Petition — Wood v. United States

Supreme Court, U. S.

„ PILED

4

| JAN 10 977

N |

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

September Term 1976

JACK CASEBEER WOOD, III,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Eighth Circuit

EARL P. GRAY

COLLINS AND BUCKLEY

W-1177 First National Bank

St. Paul, Minnesota 55101

(612) 227-0611

Counsel for Petitioner

224-7631 -— Review Publishing Co., 257 E. 6th St., St. Paul, Minn. 5510 — 224-7631

INDEX

Opinion Below .

Jurisdiction

Questions Presented

Constitutional Provisions Involved

Statutory Provisions Involved

Statement of the Case

Reason for Granting the Writ:

(1) Probable Cause Did Not Exist For the Arrest of

Petitioner and Therefore the Contraband Seized

Incident to the Arrest Should Have Been Sup-

r ˙ ˙ ⅛ Tmũo. .

(2) The Inculpatory Statements Made by Petitioner

After His Arrest Should Have Been Suppressed

Based Upon Two Grounds Any One of Which Is

Sufficient. First, the Statements Were a Product

of an Illegal Arrest, and Second, the Government

Agents Did Not Honor Respondent’s Request to

Talk to an Attorney Before Questioning. .........

Conclusion

Appendix:

Opinion of the Court of Appeals

i

PAGE

CITATIONS

Aguilar v. Texas, 378 U.S. 108 (1964)

Beck v. Ohio, 379 U.S. 89, 91 (1964)

Brewer v. Wolf, 529 F.2d 787 (8th Cir. Ct. 1976)

Brown v. Illinois, 422 U.S. 590 (1974)

Draper v. United States, 358 U.S. 307 (1959)

Michigan v. Mosley, 96 S. Ct. 32 (1975)

Miranda v. Arizona, 384 U.S. 436 (1966)

Nardone v. United States, 308 U.S. 338 (1939)

U.S. v. Regan, 525 F.2d 1151, 1155

D nec yp ku been se.

U.S. v. Shavers, 18 Cr. L. 2192 (8th Cir. 1976)

Wong Sun v. U.S., 371 U.S. 471 (1963)

Statute:

r 3 Ne ak ade,

ii

IN THE

Supreme Court of the United States

September Term 1976

JACK CASEBEER WOOD, III,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Eighth Circuit

The Petitioner, Jack Casebeer Wood, III, respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Eighth

Circuit entered in this proceeding on December 6, 1976.

OPINION BELOW

The opinion of the Court of Appeals, not yet reported,

appears in the appendix hereto.

2

JURISDICTION

The judgment of the Court of Appeals for the Eighth Cir-

cuit was entered on December 6, 1976, and this petition for

certiorari was filed within thirty days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

Whether probable cause existed for the arrest of Petitioner

where the only facts known to the agents were that the auto-

mobile Petitioner was driving was (1) registered to a sus-

pected drug dealer’s girlfriend; (2) it was seen in the vicinity

of a previous drug transaction; (3) it was seen exiting a

freeway ramp behind the suspected drug dealer’s automobile

approximately ten minutes before Petitioner’s arrest but did

not follow the suspected drug dealer’s automobile, and (4)

the suspected drug dealer’s automobile was stopped and

contraband was discovered.

Whether inculpatory statements made by the Petitioner

after his arrest should have been suppressed where the state-

ments were the fruits of an illegal arrest and were made

after Petitioner requested counsel and was refused.

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment IV.

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and sei-

zures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the

persons or things to be seized.

—

Amendment V.

No person shall be held to answer r fer ‘a capital or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or

public danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb’ nor shall

be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken for

public use, without just compensation.

Amendment VI.

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been com-

mitted, which district shall have been previously ascertainéd

by law, and to be informed of the nature and cause of the

accusation ; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defense.

STATUTORY PROVISIONS INVOLVED »

21 U.S.C. 841(a) (1)

(a) Except as authorized by this title, it shall be estate

for any person knowingly or intentionally—

(1) to manufacture, distribute or dispense, or possess with

intent to manufacture, distribute, or dispense, a controlled

substance ;

4

STATEMENT OF THE CASE

(1) Petitioner was charged by indictment with possession

of cocaine with intent to distribute in violation of 21 U.S.C.

841 (a) (J).

(2) An evidentiary hearing was conducted to determine

whether probable cause existed for the arrest of Petitioner

and whether statements of Petitioner were obtained in viola-

tion of the Fifth Amendment.

