United States v. Donald M. Cooper

This is the story of a bank robber who dropped his calling card in front of the teller’s cage. When the FBI accepted his implied invitation to call, he opened the door to his apartment and other incriminating information, which resulted in his conviction. All this he now regrets, and seeks to withdraw his ill-advised assistance to law enforcement. This we hold he cannot do.

I.

The robbery of the American Security and Trust Company branch on Pennsylvania Avenue, N.W., occurred on the morning of 20 April 1972. In front of the teller’s cage the FBI picked up an envelope addressed to Donald M. Cooper, 1941 U Place, S.E. Pictures taken during the course of the robbery were identified by Donald M. Cooper’s former coworkers at the Federal Reserve Board as being the named person.

At approximately 2:40 p. m. the FBI Special Agent investigating, accompanied by three other FBI agents, knocked on Mr. Cooper’s door. They identified themselves as FBI agents and asked the appellant if they could come in and speak with him, to which Cooper replied, “Certainly.” After entry, the Special Agent immediately read to Cooper the FBI standard Miranda-type warning statement as to Cooper’s rights,1 and then advised Cooper that they were investigating a robbery at the American Security and Trust Company that morning. The agent then handed the prepared written Miranda warning of his rights to appellant Cooper for him to read. After reading it, Cooper was asked if he fully understood what his rights were; he replied that he did.

However, when the agent then asked appellant if he would sign the written waiver-of-rights form, Cooper replied that he would not sign the waiver before he spoke with an attorney. Cooper’s refusal to sign the waiver form was accompanied or followed by a statement that he was desirous of answering the FBI questions, but he would answer only those he chose to answer. He then proceeded, in answer to the agent’s question, to give an account of his whereabouts and movements from 5:00 p. m. on 19 April through the morning of 20 April, which was a denial that he had ever been in the bank or its vicinity at the time of the robbery or anytime that day.

When confronted with (1) the department store current bill with his name on it, and (2) eight photographs taken during the robbery, Cooper declared that he did not understand how the current account statement addressed to him got there and denied that he was the man in the photographs. The robber in the photographs was wearing a distinctive pair of striped trousers, and equally distinctive eyeglasses and shoes. When the agent pointed out that Cooper’s shoes and eyeglasses were identical to those in the photographs, appellant sought to evade this direct coincidence by saying, “But I have no clothing at all which looks like that. Come upstairs and see for yourself. Come look at my wardrobe. See for yourself, I have no such clothing.” The agents accepted this invitation with alacrity; in a few moments they retrieved a pair of men’s pants, identical to those shown in the photographs, right from the closet Cooper had so confidently offered for examination.

The above facts were established by the testimony, uneontradicted, of the FBI agents at the preliminary hearing, held on appellant’s motion to suppress, on the basis of Miranda v. Arizona,2 his statements in the interview and the pair of trousers. Appellant Cooper himself did not testify at the suppression hearing, although he could have done so without any risk of his testimony being used against him at the trial, if his version of the first interview would have differed in any material way from that testified to by the FBI agents. At the trial, appellant did take the stand in his own defense, and, while denying that he perpetrated the robbery, did give an account admitting that he was present in the bank on the morning of the robbery. On this point, appellant’s testimony was of course directly contradicted by his own previous story to the FBI agents on the day of the robbery.

On this appeal the only two points of alleged error are the failure of the trial court to suppress appellant’s previous inconsistent statements and the failure to suppress the tangible evidence of the trousers found in appellant’s closet.

II.

We think the disposition of this case is governed by the Supreme Court’s recent decision in Schneckloth v. Bustamonte,3 and particularly by our own en banc decision in United States v. Frazier4 as to the validity of appellant’s consent to the search and the voluntariness of his statements to the FBI agents.

Turning to the statements first, in Frazier the appellant made a similar distinction between oral and written statements; Frazier asked the interviewing policeman not to take notes, said he would not talk if the officer made notes, but continued to talk freely when the officer put down his pencil. Here Cooper made a more discriminating distinction. After being fully warned orally and in writing, in accordance with the Miranda requirements, Cooper declined to sign a written waiver form without consulting an attorney, which was one of his Miranda rights; he then stated that he was willing to answer questions of the agents, but reserved the right to decline to answer any questions which he did not wish to answer, another exercise of his Miranda rights indicating understanding thereof. Cooper, it is apparent, was engaged in an effort to throw the agents off the scent with a misleading display of candor, not realizing the knowledge the agents already possessed.

