343 F.2d 95 (9th Cir. 1965), 19217, Cipres v. United States

Docket Nº:19217.
Citation:343 F.2d 95
Party Name:Ramona CIPRES and Juan Montes DeOca, Appellants, v. UNITED STATES of America, Appellee.
Case Date:March 18, 1965
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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343 F.2d 95 (9th Cir. 1965)

Ramona CIPRES and Juan Montes DeOca, Appellants,


UNITED STATES of America, Appellee.

No. 19217.

United States Court of Appeals, Ninth Circuit.

March 18, 1965

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Harold J. Ackerman, Wm. Bryan Osborne, Los Angeles, Cal., for appellants.

Francis C. Whelan, U.S. Atty., Thomas R. Sheridan, Asst. U.S. Atty., Chief, Crim. Sec., John K. Van de Kamp, Asst.

/14/ Arellanes v. United States, 302 F.2d

Before HAMLEY, KOELSCH, and BROWNING, Circuit Judges.

BROWNING, Circuit Judge:

Ramona Cipres and Juan Montes DeOca appeal from convictions for trafficking in marihuana contrary to 21 U.S.C.A. 176a.


Appellants argue that the district court erred in admitting into evidence two suitcases containing marihuana, contending that the evidence was secured by conduct violating Cipres' Fourth Amendment right to freedom from unreasonable search and seizure.

The marihuana was discovered and seized at the Los Angeles International Airport by a Customs agent and an officer

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of the Los Angeles Police Department. Their testimony relevant to the search and seizure was as follows: In September 1963, a man known to be engaged in narcotics traffic between Los Angeles and New York City checked in at a Los Angeles hotel under the assumed name of 'Martinez.' The airline companies were asked to advise the authorities of any reservations made in that name. On September 17, American Airlines informed the Customs Service that such a reservation had been made for an evening flight to New York City. The Customs agent and the police officer stationed themselves near the check-in counter. Shortly before the scheduled departure time of the flight a car drove up to the adjacent curb and both appellants alighted. The Customs agent recognized DeOca as a person he had investigated earlier for possible involvement in narcotics traffic. DeOca took two suitcases from the car trunk, set them on the curb, returned to the car, and drove off. A porter took the bags to the check-in counter and set them on the scale. Cipres followed. The Customs agent observed that the bags weighed 140 pounds, and heard Cipres ask for a reservation in the name 'Martinez.' The officers identified themselves to Cipres, told her they were conducting a narcotics investigation, and wished to talk with her. In response to their questions, she told them her name was Cipres, but that she sometimes used the name Martinez in traveling. She said the bags contained clothing, but added, in explanation of their weight, that they also contained cosmetics. The officers told Cipres they suspected the bags contained marihuana. She denied it. They asked if they could search the bags. She answered, 'Yes, I have nothing to hide,' but added that she had left the keys in New York City. They examined the bags and found them unlocked. The Customs agent opened the bags, discovered the marihuana, and arrested Cipres.

Cipres denied consenting to the search. She testified that the officers accosted her and inquired about the contents of the bags. She asked if they had a search warrant, but they simply proceeded to open the bags. The officers admitted that Cipres asked if they had a search warrant, but only after the Customs agent and opened the bags with her permission and discovered the marihuana.

The district court treated the issue as simply whether or not Cipres told the officers they might search the suitcase. Seeing 'no reason why I should disbelieve the testimony of the two officers,' the court admitted the evidence.

But the issue the court was required to decide was much broader, and could not be resolved simply by weighing the credibility of Cipres against that of the officers. The issue was whether Cipres had waived her constitutional immunity from unreasonable search and seizure. Waiver, in this context, means the 'intentional relinquishment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Such a waiver cannot be conclusively presumed from a verbal expression of assent. The court must determine from all the circumstances whether the verbal assent reflected an understanding, uncoerced, and unequivocal election to grant the officers a license which the person knows may be freely and effectively withheld. 1 We recently sustained a district court finding that such waiver was lacking despite an express verbal consent, 2 and such cases are common. 3 They rest not only upon

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the nature of waiver itself, but also upon a recognition that the purpose of the exclusionary rule is not only to discourage overreaching by police officers, but also, and primarily, to protect the rights of the citizen. The crucial question is whether the citizen truly consented to the search, not whether it was reasonable for the officers to suppose that he did. 4

Giving full credit to the officers' testimony that...

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