The opinion of the court was delivered by: NICKERSON
NICKERSON, DISTRICT JUDGE
Defendants Leonard Morris and Charles Morris, indicted for armed bank robbery in violation of 18 U.S.C. § 2113, have each moved to suppress certain oral statements.
Leonard Morris asserts that he was arrested without probable cause and that his statements should be suppressed as the "fruit" of the illegal arrest. Charles Morris likewise contends that his statements were the "fruit" of an illegal arrest. He also claims that he was not given the warnings required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and was refused a lawyer before making the statements and that in any event they were coerced.
From the testimony given at a hearing the court makes the following findings.
On the morning of January 19, 1978 Detective Anthony DeGise of the New York City Police Department was waiting in a police vehicle with Detective Allen Hooker in the vicinity of Van Tuyl and York Streets, Staten Island. They were seeking Charles Morris, who was wanted for a burglary committed in 1977 and was the subject of a "wanted" card on file with the New York City police department. Some time after noon a black car, which, as the officers had been informed, was being operated by Charles Morris and in which Leonard Morris was a passenger, came towards the police.
When Charles Morris recognized the police vehicle, he made a sudden stop and a U-turn, and sped rapidly away. The officers gave chase but the black car eluded them, and they radioed ahead to Sergeant Carney and Detective Wilk who took up pursuit.
After some blocks Charles Morris stopped his car, got out and ran. Carney and Wilk drove up to the black car, Carney got out, and Wilk drove on towards Charles Morris. When Wilk caught up with him he was attempting to climb up an embankment into an empty lot. Wilk stopped the police car and with his revolver drawn stepped out. As he did so Wilk slipped on the ice, and the revolver accidentally fired into the air. Charles Morris turned around and on orders from Wilk came down the embankment with his hands up and was arrested.
Back at the black vehicle Carney placed Leonard Morris under arrest. However, the precise circumstances of that arrest are unclear. There was hearsay evidence testified to by one of the detectives that Carney had ordered Leonard Morris out of the car, that he had refused, holding the car door shut, and that Carney had then apprehended him for that refusal. A detective also testified that he saw Carney "pulling" at the door of the car, but did not see or hear Carney make the arrest.
The official police report of the accidental discharge of Wilk's revolver gives a different version, reciting that both Morrises got out of the black car before Carney and Wilk reached it. Neither Carney nor Wilk testified.
There was no "wanted" card outstanding for Leonard Morris, and the only theory on which the detectives sought to justify his arrest was that he had obstructed governmental administration by disobeying Carney's order to vacate the car and thus had impeded Carney's immediate search of the car for guns he believed were in it. The government therefore had the burden of establishing that Leonard Morris had indeed refused to get out of the car. Brown v. Illinois, 422 U.S. 590, 604, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975); United States ex rel. Mungo v. LaVallee, 522 F.2d 211, 215 (2d Cir. 1975), vac. on other grounds 428 U.S. 907, 96 S. Ct. 3215, 49 L. Ed. 2d 1213 (1976); United States v. Elgisser, 334 F.2d 103, 110 (2d Cir. 1964); cert. den. sub nom., Gladstein v. United States, 379 U.S. 879, 13 L. Ed. 2d 86, 85 S. Ct. 148 (1964).
The court may, of course, consider hearsay on this issue. Rules 104(a) and 1101(d)(1) of the Federal Rules of Evidence. But the hearsay evidence was conflicting. The statement in the official report of the firearms discharge that Leonard Morris was outside the black car when Carney arrived is just as believable and plausible as the hearsay recounted by the detective. The government, which could have called Carney and Wilk to testify, has thus failed to sustain its burden, and the court decides the case on the basis that Leonard Morris was unlawfully arrested.
After the Morrises were arrested the detectives took them to the 122nd precinct in Staten Island, where they arrived at about 1:30 P.M. Shortly thereafter DeGise read the Miranda warnings to Charles Morris, who said he understood them and agreed to talk. He did not ask for an attorney. However, DeGise, who had other work to do, did not commence the interview immediately but returned after 4 P.M., took Charles Morris from the holding pen, and again read off the Miranda warnings. Again Charles Morris said he understood them and did not ask for an attorney. When he said he would give a statement as to the robberies in which he participated, DeGise put a piece of paper into the typewriter and proceeded with the questioning.
Charles Morris then admitted to the commission of five Staten Island robberies, in two of which (Acme Supermarket and Savon Drugs) he said Leonard Morris had participated. After the typing was complete DeGise gave the paper to Charles Morris. He refused to sign an admission of all five robberies and said he would "sign for" only one, a robbery of an ice cream store on Richmond Terrace. DeGise then typed up another paper reciting that Charles Morris admitted to robbing the ice cream store in October 1977. DeGise stapled to the paper a pink slip containing the Miranda ...