43 F.3d 332 (7th Cir. 1994), 93-3383, United States v. LaGrone

Docket Nº:93-3383.
Citation:43 F.3d 332
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Matthew LaGRONE, Defendant-Appellant.
Case Date:December 28, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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43 F.3d 332 (7th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Matthew LaGRONE, Defendant-Appellant.

No. 93-3383.

United States Court of Appeals, Seventh Circuit

December 28, 1994

Argued Sept. 12, 1994.

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Andrew B. Baker, Jr., Asst. U.S. Atty., Office of U.S. Atty., Dyer, IN, Robert N. Trgovich (argued), Office of U.S. Atty., Fort Wayne, IN, for plaintiff-appellee.

F. Allen Tew, Jr. (argued), Indianapolis, IN, for defendant-appellant.

Before LAY, [*] EASTERBROOK, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Matthew LaGrone attacks his conviction of possession with intent to distribute crack cocaine in excess of five grams. He bases his attack on the ground that the court erroneously admitted certain incriminating evidence.

In late 1992, members of the Fort Wayne Police Department's Vice and Narcotics Division arrested LaGrone, pursuant to a warrant, in his grocery store, Matt's Market. Because the officers had received information that LaGrone might be armed, they entered the store with weapons drawn. Two members of the raid team wore skimasks to protect their identities because they often worked undercover. All members of the team wore jackets that clearly identified them as law enforcement officers. When the officers entered the store, LaGrone, his girlfriend and a few customers were present. The customers were searched and escorted out. LaGrone's girlfriend was also searched and remained in the store. LaGrone was handcuffed and informed of his Miranda rights. At this time, one of the officers briefly interrogated him. Later the officers asked LaGrone to consent to a search of his store. After unsuccessful attempts at contacting his attorney, LaGrone consented to the search, saying, "I know what you want. I'll show you where it's at." LaGrone also signed a consent to search form. LaGrone led the officers to an area behind the front counter, where they found crack cocaine. The officers then took him to the Fort Wayne police station, where, after being read his Miranda rights again and waiving them, he made an incriminating statement.

LaGrone first contends that the trial court should have suppressed the evidence acquired at the grocery store--the crack cocaine. He argues that he did not voluntarily sign the consent to search form. The district court concluded, after conducting a suppression hearing, that "LaGrone voluntarily signed the waiver of rights form." We will reverse a district court's determination that a defendant consented to a search only if it is clearly erroneous. United States v. Kozinski, 16 F.3d 795, 810 (7th Cir.1994). Moreover, as the district court had the opportunity to observe the witnesses, we give great deference to its credibility determinations. Id.; see also United States v. Cardona-Rivera, 904 F.2d 1149, 1152-53 (7th Cir.1990) (stating that district court's credibility assessments concerning motions to suppress are conclusive unless "contrary to a law of nature").

In Schneckloth v. Bustamonte, the Supreme Court stated: "the question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973). This court considers a number of factors when

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determining whether a consent to search was voluntary: "age, education, and intelligence of the defendant; advisement of his rights; how long he was detained prior to the consent; repeated requests for consent; physical coercion; and whether he was in custody." Kozinski, 16 F.3d at 810; see also Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047. We are mindful that the Supreme Court has admonished that a determination of voluntariness does not ride on "the presence or absence of a single controlling factor," but that the court must make a "careful scrutiny of all the surrounding circumstances." Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047. In this case, we believe that the factors weigh against finding that the consent was involuntary. First, although LaGrone was only 19 years old at the time of the arrest, he does have a high school diploma and, as the government points out, has "the intelligence necessary to own and manage his own business." The officers carefully explained to LaGrone his rights and held him in custody for less than fifteen minutes before he consented to the search. While it is true that the officers asked LaGrone more than once whether he would consent to the search, we do not believe this constitutes the sort of repetitive psychological harassment that should tip the balance in favor of LaGrone.