(3) The evidence adduced at the evidentiary hearing dis-

closed that at the time of Petitioner’s arrest the agents knew

(1) The blue Camaro Petitioner was driving was owned by

a drug traf ficker's girlfriend; (2) The blue Camaro was seen

in the vicinity of a drug transaction approximately an hour

before Petitioner’s arrest; (3) Approximately 20 minutes

before Petitioner’s arrest the blue Camaro was seen exiting a

freeway ramp behind the suspected drug trafficker’s auto-

mobile; (4) Ten minutes prior to the arrest of Petitioner the

suspected drug trafficker’s automobile was stopped and

cocaine was discovered on the person of the driver. The evi-

dence regarding the admissibility of statements disclosed that

after the arrest Petitioner requested to talk to his lawyer but

was denied. ; |

(4) The trial court ruled that probable cause existed for

the arrest of Petitioner and that the statements made were

voluntarily. The Eighth Circuit Court of Appeals affirmed.

5

REASONS FOR GRANTING WRIT

(1) PROBABLE CAUSE DID NOT EXIST FOR THE

ARREST OF PETITIONER AND THEREFORE THE CON-

TRABAND SEIZED INCIDENT TO THE ARREST SHOULD

HAVE BEEN SUPPRESSED.

Probable cause to arrest depends “upon whether at the

moment the arrest was made . . . the facts and circum-

stances within . . (the arresting officer’s) knowledge

and of which they had reasonably trustworthy information

were sufficient to warrant a prudent man in believing that

. . . (suspect) had committed or is committing an offense.”

Beck v. Ohiv, 379 U.S. 89, 91 (1964). In assessing probable

cause, the action of the arresting officers must be evaluated

in light of the totality of the circumstances. United States v.

Regan, 525 F.2d 1151, 1155 (8th Cir. 1975).

In Petitioner’s case, the Eighth Circuit ruled that the search

of the automobile Petitioner was driving was incident to a

valid arrest. However, a close consideration of all of the

facts and circumstances do not establish the requisite prob-

able cause. Agents were stationed at the Holiday Village

parking lot to conduct surveillance regarding an anticipated

drug transaction. They had received a tip that a Bruce Bane

would be involved in the transaction and they were to be on

the lookout for two automobiles, a white Pontiac and a blue

Camaro. The Camaro was owned by Bane’s girlfriend. These

automobiles were observed by the agents coming off of the

interstate freeway going North on University Avenue. The

white Pontiac driven by Bruce Bane turned West into the

Holiday Village parking lot; however, the blue Camaro did

not follow the Pantiac but proceeded North on University

out of sight of the surveillance agents. The Pontiac automo-

6

bile was stopped after a short chase and cocaine was found

on Bruce Bane’s person.

The arrest of Bane took approximately ten minutes. The

agents then ordered the arrest of the driver of the Camaro.

Shortly thereafter the Camaro was stopped and the Petitioner

was arrested. Incident to the arrest cocaine was found in the

Camaro’s trunk. Before Respondent’s arrest the agents had

no information regarding Petitioner being involved in Bruce

Bane’s drug transaction. The only facts to establish probable

cause were that Petitioner was driving Bruce Bane’s girl-

friend’s car sometime after Bruce Bane’s arrest. It is sub-

mitted that these facts do not establish probable cause for

the arrest of Petitioner. In fact, it was never established

what crime Petitioner was arrested for prior to the search

of the automobile he was driving. It is further submitted

that the “tip” regarding the blue Camaro was not corrobo-

rated as the Camaro did not follow the Bane automobile into:

the Holiday Village parking lot but proceeded north, out of

sight of any surveillance agents. Clearly, this fact could not

give rise to a reasonable belief the automobiles were acting

in concert.

Automobile search cases have been upheld by the Federal

Courts where the evidence showed that the government agent

received reliable information from a reliable informant that

the automobile was carrying contraband and such information

was at least partially verified by the agent’s own investigation

prior to the search. Aguilar v. Texas, 378 U.S. 108 (1964);

Draper v. United States, 358 U. S. 307 (1959). In Brewer v.

Wolf, 529 F.2d 787 (8th Cir. 1976), the Eighth Circuit

applying the Aguilar and Draper test held that the Govern-

ment agents had probable cause to search the automobile. The

Brewer case typifies automobile search cases, i.e., reliable

Pp

7

information verified by further investigation giving rise to

probable cause to search the automobile in question.

