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February 2, 1973

Derek YOUNG, Charles Lark

Huyett, District Judge.

The opinion of the court was delivered by: HUYETT

In a four-count indictment the defendant, Henry Derek Young, was charged by the Grand Jury on October 4, 1972 with violations of 18 U.S.C. ยง 2113(a), (b) and (d). Defendant has moved to suppress a statement given by him to agents of the Federal Bureau of Investigation (FBI) on October 3, 1972. The statement admits defendant's guilt in robbing the Penn Federal Savings and Loan Association (PFS&LA) on October 3, 1972. Five grounds are offered in support of the motion to suppress: (1) defendant was arrested without probable cause and the subsequent interrogation was the fruit of this unlawful arrest, (2) he did not have the requisite mental capacity to understand the warnings of constitutional rights as may have been given to him, and therefore could not have intelligently and knowingly waived those rights, (3) he was a drug addict and was entitled to medical treatment or attention before the government can prove that it met the burden of showing a waiver of constitutional rights, (4) the constitutional rights given to him by the FBI agents were insufficient, and (5) Rule 5, Federal Rules of Criminal Procedure, was violated by interrogation unnecessarily lengthened by questioning defendant about crimes unrelated to the specific crime which led to his arrest on October 3, 1972. A hearing on the motion to suppress was held on January 8 and continued to January 15, 1973. On the government's motion, a further hearing was held on January 30, 1973. At the hearing the government called seven witnesses, the two members of the Philadelphia Police Department who apprehended the defendant, the three FBI agents who interrogated the defendant, a United States Marshal who took the defendant's photograph and personal history the day after defendant's arrest, and a clinical psychologist, Mr. Albert Levitt. The defense called Dr. Kenneth J. Barber, Jr., a clinical psychologist.

 The testimony of the two Philadelphia police officers, Lawrence DeJarnette and Alton Smith, was substantially the same. Both officers were "staked out" in plain clothes and on foot at the back of the Mid-City Federal Bank at 1607 Walnut Street, Philadelphia on October 3, 1972. They received a radio call at approximately 2:25 P.M. that a bank at 1627 Walnut Street (PFS&LA) had been robbed. The radio message did not give a description of the person who had reportedly robbed the bank at 1627 Walnut Street. It took the officers about thirty (30) seconds to walk to the front of the Mid-City Federal Bank at which time they saw the defendant running (or trotting as Smith testified) from the area in front of PFS&LA across Walnut Street, in an easterly direction from the North to the South side of the street. There was very little traffic or people on the street at the time. DeJarnette stated that he first saw the defendant halfway across Walnut; Smith stated he first saw the defendant three (3) feet in front of PFS&LA. Smith was in front of DeJarnette when they came out of Mid-City Federal. Both officers testified that the defendant was looking back as he ran across Walnut. The defendant went behind a truck parked at 1608 Walnut. It was there that he was arrested.

 The defendant stopped behind the truck. DeJarnette took from the defendant a folded copy of a newspaper the defendant had been carrying. A.32 caliber revolver with three spent cartridges and two live shells was in the paper. It is not clear whether DeJarnette saw the revolver when he took the newspaper from the defendant. We, however, credit his testimony that he believed from the feel of the item in the newspaper that it contained a weapon. DeJarnette frisked the defendant; he felt bulges in defendant's pockets but did not conduct a more thorough search at that time. He thought the bulges were caused by paper. The officers took the defendant back to the bank where he was positively identified by the teller who had just been robbed. The officers then conducted a more thorough search and found three thousand six hundred and fifty-six dollars ($3,656) in defendant's pockets. Defendant was then taken to the Central Detective Division (CDD) of the Philadelphia Police Department. Both officers stated that the defendant looked physically normal when arrested; defendant was not upset or nauseous; he had no cold sweats; and there were no fluids running from his eyes or nose.

