United States v. Nicholas Salvatore Digiacomo

579 F.2d 1211, 1978 U.S. App. LEXIS 10303

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 7, 1978
• Docket: 76-1954
• Status: Published

Opinions

McKAY, Circuit Judge.

Defendant was indicted for possessing and passing counterfeit money with intent to defraud in violation of 18 U.S.C. § 472 (1976). The trial court granted a motion to suppress both a counterfeit bill seized from defendant and inculpatory statements made by defendant to government agents. The government appeals pursuant to 18 U.S.C. § 3731 (1976). We affirm.

At the suppression hearing the only evidence taken was the testimony of four Secret Service agents. Their testimony was generally consistent but conflicted in some crucial aspects. The agents told the court that defendant had been suspected of passing two counterfeit $100 bills which they had previously seized. Two of the agents, Wunderlich and Bulman, were watching for defendant at a restaurant in the early evening of July 26, 1976, when they saw him drive into the parking lot accompanied by a young lady. They approached him, identified themselves, said they wanted to talk about some counterfeit notes he had spent and asked if he would wait with them in the lot until two other agents arrived. Defendant complied with their request. The wait was approximately five minutes.

Wunderlich and Bulman testified that while they were waiting they did not separate defendant and the young lady but that they all waited together in one group. The other agents, Marsden and Simpkins, however, testified that when they arrived at the parking lot defendant and the young lady were separated from each other by some 25 to 30 feet and were each attended by one of the two agents already there. Neither Wunderlich nor Bulman advised defendant of his rights; yet Marsden stated that when he and Simpkins were contacted to come to the parking lot the other agents said defendant already was being interviewed by them. Wunderlich and Bulman denied they asked defendant anything except to wait in the lot.

After Marsden and Simpkins arrived, Simpkins advised defendant of some of his constitutional rights in the presence of Marsden and Wunderlich. The three each gave differing accounts of the advisement. Simpkins testified on direct and then reaffirmed on cross-examination he told defendant that

he had to understand his rights, that he had the right to remain silent, that anything he said could be used against him in the court, and that he had the right to an attorney to be present during this time, and if he so chose not to have an attorney present, even during questioning, he could stop the interview at any time.

Noticeably absent from Simpkins’ recitation was any reference to a right to appointed counsel. Marsden described Simpkins’ advisement by saying:

Mr. DiGiacomo was advised of his right to remain silent. He was advised that anything he said could be used against him in a court or other proceedings. He was advised that he may have an attorney present during the questioning, and that if he could not afford an attorney and wanted one, one may possibly be provided by the Court.

On cross-examination Marsden reaffirmed that in relation to court appointed counsel Simpkins said “possibly one would be appointed.” Wunderlich’s version of the advisement to defendant was that Simpkins

advised him that he had the right to remain silent, that anything he said could be used against him in a court of law, and that he had the right to have an attorney present at any time, and if he was unable to obtain the service of an attorney, that one would be provided at the expense of the Government.

When asked whether he understood his rights defendant responded affirmatively, said he had nothing to hide, and told the officers he had obtained the notes in a card game. Marsden showed defendant the two notes he was suspected of passing and asked if he had additional bills. Defendant said he might have one at home. He was told if he had any bills similar to the one at home, he would have to surrender them to the agents as contraband. Defendant then was asked if he would object to the agents examining any currency he was carrying. He said he had no objection and handed his cash to Marsden. The agent searched through the currency, found and seized a counterfeit $100 bill and returned the genuine currency to defendant.

The seriousness of the matter was explained to defendant and he was told it would be to his advantage to tell the agents the whole truth. Defendant asked to speak to Simpkins privately. Simpkins said he again advised defendant of his rights “exactly” as he previously had done, apparently leaving out any reference to appointed counsel. Defendant then made inculpatory statements to Simpkins. Marsden said they told defendant they could arrest him and take him to jail that night or he could make it easier on himself and avoid jail by cooperating and answering questions. The agent did not remember whether that was said before or after the note was seized. Simp-kins claimed he did not remember that defendant was told he could go to jail that evening.

Later in the conversation defendant was told he could probably be charged with six felonies, each carrying possible penalties of 15 years imprisonment and a $5,000 fine. The agents promised defendant that if he cooperated in “setting up” his source, they would recommend that “consideration” be given defendant for his cooperation. Defendant was told he could be arrested that evening or he could appear “voluntarily” the next morning at the Secret Service office.

When defendant came to the agents’ office the following morning he was read the Miranda warnings from an agency form. He signed an acknowledgement stating he understood his rights, but he refused to sign a waiver form until he could speak with his father. Defendant tried several times to call his father from the agents’ office. When his father did not arrive after about an hour’s wait, defendant was shown a photograph and asked if it was a picture of his source. Marsden testified defendant did not want to talk about the photograph but the agent asked him again to identify it. Defendant was silent and “was noticeably upset by the photograph,” but “after some hesitation in studying the photograph, he acknowledged this was the person from whom he had purchased the counterfeit notes.” The possibility of a “setup” was mentioned again. Defendant said he did not want to discuss it further, the interview was terminated and defendant was allowed to leave.

In urging reversal of the suppression order, the government first argues the warnings specified in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were not necessary in this case and, alternatively, if they were required, the warnings given were sufficient to advise defendant of his rights.

