Record and brief — Torres v. United States

Office - Supreme Court, US.

ry BILED

81-1586 FEB 23 1982

ALEXANDS

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Tecm, i298.

MANUEL MENDOZA TORRES, MAX CANDIDO GRIEGO

SARAR GONOY, and SUSAN SMITH SPIEGEL,

Petitionercs

UNITED STATES OF AMEFICA,

PETITION FOR WRIT OF CERTIORARI

TO TRE UNITED STATES COCRT OF APFEALS

FOR THE TENTH CIRCUIT

Yince D'Angeic

D'Angelo, MeCacty & Vigil

Attocneys at Law

335 Jetfersca, S.F., Suite 3

Albuquergue, New Mexico 67108

{305) 262-244¢

QUESTIONS PRESENTED FOR REVIEW

i. WHETHER, BECAUSE GOVERNMENT AGENTS DID

NOT HAVE PROBABLE CAUSE TO STOP THE DEFEN-

DANTS, THE SUBSEQUENT DETENTION AND ARREST

ARE ILLEGAL, AND EVIDENCE OBTAINED DURING AND

AS A RESULT OF THE ORIGINAL ILLEGAL DETENTION

IS TAINTED AND MUST BE SUPPRESSED.

2. WHETHER, BECAUSE THE GOVERNMENT AGENTS

HELD THE DEFENDANTS FOR A SIX=-DAY PERIOD

BEFORE CHARGING THEM WITH ANY CRIME, EVIDENCE

GAINED DURING AND AS A RESULT OF THE EXPLOI-

TATION OF THIS PERIOD OF ILLEGAL DETENTION

SHOULD BE SUPPRESSED.

3. WHETHER THE SCOPE OF THE CONSENT TO

SEARCH WAS VIOLATED AND THE EVIDENCE OBTAINED

AS A RESULT OF SUCH A SEARCH SHOULD BE

SUPPRESSED.

INDEX

Questions Presented for Review .

Table of Authorities ..... .

Opinions Below . ...+-+-e«e-e.

Jurisdiction . ....«. -«

Statutes and Rules Invoived

Statement of the Case ...

Basis for Federal Jurisdiction

Argument ..«+«-++se«e¢-e«ee

Conclusion « © © «© eeee

Appendix A: Opinion of the Tenth

Circuit Court of

Appeals of November 5,

i981 (Nos. 81-1192,

81-1103, 81-1104, and

81-1105) ‘4.34 8

Appendix B: Judgment of the

United States Dis-

trict Court for the

District of New Mexico

of January 20, 1981

(CR 80-183) . oe we

ii

Page

43

80

Page

Appendix C: Tenth Circuit Court

Of Appeals Denial of

Petition for Recon-

sideration, of Decem-

ber 4, 1981 (No.

81-1102); of December

28, 1981 (Nos. 8l-

1103, 81-1104, and

81-1105) = = wa oe. I a 96

iii

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT

Anderson v. United States

mF ene 6 6 6 «

Brown v. Illinois

422 U.S. 590 (1975) «© ew «

eae v. United States

Colorado v. Bannister

449 U.S. I (1980) .....

Dunaway v. New York

U.S. ( . . * @«

Gambino v. United States

275 U.S. 310 (1927) « © © «

Gerstein v. Pug

U.S. -, > eee

Mailory v. United States

354 U.s. 449 (1957)... .

McNabb v. United States

U.S. ( - «+ # @

Terry v. Ohio

er wae Eee) 6 3 ce 8

iv

CASES

Page

31,35=-37

28,29

38

21,22

14-16,18-

20,28,29

32

24

25,34

27

15,i8

United States v. Brignoli-Ponce

Wong Sun v. United States

. —_ ( > > . — 7. i

CIRCUIT COURT CASES:

neqwekey v. United States

. 6 D. . oA 1 46) *

Cnannel v. United States

: i? (9th Cir. 1960) .

Lucero v. Donavan

° th Cir. 1965). .

United States v. Bracer

(2nd Cir. 1965),

cert. ‘Genied, 362 U.8. 954 «. «

United States v. Chadwick

° th ce 1969)

United States v. Chamberlain

e Ce ) -

United States vs Pornbiut

58),

cert. "denied, 360 U. .. 912 ..

Page

14

28

25,26

38

39

39

24

17-20

38

Page

United States v. Page

306 F.2d 81 (9th Cir. 1962) «2... 38

United States v. Perez-Esparza

" th Cir. CLE

reh. denied (1980) .. +... -« « « 15,16,30

United States v. Sear

S86 F.2d 11i? (6th cir. 1978) ... 32

CONSTITUTIONS:

United States Constitution 19,22,24,

Pourth Amendment se @¢ 6 Oe 2 « - 28-30,34,

38,39,42

United States Constitution

Pourteenth Amendment ...+++«-s. 19,34

OTHER AUTHORITIES:

Federal Rules of Criminai

Procedure, 5(a) oS -_ i a i a ae. a oo 23-25,31

§31-1-5(B), N.M.S.A. (1978) Sa 23

vi

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1981

No.

MANUEL MENDOZA TORRES, MAX CANDIDO GRIEGO,

SARAH GODOY, and SUSAN SMITH SPIEGEL,

Petitioners,

Vv

UNITED STATES OF AMERICA.

~~PETITION FOR A WRIT OF CERTIORARI

TO THE TENTH CIRCUIT COURT OF APPEALS

To the Honorable, the Chief Justice and As-

sociate Justices of the Supreme Court of the

United States:

Manuel Mendoza Torres, Max Candido

Griego, Sarah Godoy, and Susan Smith Spiegel,

the Petitioners herein, pray that a Writ cf

Certiorari issue to review the judgment of

the Tenth Circuit Court of Appeals entered in

the above-entitled cause on November 5, 1981.

ole

OPINIONS BELOW

The November 5, 1981 opinion of the

Tenth Circuit Couct of Appeais, whose judg-

ment is herein sought to be reviewed, is

scheduled to be published and is reprinted in

Appendix A hereto, infra, page 43. The

January 20, 1981 judgments of the District

Court of the District of New Mexico are unre-

ported and are reprinted in Appendix B

hereto, infra, page 80. The December 28,

198i order of the Tenth Circuit Court of

Appeais, denying a rehearing is reprinted in

Appendix C hereto, infra, page 97.

JURISDICTION

The case to be reviewed is a criminai

case in which Petitioners were convicted of

violations of 18 U.S.C. §§ 2, 371, 2ii3(a),

-2-

21i3(b), 18 App.U.S.C. §1202(a)(i). The

judgment of the Tenth Circuit Court of

Appeais was entered On November 5, i981. A

timely Petition for Rehearing was denied on

December 28, 1981. The jurisdiction of the

Supreme Court of the United States is invoked

under 28 U.S.C. §1254(1).

STATUTES AND RULES INVOLVED

This case involves the Fourth Amendment of

the Constitution of the United States, which

provides as follows:

The right of the people

to be secure in their

persons, houses, papers,

and effects, against un-

reasonabie searches and

seizures, shail not be

violated, and no warrants

shali issue, but upon

probable cause, supported

by oath oc affirmation,

and pacticularly describing

the place to be searched,

and the persons or things

to be seized.

-3-<

This case also involves the Fourteenth

Amendment of the Constitution of the United

States which provides, inter alia, as

follows:

An officer making an arrest

under a warrant issued upon

a complaint or any person

making an arrest without a

Warrant shall take the ar-

rested person without unne-

Ccessary deiay before the

nearest available federal

magistrate or, in the event

that a federai magistrate is

not reasonably available,

before a’state or local

judical officer authorized

by 18 U.S.C. §304i.

This case further involves Rule 5(a) of

the Federal Rules of Criminal Procedure,

which provides, inter alia, as foilows:

No State shall make or

enforce any law which shall

abridge the privileges or

immunities of citizens of

the United States; nor

shall any State deprive any

person of life, liberty, or

property, without due pro-

cess Of law; nor deny to

any person within its juris-

diction the equal protection

of the laws.

~~

Finaily, this case involves §31-1-5(B),

N.M.S.A. (1978), which provides as follows:

Every accused shall be

brought before a court

having jurisdiction to

release the accused with-

Out unnecessary delay.

STATEMENT OF THE CASE

Nature of the Proceedings

Manuel Mendoza Torres, Max Candido

Griego, Sarah Godoy, and Susan Smith Spiegel,

Petitioners herein, were indicted on October

22, 1980, in Criminal No. 80-183, in the

United States District Court for the District

of New Mexico, at Santa Fe, New Mexico.

Count I charged the Petitioners with

conspiracy, in violation of 18 U.S.C. §§37i,

2113(a) and (b). Count II charged

Petitioners with bank robbery, in violation

of 18 U.S.C. §2113(a) and (b), and of 18

U.S.C. §2. Counts III and IV charged Sarah

Godoy and Max Candido Griego, respectively,

with possession of a firearm by a felon, in

violation of 18 App.U.S.C. §1202(A)(1).-

A jury trial was had before Honorable

Santiago E. Campos, United States District

Judge, in Santa Fe, New Mexico, on Décemberc

15, 17, 18, 19, 1980. The jury returned ver-

dicts of guilty on Counts I, II, and III, on

December 19, 1980. Max Candido Griego was

acquitted of Count IV on the same day.

Petitioner Torres was sentenced to serve

a term of 25 years, to run consecutively

with an additional five years. Petitioner

Godoy was sentenced to serve a term of 27

years, to run concurrentiy with an additionai

5 years. Petitioner Griego was sentenced to

serve a term of 25 years, to run concurrentiy

with an additional five years. Petitioner

Spiegei was sentenced to serve a term of 25

years to run concurrentiy with an additionai

5 years.

The sentences were appealed to the Tenth

Circuit Court of Appeais; Notice of Appeal

was filed on January 23, i98il. The Tenth

Circuit Court of Appeals affirmed the

convictions on November 5, 1981 and denied

Petitioners’ Motion for Reconsideration on

December 28, i981.

Facts

Las Vegas police learned that the First

National Bank in Las Vegas, New Mexico, was

-7<-

robbed on Friday, September 26, 1980, at

approximately 1:00 in the afternoon. Local

police immediately notified the FBI of the

bank robbery and began an immediate inves-

tigation.

Shortly thereafter, Las Vegas police

discovered an abandoned Ford pickup, matching

the description of a truck seen leaving the

bank. Two bystanders noticed the investiga-

tion and told the police that they had seen a

gold Pontiac with four or five people inside

about two biocks from where the pickup was

found abandoned. The police immediately put

out a calli on the gold Pontiac.

A shoct time later, the same bystanders

saw a gold Pontiac parked at a liquor store

and notified the police. Captain Tapia of

the Las Vegas Police Department drove toward

the liguor store, but, before he arrived, he

Saw a goid Pontiac at a service station.

The driver, a talii Spanish maie wearing a

trenchcoat, was seen outside the vehicie

taiking to a shorter Spanish male who was the

driver of a tan van. A Spanisn femaie and an

Anglo female were inside the Pontiac, and a

young boy was inside the van.

Tapia detained the two men and two women

for about twenty minutes before other of-

ficers arrived to question them. The driver

of the Pontiac was Petitioner Torres. The

two women passengers were his sister, Peti-

tioner Godoy, and Petitioner Spiegel. The

Griver of the van was Petitioner Griego.

Torres was asked for the registration to

the Pontiac. It was registered to Max

Griego; however, Torres said that he had pur-

chased it from Griego, and Griego affirmed

this. During this period of detention, the

police had not yet received descriptions of

the bank robbers.

When other officers arrived on the

scene, they discovered that Torres and Griego

were armed. They also discovered a smail

caliber weapon inside the Pontiac. The

police ran a check on the car, and, twenty

minutes later, they “officially” placed

Petitioners under arrest. This occurred

between 2:30 and 3:30 in the afternoon.