 The next witness, FBI agent Kelly, arrived with FBI agent Fields at the CDD at approximately 3 P.M. The defendant was in a room by himself apparently handcuffed to a bench. The agents identified themselves, and told the defendant of the charge against him. They then advised him of his constitutional rights, and gave him an index size card containing on one side the warnings that (1) the defendant had the right to remain silent, (2) anything he said can be used against him in court, (3) he had the right to talk to a lawyer for advice before being asked any questions and to have a lawyer with him during questioning, (4) if he could not afford a lawyer, one would be appointed for him before any questioning, and (5) he had a right to stop answering at any time. The opposite side of the card stated that the defendant had read the rights, understood them, was willing to make a statement without a lawyer's presence, and that he understood and knew what he was doing. This side of the card was signed by the defendant. Agent Kelly testified that it was his recollection that Fields had first advised defendant of his rights. Having read the card, Fields gave it to the defendant to read. When the defendant said he could not read, Fields asked if defendant understood his rights. The defendant stated that he did understand his rights, and signed the card. Fields, in his testimony, and the notation on the first page of the FBI log indicate, however, that it was Kelly who first advised defendant of his rights. In either case the process of the warnings and the defendant's signing expended approximately four (4) minutes.

 Having signed the waiver of rights card, the defendant was then shown photographs of himself taken during the robbery of Fidelity Bank on an earlier occasion. The defendant admitted that the photographs were of him, and that he had robbed numerous other institutions. He also stated that he was glad that he had been arrested, and had in fact attempted to have himself arrested on two prior occasions. Kelly explained that the FBI had received two phone calls stating that a person fitting the description of the person in the published photographs was at a certain bar. Each time the phone caller gave a name with variations of Henry Derek Young. In addition, the defendant stated that he had at one time been stopped by a Philadelphia police officer who said that he recognized Young as the person in the published photographs suspected of robbing a bank. The police officer did not, however, arrest the defendant. Kelly stated that the defendant was glad to get the crimes off his chest, get them cleared up, and obtain assistance for his drug problem.

 The defendant related the facts concerning seven other bank robberies. In reference to the robbery of PFS&LA, the defendant stated that he had requested Charles Lark, the co-defendant in this case, to write a demand note. Both Kelly and Fields testified that they were surprised by the defendant's ability to recollect the specific details of each of the seven other robberies that had occurred since August 31, 1972. They testified that the defendant's recall of the details of the robberies was better than their own even though they were the case agents on some of the robberies. Kelly testified that the defendant had been asked at the beginning of the interview if he felt all right. The defendant responded that he did feel all right. Both agents stated that the defendant appeared physically normal, did not appear to have withdrawal symptoms, spoke coherently, and that there was nothing abnormal about defendant's eyes.

 Kelly and Fields at about 5 P.M. transported the defendant to the FBI offices. After arriving at FBI offices, the defendant was given food, and he made a phone call. There was no response, however, to defendant's call. At approximately 6:30 P.M. a further interrogation began. This interrogation was conducted by FBI agents King and Fields. Again King and Fields' testimony was substantially the same. During the approximately next two hours, the defendant gave statements admitting to the following eight bank robberies: (1) Continental Bank (18th and Walnut Streets) on August 31, 1972, (2) Fidelity Bank (7th and Market Streets) on September 1, 1972, (3) First Pennsylvania Bank (16th and Cherry Streets) on September 8, 1972, (4) Fidelity Bank (24th and Manning Streets) on September 15, 1972, (5) Western Savings Bank (15th and Walnut Streets) on September 22, 1972, (6) Industrial Valley Bank (15th and Walnut Streets) on September 25, 1972, (7) Fidelity Bank (6th and Market Streets) on September 28, 1972, and (8) PFS&LA on October 3, 1972. Before all but the last statement, the defendant was told that he would be asked about a specific bank robbery, he was read the warning of waiver of constitutional rights and asked if he understood that he was waiving his rights. Each time the defendant said he understood he was waiving these rights, and signed a standard FBI form to that effect. In total the defendant had his constitutional rights read to him on eight occasions, including the reading given at CCD, and each time the defendant indicated he understood that he was waiving his rights.

 Before the defendant was taken to jail at approximately 10:30 P.M. to be held for an appearance before the U.S. Magistrate the next day, he made two more phone calls and was given refreshments. King testified that he knew the defendant was a narcotic addict but that the defendant appeared physically normal. He also testified that he had asked the defendant how he felt about six or seven times. Each time the defendant stated that he felt all right. Finally, Kelly testified that he called the Magistrate at 7 P.M. and was told by the Magistrate to hold the defendant over night. He was to bring the defendant before the Magistrate the next morning. The defendant was not brought before a Magistrate until November 11, 1972, thirty-nine (39) days after his arrest. He was, however, indicted October 4, 1972, the day after the arrest.