In the case at bar these tests cannot even be applied. There

is no reliable information that the blue Camaro automobile

or the driver was carrying contraband. The fact that the

blue Camaro was owned by a drug peddler’ 8 girlfriend and

was seen in the vicinity of a drug transaction may be sus-

picious, possibly giving rise to an investigative stop. How-

ever, absent reliable information or knowledge of suspicious

conduct indicating that the automobile was carrying contra-

band, there simply is a void of articulable facts to support

probable cause for a full blown search and seizure of the

automobile. Accordingly, the contraband seized should have

been suppressed. ee

(2) THE INCULPATORY STATEMENTS MADE BY

PETITIONER AFTER HIS ARREST SHOULD HAVE BEEN

SUPPRESSED BASED UPON TWO GROUNDS ANY OF

ONE OF WHICH IS SUFFICIENT. FIRST, THE STATE-

MENTS WERE A PRODUCT OF AN ILLEGAL ARREST,

AND SECOND, THE GOVERNMENT AGENTS DID NOT

HONOR RESPONDENT'S REQUEST TO TALK TO AN

ATTORNEY BEFORE QUESTIONING.

A. ILLEGAL ARREST. Inculpatory statements obtained

after an illegal arrest are inadmissible as “fruit of the poison-

ous tree”. Nardone v. United States, 308 U.S. 338 (1939). The

one exception is where the Government can sustain its burden

of showing that the inculpatory statements were not obtained

by exploitation of the illegal arrest. Wong Sun v. United

States, 371 U.S. 471 (1963). The courts in deciding whether

the statements come within this exception will look to the

proximity in time between the illegal arrest and the incul-

patory statements and whether the statements were the

8

product of Respondent’s own free will. Wong Sun v. United

States, supra. The fact that the Miranda warnings were given

after the illegal arrest does not per se purge the primary

taint. Brown v. Illinois, 422 U.S. 590 (1974); U. S. v. Shavers,

18 Cr. L. 2192 (8th Cir. 1976).

In the instant case the inculpatory statements were given

in close proximity to the arrest. In addition, it could hardly

be argued that the inculpatory statements were of Petitioner’s

own free will where, besides being illegally arrested, he was

refused counsel before questioning. Accordingly, the state-

ments should have been suppressed.

B. REFUSAL OF COUNSEL BEFORE QUESTIONING.

On at least one occasion after the Miranda warnings were

given and before being questioned the Petitioner asked to

talk to his lawyer. Agent Shanley who transported Petitioner

to the Federal Court House testified:

Q. Did you ask him any questions? |

A. Les I did.

Q. What questions did you ask him?

A. I asked him if it was his cocaine which was seized

from the trunk of the vehicle.

Q. And what did he say?

A. He said he wanted to talk to his lawyers. (3-8 Tr.

p. 8. L. 18-24)

Agent Shanley ignored the request of Petitioner. Instead he

turned Petitiener over to Agent Boulger at the Drug Enforce-

ment Office for questioning without advising Boulger of

Defendant’s request.

Petitioner testified that he asked to talk to his lawyer on

three different occasions. However, even assuming the truth

of the Government’s witnesses there can be no question that

the defendant was denied his rights under the Fifth Amend-

ment (self incrimination) and the Sixth Amendment (right

to counsel). Miranda v. Arizona, 384 U.S. 436 (1966).

In Michigan v. Mosley, 96 S. Ct. 32, (1975), the Supreme

Court held that a bank robbery suspect’s assertion of his

right to remain silent, which was immediately honored by

police robbery detectives, did not render inadmissible the

suspects inculpatory statement about an unrelated murder

obtained during second custodial interrogation. held more

than two hours later by homicide detectives who had given

him fresh Miranda warnings. In Mosley the court reasoned

that since the questioning was for a separate and different

crime two hours after Mosley’s desire to remain silent was

“scrupulously honored”, and the homicide investigator gave

fresh Miranda warnings, the inculpatory statements were

not obtained in violation of the Miranda decision. The court

further pointed out that Mosley did not ask for counsel! but

merely stated his desire to remain silent. The Supreme Court,

citing the Miranda opinion said:

The present case does not involve the procedures to be

followed if the person in custody asks to consult with a

lawyer since Mosley made no such request at any time.