Necessity of Warnings

Relying principally on Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), the government contends defendant was not entitled to the Miranda warnings because he was not in custody during the interrogations. Mathiason is significantly different from this case. In Mathiason a police officer left his card at the defendant’s apartment with a note asking him to telephone the officer “to discuss something.” The defendant called and was requested to go to the patrol office. At the office he was told he was not under arrest, but that he was a suspect in a burglary case. He also was falsely told his fingerprints were found at the scene. After sitting quiet for a few minutes the defendant admitted taking the property. The officer then gave the defendant the Miranda warnings and took a taped confession. At the end of the half hour interview the defendant was told he would not be arrested at that time but was free to go. He then left the station. Based on this scenario the Supreme Court decided “that Mathiason was not in custody ‘or otherwise deprived of his freedom of action in any significant way.’ ” Id. at 495, 97 S.Ct. at 714 (quoting Miranda v. Arizona, 384 U.S. at 494, 86 S.Ct. 1602).

Although facts may vary from case to case, the principle articulated in Mathiason is the same: Miranda warnings are necessary whenever a defendant is “in custody ‘or otherwise deprived of his freedom of action in any significant way.’ ” Id. Viewing the evidence in the light most favorable to the trial court’s determination of the facts in this case, we conclude Miranda warnings clearly were required. Defendant was kept apart from his companion. He was confronted simultaneously by four federal agents. He was told he was suspected of passing counterfeit money. He was given only partial Miranda warnings. He was told he had to surrender any counterfeit money he possessed. He was told he could be arrested and jailed that evening. He was told he could choose between immediate arrest and “voluntary” appearance at the Secret Service office the following morning. The trial court was justified in holding that the agents’ actions in the parking lot were “functionally equivalent to an arrest.” As to the interrogation at the office the following day, the court found that defendant did not appear “voluntarily” but that he appeared “under threat of being arrested or going to jail.” These findings have ample support in the record and are far from being clearly erroneous. We therefore hold that proper Miranda warnings were necessary.

Adequacy of Warnings

In reviewing the adequacy of the advisement in the parking lot, the trial court determined that the government failed to prove by a preponderance of the evidence that defendant was advised of his right to appointed counsel and his right to terminate questioning anytime. Insisting that Miranda imposes no obligation to expressly advise suspects they can terminate questioning, the government argues Miranda only requires that “[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda v. Arizona, 384 U.S. at 473-74, 86 S.Ct. at 1627. Although there may be no express requirement to warn suspects of the right to terminate questioning, the government’s failure to so warn is certainly an important factor to be considered in determining the voluntariness of any statements made. Further, the right to appointed counsel is a significant right which cannot be excluded from the advisement.

The faulty advisement, coupled with the jail threats and order to surrender all counterfeit money, is more than sufficient to sustain the trial court’s determination that the inculpatory statements were not rendered voluntarily. The government did not sustain its burden to prove defendant was given his constitutional due. See Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

At the Secret Service office the next day adequate warnings were given. The required advisement was read to defendant. He then read it and signed an acknowledgement stating he understood what he had read. Defendant, however, refused to sign a waiver form and was reluctant to respond to questions. After considering the “totality of the circumstances,” the trial court found the agents interrogated defendant when he had not waived his rights.

In disputing this conclusion the government stresses that defendant never requested an attorney and never indicated that his refusal to sign the waiver form was because he wanted an attorney. The Supreme Court firmly rejected this argument in Miranda:

An individual need not make a pre-in-terrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.

If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490, n. 14, [84 S.Ct. 1758, 12 L.Ed.2d 977], This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, [58 S.Ct. 1019, 82 L.Ed. 1461] (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.

An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.

Miranda v. Arizona, 384 U.S. at 470, 475, 86 S.Ct. at 1626, 1628 (emphasis added). See Sullins v. United States, 389 F.2d 985, 988 (10th Cir. 1968).

We will not presume a waiver of a defendant’s right to counsel, and the government did nothing to sustain its “heavy burden” of proving a waiver was “specifically made after the warnings” were given, as required by Miranda. Further, once defendant specifically refused to sign the waiver form, proof of waiver could be made only by the strongest evidence. Here the agent not only obtained no waiver, but he continued to interrogate after he knew “defendant did not want to talk about the photograph.” The suppression of the statements made at the Secret Service office was proper.

Constitutionality of Seizure

We turn finally to the issues surrounding the seizure of the counterfeit note. The government contends there was no search involved in the seizure. In response we merely note that an examination of the contents of a person’s pocket is clearly a search, whether the pocket is emptied by the officer or by the person under the compulsion of the circumstances.

The government also contends defendant consented to the seizure. A search and seizure may be made without a warrant or probable cause if the subject gives consent, but the government bears the burden to prove that the consent given validly waived the subject’s Fourth Amendment rights. This court recently restated the standard for testing the voluntariness of consent in United States v. Abbott, 546 F.2d 883, 885 (10th Cir. 1977):

(1) There must be clear and positive testimony that consent was “unequivocal and specific” and “freely and intelligently” given; (2) the government must prove consent was given without duress or coercion, express or implied; and (3) the courts indulge every reasonable presumption against the waiver of fundamental constitutional rights and there must be convincing evidence that such rights were waived.

The issue of the validity of a consensual search is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamante, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In our review of this issue, we view the evidence in the light most favorable to the trial court’s determination.

Although defendant said he did not object to the agents examining his currency, before the agents asked to see his cash they told him he was suspected of a serious crime, gave him a faulty recitation of his constitutional rights, told him he could be jailed that night, and told him he had lo surrender all the counterfeit money he had. Based on this evidence the trial court was justified in concluding that the government had not sustained its burden. There was no “clear and positive testimony” or any “convincing evidence that [defendant’s Fourth Amendment] rights were waived.” United States v. Abbott, 546 F.2d at 885.

The decision of the trial court is affirmed.