# Record and brief — Torres v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1319%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1982 - **Citation:** 456 U.S. 973 ## Text 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