Those procedures are detailed in the Miranda opinion as

follows:

If the individual states that he wants an attorney, the

interrogation must cease until an attorney is present. At

that time, the individual must have an opportunity to

confer with the attorney and to have him present during

any subsequent questioning. If the individual zannot ob-

tain an attorney and he indicates that he wants one before

speaking to the police, they must respect his decision to

remain silent. 384 U. S. at 473 (Emphasis Supplied).

10

Again, at Footnote 10 the Supreme Court stressed the differ-

ence between remaining silent and requesting counsel:

The dissenting opinion asserts that Miranda established

a requirement that once a person has indicated a desire

to remain silent, questioning may be resumed only when

counsel is present. Post, at 6-7. But clearly the Court in

Miranda imposed no such requirements, for it distin-

guished between the procedural safeguards triggered by

a request to remain silent and a request for an attorney

and directed that “the interrogation must cease until an

attorney is present” only “[i]f the individual states that

he wants an attorney.” 384 U.S. at 474.

Mr. Justice White in his concurring opinion also recog-

nized the per se rule of ceasing interrogation once the in-

dividual in custody asserts his right to counsel.

Contrasting the Mosley decision with the instant case dis-

closes that all of the factors relied on by the Court in Mosley

are absent here:

(1) The questioning of Defendant by the different

agents was for the same crime;

(2) The lapse in questioning was for minutes, not

hours;

(3) Defendant’s request to talk to an attorney was not

“scrupulously honored” but to the contrary was ignored

throughout the investigation ;

(4) Agent Boulger, according to his own testimony,

did not repeat the Miranda warnings to Defendant; and,

(5) Defendant did not refuse to answer but requested

to talk to an attorney, thereby outlawing any further

questioning until his request was honored.

Om

11

The Government cannot escape suppression by arguing that

the “lengthy discussion” between Boulger and Petitioner was

not an interrogation. Notwithstanding what Agent Boulger

labeled the colloquoy, it was clearly an interrogation. Agent

Boulger asked questions to fill in any holes in the story”

and the questioning was in a small booking room in the

presence of three other agents. If a lawyer had been called

as requested clearly the lawyer would have advised his client

to remain silent.

In summary, Miranda v. Arizona, supra, requires the Gov-

ernment, once counsel is requested, to leave Defendant alone

until it provides him with at least a phone call to his attorney.

The authorities may then communicate with him through an

attorney. Michigan v. Mosley, supra, Footnote 2 of Justice

White’s concurring opinion. Since the agents failed to honor

Petitioner’s request all statements should have been sup-

pressed.

CONCLUSION

For the foregoing reasons, Petitioner respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the Eighth Circuit.

Respectfully submitted.

EARL P. GRAY

COLLINS AND BUCKLEY

W-1177 First National Bank

St. Paul, Minnesota 55101

(612) 227-0611

Dated: January 3, 1977.

12

COUNSEL OF RECORD

EARL P. GRAY

COLLINS AND BUCKLEY

W-1177 First National Bank

St. Paul, Minnesota 55101

(612) 227-0611

Attorneys for Petitioner

and

RICHARD VOSEPKA

Assistant U. S. Attorney

596 Federal Court House

Minneapolis, Minnesota 55402

Attorney for Respondent.

A-1

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 76-1493

UNITED STATES OF AMERICA,

Appellee,

v.

JACK CASEBEER WOOD, III,

Appellant.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF MINNESOTA.

Submitted: October 15, 1976

Filed : December 6, 1976

Before VAN OOSTERHOUT, Senior Circuit Judge, and

HEANEY and BRIGHT, Circuit Judges.

HEANEY, Circuit Judge.

Jack Casebeer Wood, III, appeals from his conviction of

possession of cocaine with intent to distribute in violation of

21 U.S.C. §841(a). Wood claims that his warrantless arrest

and the warrantless search of the car he was driving were

made without probable cause and, therefore, inculpatory

statements he made while in custody, and cocaine seized from

the trunk of the car, should have been suppressed. He also

claims that certain inculpatory statements should have been

A-2

suppressed because they were obtained during an interroga-

tion conducted after his repeated requests for counsei were

denied. We affirm. ta -

At approximately 1:40 P.M. on November 14, 1975, Agent

Marcus Kryger of the Federal Drug Enforcement Adminis-

tration was stationed in the Holiday Village North parking

lot near the junction of University Avenue N.E. and Interstate

694 in Fridley, Minnesota, with instructions to observe an

anticipated drug transaction. He had been informed by a

state agent that a drug transaction involving Bruce Bane,

a suspected narcotics dealer, was anticipated at the point of

his surveillance. He had been further informed that the trans-

action would involve a white Pontiac Grand Prix and a blue

Chevrolet Camaro which was registered to the girlfriend of

Bruce Bane. Both vehicles were reported to Kryger as having

been seen together in the vicinity of a suspected drug transac-

tion twenty to thirty minutes earlier.

