The opinion of the court was delivered by: MISHLER
Defendant was convicted after trial to the court on a charge of armed bank robbery of the Long Island Savings & Loan Association on July 12, 1972, in violation of 18 U.S.C. § 2113(a). He was sentenced under the Youth Correction Act pursuant to 18 U.S.C. § 5010(b). The sole question presented to the United States Court of Appeals for the Second Circuit was the voluntariness of a written confession made to F.B.I. Agents Baker and McCartin on November 15, 1972, at the New York City Housing Authority Police Precinct,
at 98th Street and Third Avenue, New York City. The Court of Appeals, by order dated October 9, 1973, remanded the case to the undersigned for ". . . findings as to whether defendant, at the time of questioning by Agents Baker and McCartin, was in custody or otherwise deprived of his freedom in any significant way." On November 7, 1973, this court held an evidentiary hearing on the issue.
The court finds as follows:
The bank manager, Edward Larson, observed the two bank robbers enter the getaway car and noted that it was a silver gray automobile bearing the registration number 734 OVJ. It turned out to be a silver gray Pontiac Grand Prix, reported stolen by its owner, Luis Chevez, about ten days prior to the robbery. In the course of the auto theft, Chevez's driver's license and some cash were taken. On July 14, 1972, the Pontiac Grand Prix was found abandoned at 74th Street and Riverside Drive in New York City. At approximately the same time a Ford Thunderbird was reported stolen near that location. On July 28, 1972, three men identified as Lenny Green (called Diamond), Allan Brown and Ronald Riddick were found in possession of the stolen Thunderbird when they were arrested by police after a high-speed chase. Green confessed to the bank robbery and named one Robert Gonzalez as his accomplice. Gonzalez turned out to be fictitious.
On September 6, 1972, Detective Christopher Francone of the New York City Housing Police Authority arrested one Eddie Knox on a charge of possession of stolen property. A search of Knox's person resulted in the seizure by Detective Francone of a New York State driver's license in the name of Luis Chevez. On September 19, 1972, Knox was arrested on a charge of illegal sale of firearms by the Federal authorities. Knox told the authorities in an interview on October 2, 1972
that he had bought the license from one Thomas Bruen (called Bo) during a party in the apartment of one Peter Annunziata, with Lenny Green also present.
Bruen, when later interviewed, (Government's Exhibit 16) stated that Knox had gotten the license from Green, not from himself. He said that Green often hung out with an individual called Orenzo ("Rennie") Charles, who lived at the Lehman Village Housing Project. Bruen was shown the surveilling photographs of the robbery. The individuals depicted wore halloween masks. He stated that the general characteristics of the robbers resembled Green and Charles, but he was unable to identify either on the photographs. Annunziata, interviewed on October 31, 1972, (Government's Exhibit 17), was unable to identify Charles from the bank surveillance photographs, although he felt the other individual was Green. He identified photos of Bruen and Green as "Bo" and "Diamond" respectively.
As a result of Bruen's comments that Green associated with Orenzo Charles and that the individuals in masks appeared to him to be Green and Charles, Detective Francone sought to interview defendant and went to the Lehman Housing Project at 116th Street and Park Avenue in New York City, where defendant resided with his parents. At this point, the investigation had not focused on Charles as the suspect, or even as a prime suspect.
On November 13, 1972, Detective Francone called at defendant's residence, but defendant was not at home. Detective Francone advised defendant's father of his identity and of his desire both to speak to the defendant about some robberies and to have the defendant look at some mug shots which Francone had brought with him.
He assured the father that he did not intend to arrest the defendant. Detective Francone gave the father his telephone number with a request that defendant call him. Defendant failed to call, and Detective Francone returned the next day. Defendant's father advised Detective Francone that he had not heard from defendant. Again, Detective Francone assured the father that he only wanted information and did not intend to arrest the defendant. Detective Francone telephoned the residence and received a promise from the father that defendant would call.
Defendant telephoned Detective Francone at the Housing Authority Police Precinct on November 15, 1972, at about 5:00 P.M. Detective Francone asked defendant if he would come down to look at some mug shots and, if possible, identify some people believed to be involved in some robberies. Soon after this last telephone call, defendant appeared at the Housing Police Precinct with a girlfriend.
