Unpublished Disposition, 849 F.2d 1476 (9th Cir. 1987)

MEMORANDUM

Marcello Diez appeals the district court's denial of his motion to suppress evidence. A first superseding indictment was returned by the grand jury on March 7, 1986, charging appellant with twelve counts of use of a counterfeit access device, in violation of 18 U.S.C. § 1029(a) (1); one count of attempted use of a counterfeit access device, in violation of 18 U.S.C. § 1029(b) (1); one count of possession of fifteen or more counterfeit access devices, in violation of 18 U.S.C. § 1029(a) (3); one count of possession of access device-making equipment, in violation of 18 U.S.C. § 1029(a) (4); and one count of attempted bank fraud, in violation of 18 U.S.C. § 1344(a) (2).

On August 12, 1986, appellant moved to suppress all the evidence in the case, arguing, inter alia, that the police lacked probable cause to arrest him and that his post-arrest statements were obtained in violation of his fifth amendment rights.

Argument on appellant's motion was heard on October 9, 1986. The district court ruled that there was probable cause to arrest appellant, thereby allowing the use of handwriting exemplars obtained from appellant after the arrest. The district court, however, granted that portion of appellant's motion which alleged that his fifth amendment right to counsel had been violated during an interrogation conducted shortly after his arrest. As a result, the district court suppressed appellant's post-arrest statements, including a confession. At a further hearing on appellant's motion to suppress, the court ruled that none of the physical evidence in the case was the "fruit" of appellant's post-arrest statements.

Appellant entered a conditional plea of guilty, under Fed. R. Crim. P. 11(a) (2), to counts 6, 10, and 11 of the first superseding indictment, reserving the right to appeal the district court's rulings denying the motion to suppress evidence. Counts 6, 10, and 11 all charge appellant with use of counterfeit access devices to purchase audio video equipment from Audio Video Outlet, Inc., in violation of 18 U.S.C. § 1029(a) (1).

On September 18, 1987, appellant was sentenced to imprisonment for one and one-half years. He timely appeals.

STANDARD OF REVIEW

We evaluate the district court's ruling based on our independent review of the record. United States v. Lancellotti, 761 F.2d 1363, 1365 (9th Cir. 1985). Factual findings will be upheld unless they are clearly erroneous. United States v. Feldman, 788 F.2d 544, 550 (9th Cir. 1986), cert. denied, 107 S. Ct. 955 (1987). The trial court's conclusions of law, however, are reviewed de novo. Id.

DISCUSSION

Diez contends that the district court erred in refusing to suppress the handwriting exemplars. His contention is based on alleged violations of his fourth and fifth amendment rights. Diez argues that the police lacked probable cause to arrest him and, thus, that the handwriting exemplars should have been suppressed as a result of his unlawful arrest. He also argues that because his fifth amendment right to counsel was violated, the "fruits" of the unlawful interrogation, i.e., the handwriting exemplars, should have been suppressed.

The district court found that there was probable cause for appellant's arrest. We agree. Our thorough examination of the record indicates that probable cause existed for the arrest of Diez. As such, we need not address the issue of whether, if probable cause is lacking, handwriting evidence obtained as the result of an arrest must be suppressed.

Appellant's fifth amendment argument is foreclosed by Gilbert v. California, 388 U.S. 263, 266-67 (1967), which held that a handwriting sample was physical rather than testimonial evidence and therefore not protected by the fifth amendment. See also Paine v. McCarthy, 527 F.2d 173, 177 (9th Cir. 1975) (per curiam), cert. denied, 424 U.S. 957 (1976).

Diez seemingly raises a sixth amendment violation with respect to the handwriting exemplars. He argues that "if ... counsel had been present, he would have objected not only to further interrogation but to providing any physical evidence, viz., handwriting exemplars...." This argument is without merit because an individual's sixth amendment right to counsel attaches only when formal adversary proceedings have been initiated. Kirby v. Illinois, 406 U.S. 682, 688 (1972). The sixth amendment right to counsel does not attach at the time of arrest. United States v. Gouveia, 467 U.S. 180, 190 (1984); United States v. Pace, 833 F.2d 1307, 1312 (9th Cir. 1987) (per curiam).

Diez contends that statements made during the course of his illegal interrogation later were used to obtain physical evidence that formed the basis of counts 6, 10, and 11 of the first superseding indictment. He argues that the district court erred in not suppressing that evidence because the district court found that Diez' fifth amendment rights had been violated during the interrogation.

The district court found that the evidence supporting counts 6, 10, and 11 was admissible because it was discovered through means wholly independent of the illegal interrogation. We agree.

The independent source doctrine "allows admission of evidence that has been discovered by means wholly independent of any constitutional violation." Nix v. Williams, 467 U.S. 431, 443 (1984). The inevitable discovery applies when the prosecution can show by a preponderance of the evidence that the evidence inevitably would have been discovered by lawful means unrelated to any constitutional violation. Id. at 444; United States v. Martinez-Gallegos, 807 F.2d 868, 870 (9th Cir. 1987).

Prior to appellant's arrest, the Secret Service had in its files information connecting Diez with the counterfeit credit card ring. The police were actively investigating that information prior to the illegal interrogation. On the record as a whole, we cannot say that the district court clearly erred when it found that the evidence supporting counts 6, 10, and 11 was untainted by the illegal interrogation.

CONCLUSION

For the foregoing reasons, the district court's denial of appellant's motion to suppress evidence is

AFFIRMED.

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