United States v. Brian Edward Henley

984 F.2d 1040 61 USLW 2514 UNITED STATES of America, Plaintiff-Appellee, v. Brian Edward HENLEY, Defendant-Appellant. No. 91-10439. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 17, 1992. Decided Jan. 29, 1993. Jared O. Smith, Tempe, AZ, for defendant-appellant. Michael J. Bidwill, Asst. U.S. Atty. (argued), Phoenix, AZ, for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding. Before: KOZINSKI and DAVID R. THOMPSON, Circuit Judges, and ROBERT J. KELLEHER, Senior District Judge. * KOZINSKI, Circuit Judge: 1 We consider whether a police officer violates a suspect's Miranda rights by obtaining an admission that the suspect owns a vehicle the officer has reason to believe was involved in illegal activity. Background 2 The Pima Savings and Loan in Phoenix, Arizona was robbed on January 17, 1991, by a gunman wearing a cap and sunglasses; the getaway car was a 1974 Plymouth Duster. Later the same day police found the vehicle and arrested Brian Henley. While Henley sat inside a police car, handcuffed, he was questioned by an FBI agent who asked him whether he owned the…

We consider whether a police officer violates a suspect’s Miranda rights by obtaining an admission that the suspect owns a vehicle the officer has reason to believe was involved in illegal activity.

Background

The Pima Savings and Loan in Phoenix, Arizona was robbed on January 17, 1991, by a gunman wearing a cap and sunglasses; the getaway car was a 1974 Plymouth Duster. Later the same day police found the vehicle and arrested Brian Henley. While Henley sat inside a police car, handcuffed, he was questioned by an FBI agent who asked him whether he owned the automobile. After Henley said that he did, the officer informed Henley he was investigating a bank robbery and that the police suspected Henley’s car had been involved. Henley consented to a search of the automobile.

Inside the car the officers found a black baseball cap, a pair of sunglasses and a gun. Defendant’s cousin eventually pled guilty to using those items to rob the Pima bank. Although prosecutors had hoped to bring charges against Henley for driving the getaway car, they were unable to locate key witnesses and Henley was not charged in the Pima robbery.

What, the prosecutors were able to do, however, was link…

dissenting.

Respectfully, I dissent.

As the majority notes, Henley failed to bring his motion to suppress 1 in compliance with Federal Rule of Criminal Procedure 12(b)(3). Rule 12(b)(3) requires in simple, direct language that motions to suppress evidence be raised prior to trial. Henley first brought his motion to suppress his admission that he owned the automobile in the midst of the trial.

The majority speculates vaguely that “the government may have been unfairly prejudiced by the way the defendant raised this issue below.” Opinion at 1044. I think it self evident that the government was so prejudiced. The government asserted at oral argument that had it been given timely notice of the objection to Henley’s statement of ownership it could have provided other evidence of Henley’s ownership of the ear. In other words, had the government been put on timely notice, as it must be under Rule 12(b)(3), it would have obtained and placed in evidence a certificate of title. To allow Henley to escape conviction as a reward for the ploy of misleading the government is to encourage more of the same by defense lawyers in criminal cases.

The majority, perhaps insinuating sloth on the…