 The defense's only witness was Dr. Kenneth John Barber, Jr., a clinical psychologist. Dr. Barber is the chief psychologist for adult services at the Northeast Mental Health Center in Philadelphia, is on the staff of Hahnemann Hospital, and teaches at Bucks County Community College. He has a Master of Arts and a Doctor of Philosophy degree in Psychology from Temple University. Barber interviewed the defendant on December 29, 1972, for approximately one-half hour. The defendant was seen again by Barber on January 10, 1973 for approximately an hour at which time the defendant took certain tests to determine his mental capacity. The test results showed that the defendant had a full-scale I.Q. of 57 with a 62 verbal I.Q. and a 56 non-verbal I.Q. It was Barber's opinion that that the defendant was within a mentally defective range and would be considered mildly mentally retarded. In addition, Barber testified that a person of the defendant's age with a 57 I.Q. had a second grade reading level with the intelligence of an eight or nine-year old. It was Barber's opinion that a person of defendant's intelligence would not be able to understand that he was waiving his constitutional rights even though they were read to him.

 The government, while not rebutting Barber's testimony, sought to minimize its accuracy and persuasiveness. On cross-examination Barber testified that the I.Q. measurement was based on a comparison of defendant's age with persons of the same age, that experience with the test would affect the ability to score well, that experience with the criminal law would increase the ability to understand a waiver of constitutional rights, and that motivation would affect a person's score.

 It was further adduced during Dr. Barber's testimony that defendant had completed four years of schooling apparently in classes for orthrogenically backward persons. The written report of Barber notes that the defendant did not know the colors of the United States flag, and that his thinking abilities may have been effected by the use of LSD and glue sniffing. There is no evidence that defendant, in fact, engaged in these activities.

 At the January 30th hearing the government presented testimony by Mr. Albert Levitt. Mr. Levitt is Chief Psychologist for the Philadelphia Court of Common Pleas, and has been associated with that office for six (6) years. He is also associated with the Temple University Unit on Law and Psychiatry, has practiced clinical psychology at Bordentown Correctional Institution and Trenton State Prison, has worked with the Pennsylvania Parole Board Narcotic Unit, and has been a consultant to the Pennsylvania and New Jersey Board of Corrections and the Federal Parole Board. He has a Master of Arts degree in psychology from Temple University, and has completed one year of credit in psychology at Temple University beyond the Master of Arts degree. In addition, Mr. Levitt lectures at Villanova University on forensic psychology. In his testimony Mr. Levitt stated that he had examined more than three thousand (3000) persons during his practice as a clinical psychologist. During an interview with the defendant on January 29, 1973, Mr. Levitt administered six different tests to the defendant for the purpose of determining the defendant's ability to comprehend and understand.

 On the Kent Emergency Scale Test the defendant registered a 53 I.Q. comparable to the intelligence of an eight (8) year old. In reference to the Kent test Mr. Levitt testified that the defendant "misses on larger conceptual" matters, that the defendant does not know directions, does not know the colors of the United States flag, and does not know why the moon appears larger than the stars. On the Wechsler Intelligence test (verbal) the defendant registered an I.Q. of 66. On the Vineland Social Maturity Scale Test (a test designed to ascertain the ability of a person to help himself in common everyday activities, e.g. dressing, eating) the defendant had the ability of a nine (9) year old. Similar results were recorded in reference to the other tests administered. A common strain in Levitt's testimony, however, was that the defendant was oftentimes malingering in his answers, was generally impulsive, had a short attention span, was indifferent and at times hostile resulting in answers well below his ability. Furthermore, Levitt stated that the defendant's emotional complex affected adversely his intellectual ability, that the defendant's responsiveness to questions is better if the questions are asked in a manner the defendant appreciates and that defendant has a higher intellect than the test scores indicated. Finally, it was Levitt's firm conclusion that the defendant could understand the ...

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