United States v. Mix

• Decision Date: 12 August 1971
• Docket Number: No. 29611.,29611.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Thomas MIX, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

446 F.2d 615 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Thomas MIX, Defendant-Appellant.

No. 29611.

United States Court of Appeals, Fifth Circuit.

August 12, 1971.

Leonard Moriber (Court Appointed), Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Michael J. Osman, Charles O. Farrar, Jr., Asst. U. S. Attys., Miami Fla., for plaintiff-appellee.

Before TUTTLE, AINSWORTH and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Robert Thomas Mix was indicted September 17, 1969 by indictment charging him with the unlawful possession on September 4, 1969, of a Thompson Model 1921 submachine gun, a German MP 40 machine pistol, and an automatic rifle with a barrel length of 12¼ inches, that were not registered to him, in violation of Section 5861(d) Title 26, United States Code.¹ After a jury trial, he was found guilty on all counts and sentenced to imprisonment for eighteen months on each count, the terms to run concurrently. On this appeal he urges reversal of his conviction on the following grounds:

1. The unconstitutionality of Title 26, U.S.C., Section 5861(d), the statute under which he was convicted, as violative of the Fifth Amendment's privilege against compulsory self-incrimination.

2. The district court's denial of his motion to suppress the fruits of a search of September 4, 1969.

3. The district court's denial of his motion to suppress statements made to a federal agent by him on September 5, 1969.

4. Insufficiency of the evidence to establish that appellant possessed the firearms described in the indictment.

5. Admission into evidence against him of a certificate executed by officials of the Internal Revenue Service certifying that the three firearms described in the indictment were not registered to Mix in the National Firearms and Registration Record.

For reasons which we indicate below, we affirm the judgment of the lower court.

I. The Constitutionality of the Statute

Prior to trial, appellant moved to dismiss the indictment on the ground that the amended National Firearms Act conflicted with the Fifth Amendment's self-incrimination clause. The denial of that motion is assigned as error on this appeal.

The United States Supreme Court, in United States v. Freed, decided April 5, 1971, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356, resolved this issue adversely to appellant. In a prosecution for the unlawful possession of hand grenades (Title 26, U.S.C., § 5845(f)), the Court held that the confidentiality provisions of Section 5848(a), Title 26, United States Code,² and the Internal Revenue Service's policy of not disclosing information obtained from registration statements to law enforcement authorities cured the constitutional defects noted in Haynes, supra. Freed controls this issue. The first assignment of error is without merit.

II. The Validity of the Search and Seizure of September 4, 1969

At about 12:30 P.M. on September 4, 1969, Patrolman B. Horvath of the Dade County Public Safety Department was approached by a white female driving a white Corvair at the corner of Northwest 27th Avenue and 87th Street, Dade County, Florida. The woman stated that she was married and that she had a date with appellant in a few minutes at the Northside Shopping Center. She expressed fear of Mix because he was an ex-convict and had a gun. Patrolman Horvath, at about 1:00 P.M. that same date, observed appellant in the parking lot of the Northside Shopping Center. Appellant was shouting and banging on the roof and hood of a white Corvair. Two Dade County detectives then assisted Patrolman Horvath in arresting appellant for disorderly conduct. Patrolman Horvath conducted a search of appellant's car, which was parked nearby, and found a gun in the trunk. This gun was not introduced at the trial. Appellant was taken to the Dade County jail by Patrolman Horvath.

Shortly after the incident at the shopping center parking lot, the two detectives who had assisted in the arrest of appellant, L. F. Hough and Raymond F. Jones, were told by a confidential informant that appellant was reputed to possess illegal firearms in his home. At about 2:00 P.M. on September 4, the detectives went to appellant's home in Miami, Florida, and were met by appellant's mother, Mrs. Judith Gasson. What transpired next was the subject of dispute at the hearing on appellant's motion to suppress prior to trial.

