United States v. Charlie Tucker

VAN GRAAFEILAND, Circuit Judge,

dissenting:

In the opening sentence of its opinion in Dunaway v. New York, 442 U.S. 200, 202, 99 S.Ct. 2248, 2251, 60 L.Ed.2d 824 (1979),1 the Court said:

We decide in this case the question reserved 10 years ago in Morales v. New York, 396 U.S. 102, [90 S.Ct. 291, 24 L.Ed.2d 299] (1969), namely, “the ques*1014tion of the legality of custodial questioning on less than probable cause for a full-fledged arrest” id., at 106 [90 S.Ct. at 293].

My brothers decide the instant case as if the question “reserved” ten years ago had actually been decided. In so doing, they distort the purported justification for the exclusionary rule, which is the deterrence of official misconduct. See United States v. Ceccolini, 435 U.S. 268, 281, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978) (Burger, C. J., concurring in the judgment); Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).

In United States v. Peltier, 422 U.S. 531, 542, 95 S.Ct. 2313, 2320, 45 L.Ed.2d 374 (1975), the Court said:

If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.

Applying this doctrine to cases involving retroactivity, the Court said:

The teaching of these retroactivity cases is that if the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the “imperative of judicial integrity” is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that manner. Id. at 537, 95 S.Ct. at 2317 (emphasis supplied).

This is the doctrine that this Court has heretofore applied. See United States v. Sotomayor, 592 F.2d 1219, 1226-27 (2d Cir. 1979); United States v. Corcione, 592 F.2d 111, 118 (2d Cir.), cert. denied, 440 U.S. 975, 985, 99 S.Ct. 1545, 1801, 59 L.Ed.2d 794, 60 L.Ed.2d 248 (1979); United States v. Diaz, 577 F.2d 821, 824 (2d Cir. 1978); United States v. Reda, 563 F.2d 510, 511-12 (2d Cir. 1977), cert. denied, 435 U.S. 973, 98 S.Ct. 1617, 56 L.Ed.2d 65 (1978).2

Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), relied upon by the majority, is not an exclusionary rule case. Where the conduct of police officers is at issue, the question is not whether a Supreme Court decision lays down a new rule clearly departing from prior authorities, but whether, under the law which preexisted the decision, the police officers might properly be charged with knowledge that their conduct was unconstitutional. United States v. Peltier, supra, 422 U.S. at 542, 95 S.Ct. 2313; Savina Home Industries, Inc. v. Secretary of Labor, 594 F.2d 1358, 1363-65 (10th Cir. 1979); United States v. Berry, 571 F:2d 2, 3 (7th Cir.), cert. denied, 439 U.S. 840, 99 S.Ct. 129, 58 L.Ed.2d 138 (1978).

The officers who took appellant into custody were members of the New York City Police Department. Just one year prior to the incident in question, the New York Court of Appeals held that “[l]aw enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable and brief period of time under carefully controlled conditions which are ample to protect the individual’s Fifth and Sixth Amendment rights.” People v. Morales, 42 N.Y.2d 129, 135, 397 N.Y.S.2d 587, 590, 366 N.E.2d 248, 251 (1977); cert. denied, 434 U.S. 1018, 98 S.Ct. 739, 54 L.Ed.2d 765 (1978).3 This opinion followed reargument of the same case in which the Supreme Court had reserved decision in 1969. 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969). My brothers now charge the *1015New York City Police Officers with a greater knowledge of constitutional law than was then possessed by the judges of New York State’s highest court.4

*1017In applying the exclusionary rule in this case, the majority also imputes to the New York City police officers more legal acumen than was possessed by the very capable district judge who, under pre-Dunaway standards, found that “the police did have probable cause to bring in the defendants concerning suspicion of bank robbery.” That the law as enunciated in Morales was for many years the law of this circuit can hardly be disputed. See United States v. Drummond, 354 F.2d 132, 145 (2d Cir. 1965); United States v. Middleton, 344 F.2d 78, 83 (2d Cir. 1965); United States v. Vita, 294 F.2d 524, 529-30 (2d Cir. 1961), cert. denied, 369 U.S. 823, 82 S.Ct. 837, 7 L.Ed.2d 788 (1962); United States v. LaVallee, 270 F.2d 513, 518 (2d Cir. 1959), cert. denied, 361 U.S. 950, 80 S.Ct. 403, 4 L.Ed.2d 382 (1960); United States v. Thomas, 250 F.Supp. 771, 790 (S.D.N.Y.1966), aff’d, 396 F.2d 310 (2d Cir. 1968). In United States v. Vita, 294 F.2d at 529-30, then Chief Judge Lumbard explained the applicable legal principles as follows:

Moreover, even if Vita had been involuntarily detained for questioning or had believed that he had no choice but to accompany the F.B.I. agents to headquarters, we would not necessarily hold such detention to be an “arrest” within the meaning of Federal Rule of Criminal Procedure 5(a). The rule does not apply to a case in which federal officers detain a suspect for a short and reasonable period in order to question him. The right to question has its roots in early English practice and was approved by the common law commentators and the courts. . . . This prerogative of police officers to detain persons for questioning is not only necessary in order to enable the authorities to apprehend, arrest, and charge those who are implicated; it also protects those who are readily able to exculpate themselves from being arrested and having formal charges made against them before their explanations are considered.

