The opinion of the court was delivered by: MARSH
The defendant, John Clark Low, Jr., in Criminal Action No. 66-41, was indicted for possession of counterfeit obligations of the United States, a felony under 18 U.S.C.A. § 472. He was arrested at Washington, Pennsylvania, toward midnight of November 6, 1965, by secret service agents while in possession of a satchel containing 4,666 counterfeit twenty-dollar Federal Reserve Notes and was immediately taken to the secret service office in Pittsburgh. There the satchel was opened, and he was questioned for a period of an hour to an hour and a half by the agent in charge, Paul T. Usher.
The defendant has moved to suppress all evidence obtained in conjunction with his arrest and subsequent interrogation. We think that the defendant's motion must be granted in part and denied in part.
Mr. Usher, agent Harry P. Stewart, and the defendant testified at a hearing. The following is a summary of the testimony.
During the last quarter of 1965, agents of the secret service office for the western district of Pennsylvania became aware of an unusually active circulation of counterfeit twenty-dollar Federal Reserve Notes within certain areas of the district. Some of this activity was concentrated in Washington County.
In October, agent Stewart of the Pittsburgh office received information that Low was connected with this activity; that he had handled a $10,000 counterfeit note transaction and had advanced $5,000 and indicated a desire to buy as much as $250,000 worth of counterfeit twenty-dollar notes.
Subsequently, on November 6, 1965, between 7:15 and 7:30 p.m., agent Stewart was told that there had been plans made for Low to accept delivery of counterfeit notes. About 7:30 p.m., agent Stewart met an informant, acting under secret service instructions, and another agent, Ivan Ford, at the Oakmont entrance to the Pennsylvania Turnpike, north of Pittsburgh. There Stewart first saw the satchel containing the counterfeit money, samples of which he examined. The satchel and the counterfeit were placed in the custody of agent Ford. Stewart was told that the delivery was tentatively scheduled for New Stanton, Pennsylvania, some distance east of Pittsburgh. Agent Stewart went to New Stanton, but no delivery took place. About 9:15 p.m., he was told that Low had arranged to accept the money at Washington, Pennsylvania, south of Pittsburgh, "within the hour". Agent Stewart then proceeded to Washington, Pennsylvania.
Sometime between 11:00 p.m. and midnight, Low arrived alone in his car at the combination Railway Express Agency and train station in Washington where the delivery was to take place. He parked across from the station and sat in his car waiting. The purpose of his being there was to pick up the satchel, which he knew would contain counterfeit bills. A quarter hour to a half hour later, a car driven by the secret service informant, accompanied by agent Ford, arrived at the station. Low recognized the car and blew his horn. Someone in the other car beckoned. Low then followed the other car into the station area and the two cars parked side by side. Low left his car and went to the other car. He got into the back by the left rear door. Inside, the driver, whom Low knew as Jack, introduced the passenger in the front seat. The passenger (agent Ford) said, "'here it is'", indicating the satchel of counterfeit money which was on the floor of the car in back on the right side. Low knew the satchel was supposed to contain $100,000 in counterfeit money. After about five minutes, Low left the car with the satchel and walked back to his own car. At this point, agent Stewart and three other secret service agents, who had been observing from positions around the station, commenced to walk toward Low's car. The car containing the secret service informant and agent Ford sped away. Low opened the door to his car, threw the satchel on the front seat and got in behind the wheel. As he was about to start his motor, the driver's door was opened and a secret service agent said: "'You're under arrest.'" Low got out of the car backwards. As he did so, he tossed onto the front seat a revolver which he had pulled from under his belt.
In apprehending Low, the agents had neither an arrest nor a search warrant. Low's car, with the satchel of counterfeit notes and the revolver still on the front seat, was driven to Pittsburgh by agent Stewart. Low was taken, handcuffed, in a secret service car. At the secret service office, agent in charge Usher told the agents to remove the handcuffs. Low was taken into Usher's office and seated there. Usher told Low: "'All right, you understand this, you're in here on a serious matter, and you have to say nothing. You're not required to say anything, and before you say anything, you're entitled to call an attorney.'" Low, according to Usher, said: "'All right. * * * I want to get rid of this stuff. * * * I'm just a little man. * * * I'm not more than an inbetween.'" Usher said: "'Now, wait a minute.'" Usher then looked at the counterfeit money and found out from the agents what had happened in Washington, while Low interjected some statements. Usher then said to Low: "'What do you want to tell us about this?'" Low at this point gave the oral statement he seeks to have suppressed.
Agent Stewart was present during part of the questioning and confirmed the fact that Low was advised of his constitutional rights. Stewart testified: "Mr. Usher advised him of his rights, that he did not have to make any statements, that anything that he said could be used against him. He was advised that he could consult with an attorney. As a matter of fact, he was advised to get himself an attorney."
About 3 1/2 hours after his arrest, Low was returned to his home by the agents and released from custody. At this time, he took agent Stewart into his home and showed him $15,000 in lawful currency which he said was to be used to purchase additional counterfeit money in a second transaction to be completed that Sunday.
Low contends that he cooperated "all the way" with the agents who stated that "if I cooperated, it would go easier on me" and, alternatively, that if he did not tell them what they wanted to know "they said I could go to jail * * * that morning." He could not say which agent, or whether more than one agent, said this to him. These statements were not contradicted.
Low was not taken before a commissioner that night or at any other time. He was indicted February 10, 1966, and is at ...