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UNITED STATES v. HARRIS

September 26, 1974

UNITED STATES, Appellee
v.
ERNEST JAY HARRIS, Appellant


Ditter, J.


The opinion of the court was delivered by: DITTER

In this case the defendant was convicted by a United States Magistrate *fn1" of attempting to carry a concealed weapon aboard a commercial aircraft. *fn2" He appeals *fn3" on the grounds that he was not given Miranda warnings and there was no showing that he intended to violate the statute. I affirm.

 Ernest Jay Harris was arrested at Philadelphia International Airport on September 25, 1973, while attempting to board a Delta Air Lines flight for Montgomery, Alabama. While passing through a passenger boarding area, Harris placed a piece of hand luggage upon a conveyor belt which transported it through an x-ray scanning device. On the x-ray screen, an airport inspector, Tony Mastricola, spotted a handgun inside the bag. He in turn notified Diane Burton, an agent of a private security company working for the airport. She also observed the pistol, and thereupon opened the bag and between two pairs of trousers discovered the weapon, a loaded.22 caliber Derringer. Harris stated that his younger son, Stephen, had packed the suitcase and that he was unaware that it contained a gun. Donald Istak, a Philadelphia police officer assigned to a screening detail at the airport, came to the scene and questioned Harris about his destination and whether he possessed a license for the firearm. Having seen a plane ticket in Harris' hand, Officer Istak removed him to an office in the airport where he was interrogated by Detective George Hatton, also a member of the Philadelphia police force. Again he denied any knowledge that the bag contained a gun. Neither of the police officers advised appellant of his Miranda rights. Thereafter he was turned over to agents of the Federal Bureau of Investigation who advised him of his rights and interrogated him. He maintained that he had no knowledge of the pistol's presence in the suitcase.

 At trial, which was conducted by the Honorable Edwin E. Naythons, United States Magistrate, appellant testified that although the pistol was not his, he had discovered it in his home some months prior to his arrest and concealed it in the basement. He explained that his older son, Reuben, recently had been involved in a number of gang shootings, and was in fact incarcerated as a juvenile delinquent. Appellant and his younger son, Stephen, both stated that it was Reuben's trousers which were packed in the suitcase because none of appellant's were available. Stephen said that he took out his brother's pants and placed them on a bed, from which they were simply lifted into the suitcase. Appellant and his son also testified that the airport security officer found the gun inside a pocket of one of Reuben's pairs of trousers, rather than between two pairs as the officer claimed. Harris admitted he had previously been convicted of aggravated assault and battery with intent to murder two persons by shooting, and introduced the prior conviction as an exhibit as part of his defense. Judge Naythons found Harris guilty on November 30, 1973, and placed him on probation. This appeal followed.

 Appellant urges reversal of his conviction on three grounds: (1) his statement to the first officer, Istak, should have been excluded because of the officer's failure to give appellant the Miranda warnings; (2) his statements made to the FBI agents should be excluded, notwithstanding the fact that he was given Miranda warnings, because that interrogation was impermissibly tainted by the questioning of Detective Hatton in the office at the airport, the latter conversation having been suppressed by Judge Naythons; and (3) 42 U.S.C. ┬ž 1472(l) requires knowledge on the part of the accused of the presence of a concealed deadly or dangerous weapon, knowledge which appellant here lacked. After a careful review of the record, I am persuaded that appellant's arguments all are without merit.

 Sitting as I am in this instance, as a single-judge court of appeals, I am obliged to accept the findings of fact of the Magistrate unless such findings are clearly erroneous. Taylor v. United States, 358 F. Supp. 384, 385 (S.D. Fla. 1973); United States v. Margraf, 347 F. Supp. 230, 232 (E.D. Pa. 1972).

 Appellant's first contention -- that Officer Istak should have advised him of his Miranda rights before asking if he possessed a license for the firearm in his suitcase and whether he was a ticketed passenger -- flies in the face of both case law and the inherent practicalities of such a situation. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), established the doctrine that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination," 384 U.S. at 444, 86 S. Ct. at 1612, and set out a specific set of protective guidelines to effectuate that principle. *fn4" The Court hastened to add, however, that:

 
Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. State of Illinois, 378 U.S. 478, 492, 84 S. Ct. 1758, 1765, 12 L. Ed. 2d 977 . . . General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding.

 384 U.S. at 477, 86 S. Ct. at 1629.

 What constitutes a custodial interrogation within the meaning of Miranda must, of course, be approached on a case-by-case basis. United States v. Clark, 425 F.2d 827, 832 (3d Cir. 1970), cert. denied, 400 U.S. 820, 91 S. Ct. 38, 27 L. Ed. 2d 48. In making this determination, the United States Court of Appeals for the District of Columbia Circuit reminds us that:

 
The police talk to too many people in the course of a day to make warnings compulsory every time they inquire into a situation. Such a requirement would hamper and perhaps demean routine police investigation.

 James v. United States, 135 U.S. App. D.C. 314, 418 F.2d 1150, 1152 (1969); Allen v. United States, 390 F.2d 476, 129 U.S. App. D.C. 61 (1968), Supp. Op., 404 F.2d 1335, 131 U.S. App. D.C. 358. Bearing in mind such fundamental considerations, the federal judiciary has found the application of the general investigation/custodial interrogation dichotomy, if not without occasional difficulty, at least a practical approach.

 A number of cases are instructive on the issue of whether Officer Istak was required to advise appellant of his Miranda rights prior to their initial conversation at the x-ray checkpoint. In Utsler v. Erickson, 440 F.2d 140 (8th Cir. 1971), cert. denied, 404 U.S. 956, 92 S. Ct. 319, 30 L. Ed. 2d 272, for example, law enforcement officers were alerted that a suspect in a Sioux Falls, South Dakota, robbery might be driving a white automobile with California license plates. Such a vehicle, driven by defendant, was stopped near Madison, South Dakota, and a police officer asked him if he had been in Sioux Falls. Defendant responded that he had just gone around the outskirts of Sioux Falls, a statement he denied making at trial and which he sought to suppress for failure to be advised of his Miranda rights. Deciding that the statement was properly admitted, the court held that in investigating a probable offense, police may ask preliminary questions concerning identification and the recent whereabouts of persons under suspicion in order to proceed with the investigation and to eliminate quickly those who appear to be beyond suspicion, and that such questioning does not necessitate recitation of the Miranda warnings. A similar position was adopted in United States v. Gibson, 392 F.2d 373 (4th Cir. 1968). There police received an anonymous tip that the automobile being driven by defendant was stolen. A police officer located him inside a tavern and asked him to step outside. In response to questioning, defendant admitted that the vehicle was his and produced an apparently altered registration card. The court held that the atmosphere surrounding the questioning of the defendant could not be characterized as coercive, and that statements freely made by him and the registration card were properly admitted even in the absence of Miranda warnings. In United States v. Charpentier, 438 F.2d 721 (10th Cir. 1971), it was held that where a stolen automobile was discovered in a parking lot, a police officer who found the defendant in a nearby building was not obliged to give him Miranda warnings before ascertaining whether he was connected with the stolen vehicle and placing him under arrest. And in United States v. Sadler, 458 F.2d 906 (10th Cir. 1972), where the fact that a crime had been committed had not yet been established when a patrolman stopped an automobile in which the defendant was a passenger, the court held that the defendant was not then entitled to be advised of his Constitutional rights.

 Moreover, as was noted by the Magistrate, it is significant that the disputed interrogation occurred in a context which might best be characterized as "regulatory ...


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