United States v. Boukater

• Citation: 409 F.2d 537
• Decision Date: 27 March 1969
• Docket Number: No. 26401. Summary Calender.,26401. Summary Calender.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herbert Benjamin BOUKATER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

409 F.2d 537 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Herbert Benjamin BOUKATER, Defendant-Appellant.

No. 26401. Summary Calender.

United States Court of Appeals Fifth Circuit.

February 19, 1969.

Rehearing and Rehearing Denied March 27, 1969.

Alan R. Schwartz, Miami, Fla., for defendant-appellant.

William A. Meadows, Jr., U. S. Atty., Michael J. Osman, by William A. Daniel, Jr., Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied March 27, 1969.

THORNBERRY, Circuit Judge:

Appellant Herbert Boukater was convicted by a jury of possession of counterfeit money in violation of 18 U.S.C. § 472. The single point urged on appeal is that the trial judge should have granted a motion to suppress the incriminating evidence on the ground that the federal officials made an illegal search. Having studied the briefs and record, we have determined that this case is appropriate for summary disposition without oral argument. Pursuant to new Rule 18 of the Rules of the United States Court of Appeals for the Fifth Circuit, the Clerk of this Court has been directed to put this case on the summary calendar and notify the parties in writing.¹

We note at the outset that inasmuch as the federal officers, two Secret Service agents, did not make an arrest prior to the search and did not have a search warrant, the question is whether appellant voluntarily consented to the search. In determining whether a voluntary consent was given, we must, as appellant concedes, view the evidence in the light most favorable to the Government. Thus, according to the testimony of Agents Szpak and Rivers, they approached appellant at the Miami International Airport on the morning of March 26, 1968 and asked him to accompany them to a room nearby. There the agents identified themselves and told Boukater he was suspected of carrying counterfeit bills. At this point he was given a written statement of his constitutional rights and an oral explanation of that statement. Moreover, he was told that he was not under arrest and could leave if he so desired. Appellant replied that he wanted to find out what was going on. The agents repeated that he was suspected of carrying counterfeit bills and asked if he would voluntarily consent to a search of his briefcase. Having given this request some thought, he said, "It looks like you got me. You can search my bags." When asked if he would sign a written waiver to this effect, he said he would not. When asked if his refusal to sign a written waiver meant that he was withdrawing the consent to search, he said, according to Agent Rivers, "No, go ahead." According to Agent Szpak, he said, "Well, go ahead. You got me. It's in there."

In only two respects is the evidence slightly questionable as to the voluntariness of consent: First, Boukater refused to sign a written waiver; second, after he refused to sign, Agent Rivers said something to him about getting a search warrant. While the refusal to sign a waiver might cast doubt on the first oral consent, Boukater reiterated his consent after his refusal to put anything in writing, thereby clarifying his position as to the search. The statement by Rivers about procuring a search warrant is more troublesome and might lead us to a different result if the evidence indicated that Boukater was in custody and that the agent either said or implied that he might as well consent because a warrant could be quickly obtained if he refused. However, Rivers was very emphatic in testifying that he did not pressure appellant by saying that he would get a warrant and make a search even if appellant withheld consent; he merely said he would attempt to get a search warrant. Since appellant had been advised that he was not under arrest and was free to leave, he would not have been coerced into consenting to an immediate search by the agent's statement that he would attempt to get a warrant. As we say, this factor is troublesome, but we have concluded that it does not taint the search since everything else points toward completely voluntary consent.²

We are mindful that a voluntary consent to search cannot be lightly inferred but must be proved by clear and positive evidence. United States v. Como, 2d Cir. 1965, 340 F.2d 891. Nevertheless, we find the evidence here sufficient to sustain the search. From a negative standpoint, the record discloses no concealment of identity on the part of the agents, no discourtesy, no abuse or threat, and no ruse or force. See Maxwell v. Stephens, 8th Cir. 1965, 348 F.2d 325, 336. On the contrary, the agents immediately identified themselves, told appellant what he was suspected of, gave him a full Miranda warning, and told him he was free to leave. When they asked him if he would consent to a search of his briefcase, he confessed guilt and gave his consent. After having refused to sign a waiver, he made it clear that he was not withdrawing his consent to search and, according to Szpak, even reasserted his guilt. With all this evidence clearly pointing toward uncoerced, voluntary consent, we sustain the search in spite of the factors which we have previously characterized as being slightly questionable. Rivers' suggestion that he might try to get a warrant came after Boukater's initial consent, which was clear and unambiguous. Up to the time of the first consent there was not a trace of coercion; not enough happened thereafter to create what we would call a coercive atmosphere.

Appellant relies largely on cases decided by the United States Court of Appeals for the District of Columbia and Ninth Circuits. See Channel v. United States, 9th Cir. 1960, 285 F.2d 217; Higgins v. United States, 1954, 93 U.S.App.D.C. 340, 209 F.2d 819; Judd v. United States, 1951, 89 U.S.App.D.C. 64, 190 F.2d 649. Though we indicated in Pekar v. United States, 5th Cir. 1963, 315 F.2d 319, 324 that those courts have expressed a view more extreme than the one of this Circuit, we do not look upon our holding in the case at bar as being inconsistent...