At that hearing on the motion to suppress the two detectives testified that they were met at the door by Mrs. Gasson and that they told Mrs. Gasson that her son had been arrested, that they did not have a search warrant, that they were looking for illegal weapons possibly in appellant's possession, and that they had no legal authority to conduct a search of the premises without Mrs. Gasson's permission. According to the detectives, Mrs. Gasson voluntarily signed a consent to search form and told the detectives that appellant had no lease for a portion of the premises, that he paid no rent and contributed nothing to the support and maintenance of the family, and that the house was owned by Mrs. Gasson and her husband. The detectives testified that Mrs. Gasson conducted them into an enclosed porch off the kitchen in which a rollaway bed, a chest of drawers and a closet were located, the room having been identified by Mrs. Gasson as the one in which her son slept. In plain view, according to the detectives, was a submachine gun case which was found to contain a disassembled Thompson submachine gun. The other two weapons described in the indictment were found in the closet and the chest of drawers. The detectives stated that Mrs. Gasson identified certain personal items of her own in the room and claimed free access to the room in which appellant slept. Finally, the detectives testified that Mrs. Gasson expressed relief to them when the firearms were discovered, because of appellant's erratic behavior on previous occasions on which she stated he had threatened to use the weapons on members of the family.

Mrs. Gasson testified for appellant at the hearing on the motion to suppress. She stated that the detectives, upon her opening of the door, deceitfully advised her that appellant had given them permission to search his room. She further testified that appellant had been in the habit of contributing between twenty and twenty-five dollars a week to the support of the family and that the consent to search form was signed by her, with the physical assistance of Detective Jones only after the weapons were discovered.

The trial judge, at the conclusion of the testimony in the suppression hearing, indicated that he disbelieved the testimony of Mrs. Gasson and believed the testimony of the two detectives. He denied appellant's motion to suppress the three weapons seized by the two detectives. The denial of the motion is challenged on this appeal as legally incorrect. We agree with the government that the trial juge properly applied the law in effect in this Circuit in finding the search to have been properly conducted pursuant to a valid consent on Mrs. Gasson's part.

In Gurleski v. United States, 5 Cir. 1968, 405 F.2d 253, the appellants were convicted of the interstate transportation of stolen motor vehicles and of conspiracy to commit such transportation. Gurleski's co-defendant Villafranca, with whom he lived as man and mistress, consented to a police officer's search of Gurleski's car, which was parked outside the residence which they shared. Villafranca had possession of the keys to the car and opened the trunk of the vehicle for the police. Items taken from the trunk were admitted into evidence at the trial over Gurleski's objections. In rejecting Gurleski's contention that the search was unlawful, this Court cited United States v. Sferas, 7 Cir. 1954, 210 F.2d 69, 74, for the proposition that "where two persons have equal rights to the use or occupation of premises, either may consent to a search, and the evidence thus disclosed can be used against either".

United States v. Thompson, 5 Cir. 1970, 421 F.2d 373, vacated on other grounds, 1970, 400 U.S. 17, 91 S.Ct. 122, 27 L.Ed.2d 17, was a prosecution for the armed robbery of a national bank. In holding that the appellant's wife had the authority to consent to a search of the home shared by the appellant and his wife, this Court overruled the doctrine of Cofer v. United States, 5 Cir. 1930, 37 F.2d 677. The Thompson opinion cited the holdings in Gurleski and Sferas, supra, as authority and laid down a two step test for cases in which an individual other than the accused consents to a search of premises on which incriminating evidence is found: (1) did the person who gave the consent have equal rights to the use and occupation of the premises; and if the person who gave consent did have equal rights, (2) was the consent to search voluntarily given.

In Woodbury v. Beto, 5 Cir. 1970, 426 F.2d 923, this Court affirmed the denial of habeas corpus relief to an individual who had been convicted of murder in state court. We held that narcotics taken from the home of an acquaintance of Woodbury with the occupant's consent had been properly admitted into evidence against Woodbury at his trial.

Recently, in United States v. Hughes, 5 Cir. 1971, 441 F.2d 12, this Court held that the owner of a house had the authority to consent to a search of a room utilized by the appellants there for counterfeiting activities even though the room was padlocked and the owner did not have the key. It appears that this ruling was based upon a finding that the owner had surrendered control of the room out of fear, thereby depriving the appellants of a reasonable expectation of freedom from governmental intrusion into the room.

Mrs. Gasson's testimony at the suppression hearing was probably designed to invoke the doctrines enunciated in Holzhey v. United States, 5 Cir. 1955, 223 F.2d 823, and Garza-Fuentes v. United States, 5 Cir. 1968, 400 F.2d 219. In Holzhey we...