U.S. v. Bramble, 95-10525

• Citation: 103 F.3d 1475
• Decision Date: 14 February 1997
• Docket Number: No. 95-10525,95-10525
• Parties: 96 Cal. Daily Op. Serv. 9475, 96 Daily Journal D.A.R. 15,557, 97 Daily Journal D.A.R. 1543 UNITED STATES of America, Plaintiff-Appellee, v. Ronald BRAMBLE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1475

103 F.3d 1475

96 Cal. Daily Op. Serv. 9475, 96 Daily Journal

D.A.R. 15,557,

97 Daily Journal D.A.R. 1543

UNITED STATES of America, Plaintiff-Appellee, v. Ronald BRAMBLE, Defendant-Appellant.

No. 95-10525.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 4, 1996.

Decided Dec. 27, 1996.

As Amended on Denial of Rehearing and Suggestion for

Rehearing En Banc Feb. 14, 1997.

Hayden Aluli, Honolulu, Hawaii, for defendant-appellant.

Mark E. Recktenwald, Assistant United States Attorney, Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii, David A. Ezra, District Judge, Presiding. D.C. No. CR-95-00150-DAE.

Before: WALLACE, SCHROEDER, and ALARCON, Circuit Judges.

SCHROEDER, Circuit Judge.

Ronald Bramble appeals his convictions of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1); possession of marijuana, 21 U.S.C. § 844(a); cultivation of marijuana, 21 U.S.C. § 841(a); possession of eagle feathers, 16 U.S.C. § 668(a); and possession of migratory birds, 16 U.S.C. §§ 703, 707(a). Bramble moved to suppress all evidence and to dismiss the indictment. The district court denied both motions. United States v. Bramble, 894 F.Supp. 1384 (D.Haw.1995).

On appeal, Bramble contends that the warrantless search of his house was unlawful; that the district court committed error during his suppression hearing; and that all of the statutes under which he was convicted are beyond Congress' authority under the Commerce Clause. We affirm.

Background

The facts are fully set forth in the district court's opinion. Bramble, 894 F.Supp. at 1387-89. We briefly summarize them here.

Bramble advertised sea otter pelts for sale. ¹ Federal agents Carroll Cox and Tommy Friel, acting undercover, responded to the ad. Bramble told the agents to come to his home, and invited them in to negotiate the sale. During the discussions, Bramble accused the undercover agents of being police officers. The agents denied being police officers and threatened to take their money and leave. Bramble then resumed negotiations and an agreement was reached. Bramble also showed the agents parts of a bald eagle, a golden eagle, a red-tailed hawk, and a great horned owl, all of which are unlawful to possess. ² Agent Friel also noticed what appeared to be a vial of cocaine on the dining room table.

After seeing the illegal bird parts, Agents Cox and Friel identified themselves. They told Bramble they were not going to arrest him, but they were going to seize the wildlife items and refer the matter to the U.S. Attorney's office. The agents then called for backup from a uniformed state conservation officer waiting outside and from local police. At the invitation of the federal agents but without Bramble's consent, Officer James Weller, of the Hawaii Department of Land and Natural Resources, and Officer Robert Almeida, of the Hawaii County Police, entered the house. All initially stayed in the dining area where the undercover agents' negotiations with Bramble had taken place.

Agent Cox gave Bramble a property receipt for the seized wildlife parts, read him his Miranda rights and obtained a written waiver, and questioned Bramble concerning the wildlife violations. Agent Friel told Officer Almeida about the vial and asked Almeida to handle the drug aspect of the investigation. After Agent Cox finished questioning Bramble, which took approximately half an hour, Officer Almeida asked Bramble to consent to a search of the house. Almeida explained that if Bramble did not consent, he would get a warrant. Bramble asked how long getting a warrant would take, and was told "at least a couple of hours." Bramble expressed concern that having to wait that long would interfere with caring for his dogs, and signed a consent form authorizing an unrestricted search of his house. The search turned up marijuana and marijuana plants; a strainer, two scales, and a baggie that all had cocaine residue, and two loaded firearms. Because Bramble had prior felony convictions, he was prohibited from possessing firearms. 18 U.S.C. § 922(g)(1).

A jury acquitted Bramble on a cocaine charge but convicted him of the firearm, marijuana, and eagle feather charges. The migratory bird charges were misdemeanors, on which Bramble was convicted by the court.