It is to be noted that appellant Cooper, unlike Fraizer, was a man of demonstrated intelligence; he had a Bachelor of Science degree in mathematics and had held responsible employment.

In two cases before Fraizer, United States v. McNeil5 and Pettyjohn v. United States,6 we rejected the inference that, simply because the accused refused to sign anything in writing, he did not understand the Miranda warnings. It is, we think, a common experience of life that in many circumstances persons are willing to convey information orally but are reluctant to put the same thing in writing. We do not think, as Frazier en banc, McNeil, and Pettyjohn have made clear before, that a refusal to sign a waiver means that the person interrogated is assuming a contradictory position with respect to his willingness to respond to oral questions, whatever may be his motive in so doing.

In McNeil we said, “Certainly the execution of that form was not a condition precedent to an effective waiver.”7 And as the Fourth Circuit explained in United States v. Hayes, “Just as the mere signing of a boilerplate statement to the effect that a defendant is knowingly waiving his rights will not discharge the government’s burden, so the mere absence of such a statement will not preclude as a matter of law the possibility of an effective waiver.”8 We subscribe to the view expressed by the Fifth Circuit, “A refusal to sign a waiver may indicate nothing more .than a reluctance to put pen to paper under the circumstance of custody.” 9 Our dissenting colleague relies upon certain eases from the Fifth and Seventh Circuits. In our view these are distinguishable on the facts from the case at bar, and, in fact, have already been so distinguished. In the American Law Institute “Model Code of Pre-Arraignment Procedure,” Tentative Draft No. 6, 1 April 1974, the Commentary on previous decisions regarding Requirement of a Signed Waiver (pp. 161-62) states:

Courts have not required a signing of a waiver before the commencement of interrogation, and they have taken differing views on the effect of such a signing. [Footnote omitted.] The situation of a suspect who refuses to sign a waiver or put his statement in writing but who gives an oral waiver and answers questions freely has caused some difficulty, with the federal courts holding that statements made in this situation are admissible if the trial court has held an evidentiary hearing and determined that the oral statements were made voluntarily, with the knowledge that they could be used as evidence, [footnote omitted] and after an intelligent waiver of rights.12

Here the evidence is uncontradicted that Cooper, while declining to sign the form in the absence of an attorney, said he was desirous of answering questions, and thus “voluntarily initiated” the following conversation. Thus, on the law as we understand it, Cooper’s statements would be admissible.10

We find it unnecessary to define Cooper’s precise situation as being either “unrestrained,” “custodial,” or “arrest,” because we find in the uncontradicted testimony as to the circumstances of the interview that there was absolutely no coercion manifested, aside from the degree of disquietude which any citizen might feel upon being interviewed by law enforcement officials. The interview was conducted in appellant Cooper’s own living room, he had invited the officers to enter, he was warned of his rights, he exercised some of his rights by refusing to sign anything and by indicating he might decline to answer some questions,11 he talked freely as to those questions which he did answer, he himself originated the idea of the officers searching his closet to compare his wardrobe with that of the bank bandit.

We think it important that Cooper did not in any way dispute the circumstances establishing voluntariness testified to by the FBI agents at the suppression hearing, at a time when he clearly could have done so without prejudice, had there been any contradictory evidence he could have honestly offered.12 The actions of appellant Cooper here certainly fall within the concept of voluntariness as explained in Schneckloth v. Bustamonte, supra, where the Court said, “Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.”13 This was spoken in relation to a situation in which the later accused was not in custody, and while Cooper’s situation might be termed a custodial one, we think the evidence demonstrates as full a knowledge by appellant Cooper as to his rights under the Miranda standard as it is possible to conceive, and that with full awareness of his rights, Cooper did go forward and make statements in an effort to evade detection, such statements redounding to his ultimate prejudice.

The conviction for bank robbery14 is Affirmed.