Waterman, Friendly and Smith, Circuit Judges.
This appeal from a conviction for bank robbery, 18 U.S.C. § 2113(a), vindicates the observation by a penetrating scholar: "Probably the most difficult and frequently raised question in the wake of [Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)] is what constitutes the 'in-custody interrogation' or 'custodial questioning' which must be preceded by the Miranda warnings."*fn1
The bank robbed was the Cicero, N.Y., branch of The Merchants National Bank & Trust Co. of Syracuse. At approximately 7:55 A.M. on Thursday, December 12, 1968, Mrs. Richer, the head teller, parked her automobile at the rear of the bank. Approaching it, she sensed she was being followed. A man wearing a stocking mask over his face and carrying a rifle directed her into the bank. He herded Mrs. Richer, Mr. Corbett, the assistant manager, and two other tellers into a vault. There he instructed Mrs. Richer to put the cash, $37,872.44, into a bag and give him the keys to her car. He then made his exit. Later Mrs. Richer saw her car in the parking lot of a bowling alley some 100' away from the back parking lot of the bank.
Unfortunately for the robber, an observant young lady, Barbara Costick, had driven onto the bowling alley parking lot around 7:45 A.M. She saw a maroon or red colored car backed up against the edge of the parking lot and facing the rear of the bank. After letting off her brother Stanley, who worked in the bowling alley, she noticed that the man in the car was wearing a gray hat and topcoat -- a description of the robber's costume generally tallying with Mrs. Richer's. As Miss Costick drove by, the man put his left arm up to the window to shield his face. She was sufficiently struck by this conduct to look at the license plate and, after driving a hundred yards or so and coming to a stop, to write down on a card the number -- OA 1587. About five minutes later, Stanley Costick noticed that the red car, which he identified as a Chevrolet, had moved to the other side of the parking lot closer to the bank. Later observation of footprints in the snow by a county sheriff made it evident that the robber had walked from this position up to the bank parking lot and had returned to the same position from Mrs. Richer's car.
The license number was speedily traced to the Syracuse office of Employers Insurance Co. of Wausau. Investigation there showed that a Chevrolet car bearing that number had been assigned to defendant Hall, who had been a sales trainee in the Syracuse office but had later been transferred to Buffalo.
At 4:22 P.M. Special Agent Schaller and two other F.B.I. agents arrived at Hall's apartment in North Tonawanda, N.Y. The apartment, in the rear of the first floor of a three family dwelling, was a small one, with a living room some 12' x 14' furnished with a couch and two chairs, a kitchen, a bedroom and bath. After identifying himself and his companions, Schaller told Hall they would like to come in and speak to him. He said they were welcome. Schaller related that a bank near Syracuse had been robbed that morning, that a car tallying Hall's in description and license number had then been observed nearby, and that he would like to talk to Hall about the latter's activities during the week of December 9 to 12.
Hall stated, apparently truthfully up to a certain point, that he had been in Syracuse on business on Monday, December 9, and had returned to North Tonawanda on Tuesday afternoon, had spent Wednesday in the insurance company office, and, after an evening with his girl friend, had parked his car in a driveway at his home behind a car owned by Schmidt, his neighbor. Since Schmidt often departed earlier in the morning, Hall long before this had given Schmidt a set of keys to the car so that Schmidt could move it out of the way. Hall said that when he arose around 9:00 A.M. on December 12, the car was parked in front of his house; he left around 10:30 A.M., picked up a Christmas tree, arrived at the office about 11:30 A.M., had lunch with the manager, Mr. Tyler, and departed around 1 P.M. After some seventeen minutes Schaller sought permission to search the apartment and the car, and Hall signed waivers and consents. No money was found.
The interview was resumed shortly after 5 P.M. Schaller advised that Schmidt had been interviewed and had said that he had not moved Hall's car that morning because it was not in the driveway when he arose at 6:30 A.M. Schaller then told Hall "that he did not have to further answer any questions, that anything he might say to me further could be used against him in court, that he was entitled to an attorney, to have an attorney present during any interviews," and that "if he could not afford an attorney, the Government would provide an attorney for him." Schaller also advised Hall that he could waive his rights if he desired, and, in that event, if he decided to stop answering questions at any time, he could do so. After stating that he understood his rights and desired to waive them and continue the interview, Hall executed the standard F.B.I. waiver form.
