United States v. Robert Portsche Ward

488 F.2d 162, 1973 U.S. App. LEXIS 7056

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 13, 1973
• Docket: 72-3176
• Status: Published

Opinions

SCHNACKE, District Judge:

Defendant was convicted of knowing possession of a false Selective Service registration card, 50 U.S.C. App. § 462(b)(5).

The evidence and defendant’s stipulations in the trial court fully support the court’s written findings that defendant had manufactured a false identity for himself under an assumed name, and that, as part of the scheme, he obtained and completed a falsely made Selective Service registration certificate which he had in his possession at the time of his arrest. The contention that the evidence is insufficient to support the charge is totally without merit.

The principal contention on this appeal is that the court below erred by receiving in evidence the false documents carried by defendant at the time of his arrest, and in denying defendant’s motion to suppress directed to that evidence. The precise basis upon which defendant relies has not been succinctly stated either here or below, but the contention appears to be that the false documents were seized from, or involuntarily produced and displayed by defendant at a time when he was, or thought he was, under arrest, and prior to the time he was given the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,16 L.Ed.2d 694 (1966).

The evidence, taken most favorably to the government, fails to support the contention.

FBI agents wanted to question defendant privately concerning some federal fugitives. No federal charges were outstanding against defendant. The agents knew defendant had been using the name “Gerald Clayton Washburn”. While driving about in an unmarked car they saw defendant alone in a car and signalled him, by siren, to pull over, which he did. The agents approached his car, identified themselves, stated that they wanted to interview him about the fugitives and asked him to identify himself. Defendant asked if he was under' arrest, and was told he was not. Defendant produced a driver’s license in the name of Washburn and was told by an agent there was no such person. Defendant then handed the agent a group of cards, as though to prove the agent wrong.

This was a mistake, because the top card was a Selective Service registration card also issued in the name of Wash-burn. Defendant was then placed under arrest for the crime here asserted.

The investigating officers stopped defendant to seek information from him, not to arrest him. Officers must be allowed to exercise their ingenuity and judgment, in the light of their training and experience, in deciding when, where, how, and even with what flair or dramatics they question a witness they expect to be reluctant. ' It was entirely reasonable, and certainly no invasion of any right of defendants, to decide to question him when they found him alone, rather than at his residence (under the view of those being investigated) or at the office of the attorney for whom he worked.

Defendant complains most vigorously of the fact that he was signalled to stop by the siren of the FBI car. This certainly led him to believe that law enforcement officers wanted to see him, and might well have caused him to wonder if he were to be arrested. But when he asked if he was under arrest, he was told that he was not, and thereafter, he produced the false identification documents. It is implicit in the rulings of the trial judge that he found, on evidence conflicting but adequately supporting the findings, that up to that time there was no arrest, no search, and no compulsion, but rather a voluntary display of the counterfeit identification.

It is made plain by Miranda, supra, at pp. 477-478, 481, 86 S.Ct. at p. 1629, that its limitations were not designed to “hamper the traditional function of police officers in investigating crime”. The evidence here obtained during investigation was properly received. See Lamb v. United States, 414 F.2d 250 (9th Cir. 1969).

The name a person is using, like his voice or his fingerprints, is a publicly displayed characteristic. Compelling the giving of handwriting or voice samples is not violative of the Fourth or Fifth Amendments. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 99, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). However, the view we take of the case makes it unnecessary to consider whether Dionisio and Mara have application.

The judgment of conviction is affirmed.