I. Search and Seizure

Bramble argues the search of his home was unlawful for three reasons. First, he contends that his consent to the undercover agents' entry into his home was vitiated when, in response to Bramble's direct question, they denied that they were police officers. Second, he argues that the warrantless entry of additional uniformed officers was unlawful, and therefore invalidated his subsequent consent to search. Finally, he argues that his consent was involuntarily given because Officer Almeida told him if he withheld consent Almeida would get a warrant. We agree with the district court's reasoning rejecting each of these contentions. See Bramble, 894 F.Supp. at 1391-94.

It is well-settled that undercover agents may misrepresent their identity to obtain consent to entry. Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427-28, 17 L.Ed.2d 312 (1966); United States v. Bosse, 898 F.2d 113, 115 (9th Cir.1990); United States v. Glassel, 488 F.2d 143, 145 (9th Cir.1973), cert. denied, 416 U.S. 941, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). Bramble concedes as much, but argues that although agents may initially misrepresent their identity, they may not flatly deny they are police officers when directly confronted. This contention is wholly inconsistent with the plain holding of Lewis. A direct denial that an agent is a police officer is no more a misrepresentation than the agent's declaring he is someone who he is not. See Lewis, 385 U.S. at 207, 87 S.Ct. at 425 (federal agent falsely identified himself as "Jimmy the Pollack").

In essence, Bramble argues that when inviting strangers into his home to engage in illegal activity, he may condition his consent to entry on the strangers' not being law enforcement officers. As the Supreme Court pointed out in Lewis, adoption of such a rule would mean the end of undercover work. If undercover agents, when asked if they were police officers, were required to answer truthfully, their lives would be placed in danger. If a lie in response to such a question made all evidence gathered thereafter the inadmissible fruit of an unlawful entry, all dealers in contraband could insulate themselves from investigation merely by asking every person they contacted in their business to deny that he or she was a law enforcement agent. This is not the law. Lewis, 385 U.S. at 210 & n. 6, 87 S.Ct. at 427 & n. 6.

Moreover, this is not a situation where the agents misrepresented the "scope, nature or purpose of a government investigation," United States v. Garcia, 997 F.2d 1273, 1280 (9th Cir.1993) (quoting Bosse, 898 F.2d at 115), or conducted a search that went beyond the scope of Bramble's consent to entry. See Lewis, 385 U.S. at 209, 87 S.Ct. at 426-27 (citing Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921)). Until Bramble showed them the incriminating bird parts, the federal undercover agents remained in the area where Bramble had invited them and acted only for the purpose for which they had been invited, i.e., to conduct an illegal transaction. After identifying themselves, they did not leave the area into which they had been invited or conduct any search until Bramble had given his consent for them to do so.

The warrantless entry of the uniformed officers also did not invalidate Bramble's later consent to search. Although "[a]n illegal entry into a residence generally invalidates a subsequent consent search," Bramble, 894 F.Supp. at 1393 (citing United States v. Howard, 828 F.2d 552 (9th Cir.1987)), the entry of the additional officers here was not unlawful. We join the Seventh Circuit in holding that where an undercover agent is invited into a home, establishes the existence of probable cause to arrest or search, and immediately summons help from other officers, the warrantless entry of the other officers does not violate the Fourth Amendment. See United States v. Akinsanya, 53 F.3d 852, 856 (7th Cir.1995); United States v. Jachimko, 19 F.3d 296, 298-99 (7th Cir.1994). As we explained in United States v. Rubio, 727 F.2d 786 (9th Cir.1983):

Once consent has been obtained from one with authority to give it, any expectation of privacy has been lost. We seriously doubt that the entry of additional officers would further diminish the consenter's expectation of privacy, and, in the instant case, any remaining expectation of privacy was outweighed by the legitimate concern for the safety of [the officers inside]. Id. at 797, quoted in Bramble, 894 F.Supp. at 1393.

When entering pursuant to the suspect's "consent once removed," Akinsanya, 53 F.3d at 856; Jachimko, 19 F.3d at 299, the additional backup officers are restricted to the scope of the consent originally given. Our holding does not authorize police to go beyond those areas consented to or to conduct general searches without first satisfying the ordinary requirements of consent, a warrant, or exigent circumstances which excuse the failure to obtain a warrant. See Vale v. Louisiana, 399 U.S. 30, 34-35, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970); see also Lewis, 385 U.S. at 211, 87 S.Ct. at 427 (although invited in, agents may not conduct a general search for incriminating materials); Garcia, 997 F.2d at 1280 (same). Here, the scope of the original consent was not exceeded. Agents Cox and Friel were originally invited into the kitchen and living/dining room areas of Bramble's home to conduct a transaction in protected wildlife parts. When called in as backup, Officers Weller and Almeida remained in the same area of Bramble's home, and conducted no search until after Bramble had consented to one. The additional officers'...