# David Matthew Lathers v. United States > Court of Appeals for the Fifth Circuit · May 23, 1968 · 396 F.2d 524 URL: https://www.frixlaw.com/law-library/cases/9453726 ## Case - **Full name:** David Matthew LATHERS, Appellant, v. UNITED STATES of America, Appellee - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** May 23, 1968 - **Citations:** 396 F.2d 524; 1968 U.S. App. LEXIS 6801 - **Precedential status:** Published - **Opinion:** Concurring in part by Rives - **Judges:** Rives, Goldberg, Ainsworth - **Cited by:** 72 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9453726 ## Opinion text RIVES, Circuit Judge (concurring in part and dissenting part). I heartily concur in that part of the majority opinion and decision which holds that the repeated interrogations of Lathers were violative of his constitutional rights as announced in Miranda, and hence that the judgment of conviction must be reversed and the case remanded. Reluctantly, however, I must dissent from that part of the opinion and decision which holds that Lathers’ arrest was legal. In my opinion Lathers’ arrest without a warrant and particularly his confinement and the search of the truck constituted an unreasonable seizure and search in violation of the Fourth Amendment under Elkins v. United States, 1960, 364 U.S. 206 , 80 S.Ct. 1437 , 4 L.Ed.2d 1669 , and Beck v. State of Ohio, 1964, 379 U.S. 89 , 85 S.Ct. 223 , 13 L.Ed.2d 142 . All three Judges agree that the judgment must be reversed and the case remanded on the ground that the Miranda precepts were not followed. That holding, however, does not relieve us of the duty to rule upon the constitutionality of Lathers’ arrest and confinement and the search of the truck, for, upon Lathers’ re-trial, in addition to the results of his interrogation, including the claimed oral confession inadmissible under Miranda, more potent and crucial evidence will become inadmissible if we hold the arrest, confinement and search illegal. All of the evidence flowing from the illegal arrest, confinement and search would then be inadmissible. Such evidence includes the secret number on the frame of the truck. It was that number which established the identity of the truck with the stolen vehicle. 1 It follows that whether Lathers is retried, or if retried whether he is acquitted or convicted, may well depend upon the legality of his arrest and confinement and the search of the truck. Hence, that issue requires our most careful consideration. Under the Supreme Court’s ruling in Beck , the constitutional validity of Lathers’ arrest and the ensuing search depend upon “whether, at the moment the arrest was made, the officers had probable cause to make it — -whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” 379 U.S. at 91 , 85 S.Ct. at 225 . The burden of proof has been well stated as follows: “It is clear that in every case the government has the burden of establishing that the probable cause requirement has been met, Wong Sun v. United States, 371 U.S. 471, 479-480 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963); Carroll v. United States, supra [ 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 ] ; United States v. Rivera, 321 F.2d 704, 708 , 2 Cir. 1963; United States v. Dornblut, 261 F.2d 949 , 2 Cir. 1958. The government, however, may not validate an initially invalid arrest by the fruits of the incidental search. The litmus paper of reasonableness must be applied when the arrest is made, and, unless it proves positive, the arrest will be illegal and its proceeds inadmissible. United States v. DiRe, 332 U.S. 581, 595 , 68 S.Ct. 222 , 92 L.Ed. 210 (1948).” *537 United States v. Campos, S.D.N.Y.1966, 255 F.Supp. 853, 857 , aff’d, 2 Cir., 362 F.2d 1011 . Lathers was arrested by two Jackson, Mississippi, policeman, J. B. Hall and R. L. Chapman. According to their testimony, the only information that either had was the bulletin issued by the Jackson Police Department. The evidence does not disclose the bulletin itself or its exact contents. As shown in footnote 1 to the majority opinion, the officers’ testimony differed as to the meaning of the bulletin. Neither officer’s recollection amounted to more than bare suspicion. One thought the bulletin described the truck as “being stolen or suspected stolen”; the other thought that someone “had tried to sell the truck at too low a price.” Footnote 6 to the majority opinion assumes that Lathers also “failed to produce his papers” after the police officers stopped his truck, but neither officer testified that there was any request for or discussion of the title papers. Lathers, testifying in his own behalf, did not refer to any request by the officers or conversation with them about title papers but only that: “They pulled up behind me and motioned me over and I pulled over. It was a kind of warehouse district and he said, ‘Let me see your drivers license.’ And I said, ‘Did I make some violation?’ I thought it was an illegal turn or something like that. He said, ‘.No, I just want to see your drivers license.’ He looked at the drivers license and I can’t remember whether he handed it back to me or kept it. I asked him again why I was being stopped. He said, ‘We want to take you down- and question you.’ I said, ‘What about?’ He says, ‘To do with the theft of a motor vehicle.’ — suspicion or cause or something of the theft of a motor vehicle. That is what the arrest amounted to.” Like Lathers, the officers themselves testified in effect that the arrest was made on bare suspicion or for investigation. Officer Hall testified: “I informed him that information had been put out that the truck was under suspect of being stolen and I told him I would have to carry him by the office for investigation in this matter.” Officer Chapman gave Lathers no further information or cause for his arrest. Neither officer swore out a warrant or booked Lathers with any charge. Indeed, to my way of thinking, a most important factor, which the majority has overlooked, is that no warrant was issued and no formal charge placed against Lathers until many hours after his arrest, at which time he was turned over to FBI Agent Roy McDaniel. Mr. McDaniel testified: “Q. But he had been initially arrested and held in a state of arrest by the Jackson police officers for about twenty-four hours before you saw him? “A. Well, I don’t know about the arrest. I know he was in custody or at the Jackson Police Department from about noon on Monday, July 25th, until I talked to him at 9:04 on the morning of July 26th.” Up until that time the lack of any warrant or formal charge is clearly shown by the testimony of Detective Sergeant Black: “Q. And you told him, did you not, that you all were holding him on suspicion ? “A. Investigation of auto theft. “Q. And that was all? “A. That is all. “Q. And how many days did you hold him that way? “A. We placed him in jail about noon of the 25th. The teletype came back in that night from the FBI office, the FBI confirming the truck being stolen. And then that is when the charge was placed against him of auto theft. “Q. When did you actually place the charges against him? “A. We didn’t place the charges against him for auto theft. We placed *538 charges against him to hold him for the Federal Bureau of Investigation. “Q. So the Jackson Police Department placed no charge against him other than to hold him for the FBI? “A. No sir, none other than to hold him for the FBI. “Q. You just held him without any charge against him? “A. We held him until the confirmation came back, and — . “Q. And all that — . ****** “A. We held him on the charge of investigating for auto theft until the confirmation came back. Roy McDaniels and the FBI was going to take the case as an auto theft case, therefore we held him until the Marshals came to the Jackson Police Department and removed him to a Federal jail. “Q. But all these conversations that you and other members of the Jackson Police Department had with him, no charge had been preferred against the man at that time, had there ? “A. Other than investigation of auto theft charge. “Q. You were just holding him on suspicion, without any charge being made? “A. Yes sir, on investigation charge. “Q. You hadn’t carried him before any Magistrate of anything? “A. No sir. “Q. You just held him? “A. Yes sir. “Q. How long did you hold him? “A. I don’t know when the Marshals came and got him. I know we had him about noon the day of arrest until at least the next day after we had talked to him and he told us he had stolen the truck. “Q. You were just holding him there without any charge up until that time? “A. That is right.” None of the witnesses dispute that testimony. I submit that it brings the case squarely within the Fifth Circuit cases of Collins v. United States, 1961, 289 F.2d 129 , and Staples v. United States, 1963, 320 F.2d 817, 820 . See also, Barnett v. United States, 1967, 384 F.2d 848, 855, 856 . Indeed, the factual situation in this case is more extreme than that in any of those three eases. For here literally no charge, except “investigation of auto theft,” was placed against Lathers. It is virtually admitted that he could not properly be charged with a crime until the investigation had proceeded to the point of discovery that a crime had been committed — that the truck had been stolen. The moment of arrest is the critical time at which probable cause must exist. The fact that the truck was a stolen vehicle was discovered hours after the arrest. So long as Lathers was held without charge, he was held without the right to bail. That this Court would sanction such a practice seems inconceivable. It means that a motorist who travels beyond the borders of his state, and who is met with an emergency requiring the sale of his car, must, at the peril of being jailed without bond, have had the foresight to bring with him the title papers to his car and must not place any trust in a used car dealer. That may be the part of wisdom, but there is no law which imposes such a drastic penalty for failing to act so wisely. The majority treats the case as if the arrest were for violation of the Dyer Act, which I respectfully submit is contrary to the facts. On the assumption, however, of a Dyer Act arrest, it nonetheless seems clear that there was no probable cause. To state the case as strongly as possible