
Alexander, on which Mullin relies, is easily distinguishable.
There, although the postal inspectors were investigating a crime,
they misled Alexander as to the purpose of the investigation when
questioning him and gaining his consent to search. Alexander, 390
F.2d at 107.
The case at hand is quite different. The Military Police
witnessed Mullin committing a crime on military property. He was
never misled regarding the purpose of his detention or questioning.
Unlike Alexander, where our court expressed concern regarding
“detention, interrogation, and trickery by every self-appointed
detective”, id. at 109, the Military Police were not using
deception to investigate a crime, but were questioning a subject
they had witnessed committing a crime on the military base similar
in nature to several other recent crimes there.
-12- Our court has affirmed the legality of similar arrests,
detentions, and interrogations.1 In Johnson, 815 F.2d at 311,
federal secret service agents arrested the defendant in Texas based
on an outstanding California arrest warrant. “Immediately
following the arrest, secret service agents took Johnson into
federal custody, searched him, questioned him about his
counterfeiting activities, and inventoried his car.” Id. (emphasis
added). Regarding Johnson’s challenge to the lawfulness of his
arrest, our court affirmed, based on the fact that the agents acted
upon reasonable information that Johnson had a felony charge in
California, thus rendering the arrest a valid citizen’s arrest
1 It is unclear whether Mullin challenges the introduction of evidence discovered in the searches performed by the Military Police (i.e., the search of Mullin when he was initially arrested, and the searches of Bronner’s vehicle and apartment). At one point in his brief, Mullin states that the Military Police “did not have the authority to arrest, jail, question, and search [Mullin]”. However, he does not make any further arguments in his brief specifically in regard to the evidence from the searches. Of course, arguments not briefed are deemed waived. See, e.g., Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1045 (5th Cir. 1998).
Further, we note that Texas courts have allowed the introduction into evidence of items seized as the result of a lawful citizen’s arrest. See Burkett v. State, 760 S.W.2d 345, 346 (Tex. Ct. App. 1988) (affirming trial court’s decision to admit evidence regarding items found on defendant’s person following lawful citizen’s arrest); Douglas v. State, 695 S.W.2d 817, 820 (Tex. Ct. App. 1985) (same). Also, Texas Code of Criminal Procedure article 18.16 states that private citizens may seize stolen property from the alleged offender if there is “reasonable ground to suppose the property to be stolen”. Finally, the Fourth Amendment does not require the suppression of evidence taken illegally by private citizens. Burdeau v. McDowell, 256 U.S. 465, 475 (1921); see also Burkett, 760 S.W.2d at 346.
-13- under Texas law. Id. at 313. See also United States v. Chapman,
420 F.2d 925, 926 (5th Cir. 1969) (arrest and seizure of evidence
by postal inspectors was valid Florida citizen’s arrest because
they acted on “credible information”).
Moreover, Texas cases indicate that the actions of the
Military Police did not exceed their citizen’s arrest authority.
In Turner v. State, 901 S.W.2d 767, 770 (Tx. Ct. App. 1995), “two
armed security guards compelled all of the men to get out of the
vehicle, took the gun from the glove box, patted the men down for
other weapons, took their identification, questioned them further,
and called the sheriff’s office”. (Emphasis added.) This
citizen’s arrest was held lawful. Id. at 771. See also Douglas v.
State, 695 S.W.2d 817, 819 (Tex. Ct. App. 1985).
Therefore, the Military Police acted reasonably and within the
bounds of Texas citizen’s arrest authority.2 Mullin, for obvious
reasons, does not maintain that, after he was seen committing a
2 Alexander may imply that suppression is proper where state officers exceed their authority under state law, even though they did not otherwise violate the Fourth Amendment, as where an arrest is made on probable cause but without a warrant required by state law. In this respect, Alexander relies on United States v. Di Re, 322 U.S. 581 (1948). See Alexander, 390 F.2d at 105-07. However, we have held that Di Re was superceded by subsequent Supreme Court decisions. See United States v. Walker, 960 F2d 409, 415-16 (5th Cir. 1992). Consequently, such an implication from Alexander is likely no longer appropriate. In any event, we need not address that question, because, as stated, the Military Police did not exceed their Texas citizen’s arrest authority.
-14- crime, the Military Police should have simply escorted him off the
post and released him. Instead, he contends that they should have
released him immediately to federal or state civil authorities.
But, how could they do that without at least knowing his identity
and age? He lied immediately about that. And, his lie that he was
a juvenile delayed the necessary interrogation process and his
ultimate release to civil authorities.
On these facts, the Military Police acted reasonably and
lawfully: they saw Mullin commit a crime on military property;
they were conducting an on-going investigation of such crimes; a
soldier (Bronner) was also involved in the observed crime; attempts
were made early on to release Mullin to civil authorities; and
Mullin’s lies greatly delayed that release. In short, the
detention and interrogation were lawful.
B.
In the alternative, Mullin maintains that his statements to
the Military Police were not voluntary, because they deceived him
into thinking they were law enforcement officers with authority
over him; and because he was held for 21 hours, during which the
Military Police are claimed to have yelled at, and cursed, him.
These contentions are totally without merit.
-15- The Government has the burden of proving, by a preponderance
of the evidence, that a defendant voluntarily waived his rights and
that his statements were made voluntarily. United States v.
Restrepo, 994 F.2d 173, 183 (5th Cir. 1993). A confession is
voluntary if it is the product of the defendant’s free and rational
choice; it is voluntary in the absence of official overreaching,
either by direct coercion or subtle psychological persuasion. Id.