Agent Kryger observed a white Pontiac Grand Prix and

a blue Chevrolet Camaro exiting Interstate 694 at University

Avenue N.E. from approximately one hundred yards away.

The blue Camaro was traveling immediately behind the white

Pontiac. Using binoculars, Agent Kryger recognized the driver

of the Pontiac to be Bruce Bane. He did not recognize. the

driver of the Camaro, but he was able to read the vehicle’s

license number which he recognized to be that registered to

Bane’s girlfriend. , | .

After exiting the freeway, the Pontiac entered the Holiday

Village North parking lot, then turned back onto University

Avenue, traveled north for a few blocks, and entered the park-

ing lot of a drive-in restaurant. At that point, Agent Kryger

attempted to stop the vehicle and a high-speed chase ensued.

During the chase, Bane was observed strewing white powder

A-3

out of the window of the vehicle. After the Pontiac was

stopped, Bane was searched and some white powder found

on his person was identified by a field test to be cocaine.

Agent Kryger then issued a radio alert ordering the stop of

the blue Camaro which had turned north off the freeway and

continued out of his sight.

The Camaro was stopped shortly thereafter by a local police

officer. Wood, the driver of the vehicle, was ordered out of

the car. Other officers arrived, including Agent Shanley of

the Minnesota Bureau of Criminal Apprehension who was

involved in the investigation of Bruce Bane. The car was

searched and cocaine, wrapped in a magazine, was found in

the trunk. Agent Shanley advised Wood of his Miranda rights

and Wood acknowledged that he understood them.

Wood was transported to the Federal Building in Agent

Shanley’s squad car. During the ride, Agent Shanley asked

Wood if the cocaine found in the trunk of the Camaro belonged

to him. Wood replied that he wanted to talk to his attorney,

and questioning ceased. Wood, however, subsequently volun-

teered several statements of an incriminating nature.

Upon arrival at the Federal Building, Wood was taken to

the D.E.A. booking room and turned over to Agent John

Boulger. Wood testified at trial that he asked to see his attor-

ney upon his arrival in the booking room and that this request

was denied. Agent Boulger testified that Wood make no such

request. During the booking procedure which followed, Wood

proceeded to discuss the drug transaction that had been

planned and his involvement in it. Agent Boulger testified

that although he “may have asked questions to fill in any

holes” in Wood’s story while he was relating it, Wood had

expressed a desire to cooperate with the government of his

own accord and had initiated the conversation during which

A-4

the statements were made. When asked by Agent Boulger to

sign a statement confirming what he had said, Wood refused

and asked to speak to his attorney. The booking procedure

was completed without further discussion.

I

Wood contends that, at the time Agent Kryger’s radio alert

was issued, the agents did not possess sufficient information

linking him or the automobile he was driving to the Bane

transaction to establish probable cause for his arrest or for

the search of the Camaro.' Consequently, Wood argues that

the cocaine seized from the trunk of the car, and all inculpa-

tory statements he made after his arrest, should have been

suppressed. We disagree.

Probable cause to arrest depends “upon whether, at the

moment the arrest was made, * * * the facts and circum-

stances within * * * [the arresting officers’] knowledge

and of which they had reasonably trustworthy information

were sufficient to warrant a prudent man in believing that

the * * * [suspect] had committed or was committing an

offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). Accord, Kelley

v. Swenson, 510 F.2d 264, 266 (8th Cir. 1975); United States

v. Peep, 490 F.2d 903, 906 (8th Cir. 1974). In assessing prob-

able cause, we must evaluate the action of the arresting offi-

cers in light of the totality of the circumstances. United States

v. Regan, 525 F.2d 1151, 1155 (8th Cir. 1975) ; United States

v. Peep, supra at 907.