Although there are two magistrate judges

and two district court judges in the City of

Las Vegas, with office hours until 5:00 p.m.

and iocated no more than one mile from the

Piace of arrest, the Petitioners were not

brought before a judge for an initial pre-

sentment or arraignment. They were taken

instead to the Las Vegas Police Department

and questioned.

-l10-

Las Vegas police, at the behest of FBI

Agent Jochum, obtained a consent to search

from Torres on September 26, 1981. Later

that day, Torres told FBI Agent Jochum that

the consent to search that he gave to the Las

Vegas police was meant only to give them per-

mission to look through his car, not to take

it apart. This information and revocation or

modification to the consent was apparently

never relayed to the FBI. Lieutenant Sena,

who was in charge of the investigation for

the Las Vegas Police Department, felt that,

because this was a bank robbery, jurisdiction

was with the FBI, and he testified that he

worked under their direction.

The gold Pontiac was impounded and taken

to a storage yard when the Petitioners were

arrested. The car was searched at the scene

and later that evening. On September 29,

-ll-e

three days later, Detective Vaidez of the

Las Vegas Police Department again searched

the car. On a final search, the Las Vegas

police discovered $87,000.00 behind a panei

in the back of the car.

Petitioners were arrcested on Friday but

were not brought before a magistrate or

charged with any crime until the following

Thursday.

Reasons for Plenary Consideration

Because the triai court misconstrued the

Federal Rules of Criminal Procedure and the

Tenth Circuit Court of Appeals misconstrued

the cases upon which it relied for its affir-

mance, because the Court of Appeais did not

adequately discuss the issues of Fourth and

Fourteenth Amendment violations, and because

these Constitutional rights are fundamental

Ones and the Federal Rules of Criminal Pro-

cedure are fundamental guidelines which need

to be construed narrowly and carefully, the

Petitioners believe that the questions

Presented are so substantial as to require

Plenary consideration.

BASIS FOR FEDERAL JURISDICTION

Tnis case was properly brought in

federal court pursuant to 18 U.S.C. §3231.

Petitioners were charged with violations of

18 U.S.C. §§ 2, 371, 2113(a), 2i13(b), 18

App.U.S.C. §1202{a) (1).

-l13-

ARGUMENT

Probable Cause

This Court has consistently ruled that

nothing less than probable cause will support

an arrest. See Dunaway v. New York, 442 U.S.

200 (1979). While subsequent investigations

developed evidence linking Petitioners to a

bank robbery, at the time the Petitioners’

freedom of movement was restricted by the

police, probable cause for an arrest did not

exist.

In United States v. Brigqnoli-Ponce, 422

U.S. 873 (1975), this Court ruled that any-

thing more than a brief stop "for a minute or

two" must be supported by probable cause. It

is clear that Petitioners in this case were

under arrest when Captain Tapia refused to

let them leave the service station. However,

-14-

at that time, the only connection between

the gold Pontiac and the bank robbery was the

fact that a car of that description

containing four or five people had been seen

two blocks away from where a pick-up,

matching a description of the getaway

vehicle, was abandoned. Petitioners were

stopped by the police, not because there

was probable cause for arrest, but because

police wanted to investigate the crime.

In Dunaway, this Court stated that

Terry v. Ohio, 392 U.S. 1 (1968) does not

authorize the police to detain someone for an

extended period of time in order to investi-

gate a crime. Here, however, Petitioners

were detained by Captain Tapia so that other

police officers could conduct a custodial

interrogation upon their arrival. In United

States v. Perez-Esparza, 609 F.2d i284 (9th

-15-

Cir. 1979), rceh. denied (1980), the court

ruled that this type of custodial interroga-

tion was precisely the type of action

condemned by the United State Supreme Court

in Dunaway.

Pre-arrest evidence showed only that the

bank robbing trio consisted of one femaie and

two males; that the getaway truck was a Ford

pickup, that a gold Firebird or Trans-Am left

the area in which a Ford pickup was found;

that the gold Firebird or Trans-Am was occu-

pied by several people; and that one of the

bank robbers wore a rain coat. Though iater

evidence filled in many of the gaps, the

government agents knew oniy the above-stated

facts just prior to the Petitioners' arrest.

Of these facts, the only one which might

even possibly give rise to probable cause was

the fact that a Firebird or Trans-Am was seen

leaving the area in which a pickup truck was

abandoned. Because a gold-colored Firebird

with Arizona plates was uncc#mon in the Las

Vegas area, it was more likely to be noticed

that other cars. However, it is probable

that many other vehicles were also “leaving”

that area, and there was not evidence to

establish the fact that the Trans-Am was the

Only cac leaving that area. Thus it was not

established that government agents had prob-

able cause to stop that car as opposed to any

other car.

In a recent case, United States v.

Chamberlain, 644 F.2d 1262 (9tn Cir. 1980),

an officer observed two men in what he con-

sidered to be suspicious circumstances. When

the two men started running away from him,

the officer gave chase and was successful in

catching the defendant, Chamberiain. The

officer asked Chamberlain two questions, the

answers to which increased the officer's

suspicions, and he made Chamberlain get into

the back of the patrol car, intending to

detain him for further investigation while

the officer attempted to iocate the second

suspect. Subsequent investigation over the

next twenty minutes turned up incriminating

evidence, and Chamberlain was officially

arrested. The Ninth Circuit determined that,

under Terry v. Ohio, 392 U.S. 1 (1968), the

officer was justified in making the ini-

tial investigatory stop. United States v.

Chamberlain, 644 F.2d at 1265. The court

heid, however, that circumstances did not

justify the 20-minute detention and that the

statements made by Chamberlain during this

period, as well as subsequentiy-obtained evi-

dence, were inadmissible in light of Dunaway.

-18-

Reiterating the Supreme Court principle

that restraint of freedom is a seizure,

whether official or not, the Ninth Circuit

went on to discuss the requirements of prob-

able cause necessary to justify the more

extensive detention. The court noted that

the 20-minute detention was undoubtediy the

result of police work done in good faith, but

the court denied the government's contention

that such a detention was justified by the

necessity of the circumstances or by bona

fides. This was the very balancing approach

which the Supreme Court rejected in Dunaway.

The Ninth Circuit found that, even though the

case then before it invoived a iesserc intru-

sion on Chamberlain's liberty than was

imposed on the defendant in Dunaway, the

20-minute detention violated both the Fourth

and Fourteenth Amendment rights.

-1|9-

The case at bar falls in between Dunaway

and Chamberlain as far as the degree of

intrusion upon the Petitioners’ liberty. In

Dunaway, the police went out without probable

cause to pick up the accused, and, when they

found him, took him to the police station.

In Chamberlain, the police encountered the

accused in suspicious circumstances and

Placed him in the back of the patrol car for

twenty minutes. In our case, the police did

not specifically go out to pick up the Peti-

tioners, but neither did they encounter them

in suspicious circumstances, as the Peti-

tioners were at that time gassing up their

Car. Also in the case before us, the Peti-

tioners were detained for a period of time

and were then taken to the police station, at

which time they were arrested and given thetic

rights.

Finally, in Colorado v. Bannister, 449

U.S. 1 (1980), this Court held that there was

Probable cause to arrest the occupants of a

vehicle which had been stopped by a police

officer for speeding. Because the police

officer had heard a radio dispatch reporting

the theft of motor vehicle parts, and because

the police officec was able to see the

Suspected stolen parts in plain view in the

vehicle which he had stopped for a speeding

violation, this Court felt that the arrest

and seizure did not violate the Fourth

Amendment.

The Tenth Circuit cited Bannister as

support for affirming the Petitioners’ con-

victions; however, the facts in Bannister are

distinguishable from the facts in our case.

For one thing, the Las Vegas Police did not

stop the Petitioners for traffic violations;

@2le-

they stopped them because of a radio report

which stated that a gold car was spotted

leaving the scene of an abandoned vehicle

which was possibly used in a bank robbery.

It is Petitioners’ contention that this radio

description alone did not provide probabie

cause to detain them. And, as noted in

Bannister, "[(t]here can be no question in

that the stopping of a vehicie and the

detention cf its occupants constitute a

‘seizure’ within the meaning of the Fourth

Amendment." 449 U.S. at 4,n.3.

There is little doubt but that the

detention by the police in our case wouid

constitute such a seizure. The question is

whether or not there was probable cause. The

Tenth Circuit in its slip opinion stated that

the police had descriptions of the robbers

and of the guns used at the time the Peti-

tioners were detained. Actually, however,

the police did not have any descriptions of

the bank robbers or of the weapons used at

the time of the detention, and the only in-

formation which the police officers did have

at that time was alone insufficient to give

rise to probable cause for a twenty-minute

detention.

Delay in Indictment

Petitioners' detention was iilegal not

only because the police had no probable cause

to effect such a detention, but also because,

after Petitioners’ arrest, they were not

brought before a magistrate without unneces-

sary delay.

§31-1-5(B), N.M.S.A. (1978) says “every

accused shall be brought before a court hav-

ing jurisdiction to release the accused

without unnecessary delay.” Rule 5(a) of the

Pederal Rules of Criminal Procedure makes a

similar requirement. The purposes of requir-

ing an arraignment without unnecessary delay

are to prevent a detention being used to

obtain a confession and also to advise the

Gefendant of his rights by a judicial

officer. United States v. Cnadwick, 415 F.2d

167 (10th Cir. 1969).

This Court has noted, in addition, that

a "detached judgment of a neutral magistrate

is essential if the Fourth Amendment is to

furnish meaningful protection from unfounded

interference with libery." Gerstein v. Pugh,

420 U.S. 103 (1975). As asserted earlier in

this Petition, "the Fourth Amendment requires

a judicial determination of probable cause as

@ prerequisite to extended restraint of

liberty following an arrest.” Id.

In Mallory v. United States, 354 U.S.

449 (1957), the defendant was arrested in the

afternoon and detained in the vicinity of

several magistrates. Late that evening, he

confessed. He was arraigned in the morning.

This Court held that detention to be a viola-

tion of Rule 5(a). It noted that the Rule

was not to be applied automatically or mecha-

nically, and admitted that circumstances may

justify a brief delay if, for example, a

defendant's story may be quickly verified.

"But the delay must not be of a nature to

give an extraction of a confession." 354

U.S. at 455.

Similiarly, in Akowskey v. United

States, 158 F.2d 649 (N.C.C.A. 1946), the

defendant was arrested in the afternoon with-

out a warrant and was not arraigned, but was

taken to the police station. He made a con-

fession seven hours iater after continuous

questioning. The court held that the confes-

sion was inadmissible and that the conviction

be overturned, noting in dictum that "while

we recognize that in manv cases circumstances

may dictate that some delay ensues between

arrest and commitment amounting to one, two,

Or many hours, such is not the case here."

158 F.2d at 650. The unreasonableness of a

delay is not determined merely in terms of

hours oc days, but aiso in terms of the pres-

ence Or absence of mitigating circumstances,

such as tinaccessibiiity of magistrates,

pressing duties of the arresting officers, or

condition of the arrested person. Id.

The delay between arrest and arraignment

Cannot be explained by inaccessibility of

magistrates in our case, as four magistrates

were within five minutes of the arrest scene.

@2360

Neither can the delay be explained by the

pressing duties of the arresting officer or

detaining officers, or by the physical or

mental condition of the Petitioners.

If an accused is not arraigned without

unnecessary delay, then his detention is

illegal. The showing of a legal cause for

detention is a safeguard, the purpose of

which is to prevent secret interrogation.

When & confession is made, or evidence is

obtained, during an illegal detention, then

such confession or evidence is aiso illegal.

McNabb v. United States, 318 U.S. 332 (1943).

Thus, it would seem clear that a six-day,

unwarranted delay between arrest and arraign-

ment is unreasonable, unnecessary, and there-

fore illegal.

If an arrest is uniawful, evidence

recovered as a resuit thereof is tainted and

must be suppressed. Tne exclusion of the

fruits of an unlawful arrest will occur any-

time the fruits are a result of the exploita-

tion of the illegality. Wong Sun v. United

States, 371 U.S. 471 (1963). The mere giving

of Miranda warnings does not necessarily save

the evidence, and the government must show

that the evidence should be admitted. Brown

v. Illinois, 422 U.S. 590 (1975). As dis-

cussed previously, this Court in Dunaway v.

