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UNITED STATES v. HARRIS

December 5, 1975

UNITED STATES OF AMERICA
v.
JAMES HARRIS, JR.



The opinion of the court was delivered by: FOGEL

 FOGEL, District Judge

 Defendant, James Harris, Jr., has been indicted and charged with the interstate transportation of a stolen motor vehicle (18 U.S.C. § 2312), and the theft of merchandise traveling in interstate commerce (18 U.S.C. § 659). Presently before us is a three-pronged Motion to Suppress Evidence in which Defendant requests the following relief: (1) the suppression of all testimony which may be adduced at trial as a result of statements made by Defendant at the time of his arrest and subsequent thereto, because of an alleged failure of the interrogating agents of the Federal Bureau of Investigation, (F.B.I.) to inform him of his rights under the decision of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); (2) the suppression of evidence arising out of a pretrial identification of Defendant made by two Burlington Township, New Jersey police officers because the photographs displayed by the F.B.I. agent conducting that operation were allegedly shown in a prejudicial manner; and (3) the suppression of all evidence found to be the fruit of an investigatory stop, subsequent search and detention of the vehicle operated by defendant because of defendant's claim that these acts were illegal and hence fatally permeate any evidence stemming from that episode.

 We will deny the motion on all scores. The unique factual setting, however, particularly with respect to the circumstances surrounding the stop, search and detention of the vehicle calls for a statement of our reasons for dismissal.

 I. STATEMENT OF THE PERTINENT AND CONTROLLING FACTS

 The controlling facts may be summarized as follows:

 On July 3, 1975, Patrolman Clarence Bell of the Burlington Township, New Jersey Police Department was assigned to the midnight to eight A.M. shift; his duties included property checks while cruising in an unmarked police vehicle. At approximately 1:00 A.M. Patrolman Bell departed from the grounds of the Burlington Township High School where he had just concluded such a property check, when he noticed a tractor-trailer traveling on a narrow secondary road called Little Oxmeade Road. Based upon his knowledge and experience *fn1" Patrolman Bell knew that it was highly unusual for a tractor-trailer to be traversing that road at that time of night, and he therefore decided that further investigation was warranted. Patrolman Bell radioed Sergeant Komerosky of the police force, who was on patrol in a marked police vehicle, and requested that the Sergeant meet him for the purpose of making a stop of the tractor-trailer. Patrolman Bell then proceeded to follow the truck as it turned off Little Oxmeade Road, (the entire length of which is one quarter of a mile), and progressed onto more heavily traveled thoroughfares. After having followed the truck for a distance of about three miles, Sergeant Komerosky pulled up at the rear of Patrolman Bell's vehicle, and it was agreed that the Sergeant would make the stop while Bell closed in at the rear of the truck. Sergeant Komerosky signalled and stopped the tractor-trailer along a thoroughfare known as the Burlington-Columbus Road.

 Defendant was the driver of the truck and a fellow passenger was seated beside him. Patrolman Bell positioned himself behind the vehicle in order to direct and divert traffic; simultaneously Sergeant Komerosky approached the cab of the vehicle. Defendant alighted from the truck, and the Sergeant asked him for his license and registration credentials. Defendant produced these documents and they were determined to be in order. Sergeant Komerosky inquired of Defendant with respect to his destination. *fn2" Defendant replied that he was looking for an address in Willingboro, New Jersey, a neighboring town. When the Sergeant asked for the specific address, Defendant responded that he did not recall it; Sergeant Komerosky, who had been a professional truck driver prior to his service with the local police force, suggested that Defendant should ascertain the address from the bill of lading which the Sergeant, on the basis of his prior experience, assumed Defendant would have with him as a matter of course. Defendant, then and there attempted to locate the bill of lading, but was unable to produce it. This concatenation of events aroused Sergeant Komerosky's suspicions, and he asked Harris to open the rear door of the truck. Defendant complied with that request. Sergeant Komerosky then entered the truck, and examined the parcels of freight which were there located; he ascertained that none of the parcels bore a Willingboro address. Sergeant Komerosky then asked Defendant if he had any other destination, and Harris stated that he also had deliveries for Pomona, New Jersey; again, none of the parcels of freight revealed Pomona as a destination. Defendant was then asked to identify his employer, and he stated to the Sergeant that it was the K & K Transport Company, although he could not remember the name of his immediate supervisor. Sergeant Komerosky then asked Defendant to drive to police headquarters in the vehicle. Patrolman Bell followed in his police car, and when they reached the police station Bell remained there for approximately fifteen minutes before departing to return to duty, and specifically to carry out Sergeant Komerosky's request that he drive the passenger who had been in the tractor-trailer to that person's automobile, which allegedly had broken down some distance away. *fn3"

 Defendant was detained in the station house while Sergeant Komerosky attempted by telephone to verify Defendant's employment with K & K Transport and his authority to have possession of the tractor-trailer. Defendant was in the presence of the Sergeant during this period of time at the station. Sergeant Komerosky tried for approximately three hours to verify Harris' story, but because of the hour of the morning, he was unable to reach anyone at K & K Transport, and he therefore permitted the Defendant to depart in the tractor-trailer.

 At approximately eight o'clock that morning, or about four hours after he had released the Defendant, Sergeant Komerosky again called K & K Transport Company, and was informed that one of the company's trucks was indeed missing. The Sergeant then called the Philadelphia office of the F.B.I. and notified them of the stop and detention of Defendant.

 Later that same day, Patrolman Bell and Sergeant Komerosky were contacted by Special Agent Budenz of the F.B.I., and were asked to view a group of photographs for the purpose of attempting to identify the two subjects who had been in the tractor-trailer. The photo display took place at the Burlington police department, in a private room. Patrolman Bell and Sergeant Komerosky sat at either end of a large desk with Special Agent Budenz seated between them. The spread consisted of approximately six photographs, all of which were similar with respect to size, background, and the general features of the subject of each photo, including race. Agent Budenz first showed the stack of photographs to Sergeant Komerosky, and asked him if he could identify the driver of the truck he had stopped the previous night. Komerosky selected a photograph of Defendant and identified him accordingly. Patrolman Bell, who was not able to see the pictorial display while the photographs were being exhibited to Komerosky, was then shown the same group of photographs, and he, too, identified Defendant as the driver of the K & K Transport truck.

 Special Agent Grubert formally arrested Defendant at the Philadelphia Police Department Roundhouse; he was handcuffed and placed in an F.B.I. vehicle to be taken to that agency's Philadelphia office. Agent Grubert sat in the back seat with Defendant, and while on the way to the office he advised Defendant of his rights under Miranda v. Arizona, supra, by reading the standard form which he also showed to Defendant then and there. Defendant stated that he was unwilling to sign the waiver of rights form, but that he understood his rights and would voluntarily answer questions.

 When the vehicle reached the F.B.I. office, Harris was fingerprinted and photographed, and while still in that room Agent Grubert again asked Defendant if he was aware of his rights; he responded in the affirmative. Before the interrogation commenced, two other agents entered to make use of the room, and Defendant was then taken to a regular interview room, where Agent Grubert inquired of Defendant, for a third time, with respect to his understanding of his rights; Defendant ...


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