Only two years ago, this Court said that “although every arrest is a form of detention, the converse is not true.” United States v. Oates, 560 F.2d 45, 57 (2d Cir. 1977). We there stated that “a law enforcement officer has the power, indeed the obligation, to detain a person temporarily for the purpose of interrogating him if the officer reasonably suspects that the detainee has committed ... a crime.” Id. at 58—59 (footnote omitted).5 We said that a balancing test should be applied in determining the legality of the detention, one that weighed the seriousness of the detention against the seriousness of the suspected offense. Id. at 59. See also United States v. Rico, 594 F.2d 320, 326 (2d Cir. 1979), where we found “reasonable” the conduct of a DEA agent in taking defendants to a police station to verify Rico’s assertion that certain powder in a plastic bag was not heroin.6

In Dunaway, the Supreme Court rejected the balancing test except for narrowly-defined intrusions. 442 U.S. at 208, 99 5. Ct. at 2254. Judge Oakes says that, in so *1018doing, the Supreme Court simply “restated” Fourth Amendment principles. However, Justice Brennan, who wrote for the Court in Dunaway, stated that the Court granted certiorari to “clarify” Fourth Amendment requirements. 442 U.S. at 206, 99 S.Ct. 2253. I suggest that the difference in terminology is more than mere semantics.

Application of the exclusionary rule imposes an enormous cost upon society. Brewer v. Williams, 430 U.S. 387, 421-22, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (Burger, C. J., dissenting). “The cost is particularly high because the exclusionary rule ‘deflects the truthfinding process and often frees the guilty.’ ”7 Gates v. Henderson, 568 F.2d 830, 839 (2d Cir. 1977) (en banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978) (quoting Stone v. Powell, 428 U.S. 465, 490 (1976); see United States v. Ceccolini, 542 F.2d 136, 143-44 (2d Cir. 1976) (Van Graafeiland, J., dissenting), rev’d, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). Because “neither deterrence nor judicial integrity, the two purposes served by the exclusionary rule”, will be furthered by retroactive application of Dunaway’s clarifying holding, and because of the “obvious burden on the administration of justice” that will be created by such retroactive application, see United States v. Reda, supra, 563 F.2d at 512, I respectfully dissent.

. Dunaway was decided after this case was briefed and argued.

. See also Linkletter v. Walker, 381 U.S. 618, 636-40, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Todd Shipyards Corp. v. Secretary of Labor, 586 F.2d 683, 689-91 (9th Cir. 1978); United States v. Walker, 569 F.2d 502, 503-04 (9th Cir.), cert. denied, 435 U.S. 976, 98 S.Ct. 1625, 56 L.Ed.2d 70 (1978); United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977).

. See also People v. Wise, 46 N.Y.2d 321, 330, 413 N.Y.S.2d 334, 385 N.E.2d 1262 (1978); People v. Boyer, 65 A.D.2d 840, 841, 410 N.Y.S.2d 167 (1978); People v. Dunaway, 61 A.D.2d 299, 302-03, 402 N.Y.S.2d 490 (1978), rev’d, 442 U.S. 200, 99 S.Ct. 2248 (1979).

. Judge Oakes says that the dissent relies upon “one incorrect holding by a lower state court”, the “lower” state court being the Appellate Division Fourth Department, which decided People v. Dunaway, 61 A.D.2d 299, 402 N.Y. S.2d 490 (1978), and that no other cases cited in the dissent were clearly overruled by Duna-way. This statement will, I am sure, be of great comfort to the prosecuting attorneys in People v. Morales, supra, 42 N.Y.2d 129, 397 N.Y.S.2d 587, 366 N.E.2d 248, People v. Wise, supra, 46 N.Y.2d 321, 413 N.Y.S.2d 334, 385 N.E.2d 1262, and People v. Boyer, supra, 65 A.D.2d 840, 410 N.Y.S.2d 167, and to the New York courts as well. However, I am afraid that Judge Oakes and I read cases through different colored glasses. Instead of engaging in discourse with my learned colleague, I include the following excerpts from Morales, Wise, and Boyer, so that the reader may determine for himself whether these cases are consistent with Dunaway and whether, in view of their holdings, the New York City police officers in the instant case were guilty of bad faith in taking petitioner into custody.