New York, 442 U.S. 200 (1979) held that a

Getention for custodial interrogation intru-

ded so seriously upon Fourth Amendment rights

as to trigger traditional safeguards against

illegal arrest. Even “voluntary” confessions

with Miranda warnings just meet the thresh-

hold requirement for Fourth Amendment analy-

sis. 422 U.S. at 217.

Citing Brown v. Illinois, this Court

identified severai factors to be considered

in determining whether a confession obtained

as the result of exploitation of an illegai

invasion should be admitted. Tne factors

include (1) the temporal proximity of the

arrest and confession, (2) the presence of

intervening circumstances, and (3) the pur-

pose and flagrancy of the official miscon-

duct. Dunaway, 442 UsS. at 218.

In Dunaway, it was also noted that an

illegal detention does not depend upon

whether a defendant is technically arrested

Or not, for the detention still requires

probable cause. Evidence taken during an

investigatory stage where detention was in

violation of the Fourth Amendment was

excluded.

One of the more recent cases on this

subject is United States v. Perez-Esparza,

609 F.2d 1284 (9th Cir. 1979), ren. denied

(1980), in which the Court of Appeais heid

that an informant's tip was insufficient to

provide probabie cause for an arrest, deten-

tion, and custodial interrogation of a motor-

ist who had been legaily stopped. The court

further held that, when voluntary consent was

finally given after the motorist nad been

illegaily detained for three hours, and where

there had been no intervening circumstances,

the consent was insufficient to avoid exclu-

sion of contraband subsequently discovered.

Detention of the Defendants for custodial

interrogation intruded seriously upon theic

Fourth Amendment rights and triggered the

traditional safeguards. Through the uncon-

stitutional police conduct, and as the result

of an illegal detention, incriminating

information was obtained. There was a iack

of attenuation and intervening circumstances;

thus, the consent was insufficient to avoid

exclusion of the contraband subsequently

discovered.

Although Federal Ruies of Criminal

Procedure Rule 5(a) applies oniy to federai

officials, there was clear evidence of a

"working arrangement" between the FRI and the

Las Vegas Police, not just a bare suspicioun

of such an arrangement. The presence of such

a close working relationship would require

adherence to Rule 5(a) by local authorities

during the period of Petitioners’ detention.

Anderson v. United States, 318 U.S. 350

(1942). No one can reasonably or in good

faith assert the existence of anything but a

joint operation between state and federai

-3l-

» in our case, and the fact that this

was a simultaneous undertaking did not affect

federal agents' duty to comply with federai

standards. See Gambino v. United States, 275

U.S. 310 (1927); United States v. Searp, 586

F.2d 1117 (6th Cir. 1978).

Because the crime being investigated,

and with which the Petitioners were later

charged, was federal bank robbery, the Las

Vegas police correctly assumed that the FBI

would take jurisdiction over the case.

Lieutenant Sena of the Las Vegas Police, in

response to a qgitestion at triai as to who was

really running the investigation, answered,

"as fac as I was concecned, it was the FBI.

The bank robbery are federal charges [sic]

and I felt that the FBI snould controi juris-

Giction."” FRI agents were present during the

questioning, and it was at the behest of FBI

-32-

agents that the Las Vegas police obtained

consents to search. Due to the intermingling

of the PBI and the Las Vegas police, it was

difficult if not impossible, for the Peti-

tioners to make the distinction between the

governmental agencies involved.

Even the investigating officers were

confused as to the interrelationship between

the Las Vegas Police and the FBI. Lieutenant

Sena admitted disctssing the case with the

FBI agents and looking to them for advice and

direction. This does not amount to a mere

suspicion of a working arrangement between

the Las Vegas Police and tne FBI. It is a

very clear indication of such a working

arrangement. There was some question as to

who was in charge of the investigation, but

there is no doubt that there was a working

relationship.

-33-

Pailure to allow a defendant the benefit

of the detached judgment of a neutral magis-

trate is violative of Fourth and Fourteenth

Amendment rights.

Although there are circumstances which

may justify a brief delay, “the delay must

not be of a nature to give an opportunity for

an extraction of a confession." Mallory v.

United States, 354 U.S. 449, 455 (1957).

The period of detention itself did not

become illegal on the second day or the third

day or the fourth day or the fifth day of the

detention; it became illegal when it became

unnecessary and in violation of Constitu-

tional rights. Therefore, there is no issue

here as to whether subsequent illegality

alters the admissibility of evidence properly

obtained. The evidence was not properiy

Obtained in our case for it was obtained as a

-34-

direct result of the iilegai detention by the

government officers. It is not required that

Petitioners show that government officials

actificially contrived the delay. Ail that

is required is to show that an unnecessary

delay occurred, and that, during the illegai

detention, evidence was obtained.

The FBI were notified and became invol-

ved as soon as the bank robbery occurred.

They were alerted to the apprehenstion of the

suspected bank robbers and that very day were

at the local police station questioning the

Petitioners. As in Anderson v. United

States, 318 U.S. 350 (1942), the original

arrests were made by state officials, and the

defendants were kept in the sheriff's faciii-

ties for a nunber of days. Uniike the situa-

tion in Anderson, both the local police and

the FBI in our case were involved in the

questioning, but, as in Anderson, the FBI

made the formal arrest after six days and at

that point brought the Petitioners before a

magistrate.

The Tenth Circuit distinguished Anderson

by noting that the crime in Anderson involved

the crime of destruction of TVA property and

so was “peculiarly federal from the start."

A bank robbery is also pecuiifarly federai,

for, even if the state might have concurrent

jurisdiction to bring charges, federal bank

robberies are traditionally considered to be

within the domain of federal agencies. It

was undoubtedly for this reason that the

lieutenant of the Las Vegas Police stated "as

far as I was concerned, it was the FBI [who

was running the investigation]."

This Court in Anderson held that, though

the “federal officers themselves were not

@36-

formally guilty of illegal conduct [this]

does not affect the admissibility of the

evidence which they secured improperly

through the collaboration with state

officers." 318 U.S. at 346. In our case,

there was federal custody and involvement,

constructive and actual, existing from the

26th of October, even though federal charges

were not filed until November l.

Scope of the Consent to Search

Above and beyond the failure to estab-

lish probable cause and to bring Petitioners

before a magistrate for arraignment, there

are other reasons to suppress the statements

of Petitioner Torres and the evidence ob-

tained from his car.

Not only did the law enforcement

officers exploit the period of illegai deten-

-37-

tion to obtain statements, but they exploited

it in order to obtain consents to search the

vehicle involved as weil. It is a welil-

established principle that a person may waive

his Fourth Amendment right by consenting to a

search without a warrant. Bumper v. United

States, 391 U.S. 543 (1968). Tnis waiver,

however, is subject to a few conditions. The

consent, of course, must be voluntary,

(United States v. Page, 306 F.2d 8i (9th Cir.

1962)), clear, and unambigous. An apparent

consent or a consent whicn is actually a

bluff designed to convince a police officer

that he won't find anything, is not a valid

consent. Channel v. United States, 285 F.2d

217 (9th Cir. 1960); United States v.

Dornblut, 261 F.2d 949 (2nd Cir. 1958), cert.

denied, 360 U.S. 912.

-38-

Purthermore, consent to search may be

revoked before the search is even completed.

In this case, any evidence obtained after the

consent was withdrawn should have been inad-

missible. Lucero v. Donavan, 354 F.2d i6

(9th Cir. 1965); United States v. Bracer, 342

F.2d 522 (2nd Cir. 1965), cert. denied, 382

U.S. 954.

The Pourth Amendment right against un-

reasonable search and seizure may be waived

in part or in whole. If the person wishes to

restrict the scope of the search, either as

to the area to be searched or to the metho-

dology to be used in the search, this is part

of his Constitutional right. Because his

right is absolute, there is no requirement

that he waive it. A person's desire to

retain even part of this right must be res-

pected. In our case, Petitioner Torres

-39-

obliging consented to allow police officers

to search his car. However, as he subse-

quently stated to FBI Officer Jocnum, he con-

sented only to letting the police iook

through his car, not to their taking it

apart. ‘Tne limitation on his consent was

Clear and unambiguous. If the government's

contention is that partial consents are

invalid, then the government should be

prohibited from any kind of search at ali, as

Mr. Torres’ consent as tO a complete and

unqualified search was not voluntary, clear,

Or valid. Once the scope of search has been

validly limited, any evidence which is

obtained as a result of procedures outside of

the scope of search should be inadmissible on

Fourth Amendment grounds.

Apart from the issue of whether the FBI

agent had the duty to or did in fact report

-40-

the consent limitation to the Las Vegas

Police, ‘there is a real question as to

whether the consent iimitation should be

effective to protect Petitioner Torres’

rights. As noted earlier, the distinction

between the FBI and the Las Vegas Police was

unclear during this investigation, not only

to Petitioners but also to the officers in-

volved themselves. The confusion created was

not in any way a result of Petitioners’

actions, and the government should not be

allowed to rely upon a technicality in order

to effect its search. This is especiaily

true when Constitutional rcights have been

violated. Because of the importance of voi-

untary and knowledgeable consent, courts have

faiied to uphold a consent which is given as

a result of a mistake on the part of a defen-

dant. Analogously, a limitation to consent,

ago

reasonably but erroneously given to an

improper agent of the government, should be

upheld to protect the accused's Fourth Amend-

ment right. This Court should err, if at

all, on behalf of the accused when fundamen-

tal rights are at issue. Alternatively, if

the Court finds that the limitation to the

consent was invalid because not tendered to a

proper government agent, then the consent as

a whole cannot be considered voluntary,

Clear, or valid. Although it might have been

so at the time it was given, the consent to

search may be withdrawn at any time before

the search is completed, just as waivers of

Other rights may be withdrawn.

CONCLUSION

For the foregoing reasons, this Petition

for a Writ of Certiorari should be granted.

~42<

~~

a

ese so

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee

vs. Nos. 81-ii02

MANUEL MENDOZA TORRES, MAX 1104

CANDIDO GRIEGO, SARAH GODOY 1105

)

)

)

)

)

) 1103

)

and SUSAN SMITH SPIEGEL, )

)

)

De fendants-Appellants

Appeal from the United States District Court

For the District of New Mexico

Criminal No. 80-183

APPENDIX A

-43-

Wayne G. Chew, Assistant U. S. Attorney,

Albuquerque, New Mexico (R. E. Thompson,

United States Attorney, Albuquerque, New

Mexico, with him on the 0Oobrief), for

Plaintiff-Appellee

Vince D'Angelo, D'Angelo, McCarty & Vigii,

Albugquercue, New Mexico, for Defendants-

Appellants

Before BARRETT, DOYLE and LOGAN, Circuit

Judges

DOYLE, Circuit Judge

=640

The above named defendants-appeliants

seek reversal of convictions based on charges

having to do with conspiring to rob a

federally insured national bank with the use

of dangerous weapons contrary to 18 U.S.C. §

371 and 18 U.S.C. § 2113(a)(d). Aliso charged

in the indictment against all four defendants

was the substantive crime of actual robbery

of the bank, together with aiding and

abetting that crime under 18 U.S.C. § 2. In

addition, Sarah Sotello Godoy and Max Candido

Griego were charged with possession of a

firearm by a former felon in violation of i8

U.S.C. App. § i202(a). A jury trial was had

and all defendants were found guilty on ail

counts, except that Griego was found innocent

of the possession charge.

The incident occurred on September 26,

i980. The Las Vegas police received a report

-45-

that a brown pick-up truck may have been

involved. This truck was readily found

abandoned located in a place close to the

bank. A public service employee notified the

police that a goid-colored Firebird with

Acizona license plates containing severai

individuals had departed the area where the

brown truck had been found. The police

obtained a description of the robbers from

victims at the bank. This included their

approximate height, body type, race, sex and

clothing, together with a deeeription of the

guns which had been carried. A further con-

necting link was the mentioned goid Firebird

with Arizona license plates. It was seen by

the police at a service station in Las Vegas.