for the Government, let us go a step further and assume also that the arresting officers had all of the information which the Jackson Police Department possessed. See Williams v. United States, 1962, 113 U.S.App.D.C. 371 , 308 *539 F.2d 326 ; Smith v. United States, 1966, 123 U.S.App.D.C. 202 , 358 F.2d 833 . We must remember that the burden rested on the Government to justify this arrest without a warrant. Used car salesman Daughtery is recognized as the source of all of the information possessed by the FBI and then second hand by the Jackson Police Department. Mr. Daughtery never claimed that his information was sufficient to do more than arouse suspicion: “A. Oftentimes in the car business you establish a price that the seller and the buyer can agree upon, you will bid low and see just exactly what he will take. Our discussion was that I asked him what he wanted for the truck and he said he didn’t know because he didn’t know the market. I said, ‘Surely you know somewhere around what you would take.’ And, I said, ‘Would you take $500.00?’ He said yes, that he would take $500.00. “Q. When he said that is when you became suspicious? “A. Yes sir.” Lathers’ conversation with Mr. Daughtery was barely sufficient to arouse even a suspicion of theft: “Q. And you asked him what he would take for it? “A. Yes sir. “Q. And he said he didn’t know the value of the truck? “A. Yes sir. “Q. And he left it up to you to determine the value ? “A. Yes sir. “Q. And you fixed the value at $500.00? “A. Yes sir, I just made him an offer. “Q. You knew he was trusting you to tell him what the real value of it was and he told you he didn’t know what the value was, didn’t he? “A. That is correct. “Q. And he left it up to you to determine ? “A. Yes sir. “Q. And you did determine it at $500.00. “A. Yes sir.” As I understand the majority’s holding, it is that Mr. Daughtery passed on to the FBI and thence to the Jackson Police Department the three elements of (1) out-of-state license, (2) lack of title papers and (3) offer to sell cheaply, and that such information coming from a used car salesman with his assumed expertise in car sales is enough to constitute probable cause. There are many things wrong with this synthesis, of which I will mention only a few. First, according to his testimony, as has been seen, Daughtery was merely suspicious, nothing more. Second, Daughtery did not testify to any request for or conversation about title papers. The first witness to so testify was Mel Heard, the manager of the other used ear lot. So far as the testimony shows, however, Heard did not communicate with either the FBI or the Jackson Police Department. So the Jackson Police Department had no information of a lack of title papers. Third, Daughtery did not (and, I submit, could not) testify that the out-of-state license aroused his suspicion. That was merely descriptive of the truck. Thus the sole basis for Daughtery’s suspicion was Lathers’ acceptance of his cheap offer made under circumstances when, according to Daughtery himself, Lathers said he didn’t know the market and was trusting Daughtery to tell him the value of the truck. Fourth, to meet its burden, the Government introduced no evidence of what Daughtery reported to the FBI nor of what the FBI relayed to the Jackson Police Department. Daughtery testified to no more than: “A. I called the FBI. Q. What did you call them for? A. To report it.” We are left to su3mise the terms of his report as best we can. Mr. McDaniel, the FBI Agent, gave no testimony of what Daughterty told the FBI nor of what the FBI passed on to the Jackson Police Department. The only sources from which we can draw any inferences *540 are the testimony as to what Daughtery himself knew and the contradictory testimony about the bulletin given by the two arresting officers and quoted in footnote 1 to the majority opinion. When the Jackson Police Department never sought a warrant on the basis of their information, it seems clear that they knew that no probable cause existed for the issuance of a warrant. Further, the conduct of the Jackson Police Department and of the arresting officers in holding Lathers simply on suspicion or for investigation shows that they recognized that there was no probable cause for a warrant or charge of theft or violation of the Dyer Act. With deference, I submit that it is difficult to conceive of a clearer ease of lack of probable cause. And even if that hurdle were overcome, the arrest would be illegal because the charge was not a criminal offense but merely for investigation. I, therefore, respectfully concur in part and dissent in part. . As Detective Sergeant J. L. Black testified : “A. Along with Special Agent Roy McDaniels and my partner, J. D. Moore, we checked the serial plate on the door and found it had been removed. We found the secret number on the frame of the truck, which was C1545B114860. “Q. I will hand you Government’s Exhibit No. 1 and ask you to compare the number you found with this title certificate number and see if they are the same. “A. Yes, that is the same one.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9453726. Public record. Not legal advice.