When he was again asked to trace his activities on December 11 and 12, Hall at first stuck to his story. Later, under the impulsion of the agents' telling him something his girl friend had related to them, he added that, while in Syracuse on December 10, he had sold some stock for $3000 to get his share of a $6000 down payment on a house he planned to occupy with the girl, then pregnant, whom he intended to marry as soon as he could obtain a divorce. On being told that he could not have obtained payment for the stock so quickly, he altered his statement to say that he had sold the stock four weeks earlier and on December 10 had obtained a $3000 check which he placed in a safe deposit box in Syracuse. Finally when Agent Schaller indicated an intention to check this story out with the broker in Syracuse, Hall admitted he had not been telling the truth and said he now wanted to do so. The new version was that he had indeed left his home early in the morning of December 12, in order to keep a rendezvous with a "loan shark" in the parking lot of the Maple Leaf Motel on Niagara Falls Boulevard. One Jimmy, a co-owner of a bar adjacent to the motel, had agreed to negotiate a $3000 loan for him from the unidentified "loan shark," who would telephone Hall where and when to get the money. Around 7:30 A.M. the loan shark arrived and handed Hall an envelope containing $3000, including a $1000 bill and other $100's, $50's, $20's and $10's. On Schaller's request Hall produced his wallet which contained three $100 bills. Hall admitted that during the morning of December 12 he had made a deposit of $1000 at one bank in North Tonawanda and of $2000 at another.
The serious question concerns the initial seventeen minutes of questioning which elicited the false exculpatory statement that Hall's car was in front of his apartment at 9:00 A.M. The parties have devoted a large portion of their briefs and arguments to whether during this period Hall had become the "focus" of the investigation. As put the question is unanswerable. Certainly the agents had "focused" on Hall more than on all residents of Cicero or on other residents of North Tonawanda; on the other hand the focus was not so sharp that they had anything approaching certain, indeed even probable cause to believe he was the robber. Furthermore, the "focus" question, derived from Escobedo v. Illinois, 378 U.S. 478, 490-91, 492, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), is not the appropriate test. The phrase was there used in an effort to define the point when the Sixth Amendment forbids the deprivation of a suspect's access to his lawyer. Moreover, the coming of that point was defined not in terms of "focus" alone but of focus plus. It is well to attend to precisely what the Court said: "We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution * *." 378 U.S. at 490-91, 84 S. Ct. at 1765. "We hold only that when the process shifts from investigatory to accusatory -- when its focus is on the accused and its purpose is to elicit a confession -- our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer." 378 U.S. at 492, 84 S. Ct. at 1766. [Emphasis supplied.] No claim is or could reasonably be made here that the early questioning of Hall violated Sixth Amendment rights.
It is equally plain that "focus" alone does not trigger the need for Miranda warnings. As appears from the first Escobedo extract we have quoted custody as well as focus and other factors were essential to that decision. Under Miranda custody alone suffices. 384 U.S. at 444, 478, 86 S. Ct. 1602. We fail to perceive how one can reason from these two propositions to a conclusion that "focus" alone is enough to bring Miranda into play. The only possible basis for such an argument would be that, after limiting Miranda to custodial interrogation and defining this as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way," 384 U.S. at 444, 86 S. Ct. at 1612, Chief Justice Warren dropped a footnote:
n.4 This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.
While much dialectic skill has been expended on this footnote, see Graham, What Is "Custodial Interrogation?": California's Anticipatory Application of Miranda v. Arizona, 14 U.C.L.A. L.Rev. 59, 114-15; Kamisar, supra, at 339-40, the one thing that is undeniable is that the opinion said that focus means custody, not that custody means focus. As Professor Kamisar has put it, " Miranda's use of 'custodial interrogation' actually marks a fresh start ...