The four defendants were found at the station

in the car and in a van which was parked

beside it. The defendants were questioned by

the police, and defendant Torres gave the

-46-

police consent to search the Firebird. A

small caliber weapon was found in the door

pouch; weapons were found on the persons of

both Torres and Griego, and were confiscated.

The defendants and the weapons which were

found conformed to the description that the

police had obtained. All of the defendants

were arrested. They were taken to the Las

Vegas police station for processing. The

F.B.I. was immediately notified of the

robbery of the bank and of the apprehension

of the defendants. On that day both the

local police and the F.B.I. questioned the

defendants. This was carried out approxi-

mately two hours after the capture. The

defendants were given Miranda warnings and

tney signed waiver forms. They did not

request counsel. But the statements made

were not inculipatory. Th<se were deniais and

were an avoidance.

The police sought a search warrant for

the impounded Firebird but the district

attorney directed the police to first try to

obtain the defendants' consent to the search

of the car. Defendant Torres, the apparent

owner of the Firebird, signed a consent

permitting the police to make a “complete”

search, and authorized the taking of

"letters, papers, narcotic drugs, other

drugs, material or other property." This aii

occurred on the very first day, that is, Sep-

tember 26th, including the original search,

which was not a thorough one. In connection

with that, the Las Vegas police found a

wallet that had been identified by one of the

victims of the robbery. Torres was con-

fronted by an F.B.I [sic] agent with this

wallet. He told the F.B.I. man that he did

not mind the police looking through his car,

but he had not intended it to be torn apart.

-48-

This statement apparently was not relayed to

the Las Vegas police.

Subsequently, the police did a further

search of the Firebird, and in pulling out an

ashtray in the side of the door, they were

able to see some money in the well of the

ashtray. They then removed the air-vent

cover in the side of the door, because the

vent was connected to the ashtray well.

Thece they found a bag of money which con-

tained marked bills, later identified as

having come from the First National Bank.

On September 30, following consultation

with the local district attorney, the United

States decided to prosecute the defendants on

federal bank robbery charges. No state

Charges of armed robbery were ever filed by

New Mexico. The following day, October l,

the United States filed the charges, and on

the 2nd the defendants were arraigned for the

~49-

first time before a United States Magistrate,

in Albuquerque, New Mexico.

. * * + *

Tne four points or contentions advanced

on behalf of the appellants are:

1. That defendants were unlawfuily

arrested at the Las Vegas service station,

because the police lacked probabie cause to

make the arrests.

2. That the defendants were not brought

before a magistrate for six days from the

time of the arrest, and therefore, there was

unnecessary delay, violative of the Federal

Rules of Criminal Procedure 5(a).

3. That the money found in the Firebird

was obtained uniawfully, because defendant

Torres had retracted his consent to the

search of the vehicle.

-50-

4. That the prosecution did not ade-

quately prove that Sarah Godoy was a con-

victed felon whereby she could be convicted

of possession of a firearm under 18 U.S.C.

App. § 1202(a).

I.

were the defendants unlawfully arrested at

the Las vegas service station very soon after

commission the offense, whereby there was

a lack of probable cause?

Our examination of the facts convinces

us that there was adequate evidence t@ con-

stitute probable cause justifying the arrest.

The officers received information concerning

the robbery at once. Much of this came in

radio communications. They had the descrip-

tions of the robbers, the guns used, informa-

tion regarding the brown pick-up truck and

the gqgoid Firebird with Arionza iicense

plates. Also relayed over the radio was

information that the bank had been robbed by

@Sle

a tall, slim male who was wearing a trench

coat, a short, stocky male, and a woman

(Godoy), all of Spanish descent, together

with an Anglo woman (Spiegel). There were

descriptions of two guns, one silver and one

dark, square-barrelled revolver. The police

were notified, also, that a goid Trans-Am

Firebird was seen at Olilie'’s Lounge. After

hearing this on the radio, Captain Tapia, of

the Las Vegas Police Department, drove toward

Ollie's Lounge, and saw a goid-coliored

Pontiac, with Arizona License plates at a

service station. The driver was a tail,

Spanish male, wearing a trench coat. He was

outside the car, talking to ae shorter,

Spanish male, whose appearance coincided with

the description which the police had been

given. He was driving a tan van. Defendant

Torres was the driver of the Pentiac; Defen-

dant Griego was the driver of the tan van;

-52-

the two women passengers of the Pontiac were

defendants Gody and Spiegel. Tapia detained

all four defendants for approximately twenty

minutes, until other police authorities

arrived. Following the stop, the poiice

sought and received permission from Torres to

search the goid Pontiac. In the door poucn

of the car, the police found ae small,

twenty-two caliber weapon; also found in the

car later was a black leather wallet. The

large square-barrelied revoiver was dis-

covered on Torres. The defendants were then

Placed under arrest. It was after the arrest

that a silver automatic handgun was found on

the person of defendant Griego, and another

weapon, a forty-five caliber handgun, was

descovered [sic] on the person of Torres.

After that the defendants were taken to the

police station and following warnings and

waivers, they were questioned. It is very

a$30

Clear that this was a hot pursuit situation,

although the defendants may have thought that

they would mislead the police by not racing

out of town and being on the scene. However,

the circumstances discovered coincided in

every detail with the facts reported, so that

the conclusion was very apparent.

There was a right in the first instance

to conduct a preliminary Terry-type investi-

gation. Having done that, the facts which

were learned from this constituted ampie evi-

dence showing probable cause, justifying

arrest. We must reject the argument regard-

ing invalidity or insufficiency of evidence

to justify the arrest.

It is noteworthy that three days after

the original arrest, the police learned that

the gold Pontiac was a stolen car. Also to

be noted is that $87,700 in cash which was

identified as money taken in the robbery was

-54-

found behind a panel in the back of the car.

Finally, it should be pointed out that evi-

dence sufficient to establish guilt beyond

reasonable doubt is not necessary in order to

justify the action which was taken by the

officers. The arresting officers were able

to rely on information supplied by felilow

officers through radio communications. When

the actual facts coincided with the original

information,*® probable cause existed. Holt v.

United States, 404 F.2d 914, 918 (10th Cir.

1968), cert. denied, 393 U.S. 1086 (1969).

The officers at this point of the arrest had

reasonably trustworthy i-formation adequate

to support their belief that the law had been

violated. Brinegar v. United States, 388

U.S. 160, 175-176 (1949); United States v.

Matthews, 615 F.2d 1279 (10th Cir. i980);

United States v. James, 496 F.Supp. 284 (W.D.

Okla. 1977).

a$Z$e

Following on the initial stop for ques-

tioning, the handguns were found on Torres

and Griego. This fact, together with the

descriptive information obtained shows that

probable cause did exist at the moment of

arrest as required under the provisions of

the Fourth Amendment. See United States v.

Smaidone, 485 F.2d 1333, 1350 (10tn Cir.

1973), cert. denied, 415 U.S. 936 (1974).

Inasmuch as probable cause existed the

Warrantless arrest was propec under the

Fourth Amendment. Beck v. Ohio, 379 U.S. 89

(1964). It was said, in Beck at p. 91, that

the ruie of probable cause is a practical

non- technical conception; that requiring

more would unduly hamper law enforcement.

In a relatively recent decision,

Colorado v. Bannister, 101 S.Ct. 42 (1980),

an officer saw occupants of a vehicle and

Other corraborating [sic] evidence which

matched the description from a crime scene in

a police radio dispatch. The Court said that

there was probable cause to arrest under

those circumstances.

II.

Was the delay in bringing the defendants

Before a magistrate a violation of the

McNabb-Mallory doctrine which renders the

evidence illegal and hence inadmissible?

The defendants rely on McNabb v. United

States, 318 U.S. 332 (1943), and Mallory v.

United States, 354 U.S. 449 (1957). These

cases hold that federal courts in their

ca power Over the administration of

justice in the federal arena must exclude

confessions obtained during a period of undue

delay in bringing the defendants before a

magistrate. The rationale for this ruling is

found in preventing the police from obtaining

confessions during the period of delay so as

to avoid the giving of notice to the accused

=8Jo

that he has certain rights, including the

right to counsel, and the right to remain

silent. It can be said that is for the

purpose of protecting the accused against the

illegal obtaining of evidence. The McNabb-

Mallory rule has been codified in Rule 5(a)

of the Federal Rules of Criminal Procedure,

which reads as follows:

Rule 5. Initial Appearance Before the

Magistrate.

(a) In General. An officer making an

arrest under a warrant issued upon a

complaint or any person making an

arrest without a warrant shall take

the arrested person without unneces-

sary delay before the nearest

availiable federal magistrate or, in

the event that a federal magistrate is

not reasonably availabie, before a

state or locai judicial officer

authorized by 18 U.S.C. § 3041. If a

Person arrested without a warrant is

brought before a magistrate, a

complaint shall be filed forthwith

which shali comply with the

requirements Of Rule 4(a) with respect

to the showing of probable cause.

When a person, arrested with or

without a warrant or given a summons,

appears initially before the

-58-

magistrate, the magistrate shaii

proceed in accordance with the

applicabie subdivisions of this

rule.

The essence of the rule is to prevent

invalidly obtained confessions and perhaps

Other evidence prior to allowing the accused |

to have access to the court. Whether there

was Original probable cause and whether the

time period was reasonable is to he

determined in light of all the facts and

circumstances of the case. See Waiton v.

United States, 334.F.2d 343, 346 (i0tn Cir.

1964), cert. denied, 349 U.S. 991 (19675);

Advisory Committee Note to Fed. Crim. P.R.

5(a);

Ruie 5(a) become applicabie once the

accused is taken into federai custody. Hayes

ve. United States, 419 F.2d 1364 (10th Cir.

1969); cert. denied, 398 U.S. 941 (1070);

Daro v. United States, 380 F.2d 23 (10th Cir.

1967). In this case it was not until

-59-

September 30tn that the United States

determined that it would prosecute; on

October list the federal charges were filed,

and the next day the defendants were taken

bfore [sic] the magistrate. They contend

that the period of custody to be considered

started on September 26tn, the date that the

Las Vagas police arrested the defendants,

because, they say, there was "a working

agreement between the F.B.I. and the local

police.” This arrangement, appellants

contend, should make all state custody into

federal custody for the purposes of Rule

5(a)-.

Knowing the practicalities of this kind

of situation, including the fact that various

Clearances and determinations have to be

made, it is not possible to presume, as the

defendants would have it, that the delay was

pursuant to a working arrangement or that it

-60-

was not otherwise carried out in good faith.

There is no evidence to support the sugges-

tions of defendants.

An example of a so-called "working

arrangement" is found in the Supreme Court's

decision in Anderson v. United States, 318

U.S. 350 (1942). In that case, the original

arrests were made by state officials and the

Gefendants were kept in the sheriff's

facility for six days. The F.B.I. did ali

the questioning; and when the defendants —

confessed on the sixth day, the F.B.I.

acrested them and had them brought before a

magistrate. The crime was peculiarly federai

from the start; it invoived the destruction

of the Tennessee Valley Authority property,

and it was clear that the state was only

interested in helping the F.B.I. make a

federal arrest. The Court found that a

working arrangement existed between federal

a=£l<

and state officials during these six days of

confinement. It was held that thought the

"federal officers themselves were not

formally guiity of illegal conduct [this]

does not affect the admissibility of the

evidence which they secured improerly through

collaboration with state officers." 318 U.S.

at 346.

Examination of the cases shows that

there are few instances in which a woking

arrangement has been found to exist. In the

case of United States v. Broadhead, 413 F.2d

1351 (7th Circ. 1969), cert. denied, 396 U.S.