The court notes that defendant's acquiescence to the interview at the stationhouse was a voluntary and knowing choice. Detective Francone had originally brought the mug shots to defendant's home on November 13th, indicating a willingness to hold the interview at a place other than the stationhouse. At no point thereafter did Detective Francone ever insist that an interview had to be held and furthermore, that it had to be held at the Housing Authority Precinct. Defendant, prior to coming to the stationhouse, was informed by Detective Francone of the nature and subject matter of the interview. Thus defendant, at the time he voluntarily came to the stationhouse, knew that the line of inquiry would involve "some robberies."
In fact, defendant later stated that when he had come to the police station he knew what the questioning was probably about.
Defendant, upon appearing at the Housing Authority Precinct,
was directed to Detective Francone's office on the second floor.
When defendant entered the office, Detective Francone identified himself and his partner, Detective Guskin. Detective Francone suggested that defendant's girlfriend wait outside the office.
While Detective Francone exhibited various mug shots in his mug shot book, he asked defendant whether he knew any of the individuals shown. The defendant was asked to go through the book to see if he recognized anybody. Defendant gave negative answers until Detective Francone returned to Bruen's photograph. Defendant then admitted he knew Bruen. He implicated Bruen in the robbery-kidnapping of Luis Chevez. He also implicated Bruen and one Willie Wright (called "Hollywood") in the robbery of a supermarket. Defendant implicated Bo (Bruen) and Diamond (Green) in the robbery of a supermarket in the Bronx. Defendant stated he was not implicated in any of these crimes and indicated he received his information from Bruen. Detective Francone asked defendant if he knew anything of the robbery of the Long Island Savings & Loan Association; defendant answered in the negative. In response to questions about Green's activities, defendant stated he had ridden in a Grand Prix with Bruen and Green and that in July, 1972, he had received $100.00 as repayment of a loan from Green. At this point, at about 6:00-6:30 P.M., Detective Francone left the room to call F.B.I. Special Agent Robert McCartin. In response to this call, Special Agent McCartin arrived at the Housing Authority Police Precinct with Special Agent William M. Baker about 8:20 P.M. When the agents arrived at the second floor they saw the defendant seated at a desk in the Manhattan Squad office, talking with Detective Francone. Other detectives were present, and all personnel were in civilian clothes. No one wore a badge or shield or displayed a weapon. Defendant walked into an adjoining office known as the Bronx-Queens Squad room. The room had chairs, filing cabinets and a desk. Defendant sat at the side of the desk; Special Agents Baker and McCartin sat at the front of the desk, and Detective Francone and his partner were in another part of the room doing work unrelated to the Federal investigation. The door to the room was open during the questioning. At the time the questioning began, the agents believed that defendant might be able to supply information concerning the bank robbery. Furthermore, as an associate and friend of Green's, defendant was considered a possible accomplice in the bank robbery.
After advising defendant of his and Agent Baker's identity, Agent McCartin advised defendant that he wanted to inquire about the Long Island Savings & Loan Association robbery on July 12th. Defendant indicated he understood the purpose of the interview. McCartin then read a form incorporating the "Miranda warnings", at which point defendant proceeded to sign a waiver of his constitutional rights. Special Agent McCartin then advised him that he was free to leave at anytime and that he was not under arrest.
Defendant was not advised that Green had been identified as one of the robbers. The questioning first concerned his relationship with Green. Then, when asked pointedly whether he was involved in the robbery with Green, defendant denied it.
Special Agent Baker noticed that the defendant was wearing a shiny narrow metal bracelet similar to the one depicted on one of the robbers on the bank surveillance photograph. Baker further noticed defendant attempting to hide the bracelet from view by pushing it under his shirt sleeve. Defendant thereupon orally confessed his complicity in the robbery and signed the written confession upon which the conviction is based.
Miranda barred statements given without both advice of constitutional rights and warnings as to the consequences of the failure to exercise those rights during custodial interrogation. Miranda defined custodial interrogation as ". . . questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (384 U.S. at 444, 86 S. Ct. at 1612.)
Interrogation by law enforcement officers is not usually pre-arranged or conducted pursuant to rules or regulations. Reported cases are of little aid in formulating a guide for classifying an interrogation as custodial or noncustodial except in the instance where a formal arrest has been made. Definition of custodial ...