Appeal from judgment of conviction for three bank robberies entered after jury trial before the United States District Court for the Eastern District of New York, Henry Bramwell, Judge. Case remanded for reconsideration, after further fact-finding, of whether appellant's detention was an "arrest," whether it was supported by the requisite degree of probable cause, and whether his post-detention statements were obtained in exploitation of an illegal detention.
Before Oakes and Van Graafeiland, Circuit Judges, and Carter, District Judge.*fn*
This is an appeal from a judgment of conviction entered on February 2, 1979, by the United States District Court for the Eastern District of New York, Henry Bramwell, Judge, after a jury trial, for three armed bank robberies, in violation of 18 U.S.C. §§ 2113(a), 2113(d), and 2. Appellant urges that the police lacked probable cause for detaining him prior to eliciting inculpatory statements and that certain statements introduced at trial were the inadmissible fruit of an unlawful arrest. For the reasons that follow, we reverse the judgment of the district court and remand the cause for proceedings consistent with this opinion.
The facts, briefly, are as follows. On April 17, 1978, two tall black males robbed the Chase Manhattan Bank, 3126 Avenue U, Brooklyn, New York. On April 25, two black males robbed the same bank; a bank employee testified at trial that she recognized the tall man who controlled the floor as the same in both robberies. A truck driver saw the robbers leave after the second robbery and was later able to describe the car in which they escaped, including its license plate. The following day, police on patrol spotted a car of a similar description, with a closely similar plate. (The witness had described the automobile as a blue Dodge Dart or a Nova with license plate number 552-CZZ or 352-CZZ; the automobile that appellant tried to enter was a rented blue Dodge Aspen with license plate number 552-ZCV.) According to testimony at the suppression hearing, the police saw appellant and another man unsuccessfully attempt to open the car's doors, engaged the two men in conversation as to who owned the car, and asked them (and a third man who had joined them) to come down to the station to determine who owned the car. Appellant was detained for several hours in a holding pen until agents of the Federal Bureau of Investigation arrived. The agents told him that he was under arrest for the April 25 robbery, at which he blurted out "All right, you got me." The agents immediately gave Miranda warnings to appellant and obtained a confession from him on the spot. They obtained a further confession the following morning, when they transported him to his arraignment.
Appellant was released on bail on April 27, 1978. On August 16, 1978, there was a robbery of a different bank in Brooklyn. Based on eyewitness testimony, the police arrested appellant for the robbery later that morning.
Appellant moved to suppress physical evidence and post-arrest statements concerning all three robberies. But with respect to the two April robberies, appellant explicitly limited the grounds for his motion to two issues, inadequate Miranda warnings and improper government influences to make the appellant talk, specifically disavowing any illegal arrest argument. During the December 11 hearing on the motion, however, the judge permitted questioning on the issue of illegal arrest over the Government's objection. Appellant raised the illegal arrest/poisonous fruit argument at the end of the hearing, and the court considered and summarily rejected it.
Under Fourth Amendment principles recently restated in Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979), the Government has not on this record, satisfied its burden of proving by a preponderance of the evidence, See Brown v. Illinois, 422 U.S. 590, 604, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975), that the confessions on April 26 and April 27, 1978, were admissible and were not the fruit of an illegal arrest. First, the detention of appellant in the holding pen apparently did constitute an "arrest," requiring a finding of the usual degree of probable cause, not the lesser degree permitted by the stop-and-frisk cases such as Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and progeny. As in Dunaway, the police told the appellant to come down to the station for questioning, leaving him with the impression that until they were through with him, he was not free to leave. See Dunaway, supra, 442 U.S. at 208, 99 S. Ct. at 2254.
The dissent argues that Dunaway should not be applied retroactively because it decides a new question of law and broadens the exclusionary rule, and that the policy of deterrence said to underlie the exclusionary rule*fn1 would not be served by applying it retroactively while the administration of justice would be unduly burdened by such application. But Dunaway does not purport to expand Fourth Amendment protections beyond the contours established in prior cases. Thus, although Dunaway was decided subsequently to the oral argument in this case, it establishes no "new principle of law," Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971), and we should apply it here. The general standard for nonretroactivity is discussed in Chevron Oil, supra, 404 U.S. at 106-07, 92 S. Ct. at 355:
First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see, E.g. Hanover Shoe, (Inc.) v. United Shoe Machinery Corp. (392 U.S. 481, 496, 88 S. Ct. 2224, at 2233, 20 L. Ed. 2d 1231 (1968)), or by deciding an issue of first impression whose resolution was not clearly foreshadowed, E.g., Allen v. State Board of Elections (393 U.S. 544, 572, 89 S. Ct. 817, at 835, 22 L. Ed. 2d 1 (1969)). Second, it has been stressed that "we must * * * weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Linkletter v. Walker (381 U.S. 618, 629, 85 S. Ct. 1731, at 1738, 14 L. Ed. 2d 601 (1965)). Finally, we have weighed the inequity imposed by retroactive application, for "(w)here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the "injustice or hardship' by a holding of nonretroactivity." Cipriano v. City of Houma (395 U.S. 701, 706, 89 S. Ct. 1897, 23 L. Ed. 2d 647 (1969)).
The proper application of this three-fold standard in Fourth Amendment exclusionary rule cases is to be found in United States v. Peltier, 422 U.S. 531, 95 S. Ct. 2313, 45 L. Ed. 2d 374 (1975), in which the Court declined to give retroactive application to Almeida-Sanchez v. United States, 413 U.S. 266, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973) (warrantless Border Patrol auto searches, without probable cause, unconstitutional). In Peltier the Court held that where law enforcement agents acted pursuant to a validly enacted federal authorizing statute whose predecessor dated back to 1946, "supported by longstanding administrative regulations and continuous judicial approval," 422 U.S. at 541, 95 S. Ct. at 2319, a new finding that such conduct violates the Fourth Amendment and requires application of the exclusionary rule should not be applied retroactively. The rationale was that in such cases the law enforcement officers did not know, and could not reasonably be charged with knowing, that their conduct was improper and that therefore neither the "judicial integrity" purpose, nor the deterrent purpose, of the Fourth Amendment exclusionary rule would be served by retroactive application. 422 U.S. 531 at 537-38, 541-42, 95 S. Ct. 2313, 45 L. Ed. 2d 374.
The issue here may be stated as whether a detention in a police station "holding pen" for several hours, for investigative purposes, may be brought within some sort of an expanded Terry v. Ohio, supra, stop-and-frisk exception to the probable-cause requirement. The principal issue in Brown v. Illinois, supra, concerned the per se efficacy of Miranda warnings in dispelling the taint of prior police illegality. The illegality, however, in Brown was an improper detention, about which the Court had this to say:
The impropriety of the arrest was obvious; awareness of that fact was virtually conceded by the two detectives when they repeatedly acknowledged, in their testimony, that the purpose of their action was "for investigation" or for "questioning."
422 U.S. at 605, 95 S. Ct. at 2262. While the Court also mentions the fact that the manner of arrest appeared to aim at causing "surprise, fright, and confusion," Id., the principal emphasis of its analysis of the arrest appears to lie in its investigative purpose. Brown alone would be good precedent for the conclusion that the detention in the present case was illegal, unless probable cause can be established.
The dissent cites several cases which expressly condone "investigative detentions" under certain conditions, and implies by this argument either that these cases were overruled by Dunaway or that if they were not overruled by Dunaway it would have been reasonable to think, before Dunaway, that their principles properly applied to the present fact situation. Closer analysis reveals, however, that neither of these suggestions is correct and ...