1017 (1970), the Court found a working

arrangement where, at the behest of the

F.B.I., the police set up a roadblock and

arrested the defendant. Tne city jail was

used by the F.B.I. as a temporatry detention

site, and a line-up was conducted to identify

the defendant Cf. United States v. Nygard,

~6§2-

324 F. Supp. 863 (W.D. Mo. 1971).

In the case at bar, it was incumbent

upon the appellants to show that state

custody was used in order to circumvent Rule

S(a4), supra. United States v. Rose, 415 F.2d

742 (6th Cir.), cert. denied, 396 U.S. 971i

(1969); Barrett v. United States, 384 F.2d

848 (5th Cir. 1967). More than a “bare

suspicion" of a working arrangement is

required to show constructive federal custody

as having occurred at the moment of state

arrest. United States v. Gaines, 555 F.2d

618 (7th Circ. i977); Butterwood v_ [sic]

United States, 365 F.2d 380 (10th Cir. 1966),

cert. denied, 386 U.S. 937 (1967); Young v.

United States, 344 F.2d i006, 1010 (8th

Cir.), cert. denied, 382 U.S. 867 (1965).

The defendants at bar have not shown

through competent evidence that a coilusive

working agreement was utilized in order to

illegaily postpone the appearance before the

magistrate. The Las Vegas police took charge

of the investigation at the outset. The bulk

of the evidence was obtained the very first

day. It was substantial and probably

adequate to submit the case to a jury. The

Las Vegas police initially investigated the

bank's call for help after the robbery. They

made the acrest and transported the

appellants. Due to concurrent jurisdiction

in the relationship with a national bank, the

F.B.I. was notified about the apprehension of

these individuais. There was apparently some

evidence given at the suppression hearing and

at the trial indicating that there was some

confusion as to which authority would take

charge. However, there was neither testimony

from the F.B.I. nor from the Las Vegas police

that the F.B.I. was in charge. This was

testimony that the state was proceeding on

afGea

the possibility that the state charges of

armed robbery might be filed, even though

federal charges were also filed. Lt. Sena of

the police did say that he felt that he

should take orders from the F.B.I. and that

jurisdiction lay in their hands. This,

however, was a subjective viewpoint. It is

not unusual, nor is it suspicious or

irregular, for both state and federal

offici-ls to investigate the same suspect,

and to cooperate in the solution of the

crime. This does not make one the agent of

the other. See Butterwood, supra, at 385.

State charges were not filed against these

appellants, but this is of no significance.

The important point is that evidence is

lacking which shows that the delay was part

of an effort to avoid taking the defendants

before the magistrate. There was no effort

following the first statements that were made

-65-

to persuade them to make confessions. So,

therefore, we fail to see a diabolic motive.

Thus, the surrounding facts refute the

contention.

The working relationship contention has

not been successful in most instances. It

has been unsuccessful in most instances, and

the facts in this case are not unlike the

facts in other cases which have been decided.

See United states v. Lepinski, 460 F.2d 234

(10th Cir. 1972); United States v. Fallon,

457 F.2d 15 (10th Cir. 1972); Hayes v. United

States, 419 F.2d 1364 (10th Cir. 1969), cert.

denied, 398 U.S. 941 (1970); United States v.

Rose, 415 F.2d 742 (6th Cir.), cert. denied,

396 U.S. 971 (1969); Butterwood v. United

States, 365 F.2d 380 (10th Cir. 1966), cert.

denied, 386 U.S. 937 (1967); United States v.

Coppola, 381 F.2d 340 (2nd Cir. 1960) (en

@66-

banc), affirmed per curiam, 365 U.S. 762

(1961).

Quite apart from the question as to

whether there was unlawful collaboration

between the state and the federal government,

_ we’ note also an alternative ground for

upholding the action that was taken. This is

the lack of causation between any delay and

the evidence obtained. The statements, the

fingerprints, the consent to search and the

physical evidence were not the fruits of any

illegal acitivity [sic] on the part of the

police or the F.B.I. United States v.

Mitchell, 322 U.S. 65 (1944). One require-

ment of the McNabb-Mallory supervisory ruie

is that the delay must contribute to or

induce the allegediy tainted evidence. See

United States v. Montes-Zarate, 552 F.2d 1330

(9tn Cir. 1977), cert. denied, 435 U.S. 947

(1978); United States v. Fallone, 457 F.2d i5

af7=

(10th Cir. 1972); Chapman v. United States,

397 F.2d 24 (10th Cir. 1968) [sic]

The statements that were taken from the

defendants were obtained when they were first

brought to the Las Vegas police station

(these were not inculpatory in nature).

Fingerprints and other physical evidence were

obtained on the same day, and the written

consent for the search of the gold Firebird

was also obtained shortiy after their arrivai

at the police station. The finding of the

wallet pursuant to the initial search

occurred on the 26tn, as weil. So, there was

no delay any of [sic] in obtaining this

evidence, except for the money. The search

for the money related back to the consent

given on the first day. Thus, there is

little that can be said by the defendants as

to the injury or prejudice suffered as a

result of the failure to take them before the

~68-

magistrate immediately. The testimony

of the police demonstrates that the money was

recovered from the Firebird on the 29th of

September, and that this evidence was

obtained pursuant to the consent that was

given on the 26th. It is possible that the

defendant did not expect that the search

would produce the money, but we cannot agree

with the defendants that the consent to

search thoroughly was revoked when one of the

- @efendants was confronted with the billfold

of a victim and the statement made that

consent had not been given to tear the car

apart. This expresses dissatisfaction with

the way the search was being conducted, or

the efficiency and the depth of it, but it

1. However, this delay surely should not

be practiced by the F.B.I. or the

police because it could, in different

circumstances, cause the evidence to be

excluded.

does not constitute a revocation of the

consent.

It is further argued that the money

should have been suppressed as evidence

because it was not found in the car until the

29th of September. This was the resuit of a

voluntary consent given on the 26th of

September, immediately after the arrest.

Thus, it was attenuated from any illegality.

Cf [sic] Smith v. United States, 324 F.2d 879

(D.C. Cir. 1963); cert. denied [sic] 377 US.

954 (1964).

Tne authorities deaiing with this

general subject are usualiy concerned with

confessions. Indeed, in Mallory, Justice

Frankfurter's concern was to prevent the

police from spiriting away a defendant and

then giving him the “third degree" until he

confesses. 354 U.S. at 354-55 [sic] There

are, however, some decisions which give the

=

doctrine a broader effect - applicable to ail

evidence. See Watson v. United States, 249

P.2d 106 (D.C. Cir. 1957); United States v.

Klapholz, 230 F.2d 494, 498 (2nd Cir.), cert.

denied, 351 U.S. 924 (1956).

The Watson case holds that it is

governed by Mallory because the facts are

similar to that case. Watson had been

apprehended at 6:40 p.m., upon returning to

his home from his place of employment.

Thereafter, he was not that day arraigned.

During the evening and part of the night he

Was questioned and he denied all guilt until

about 3:15 a.m., when he made the first oral,

inculpatory disclosures. They were repeated

to various officers the next morning before

9:00 a.m., when the courts in the district

were opened. Many judges were available, but

Watson was not presented to them. After 9:00

in the morning, still without arraignment and

aTl«

lacking judicial warning, he réenacted the

crime, and went to his apartment, where the

police obtained the articies of clothing

which were offered in evidence against him.

The police spent an entire day searching the

apartment. It was oniy some hours after this

that he was arraigned. And so it was held

that his admissions, his reenactment of the

Crime and his consent to the visit to his

apartment, and his turning over the ciothing

were all incuipatory admissions. His

reenactment of the crime, his consent to the

visit to his apartment and his turning over

the clothing were all under warrant, and the

evidence had been so developed during the

period following by many hours his arrest the

previous evening. The Second Circuit heid

that he was not arraigned until all the

evidence had been obtained; the conviction

was reversed. Tne case is plainiy distin-

=72<

guishable from this one. Considered from a

factual comparison the arrest here was made

aimost immediately after the crime was

committed, and most of the evidence was

obtained on that occasion and at that time.

The situation is somewhat similar in

United States v. Klapholz. Klapholz turned

On whether the evidence other than the

confession was to be suppressed under the

McNabb rule. Judge Weinfeld had ruled that

all evidence detived as a resuit of the

government agent going to the defendant's

apartment was to be suppressed. The Circuit

stated that Judge Weinfeld was right in

refusing to suppress evidence obtained prior

to that date and hour. There is no informa-

tion to the contrary in the former opinion.

But as to evidence obtained in defendant's

home after that time, it was held that the

suppression of all such evidence was

appropriate, since the McNabb rule was not

limited to the suppression of confessions.

IIrI.

Was the consent to search the Firebird valid?

The waiver was obtained immediately

after arrest. It is true that the person who

Claimed to be the owner of the car later said

that the waiver was no longer in force,

simply because, as he told the P.B.I.

officer, who did not communicate it further,

he did not expect the officers to tear the

car apart when he consented to having it

searched. But he did agree to a thorough

Search, and as it was said above, we do not

regard this statement made to the F.B.I.

agent as a statement which voided the consent

which had previously been given. Unquestion-

ably Torres gave his voluntarily consent when

he signed the form which was provided him.

-74-

This explained that a complete search was to

be made, and thus, of course, it logically

follows permission to search contemplates a

thorough search. If not thorough it tis of

little value. See United States v.

Milhollan, 599 F.2d 518, 527 (3rd Cir. 1979),

cert. denied, 100 S.Ct. 221 (1980). A

complete search was authorized, and it shouid

have been anticipated that it would be a

careful one, although the defendant may have

thought that the officers mignt overiook that

money. We are not saying that a waiver under

the Fourth Amendment may not be withdrawn.

The question as to whether it was is, though,

a factual one for the trial court and it

should not be over-turned unless there exists

a good reason and basis. United States v.

Bracer, 342 F.2d 552 (2nd Cir.), cert.

denied, 382 U.S. 954 (1965). The consent

must be judged, in terms of the limitations

=75=

upon it, by the clearly erroneous standard of

review. Villano v. United States, 310 F.2d

680, 684 (10tn Cir. 1962). After full

consideration it is our determination that

tne search that turned up the bank's money

was reasonable and within the bounds of the

actual consent given. United States v.

Dichiarinte, 445 F.2d 126, 129 (7th Cir.

1971); Honig v. United States, 208 F.2d 9:6,

919 (8th Cir. 1953). As we said above, we

remain unconvinced tnat there was any

revocation of the authority given to search

the vehicle.

Iv.

Was the evidence insufficient to identify the

appellant Godoy?

Godoy maintains that her conviction as

a former felon for possession of a firearm,

pursuant to 18 U.S.C. § 1202(a)(1) ought to

be reversed. She asserts that the government

a%6e

did not meet its burden in proving that she

is a convicted felon. The elements of this

offense are the (1) knowing and willing (2)

possession of a firearm, (3) by a previously

convicted felon. United States v. Cable, 446

F.2d 1007 (8th Cir. 1971). It is this

question of her being a felon that is

challenged.

The record discioses that an Arizona

fingerprint card and an Arizona certificate

of conviction and sentence on a voiuntary

manslaughter charge was introduced as

evidence in this case. She was convicted in

February Of 1976 of this crime. Fingerprints

were taken of the appellant and were intro-

duced into evidence here. The parties

stipulated that the prints taken in Arizona

on a bank robbery charge belonged to the

defendant Sarah Sotelllo Godoy. Thus, it was

a question for the jury to decide whether

@F7~=

appellant Godoy was beyond reasonable doubt

convicted of a felony. They so found. The

evidence as to her identity “must be viewed

in the light most favorable to the government

to determine whether there is sufficient,

substantial proof direct and circumstantial,

together with inferences reasonably to be

drawn, on which the defendant might be found

guilty beyond a reasonable doubt.” United

States v. Swallow, Sill F.2d 514 (10th Cir.

1975); [sic] cert. denied, 423 U.S. 845. The

Arizona documents provide the same three

names, the same social security number and

birthdate, and a similar physical description

as that of the appellant in this case.

Moreover, it is about the only way that proof

can ve made, through fingerprints and

photographs at the institution. That

approach was taken here, and we hoid that it

was adequate.