Whether a confession is voluntary is determined by considering the
“totality of the circumstances”. Id. In reviewing a ruling on a
motion to suppress a confession, we give credence to the
credibility choices and fact finding by the district court unless
they are clearly erroneous; the ultimate issue of voluntariness is
a legal question reviewed de novo. Id.
The magistrate judge held that Mullin “knowingly and
voluntarily” waived his rights to remain silent and to have an
attorney; and that Mullin’s confession was not coerced. The
district court affirmed.
At the suppression hearing, Military Police testified that
they questioned Mullin about the observed 2 April vehicle break-in,
other such break-ins on the base, and the debit card misuse that
had been reported; and that they confronted him with a photograph
-16- taken at a bank automatic teller machine showing a person dressed
identically to Mullin.
Sergeant Hatfield identified himself to Mullin as a military
police investigator; displayed his credentials to Mullin; and,
prior to any questioning, informed Mullin of his rights. Mullin
responded that he understood his rights and did not request an
attorney.
Believing that Mullin was a juvenile, Sergeant Hatfield
contacted several state authorities to take custody of Mullin, but
these attempts were initially unsuccessful. After his first
interview and partial confession, Mullin was allowed to rest in an
open cell. After further investigation revealed Mullin’s true
identity, he was once again informed of his rights. Again, Mullin
stated that he understood his rights and he did not request an
attorney. At this point (early morning of 3 April), Mullin made a
full confession. After being turned over to the Killeen police
later that day, Mullin was taken before a state magistrate for a
bond hearing.
Our having concluded that the Military Police had the
authority to interrogate Mullin, his assertion that they deceived
him into thinking they had such authority is meritless. Further,
the evidence adduced at the suppression hearing does not support
-17- Mullin’s allegation that oppressive circumstances coerced a
confession.
In addition, Mullin’s 21-hour detention does not render his
confession involuntary.
The 21-hour delay does not, per se, render Mullin’s confession
involuntary or inadmissible. See, e.g., County of Riverside v.
McLaughlin, 500 U.S. 44, 56-57 (1991) (probable cause hearing
within 48 hours of arrest is presumptively reasonable); West v.
Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996), cert. denied, 520 U.S.
1242 (1997) (confession taken 30 hours after arrest was voluntary);
Neumuller v. State, 953 S.W.2d 502, 512 (Tex. Ct. App. 1997) (“Even
an unreasonable delay in bringing an accused before a magistrate,
of which we have no evidence here, will only render a confession
inadmissible upon a showing of some causal connection between the
delay and the making of the confession”).
“[W]here there is no evidence to support a finding that the
delay was for the purpose of obtaining a confession, there is no
evidence that the delay had a coercive effect on the confession,
-18- there is no causal connection between the delay and the confession,
and the confession was otherwise voluntarily given ... the
defendant has not shown prejudice by the delay.” United States v.
Perez-Bustamante, 963 F.2d 48, 53 (5th Cir. 1992) (quoting United
States v. Bustamante-Saenz, 894 F.2d 114, 120 (5th Cir. 1990)).
There is no evidence that the Military Police delayed turning
Mullin over to civil authorities for the purpose of extracting a
confession, or that the delay caused him to confess. To the
contrary, the delay was caused by Mullin’s lies to the Military
Police, especially that he was a homeless juvenile named “Boe”.
Accordingly, the Government met its burden of establishing that
Mullin’s confession was voluntary. Restepo, 994 F.2d at 183.
C.
Alternatively, Mullin asserts that his statements are not
admissible because the investigation by Military Police of a state
law matter – debit card misuse outside Fort Hood – violated the
Posse Comitatus Act, 18 U.S.C. § 1385:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, wilfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.
-19- The Act is designed to restrict military involvement in civilian
law enforcement. See United States v. Hartley, 796 F.2d 112, 114
(5th Cir. 1986); see also generally Roger Blake Hohnsbeen, Note,
Fourth Amendment and Posse Comitatus Act Restrictions on Military
Involvement in Civil Law Enforcement, 54 GEO. WASH. L. REV. 404
(1986).
We need not address whether the Act was violated. “[E]ven
where a violation of the Posse Comitatus Act is found or suspected,
courts have generally found that creation or application of an
exclusionary rule is not warranted.” Hartley, 796 F.2d at 115
(citing United States v. Wolffs, 594 F.2d 77 (5th Cir. 1979)). In
Wolffs, 594 F.2d at 85, our court pretermitted addressing whether
there was a violation of the Act in a case involving the use of
Army personnel in a narcotics investigation:
We need not decide that complex and difficult issue because, assuming without deciding that there was a violation, application of an exclusionary rule is not warranted. If this Court should be confronted in the future with widespread and repeated violations of the [Act] an exclusionary rule can be fashioned at that time.
Id. (citing United States v. Walden, 490 F.2d 372 (4th Cir. 1974)
and State v. Danko, 548 P.2d 819 (Kan. 1976)). See also Hartley,
796 F.2d at 115 (noting that other courts have also found that
exclusionary rule is not warranted for violations of the Act);
-20- Major Saviano, The Exclusionary Rule’s Applicability to Violations
of the Posse Comitatus Act, 1995-JUL ARMY LAW. 61, 62-64 (1995)
(same).
The circumstances presented in Mullin’s case – gathering by
Military Police of limited information concerning debit card misuse
related to one of the on-base break-ins – provides no basis to
warrant the creation or application of an exclusionary rule. See
Hartley, 796 F.2d at 115. Accordingly, Mullin’s claim under the
Posse Comitatus Act fails.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
-21-