People v. Morales, supra, 42 N.Y.2d at 131—32, 135-36, 137, 397 N.Y.S.2d at 587-588, 588, 590-591, 591-592, 366 N.E.2d at 248-249, 249, 251-252, 252:

This case is here for the second time. In the early morning hours of October 4, 1964, Addie Brown was viciously stabbed to death in the elevator of her Bronx County apartment building. There were no eyewitnesses to the murder and an extensive police investigation failed to uncover any direct evidence as to the identity of the killer. Yet the police did learn that Melvin Morales, a known narcotics addict, had frequented the building, had been inside the building at the time of the homicide, and had not been seen since the murder Morales’ mother was a tenant in the building and Morales sojourned with her from time to time. Further, the building was the scene of frequent narcotics activity in which Morales allegedly participated. The police attempted to contact Morales through his mother. On October 13, 1964, nine days after the killing, Mrs. Morales received a telephone call from her son. She informed him that the police desired to question him. Morales agreed to appear at his mother’s beauty parlor, her place of business. The police, who had seen previous efforts to contact Morales through his mother fail, had staked out the premises. When Morales arrived, the police advised him that they desired to speak to him. Morales replied, “Yes, I know.” He was placed in a police car and driven to the precinct house. At the station house, Morales was informed of his constitutional rights and was questioned. Within 15 minutes, he confessed to the murder.
Defendant was convicted, after a jury trial, of murder in the first degree. The Appellate Division affirmed his conviction (27 A.D.2d 904, 280 N.Y.S.2d 520) and a further appeal was taken to our court. We sustained the conviction. It was conceded that the record would not support a conclusion that the police had probable cause to arrest defendant at the time he was taken into police custody. Further, the record on appeal did not establish that the defendant consented to being detained and questioned by the police. However, in a case of first impression, we held “that a suspect may be detained upon reasonable suspicion for a reasonable and brief period of time for questioning under carefully controlled conditions protecting his Fifth and Sixth Amendment rights.” (People v. Morales, 22 N.Y.2d 55, 64, 290 N.Y.S.2d 898, 907, 238 N.E.2d 307, 314.)
Having concluded that probable cause to arrest was lacking, we adhere fully to the views articulated in our prior opinion in this case. Law enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable and brief period of time under carefully controlled conditions which are ample to protect the individual’s Fifth and Sixth Amendment rights. For a full exposition of our views, reference is made to our earlier opinion (People v. Morales, 22 N.Y.2d 55, 290 N.Y.S.2d 898, 238 N.E.2d 307, supra.) At this stage of the case, our attention is directed to the argument of the defendant, accepted by the dissenter at the Appellate Division, that the vitality of the Morales holding has been undercut by Brown v. Illinois (422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, supra) and People v. Martinez, 37 N.Y.2d 662, 376 N.Y.S.2d 469, 339 N.E.2d 162, supra. We disagree.
In the Brown case, police officers investigating a homicide had been informed that the defendant was an acquaintance of the victim. On this information, and this information only, the officers broke into defendant’s apartment, searched it, and arrested the defendant at gunpoint. The Supreme Court concluded that defendant’s subsequent confessions should have been suppressed because the confessions were obtained as a result of an illegal arrest. The court, in language relied upon by this defendant, noted that the officers were aware that they lacked a sufficient predicate for the arrest. The arrest was “investigatory” and was an “expedition for evidence in the hope that something might tum up.” (422 U.S. at p. 605, 95 S.Ct. at p. 2262.)
The Brown case has only limited relevance to the case before us. Of course, if the police *1016conduct here was illegal, then defendant might cogently contend that, under Brown and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, the confessions of Morales should be suppressed as fruit of the poisonous tree. However, the basic distinction is that the arrest in Brown was illegal; the limited detention of Morales was not. . . .
To sum up, our original view in Morales remains valid today. No case, in our court or in the United States Supreme Court, has the effect of vitiating the principle we enunciated. Actually, since Morales, our court has noted that the individual’s right “to be free from an official interference by way of inquiry” is not absolute. (People v. De Bour, 40 N.Y.2d 210, 217, 386 N.Y.S.2d 375, 381, 352 N.E.2d 562, 568.) Rather, “a policeman’s right to request information while discharging his law enforcement duties will hinge on the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter.” (40 N.Y.2d at p. 219, 386 N.Y.S.2d at p. 382, 352 N.E.2d at p. 569.)