=e

The judgment and convictions as -to ail

four defendants are affirmed.

=79=

DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA vs.

DEFENDANT (MANUEL MENDOZA TORRES

True Name: LIBRADO GONZALES

SOTELLO

Docket No. 80-183

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the

attorney for the government

the defendant appeared in

person on this date --------- January 20, 1981

COUNSEL [Donald D. Vigil Retained

With Counsel

{[GUILTY, and the court being

eatisfied that there is a

factual basis for the plea,

PLEA

— enw ee eee

{There being a verdict of

GUILTY

~— i

APPENDIX B

-80-

FINDING

&

JUDGMENT

SENTENCE

OR

PROBATION

ORDER

ee ee ee ee ee ee ee ee ee

i

[Defendant has been convicted

as charged of the offenses of

Conspiracy, in violation of

18 USC 371, as charged in

Count I of Indictment filed

October 22, 1980; and Bank

Robbery, in violation of i8

USC 2113(a) and (d), as

charged in Count II of

Indictment filed October 22

1980.

[The court asked whether

defendant had anything to say

why judgment should not be

pronounced. Because no

sufficient cause to the

contrary was shown, or

appeared to the court, the

court adjudged the defendant

guilty as charged and

convicted and ordered that:

The defendant is hereby

committed to the custody of

the Attorney General or his

authorized representative for

imprisonment for a period of

FIVE (5) YEARS as to Count I.

TWENTY-FIVE (25) YEARS as to

Count II.

IT IF FURTHER ORDERED that the

sentence in Count II is to run

consecutive to the sentence in

Count I.

-8l-

SPECIAL

CONDITIONS

OF

PROBATION

ee ee ee es ee

ADDITIONAL)

CONDITTONS)

OF )

PROBATION

)

)

)

)

)

)

)

)

)

)

[In addition to the special

conditions of probation

imposed above, it is hereby

ordered that the generai

conditions of probation set

out on the ceverse side of

tnis judgment be imposed. Tne

Court may change the

conditions of probation,

reduce or extend the period of

probation, and at any time

during the probation period of

within a maximum probation

period of five years permitted

by law, may issue a warrant

and revoke probation for a

violation occurring during the

probation period.

)

)

COMMITMENT)

RECOMMEN- )

DATION )

The court orders commitment to

tne custody of the Attorney

General and recommends,

-82-

SIGNED BY

}It is ordered that the |

|\Clerk deliver a certified |

lcopy of this judgment and |

|commitment to the U.S. |

{Marshal or other qualified|

lofficer.

s ]

A A E. CAMPOS

U.S. District Judge

Date 1/20/81 ]

=83<

DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA vs.

DEFENDANT [SARAH GODOY

Docket No. 80-183

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the

attorney for the government

the defendant appeared in

person on this date --------- January 20, i981

COUNSEL [David D. Vigil [sic] Retained

With Counsel

PLEA (GUILTY, and the court being

satisfied that there is a

factual basis for the plea,

ee ee ee

[There being a verdict of

GUILTY

— —

APPENDIX B

FINDING

&

JUDGMENT

ee ee ee

SENTENCE

OR

PROBATION

ORDER

i i ed ee a

[Defendant has been convicted

as charged of the offenses of

Conspiracy, in violation of

18 USC 371; Bank Robbery, in

violation of 18 USC 2113(a)

and (dad); and Possession of a

Firearm by a Felon, in

violation of 18 APPN UNC

1202(a), as charged in Counts

I, II, and III of Indictment

filed October 22, 1980.

{The court asked whether

defendant had anything to say

why judgment should not be

Pronounced. Because no

sufficient cause to the

contrary was shown, or

appeared to the court, the

court adjudged the defendant

guiity as charged and

convicted and ordered that:

The defendant is hereby

committed to the custody of

the Attorney General or his

authorized representative for

imprisonment for a period of

FIVE (5) YEARS as to Count I.

TWENTY-FIVE (25) YEARS as to

Count II.

TWO (2) YEARS as to Count III.

IT IF FURTHER ORDERED that the

sentences in Count II and III

shall run concurrent with the

the sentence imposed in Count

I.

-85-

SPECIAL

CONDITIONS

OF

PROBATION

ee ee ee ee

a ee eet ee ee ee

ADDITIONAL)

CONDITIONS)

OF

PROBATION

ad

)

)

)

)

)

)

)

)

)

)

[In addition to the special

conditions of probation

imposed above, it is hereby

ordered that the generai

conditions of probation set

out on the reverse side of

this judgment be imposed. The

Court may change the

conditions of probation,

reduce or extend the period of

probation, and at any time

during the probation period of

within a maximum probation

period of five years permitted

by law, may issue a warrant

and revoke probation for a

violation occurring during the

probation period.

.

)

)

COMMITMENT)

RECOMMEN- )

DATION )

The court orders commitment to

the custody of the Attorney

General and recommends,

-86-

SIGNED BY

|\Tt is ordered that the |

|\Clerk deliver a certified |

lcopy of this judgment and |

|commitment to the U.S. |

iMarshal or other qualified!

lofficer. |

s )

3 E. PO

U.S. District Judge

Date 1/20/81_ _}

@87J~=

DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA vs.

DEFENDANT [MAX CANDIDO GRIEGO

Docket No. 80-183

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the

attorney for the government

the defendant appeared in

person on this date --------- January 20, i981

COUNSEL {David D. Vigil [sic] Retained

With Counsel

PLEA {[GUILTY, and the court being

satisfied that there is a

factual basis for the plea,

ee ee ee

{There being a verdict of

GUILTY

~~ es

APPENDIX B

-~88-

FINDING

&

JUDGMENT

ee et ee ee ee

SENTENCE

OR

PROBATION

ORDER

i i i i i ee i i

[Defendant has been convicted

as charged of the offenses of

Conspiracy, in violation of

18 USC 371; and Bank Robbery,

in violation of 18 USC 2113(a)

and (d), as charged in Counts

I and II of Indictment filed

October 22, i980.

(The court asked whether

defendant had anything to say

why judgment should not be

pronounced. Because no

sufficient cause to the

contrary was shown, Or

appeared to the court, the

court adjudged the defendant

guilty as charged and

convicted and ordered that:

The defendant is hereby

committed to the custody of

the Attorney General or his

authorized representative for

imprisonment for a period of

FIVE (5) YEARS as to Ccunt I.

TWENTY-FIVE (25) YEARS as to

Count ITI.

IT IF PURTHER ORDERED that the

sentence imposed in Count II

is to cun concurrent with the

sentence imposed in Count I.

-89-

SPECIAL

ee ee ee ee ee

CONDITIONS

OF

PROBATION

)

) [In addition to the speciai

) conditions of probation

) imposed above, it is hereby

) ordered that the general

) conditions of probation set

ADDITIONAL) out on the reverse side of

CONDITIONS) tnis judgment be imposed. The

OF ) Court may change the

PROBATION ) conditions of probation,

) reduce or extend the period of

) probation, and at any time

) during the probation period of

) within a maximum probation

) period of five years permitted

) by law, may issue a warrant

) and revoke probation for a

) violation occurring during the

) probation period.

) The court orders commitment to

) the custody of the Attorney

COMMITMENT) General and recommends,

RECOMMEN- )

DATION )

-90-

SIGNED BY

{It is ordered that the

|Clerk deliver a certified |

lcopy of this judgment and |

jcommitment to the U.S. |

|Marshal or other qualified/

lofficer. |

s }

ANTIA E. CAM

U.S. District Judge

Date 1/20/81 }

DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA vs.

DEFENDANT [SUSAN SMITH SPIEGEL

Docket No. 80-183

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the

attorney for the government

the defendant appeared in

Person on this date --------- January 20, 1981

)

COUNSEL ) [David D. Vigil [sic] Retained

)

) With Counsel

PLEA {GUILTY, and the court being

satisfied that there is a

factual basis for the plea,

ed

{There being a verdict of

GUILTY

— es

APPENDIX B

FINDING

&

JUDGMENT

SENTENCE

OR

PROBATION

ORDER

eee

tl i ee

[Defendant has been convicted

as charged of the offenses of

Conspiracy, in violation of

178 USC 371; and Bank Robbery,

in violation of 18 USC 21i3(a)

and (d), as charged in Counts

I and II of Indictment filed

October 22, i980.

[The court asked whether

defendant had anything to say

why judgment should not be

Pronounced. Because no

sufficient cause to the

contrary was shown, orc

appeared to the court, the

court adjudged the defendant

guilty as charged and

convicted and ordered that:

The defendant is hereby

committed to the custody of

the Attorney Generai or his

authorized representative for

imprisonment for a period of

FIVE (5) YEARS as to Count I.

TWENTY-FIVE (25) YEARS as to

Count II.

IT IF FURTHER ORDERED that the

sentence imposed in Count II

is to cun concurrent with the

sentence imposed in Count I.

-93-

SPECIAL

ae ee ee ee ee

CONDITIONS

OF

PROBATION

)

) [In addition to the special

) conditions of probation

) imposed above, it is hereby

) ordered that the general

) conditions of probation set

ADDITIONAL) out on the reverse side of

CONDITIONS) this judgment be imposed. The

OF ) Court may change the

PROBATION ) conditions of probation,

) reduce or extend the period of

° ) probation, and at any time

) during the probation period of

) within a maximum probation

) period of five years permitted

) by law, may issue a warrant

) and revoke probation for a

) violation occurring during the

) probation period.

) The court orders commitment to

) the custody of the Attorney

COMMITMENT) General and recommends,

RECOMMEN- )

DATION )

SIGNED RY

lIt is ordered tnat the |

|\Clerk deliver a certified |

lcopy of this judgment and |

jcommitment to the U.S. |

|Marshal or other qualified|

lofficer. i

s/ }

SANTIAGO E. CAMPOS

U.S. District Judge

Date 1/20/81 ]

NOVEMBER TERM = December 4, 1981

Before Honorable James E. Barrett, Honorable

William E. Doyle and Honorable James Kk.

Logan, Circuit Judges.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

)

)

)

)

Ve ) No. 81-1102

)

MANUEL MENDOZA TORRES, )

)

)

De fendant-Appellant.

This matter comes on for consideration

of appellant's petition for rehearing filed

in the captioned cause.

Upon consideration whereof, the petition

for rehearing is denied.

° L ’ erk

APPENDIX C

-96-

NOVEMBER TERM - December 28, 1981

Before Honorable James EF. Barrett, Honorable

William E. Doyle and Honorable James K.

Logan, Circuit Judges.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Ve Nos. 81-1103

MAX CANDIDO GRIEGO, and

SARAH GODOY and SUSAN 81-1105

)

)

)

)

)

) 81-1104

)

SMITH SPIEGEL, )

)

)

De fendants-Appellants.

This matter comes on for consideration

of appellants’ petitions for rehearing filed

in the captioned appeals.

Upon consideration whereof, the peti-

tions for rehearing are denied.

s

HOWA « PHILLIPS, Cierk

APPENDIX C

FILE

Office - Supreme Court, U.S.

D

No. 81-1586 APR 27 1982

CLERK

[. STEVAS.

Iu the Supreme Court of the United States

OCTOBER TERM, 1981

MANUEL MENDOZA TORRES, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

REx E. LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

PATTY MERKAMP STEMLER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

—

QUESTIONS PRESENTED

1. Whether petitioners were unlawfully arrested.

2. Whether evidence seized from a stolen getaway

car should have been suppressed at trial.

