Appeal from judgment of conviction of bank robbery and conspiracy to commit that offense, entered after plea of guilty before Judge Eugene H. Nickerson, United States District Court for the Eastern District of New York. Case remanded for further fact-findings relevant to issue whether confessions which district court ruled were admissible were obtained through exploitation of arrest which district court found to be unlawful.
Before Lumbard, Feinberg and Meskill, Circuit Judges.
Leonard D. Morris appeals from a judgment of conviction, entered upon his plea of guilty to bank robbery in violation of 18 U.S.C. § 2113 and conspiracy to commit that offense, in the United States District Court for the Eastern District of New York before Judge Eugene H. Nickerson. The only question on appeal is whether the district court properly denied appellant's motion to suppress confessions which he gave to FBI agents. The court's opinion on the motion is reported at 451 F. Supp. 361.
On January 19, 1978, New York City police officers were waiting at an intersection in Staten Island for Charles Morris (no relation to appellant), who was wanted for burglary. A vehicle which they believed to be driven by Charles Morris approached the intersection and then made a U-turn and drove away from the police cars at a high speed. After a chase, Charles Morris fled the car and was arrested by the detectives. Appellant Leonard Morris, who was a passenger in the car, also was arrested and both were taken to the precinct house. Questioning of Charles apparently began sometime after 4:00 p. m. and during the interrogation he admitted to committing five robberies and the bank robbery at issue here, and he implicated Leonard in three of the robberies, including the bank robbery. Questioning of Leonard began around 4:30 p. m. and was conducted by different officers from those questioning Charles. Thereafter, Leonard confessed to a supermarket robbery and agreed to talk to the FBI.
After the arrests the police officers showed a photograph of Leonard Morris to a witness of the supermarket robbery and the witness identified him as a participant in that robbery. Later in the evening Leonard was identified in a lineup as one of the supermarket robbers.
FBI agents began questioning Charles in the evening and he signed a confession implicating himself and Leonard in the November 4, 1977 robbery of the Community National Bank. The FBI began questioning Leonard sometime after 11:00 p. m.; thereafter, he confessed to the Community National Bank robbery and to two other attempted bank robberies.
Judge Nickerson found that there was no probable cause to arrest Leonard Morris when the police caught the car in which he was a passenger and arrested the driver, Charles Morris. However, the judge refused to suppress the confessions made while Leonard was in custody because he found that the statements were not made as a result of "exploitation" of the illegal arrest. He ruled that the police obtained probable cause to arrest and detain Leonard when a witness identified him from a photograph as one of those in the supermarket robbery. Relying on Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975), Judge Nickerson ruled that this subsequent probable cause purged the initial illegal arrest.
We believe that further fact findings would be helpful on the issue whether the police had probable cause to detain Leonard Morris, independent of the arrest which Judge Nickerson found to be unlawful. Thus we remand the case to the district court for reconsideration, after further findings, with respect to:
1. (a) Whether the photograph of Leonard Morris from which he was identified as a perpetrator of the supermarket robbery, was first obtained after, and as a result of, his arrest on January 19, 1978, or was already possessed by the Police Department; and (b) whether, as appellant argues to us, the identification of Leonard Morris by the witness to the supermarket robbery "stemmed from (Leonard Morris's) arrest," see 451 F. Supp. at 366.
2. (a) Whether, prior to Leonard Morris's confession to the supermarket robbery, Charles Morris had given a statement implicating Leonard Morris which supplied probable cause to arrest Leonard Morris at that time, and (b) if so, whether the detective questioning Leonard Morris knew of this fact during the interrogation.
Despite the views of our dissenting brother, we do not think it appropriate to reach the issues discussed in his opinion until the district court has clarified the facts to the extent possible. After further findings and reconsideration by the district court, either party may reinstate this appeal by letter to the clerk of this court, and, if practicable, the appeal will be heard by this panel.
Case remanded for further proceedings consistent with this opinion.
LUMBARD, Circuit Judge (dissenting):
I dissent. I would affirm the conviction as I see no need for requiring the district court ...