Moreover, other factors point to the conclusion that LaGrone's consent was voluntary. The officers allowed LaGrone to call his attorney. They let him use the restroom. We do not believe the atmosphere was so highly stressful and coercive that a reasonable person would involuntarily consent to a search. Even when LaGrone decided to consent to the search, Sergeant Crasper was very careful to make sure that LaGrone knew his rights. Sergeant Crasper read through the consent to search form with LaGrone, asking him whether he understood each of the rights listed; LaGrone answered in the affirmative, initialled each line, and signed the form.

This case is analogous to United States v. Rojas, 783 F.2d 105 (7th Cir.1986), cert. denied, 479 U.S. 856, 107 S.Ct. 195, 93 L.Ed.2d 127 (1986). In Rojas, seven armed law enforcement officials executed an arrest warrant at Rojas' home during the evening. Rojas was handcuffed and taken to a small bathroom, where an FBI agent and a DEA agent asked Rojas if he would consent to a search of the house. Rojas was informed of his rights and signed a consent to search form. He later claimed that his consent to the search was not voluntary because he was fearful for the safety of two women in the house and was so frightened at the agents' show of force that he could not concentrate when they explained his rights. We found that the district court had not abused its discretion by holding that the consent was voluntary.

LaGrone points us to United States v. Talkington, 843 F.2d 1041 (7th Cir.1988), as support for his claim that his consent was not voluntary. In Talkington, the defendant was convicted of possession of counterfeit money. The evidence used to convict the defendant was seized during a warrantless nighttime search of his home. The defendant claimed that although he consented to the search of his home, the consent was involuntary. First, we note that we did not find that the search in Talkington was involuntary; we remanded so that the district court could conduct a hearing on the issue. No question, we were concerned that some of the facts alleged by the Talkingtons suggested the consent was involuntary, but as the lower court did not hold a suppression hearing, they were merely that--allegations. Specifically, four factors concerned us. First was the manner in which the officers entered the Talkington home; the agents forcibly entered with weapons drawn. Id. at 1048. Second, we were concerned about the agents' demeanors. The Talkingtons alleged that the agents spoke in "real loud, real mean" voices and at one time stated: "you better start cooperating and come clean, and we won't take you and your wife in...." Id. at 1049. Third, we were concerned that the agents might have lied to the Talkingtons, by suggesting that other agents were currently in the process of obtaining a warrant. However, no one ever took such steps. Finally, we were especially concerned that the consent might have been given in response to

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the agents' alleged threats to conduct a body cavity search of Mrs. Talkington. 1

Such egregious conduct did not occur in LaGrone's case. First, the officers were justified in entering LaGrone's store in the manner they did. The officers testified that they entered the store with their weapons drawn because they had information that LaGrone might have been armed: information that proved true. The officers also testified that two members of the team who wore raid masks did so to protect their identities. There is no evidence that, once the officers were assured that they were not in danger, they continued to have their guns drawn. Moreover, unlike Talkington, the officers in this case were executing a warrant, and they did so at his place of business, during the day.

Second, the officers in this case in no way threatened LaGrone. Third, although the officers did inquire with the prosecutor's office about obtaining a search warrant, they did not improperly use this fact to coerce LaGrone into consenting to the search. Finally, there is no evidence on the record that the officers in any way threatened the security or privacy of LaGrone or his girlfriend. LaGrone makes a conclusory statement that he was concerned that if he did not consent, the officers would somehow harm his pregnant girlfriend. He alleges no facts, however, that lend support to this belief, and the trial judge did not believe his story. We find no abuse of discretion in the trial court's determination that LaGrone voluntarily consented to the search of his business.

LaGrone next claims that, after he asked to talk to his attorney, the authorities should have ceased "interrogating" 2 him about whether he would sign the consent to search form. Our decision in United States v. Glenna, 878 F.2d 967 (7th Cir.1989), precludes this argument. In Glenna, we held that because requesting consent to search is not likely to elicit an incriminating statement, such questioning is not interrogation, and thus Miranda warnings are not required. Id. at 971. Other circuits are in accord with this principle. See United States v....

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