(1)

TABLE OF CONTENTS

Page

Opinion below 1

IIIT stictinctesssindeetintinieenicininat ttamcendnagititninnimnnnedtanenntaiat 1

Statement 2

Argument 6

Conclusion 14

TABLE OF AUTHORITIES

Cases:

Adams Y. Williams, 407 U.S. 148 -..........----------.-.-.-+-- 7

Berenyi V. Immigration Director, 385 U.S. 630........ 12

Brown V. Illinois, 422 U.S. 590 ..................-..-ccc0---0000 11

Carroll v. United States, 267 U.S. 132 -.................... 13

Chambers V. Maroney, 399 U.S. 42 ie 13

Colorado V. Bannister, 449 U.S. 1 -2..22.22222..2..200-000-- 13

Dunaway V. New York, 442 U.S. 200 -...................... 8

Mallory Vv. United States, 354 U.S. 449 -............... 9

McNabb v. United States, 318 U.S. 332 -................... 9,10

Rakas V. Illinois, 489 U.S. 128 = 9

Rawlings Vv. Kentucky, 448 U.S. 98 ite 11

South Dakota Vv. Opperman, 428 U.S. 364 ................ 13

Terry V. Ohio, 392 U.S. 1 ...........-----.--.-- 6,7

gS een 13

United States v. Ceccolini, 435 U.S. 268 -............... 11

United States v. Chamberlin, 644 F.2d 1262, cert.

denied, No. 80-1112 (June 29, 1981) ................... 8

United States v. Cortez, 449 U.S. 411 ..................... 6

United States v. McCambridge, 551 F.2d 865 ....... 9

United States v. Perez-Esparza, 609 F.2d 12864 ...... 8

United States v. Reliable Transfer Co., 421 U.S.

RE Tas en ee ee 12

United States v. Skelley, 501 F.2d 447, cert. denied,

RE Ee er eam ee 9

Wong Sun v. United States, 371 U.S. 471 -............... 8,11

(111)

IV

Constitution, statutes and rules:

United States Constitution, Fourth Amendment...

I A

ff 8 ea

EERE Rene ae Sea

18 U.S.C. 2113(d) elie laden die

N.M. Stat. Ann. — wntted si adel

Fed, R. Crim. P. 5(a) . OO an

Sup. Ct. R. 20.1 sinipeieanainineanindinbdiatini

Miscellaneous:

3 W. LaFave, Search and Seizure (1978) ................

R. Stern & E. Gressman, Supreme Court Practice

Sy Ue SEI cccestnlinieitieitiueninpnsiemdssadeastagvetninniatinihen

— A

NOSCSNNNDND &

o

©

Iu the Supreme Court of the United States

OCTOBER TERM, 1981

No. 81-1586

MANUEL MENDOZA TORRES, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 43-

79) is reported at 663 F.2d 1019.

JURISDICTION

The judgments of the court of appeals were entered

on November 5, 1981 (Pet. 3). A petition for rehear-

ing filed on behalf of petitioner Torres was denied

on December 4, 1981 (Pet. App. 96), and petitions

(1)

for rehearing filed on behalf of the three other peti-

tioners were denied on December 28, 1981 (Pet. App.

97). The petition for a writ of certiorari was filed on

February 23, 1982.' The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the District of New Mexico, petition-

ers were convicted of armed bank robbery, in viola-

tion of 18 U.S.C. 2113(a) and (d), and conspiracy,

in violation of 18 U.S.C. 371. Petitioner Godoy was

also convicted of possession of a firearm by a previ-

ously convicted felon, in violation of 18 U.S.C. App.

1202(a). Each petitioner was sentenced to five years’

1 The petition for a writ of certiorari is out of time as to

petitioner Torres. Rule 20.1 of the Rules of this Court

provide that a petition for a writ of certiorari to review

the judgment of a federal court of appeals in a criminal

case must be filed within 60 days after the entry of such

judgment. Timely filing of a petition for rehearing, however,

tolls the running of the 60-day period. In such a case, the

60 days within which a certiorari petition may be filed are

calculated from the date on which the petition for rehearing

was denied. See R. Stern & E. Gressman, Supreme Court

Practice 398-399 (5th ed. 1978). Here, petitioner Torres’

petition for rehearing by the court of appeals was denied on

December 4, 1981 (Pet. App. 96). Accordingly, the petition

for a writ of certiorari, which was filed on February 23,

1982, was out of time as to him. At least in the circumstances

of this case, where the court of appeals entered a separate

judgment of affirmance as to each defendant, the fact that

his co-defendants’ rehearing petitions were not denied until

December 28, 1981 (Pet. App. 97), is of no avail to peti-

tioner Torres. We are attaching a copy of the separate judg-

ment of affirmance that was entered as to petitioner Torres

(App., infra, la-2a).

3

imprisonment on the conspiracy count and 25 years’

imprisonment on the bank robbery count. In addition,

Godoy received a two-year sentence on the firearm

count. All sentences were imposed concurrently, ex-

cept for petitioner Torres’ sentences, which were to

be served consecutively (Pet. App. 80-95). The court

of appeals affirmed (Pet. App. 43-79).

1. On September 26, 1980, at approximately 1:00

p.m., a federally insured bank in Las Vegas, New

Mexico, was robbed of $87,700. Within 10 minutes,

a description of the robbers and their getaway truck

was transmitted over the police radio. The robbers

were two hispanic men and one hispanic woman. One

of the men was 5’ 11” and slim while the other was

described as short and stocky. The slim man was

wearing a trench coat. The trio carried a silver gun

and a square barrelled dark revolver and had fled

the scene in a brown Ford pickup truck. Shortly

after the robbery, the truck was found abandoned

two and one half blocks from the bank, its engine

still warm. Two bystanders reported seeing a gold

Firebird with Arizona license plates leave the area

where the truck was found, carrying four or five

passengers. The Firebird was then spotted at Ollie’s

Lounge in Las Vegas (Pet. App. 45-46, 51-52; I Tr.

32-35, 64-71, 87, 90, 106, 156-157; III Tr. 488-489,

512-514, 525-526; IV Tr. 640-641, 746).*

After hearing this latest information on the police

radio, Las Vegas police captain Pat Tapia saw the

Firebird at a service station located within two or

three blocks of Ollie’s Lounge. Captain Tapia ap-

proached the car and found petitioners Torres, Spiegel

21 Tr. refers to the transcript of the suppression hearing.

III Tr. and IV Tr. refer to the trial transcript. V Tr. refers

to the sentencing proceedings.

4

and Godoy in the Firebird and petitioner Griego in

a van parked next to the car. After additional offi-

cers arrived at the service station, petitioners were

frisked for weapons. The officers found a .357

Magnum on petitioner Torres and a chrome-plated

revolver on petitioner Griego. A check run on the

Magnum revealed that it was stolen. With Torres’

consent, the officers searched the Firebird and found

a .22 caliber weapon in the door pouch. Petitioners

were arrested and taken to the local police station

(Pet. App. 46-47, 52-53; I Tr. 72, 102-117, 159-162;

III Tr. 488-489, 491-494, 505-506, 510, 514-521, 527-

529, 543; IV Tr. 630-631, 635).*

The FBI was notified of the arrests, and both

federal agents and local police officers questioned

petitioners while they were in state custody. Peti-

tioners were given Miranda warnings and spoke to

the law enforcement officers, but they made no in-

culpatory statements, nor did they request counsel.

On the same day as the arrest, petitioner Torres con-

sented in writing to a further search of the Fire-

bird. He authorized the police to make a “complete”

search of the car and to seize “letters, papers, nar-

cotic drugs, other drugs, material or other property.”

During this search, the officers found a wallet be-

longing to one of the victims of the robbery on the

floor of the car. When shown the wallet, Torres com-

plained to one of the federal agents that he had not

intended for the officers to tear the car apart (Pet.

App. 47-48, 58; I Tr..43-44, 62-63, 73-74, 81, 84-86,

94-95, 148-150, 161-162; IV Tr. 614-615, 658, 659-

% Another weapon was found on petitioner Torres while he

was being transported from the service station to the police

station (III Tr. 507-508).

5

671, 680-689, 699-700, 704-705, 708, 711-717, 719-

720, 872-876).

Three days later, the officers learned that the

Firebird was stolen. They then conducted an inven-

tory search of the car and found a bag of money

from the bank robbery in the air vent in the car

door. On October 1, 1980, the United States filed

federal bank robbery charges against petitioners, and

they were arraigned the following day (Pet. App. 49-

50; I Tr. 162-167; III Tr. 546-566; IV Tr. 644-647,

680).

2. Prior to trial, petitioners moved to suppress all

the evidence gathered and statements made after

Captain Tapia stopped them. The district court found

that the officers’ detention of petitioners was sup-

ported by probable cause and that the guns were

properly seized at that time. The court also found

that Torres voluntarily consented to the second search

of the Firebird, which yielded the wallet, and that

that consent extended to the third search, which

resulted in the discovery of the stolen money (I Tr.

202-206; Ili Tr. 398-399; V Tr. 886-889).

The court of appeals affirmed the district court’s

findings of probable cause and consent (Pet. App.

51-56, 69-70). It also held that none of the evidence

was the fruit of an illegal delay between arrest and

arraignment (id. at 67-68). Further, noting that

petitioners were initially arrested by state officers

and maintained in state custody, the court of appeals

held that the FBI was under no obligation to bring

petitioners before a federal judicial officer until fed-

eral charges were filed. Hence, the court ruled (id.

at 57-66), Fed. R. Crim. P. 5(a) had not been

violated.

6

ARGUMENT

1. Both courts below correctly found that the de-

tention and arrest of petitioners fully comported

with the requirements of the Fourth Amendment.

At the time petitioners were stopped, less than an

hour after the bank robbery (I Tr. 14, 28), the

officers had descriptions of the three robbers and

the getaway vehicles. Two of the officers had found

the truck abandoned only a few blocks from the bank.

The officers also had the accounts of two eyewitnesses,

who saw four or five people leave the abandoned

truck in a gold Firebird with out-of-state license

plates. As petitioners acknowledge (Pet. 17), “a

gold-colored Firebird with Arizona plates was un-

common in the Las Vegas area * * *.” The officers

then spotted the Firebird, and its occupants fit the

description of the fleeing robbers. Torres, a tall, slim

man, and Griego, a short, stocky man, were accom-

panied by two women. This corroborated information

received from the robbery victims that one of the

robbers was a woman. Both courts below found these

facts sufficient to establish probable cause for the

arrests, and this fact-specific question does not war-

rant further review.

In any event, the totality of the circumstances un-

questionably met the reasonable suspicion standard

and warranted an investigatory stop. See United

States v. Cortez, 449 U.S. 411, 417 (1981); Terry

v. Ohio, 392 U.S. 1, 22-23 (1968). Once petitioners

*Contrary to petitioners’ suggestions (Pet. 9-10, 15, 23;

but see Pet. 16), Captain Tapia, who made the initial stop

(I Tr. 72, 107), testified (I Tr. 105, 113-114; III Tr. 488-

489) that prior to the stop he had received descriptions of

the bank robbery suspects and the vehicle in which they were

traveling.

7

were stopped, the frisk for weapons was necessary

to ensure the safety of the officers, particularly since

the officers had information that the bank robbers

were armed. Adams v. Williams, 407 U.S. 143, 146

(1972) ; Terry v. Ohio, supra, 392 U.S. at 23-24, 30.

When the officers came upon two guns, at least one

of which matched the description of a gui used in

the bank robbery,° petitioners’ further detention and

subsequent arrest unquestionably were supported by

probable cause.° Hence, the arrests created no

5It is not disputed that at least the .357 Magnum, which

was found on petitioner Torres, was seen, if not seized, by

the officers prior to his formal arrest (Pet. App. 53). The

Magnum matched the description of the square-barrelled, dark

revolver that was used in the bank robbery (ibid.). Pursuant

to petitioner Torres’ oral consent, the officers also discovered

the .22 caliber handgun in the door pouch of the Firebird

prior to the arrests.