People v. Boyer, supra, 65 A.D.2d at 840-41, 842, 410 N.Y.S.2d at 167-168, 168-169:

Appeal from a judgment of the County Court of Albany County, rendered September 22, 1977, upon a verdict convicting defendant of the crimes of burglary in the third degree, and grand larceny in the second degree. At about 4:30 A.M. on June 2, 1977, two police officers in a patrol car noticed defendant standing in the street in front of the premises at 345 Broadway in the City of Albany, calling for a taxi which was about three blocks away. They proceeded slowly past him and, their suspicions being aroused, went around the block and returned to 345 Broadway and found defendant gone. They then found a window broken in 345 Broadway, and other signs of entry into the building. They then broadcast a description of defendant. The officers began checking the neighborhood for defendant and went into Coulson’s News Center on Broadway where they were advised that someone matching defendant’s description had been seen getting into a yellow colored cab. This information was also broadcast. Shortly thereafter, another patrol car saw a cab near the intersection of Madison Avenue and Green Street and they noticed a black male in the cab who appeared to match the description which had been broadcast. They stopped the cab, and asked him to step out so they could speak to him. Defendant denied that he had been on Broadway, but since he matched the description that had been broadcast, the officers who had made the broadcast were called to the scene. These officers identified him, and he was asked if he would go with them to the Detective Office. Defendant had a cut on the back of his left hand. They then proceeded to the Detective Division Office where he was advised that they were investigating a burglary, and advised him of his "Miranda ” rights. He was asked if he would empty his pockets which he did. Among the articles which were in his pockets were some watches, a set of keys and foreign currency. The officers then obtained a list of the .property which was missing from the scene of the burglary which included two stop watches and a set of keys. Two stop watches and the set of keys which had been in defendant’s pockets were thereafter identified by the owner as having been reported missing in the burglary. Defendant thereafter admitted his participation in the burglary and signed a confession. Defendant then moved to suppress the confession and the items obtained from defendant’s pockets. After the hearing, the motion was denied .
“Where a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person (CPL 140.50, subd. 1; see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. Cantor [36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872,] supra).” (People v. De Bour, 40 N.Y.2d 210, 222, 223, 386 N.Y.S.2d 375, 384, 352 N.E.2d 562, 567.) In this case, the police were justified in stopping the taxicab to investigate the suspected burglary. The police officer’s testimony that he knew that a burglary had occurred clearly relates to when the apparent burglary was confirmed by the owner of the premises. Knowing that a burglary had apparently taken place and that the taxi passenger met the description of the man originally observed near the burglary location, the officers act reasonably in stopping the cab and detaining the passenger based upon “the common-law power to inquire for purposes of maintaining the status quo until additional information could be acquired”. (People v. Dibble, 59 A.D.2d 796, 398 N.Y.S.2d 755.) The police were justified in stopping and detaining defendant based upon specific and articulable facts which, taken together with rational inferences from these facts, reasonably warranted the intrusion. The denial of the motion to suppress should be affirmed.

People v. Wise, supra, 46 N.Y.2d at 330, 413 N.Y.S.2d at 339-40, 385 N.E.2d at 1267-68:

These statements of an eyewitness placing defendant at the scene of the crime were sufficient to form the basis for a custodial detention (see, e. g., People v. Morales, 42 N.Y.2d 129, 135-136, 397 N.Y.S.2d 587, 590-591, 366 N.E.2d 248, 251-252). So long as the police are solicitous of an- individual’s rights, and carefully delimit the scope of the intrusion, a custodial detention predicated *1017upon reasonable suspicion can hardly be termed “unreasonable” (People v. Morales, supra). On this record, therefore, defendant’s pretrial suppression motion was correctly denied.

In People v. Dunaway, supra, 61 A.D.2d at 302, 402 N.Y.S.2d at 492, the Court said:

We believe that this case is controlled by the recent decision of the Court of Appeals in People v. Morales [, 42 N.Y.2d 129, 397 N.Y. S.2d 587, 366 N.E.2d 248] ....

Judge Oakes says that the New York City police officers could not reasonably have had the same belief. I respectfully disagree.

. In Oates, appellants unsuccessfully contended that they “were under arrest from the instant they were asked by Customs Security Officers Fromkin and DeAlfi to accompany them to a nearby office.” 560 F.2d at 57.

. In Rico, the Court said:

In the bag Whitmore found a plastic bag containing a brown powdery substance that looked to him like heroin. He asked Rico what it was and Rico said it was nothing. At that point Whitmore advised the three that they would have to go with him to the police desk, which was at least three quarters of a mile away, and took them outside to obtain police assistance.

594 F.2d at 323.

. This is nowhere better illustrated than in Dunaway itself, where the defendant, convicted of felony murder and attempted robbery, is now walking the streets a free man. Before this Court decides that Dunaway should be applied retroactively, it should gravely consider how many other persons convicted of murder, robbery or rape will be returned to the streets as a result of its holding.