After considering all the facts and circumstances, we believe

there was probable cause for Wood’s arrest and, correspond-

1 Wood agrees that, given probable cause to believe that the Camaro

contained contraband, the trunk of the car could have been searched

either at the scene where the automobile was stopped or later at

the station house. Teras v. White, 423 U.S. 67 (1975); Chambers v.

Maroney, 399 U.S. 42, 51-52 (1970). ,

— a a eS

A-5

ingly, for the search of the blue Camaro for contraband. See

Chambers v. Maroney, 399 U.S. 42, 47-48 (1970). State agents

had been informed that drug transactions would occur in the

parking lots at Schillers and at Holiday Village North early

in the afternoon of November 14. Additionally, it was antici-

pated that Bruce Bane would be a participant in the drug

transactions, and that a white Pontiac and a blue Camaro

would be used by parties involved in the transactions. While

the state agents did not testify as to either the reliability of

the informant or the basis of the informant’s knowledge,’ the

tip certainly formed a sufficient basis for the two locations

to be placed under surveillance. Several of the essential details

of the tip were corroborated * when wo vehicles, one driven

by Bane and both matching the descriptions given, arrived

near the site of the second anticipated transaction only minutes

after they had been observed in the vicinity of the first antici-

pated transaction.

Additionally, from these facts, the agents could reasonably

conclude that the drivers of the two vehicles were acting in

concert. See Cochran v. United States, 389 F.2d 326, 327 (10th

Cir.), cert. denied, 391 U.S. 913, rehearing denied, 393 U.S.

899 (1968); Sanchez v. United States, 311 F.2d 327, 329-330

(9th Cir. 1962), cert. denied, 373 U.S. 949 (1963).

At this point, Agent Kryger, who had been assigned to ob-

serve this location, had probable cause to make an investiga-

tory stop of either or both of the cars. When he attempted to

stop the car driven by Bane, a high-speed chase ensued, and

2 See Whiteley v. Warden, 401 U.S. 560, 568 (1971); United States v.

Wizom, 460 F.2d 206, 208 (1972). Had the arrest or search been

based on the tip alone, we would agree that its validity could not

be sustained.

3 See Spinelli v. United States, 393 U.S. 410, 415-416 (1969); Draper v.

United States, 358 U.S. 307 (1959); Brewer v. Wolff, 529 F.2d 787,

791 (8th Cir. 1976).

A-6

Bane was observed throwing a white powder out of the win-

dow of the car. When field tests revealed that the white pow-

der was cocaine, probable cause clearly existed to arrest the

driver of the Camaro and to search the car. See Spinelli v.

United States, 393 U.S. 410, 417-418 (1969); Wangrow v:

United States, 399 F.2d 105, 113 (8th Cir.), cert. denied, 393

U.S. 933 (1968). Cf. United States v. Dalli, 424 F.2d 45, 48

(2nd Cir.), cert. denied, 400 U.S. 821 (1970).

II

Wood, citing Miranda v. Arizona, 384 U.S. 436 (1966), next

contends that the statements he made in the D.E.A. booking

room should have been suppressed because they were elicited

during questioning conducted after his repeated requests for

counsel were denied, in violation of his Fifth and Sixth

Amendment rights. The government responds that Wood’s

statements were voluntary and, thus, fall outside the Miranda

rule.

Voluntary statements of any kind, not made in response

to police interrogation, are not barred by the Fifth Amend-

ment and their admissibility is unaffected by Mirandu and

its progeny. Miranda v. Arizona, supra at 478; United States

v. Cook, 530 F.2d 145, 152-153 (7th Cir.), cert. denied, 96 S.Ct.

2234 (1976); United States v. Martin, 511 F.2d 148, 150-151

(8th Cir. 1975); United States v. Menichino, 497 F.2d 935,

939-941 (5th Cir. 1974); Caton v. United States, 407 F.2d

367, 374 (8th Cir.), cert. denied, 395 U.S. 984 (1969). The

trial court, after a hearing on Wood’s motion to suppress,

found that Wood’s inculpatory statements were voluntarily

made and were not the result of questioning or coercion. Our

review of the record convinces us that those findings are sup-

ported by substantial evidence and that no clear error appears.

See Mullins v. United States, 487 F.2d 581, 589 (8th Cir.

A-7

1973) ; Gullett v. United States, 387 F.2d 307, 309 (8th Cir.),

cert. denied, 390 U.S. 1044 (1967). Accordingly, we find no

merit in Wood’s contention that his statements should have

been suppressed.

Judgment affirmed.

A true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.