*There is no evidence to support the court of appeals’

statement (Pet. App. 53), relied on by petitioners (Pet. 9),

that “[Captain] Tapia detained all four defendants for ap-

proximately twenty minutes, until other police authorities

arrived.” The district court made no such finding and, indeed,

the uncontradicted testimony of the police officers was that

the time interval between Tapia’s initial stop of petitioners

and the arrival of additional officers (at which time the

weapons, which unequivocally established probable cause,

were found) was very brief (I Tr. 109, 159; III Tr. 460-461,

514-515). Accordingly, the court of appeals must have con-

fused the time between the initial stop of petitioners and the

arrival of the additional officers with the time between the

initial stop and petitioners’ arrest, which, the police officers

estimated, was 20 minutes (I Tr. 109, 176; III Tr. 501-503)

(by contrast, petitioners Spiegel, Griego and Torres estimated

the time between the initial stop and their arrest at approxi-

mately one hour; I Tr. 127, 136, 141). Clearly, the fact that

8

“poisonous tree” on which to predicate the suppres-

sion of any evidence. Compare Wong Sun v. United

States, 371 U.S. 471 (1963).

2. Petitioners also urge suppression of the items

seized from the car on the grounds that (1) they

were detained for several days without being brought

before a judicial officer (Pet. 23-27); and (2)

Torres’ consent to the searches was not valid (Pet.

37-42). As we show below (see pages 9-13, infra),

neither of these claims has merit. Moreover, regard-

less of the outcome of either of the arguments

posited by petitioners, they are not entitled to sup-

pression because the searches, which were supported

petitioners were not formally placed under arrest until 20

minutes after they were stopped does not foreclose the exist-

ence of probable cause to arrest them prior to that time.

Accordingly, the cases on which petitioners rely are inap-

posite, since in each of them the defendant was detained for

20 minutes or more, during no part of which probable cause

existed. Moreover, the defendants in those cases were sub-

jected to more than simple detention at the location at which

they were found. See Dunaway v. New York, 442 U.S. 200

(1979) (without his consent, the defendant was transported

from a neighbor’s house to the police station, where he was

questioned in an interrogation room for an hour, at which

point he confessed to the crime) ; United States v. Chamber-

lin, 644 F.2d 1262, 1267 (9th Cir. 1980), cert. denied, No. 80-

1112 (June 29, 1981) (holding that a defendant’s 20-minute

detention was unreasonable in the absence of probable cause,

specifically noting that the defendant “was not questioned

briefly where he was found. He was placed in the back seat

of a police car for twenty minutes’) ; United States v. Perez-

Esparza, 609 F.2d 1284 (9th Cir. 1979) (defendant removed

from his car and taken to a Border Patrol office, where he

was detained for three hours in an interrogation room pend-

ing the arrival of DEA agents).

by probable cause, were permitted by the automobile

exception to the warrant requirement.’

a. Petitioners first contend (Pet. 23-37) that the

seized items shou'd have been suppressed because

petitioners were not arraigned until several days

after their arrests. They rely on the supervisory rule

announced in McNabb v. United States, 318 U.S. 332

(1943), and Mallory v. United States, 354 U.S. 449

(1957), which requires the exclusion of evidence

seized as a result of “unnecessary delay” in bringing

py accused before a magistrate following his federal

arrest.

As an initial matter, petitioners’ McNabb-Mallory

claim fails because all of the evidence they seek to

suppress was seized before petitioners were charged

by federal authorities. See, e.g., United States v.

Skelley, 501 F.2d 447, 450 (7th Cir.), cert. denied,

419 U.S. 1051 (1974). The search for the bank rob-

bers was conducted solely by the local police. Peti-

7 It is also doubtful that any of the petitioners has “stand-

ing” to challenge the searches of the Firebird, a stolen car.

Generally, the fact that a vehicle is stolen precludes a legiti-

mate expectation of privacy in it (see Rakas v. Illinois, 439

U.S. 128, 143-144 n.12 (1978); United States v. McCam-

bridge, 551 F.2d 865, 870 n.2 (1st Cir. 1977); 3 W. LaFave,

Search and Seizure § 11.3, at 573-574 (1978)). That would

not necessarily be the result here if it were established that

petitioners did not know that the Firebird was stolen, None-

theless, it is clear that neither Griego, who was not even in

the Firebird at the time of the stop, nor Spiegel or Godoy,

who were merely passengers, has standing to challenge the

searches. See Rakas Vv. Illinois, supra, 489 U.S. at 148-149.

Accordingly, petitioner Torres, who drove the Firebird, is

the only petitioner who arguably has standing to challenge

the search of it. As we noted above (note 1, supra), however,

the petition for a writ of certiorari is out of time as to him.

10

tioners were arrested by and taken into the custody

of the local authorities, where they remained from

September 26 until October 3, 1980 (I Tr. 124). All

three searches of the Firebird were conducted by

local police officers. Although the FBI was notified

of the arrests and questioned petitioners at the police

station, the federal government did not bring charges

against petitioners until the bag of money was dis-

covered. As the court of appeals found (Pet. App.

65), the delay in bringing charges was not part of

any effort to circumvent the requirement of Fed..R.

Crim. P. 5(a). Since petitioners were arraigned

promptly upon the filing of federal charges against

them, there was no McNabb-Mallory violation here.*

Moreover, McNabb-Mallory only requires the ex-

clusion of evidence that is “secured through” unnec-

essary delay between arrest and arraignment.

McNabb v. United States, supra, 318 U.S. at 345.

The aim of the rule is “to avoid all the evil implica-

tions of secret interrogation of persons accused of

crime.” McNabb v. United States, 318 U.S. at 344.

Its purpose is to limit the opportunity for the police

to conduct intensive interrogation before the accused

is advised of his rights by a magistrate. Here, as

8 Petitioners’ factual contention (Pet. 31-33, 35-37) that,

notwithstanding the fact that federal charges were not filed

until October 1, 1980, there was a “working agreement”

between the FBI and the local police that warrants suppres-

sion was properly rejected by the court of appeals (Pet. App.

60-67).

We acknowledge that New Mexico law (N.M.Stat.Ann.,

§ 31-1-5(B) (1978)) required the State officers to bring peti-

tioners before a local magistrate or judge following their ap-

prehension “without unnecessary delay.” Their failure to do

so, however, does not render any of the seizures unconstitu-

tional.

ll

the court of appeals found (Pet. App. 67-68), none

of the evidence seized was the fruit of unnecessary

delay between arrest and arraignment.

The guns were seized contemporaneously with the

arrests, “[t]he statements that were taken from

[petitioners] were obtained when they were first

brought to the Las Vegas police station * * * and

the written consent for the search of the gold Fire-

bird [carried out later that same day] was also ob-

tained shortly after their arrival at the police sta-

tion” (Pet. App. 68). The court of appeals further

found that the search for the stolen money, which oc-

curred three days later, “related back to the consent

given on the first day” (ibid.). Even assuming that

Torres’ written consent did not extend to the subse-

quent search, however, that search was not the fruit

of petitioners’ detention, but rather was an inventory

search conducted by the local officers as a result of

their determination—from their independent investi-

gation of the vehicles, not from any admissions by

petitioners—that the Firebird was stolen (see page

13, infra).*

* Prior decisions of this Court foreclose petitioners from

arguing that the seizure of the money during the final, Sep-

tember 29 search was a fruit of their prior detention on the

ground that, “but for” that detention, the Firebird would

not have been in police custody and thus subject to the investi-

gation (i.e., the removal of a false registration plate from the

outside of the car) that resulted in the discovery that it was

stolen and the concomitant inventory search. See Rawlings Vv.

Kentucky, 448 U.S. 98, 106 (1980); United States v. Cecco-

lini, 485 U.S. 268, 276 (1978); Brown Vv. Illinois, 422 U.S.

590, 603 (1975); Wong Sun v. United States, 371 U.S. 471,

487-488 (1963). Rather, the proper fruits analysis is that,

since the fact that the Firebird was stolen was discoverable

12

b. Petitioners do not seriously challenge the valid-

ity of petitioner Torres’ consent to search the Fire-

bird except with respect to the final, September 29

search of the vehicle, which resulted in the discovery

of the stolen money (Pet. 37-42). Although peti-

tioners assert (Pet. 38) that Torres’ consent was in-

valid because it was a consent “designed to convince

a police officer that he won’t find anything,” the

record does not show that Torres hesitated in giving

the consent or qualified his consent in any manner.

If Torres hoped that the police would not act on his

grant of permission, he assumed the risk that his

bluff would fail. Both courts below correctly found

that the consent was freely given, and further review

of this factual determination is not warranted.

United States v. Reliable Transfer Co., 421 U.S. 397,

401 n.2 (1975); Berenyi v. Immigration Director,

385 U.S. 630, 635 (1967).

Petitioners contend (Pet. 39-42) that the search

of the Firebird that yielded the stolen money ex-

ceeded the scope of the consent to search that Torres

had given the officers. Prior to the second search of

the Firebird, which produced the wallet of one of the

victims of the bank robbery, Torres had consented in

writing to a “complete” search of the car. The writ-

ten consent contained no limitations on the scope of

the search. After the officers discovered the wallet,

Torres complained that he had not intended for the

police officers to tear the car apart. That Torres

immediately upon the initial stop of the vehicle—that is, the

officers’ ability to discover that information was not en-

hanced by petitioners’ allegedly unlawful detention—the in-

ventory search that followed from that information was not

a product of the challenged detention.

13

hoped that the officers’ search would be superficial

and unproductive, however, is insufficient to limit his

unambiguous consent to a “complete” search. Peti-

tioners further contend that this complaint itself con-

stituted a retraction or at least a limitation of

Torres’ consent and that therefore the third search

was invalid. Whatever the merit of this claim, how-

ever, the third search was not conducted pursuant to

Torres’ consent, but rather was an inventory search

conducted by the officers after they had independently

discovered that the Firebird was stolen. See South

Dakota v. Opperman, 428 U.S. 364 (1976). The

police clearly did not require any consent to conduct

an inventory search of the stolen car. See South Da-

kota v. Opperman, supra, 428 U.S. at 376 n.10.

c. In any event, all three searches were lawful

because, at the time the officers conducted each search,

they had probable cause to believe that the Firebird

contained evidence of the bank robbery, in particular,

the stolen cash. Under the automobile exception to

the warrant requirement, law enforcement officers may

conduct an on-the-scene search of a car if they have

probable cause to believe it contains evidence of a

crime, or they may delay the search until the car

has been removed from the scene. Colorado v. Ban-

nister, 449 U.S. 1, 3 (1980); Texas v. White, 423

U.S. 67, 68 (1975) ; Chambers v. Maroney, 399 U.S.

42, 52 (1970) ; Carroll v. United States, 267 U.S. 132

(1925). In this case, a cursory search of the car for

weapons was conducted at the scene of the arrest

and more thorough searches were subsequently con-

ducted at the place of impoundment. The circum-

stances establishing probable cause to arrest peti-

tioners also established probable cause to search the

car.

14

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

REx E. LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

PATTY MERKAMP STEMLER

Attorney

APRIL 1982

—

A pe get ly ee a i ll i, i SO aE i ll lin til

la

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SEPTEMBER TERM—November 5, 1981

Before Honorable James E. Barrett, Honorable Wil-

liam E. Doyle, and Honorable James K. Logan, Cir-

cuit Judges

No. 81-1102

(D.C. No. CR 80-183-1)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

Vv.

MANUEL MENDOZA TORRES, DEFENDANT-APPELLANT

JUDGMENT

This cause came on to be heard on the record on

appeal from the United States District Court for the

District of New Mexico and was argued by counsel.

Upon consideration whereof, it is ordered that the

judgment of that court is affirmed. It is the further

order of this court that Manuel Mendoza Torres,

appellant, shall, within ten (10) days from and after

the date of the filing of the mandate of this court in

the district court, surrender himself to the custody

of the United States Marshal for the District of

New Mexico in execution of the judgment and sen-

tence imposed upon him.

2a

The District Court may, in its discretion, permit

the appellant to surrender directly to the designated

Bureau of Prisons institution for service of sentence.

/s/ Howard K. Phillips

HOWARD K. PHILLIPS

Clerk

A true copy

Teste

HOWARD K. PHILLIPS

Clerk

U.S. Court of Appeals

Tenth Circuit

By /s/ Opal A. Carter

Depuiy Clerk

W ov. 8. coveenment paintine orrice; 1962 872608 676