647 F.2d 876 (9th Cir. 1980), 77-3918, United States v. Penn

Docket Nº:77-3918.
Citation:647 F.2d 876
Party Name:UNITED STATES of America, Appellant, v. Clara B. PENN, a/k/a Clara B. Alexander, Appellee.
Case Date:May 15, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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647 F.2d 876 (9th Cir. 1980)

UNITED STATES of America, Appellant,


Clara B. PENN, a/k/a Clara B. Alexander, Appellee.

No. 77-3918.

United States Court of Appeals, Ninth Circuit

May 15, 1980

Rehearing Denied July 28, 1980.

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[Copyrighted Material Omitted]

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John C. Merkel, U. S. Atty., Seattle, Wash., on brief; Christine McKenna, Seattle, Wash., for appellant.

James A. Vonasch, Seattle, Wash., on brief; Jack A. Richey, Seattle, Wash., for appellee.

Appeal from the United States District Court for the Western District of Washington.


CHOY, Circuit Judge:

The district court suppressed a jar of heroin taken from the defendant's backyard, and the government appealed under 18 U.S.C. § 3731. 1 After a panel of this court had concluded that reversal was necessary, the panel suggested that the court consider the question en banc. The panel decision has been withdrawn, and the following opinion reflects the view of the majority of the court en banc.

I. Statement of the Case

Two years of Seattle police investigation led officers to believe that Clara Penn was distributing heroin from her residence. Evidence sufficient to justify a search warrant indicated that some of the Penn children were buying items used in the packaging and distribution of narcotics and that, when a delivery was to be made to a customer, one of the children was sent to retrieve drugs from a cache believed to be in the backyard.

A state magistrate issued a search warrant which described the premises to be searched as the residential premises, including the yard. The police surrounded the house, entered, and seated in the living room the approximately 10 persons found on the premises. Clara Penn's children,

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ranging in age from 5 to 22, were among them. They, along with the rest of the group, were uncooperative and combative. 2 In taunting the police they revealed their awareness of drug-related activities. 3

Officers conducting the search found a quantity of cocaine in the Penn home. After a half hour of looking they had found no heroin. At that point, Reggie, the youngest of Clara Penn's children (age 5), asked to go to the bathroom. A police officer took him. While in the bathroom with the child the policeman asked Reggie (as an "afterthought," according to the officer's testimony) if Reggie knew where the little balloons (of heroin) were hidden. Reggie nodded in the affirmative to the officer's question, indicating that he knew where the heroin could be found.

While the officer had good reason to believe that Clara Penn's children were assisting her in her drug operations and that some of them might know where the heroin was located, there is no evidence that Reggie specifically was known to be a participant in his mother's drug dealings.

Because of a commotion outside the bathroom door, the officer did not pursue his conversation with Reggie. But 10 minutes later, when the commotion had ended, the officer spoke with Reggie again, this time in the kitchen. The officer asked Reggie if Reggie would take him out to where the heroin was located. Reggie answered yes, then hesitated. The officer then offered to give Reggie five dollars if Reggie would show him the location of the cache. The boy thereupon walked out to the backyard and pointed to some soft sod. Under the sod the police discovered a glass jar containing 132.9 grams of heroin. Police later found in the yard, but without Reggie's assistance, a second jar containing 14.6 grams of heroin. (Because of the hostility of Reggie's brothers, the officer was unable to give Reggie the five dollars.)

After a state prosecution was terminated following a successful suppression motion, 4 the federal government prosecuted Clara Penn under 21 U.S.C. § 841(a)(1) for possession of controlled substances with intent to distribute them. The prosecution sought to introduce the state-suppressed evidence taken from the yard. On motion by the defense, the district court suppressed the jar of heroin that had been found with Reggie's help, 5 on the ground that the police conduct violated the due process clause of the Fifth Amendment. According to the court's memorandum:

The bribery of a child of tender age by a policeman in order to obtain evidence to be used against a parent represents police conduct which is shocking to the conscience and is, in the opinion of this Court, so violative of the decencies of civilized conduct to be a deprivation of due process. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952).

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II. Constitutional Grounds

A. Due Process

Courts should tread gingerly when faced with arguments that the "fundamental fairness" component of the Fifth Amendment's Due Process Clause requires the suppression of evidence. Only the most serious cases, which truly shock the conscience as well as the mind, call for invocation of the Constitution itself rather than of our prudential powers. The Constitution was designed to define the boundaries and framework of civilized and orderly government; it is not to be used to convert into a command a judge's every notion of what is morally best. But when the truly outrageous case, "shocking to the universal sense of justice," is before us, it is our duty to uphold the Constitution and invoke the Due Process Clause of the Fifth or Fourteenth Amendment. Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 (1942), overruled on other grounds, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

The district court below relied on Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (forcible insertion and use of stomach pump), to suppress the evidence, on the ground that the police tactic used to obtain the evidence shocked the conscience. It was technically incorrect to rely on Rochin ; we have strictly limited the Rochin line of precedent to cases of physical assault on a suspect's person. See Rivas v. United States, 368 F.2d 703, 710 (9th Cir. 1966), cert. denied, 386 U.S. 945, 87 S.Ct. 980, 17 L.Ed.2d 875 (1967). Nonetheless, the Rochin line represents only a subset of the broader category of due process violations by police in the course of investigations, see United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973), and Penn's case conceivably could fall within the broader category.

We hold, however, that it does not, although we disapprove of the police tactic used here. Due process arguments are to be "tested by an appraisal of the totality of facts in a given case." Betts v. Brady, 316 U.S. at 462, 62 S.Ct. at 1256. Under the facts of this case, the tactic did not violate the Fifth Amendment; under the facts of another, it might. See id.

Penn's case is based on a combination of factors that, considered individually, are universally agreed not to violate due process. Reggie (1) was bribed to give information; (2) was a very young child; and (3) was a close relative of Clara Penn indeed, her son. But the police may pay informants to give information; very young children may aid criminal investigations; and sons may inform or testify against mothers.

Moreover, we think that there is general agreement that the combination of any two of these factors would not violate due process. A very young child may be given money in exchange for information about a non-family member; an adult son (or brother, or spouse) may be paid to inform against his mother, etc.; and a very young son may freely inform or testify against his mother.

Indeed, there are situations where all three factors may be said to be present, and no due process violation appears. If a mother's picture is on a reward poster and her very young son, having learned its import, offers to reveal to the police her hiding place, the police are not obligated to refuse to hear the information or to withdraw the reward offer as to the son. Or suppose that a bruised, very young child enters a police station and says, "Every day in my house I fall down the stairs and get hurt. I need a new home. Please send me to one." The police correctly deduce that his mother is beating him, but respond, "We can't give you a new home just because you fall down stairs. You'd have to give us a better reason." Eventually the child accepts the "bribe" of the safe home, fearing another beating if he returns to his family home, and reveals the fact of the beatings. The mother is arrested and tried for child abuse. Consider, finally, Judge Goodwin's example of a bribe of a young son to reveal the location of an underground box where his parents' kidnap victim is suffocating.

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We do not look on these three analogies, which may be distinguishable (at least in tone), as dispositive. Instead, we look to the other facts in the case that militate against a finding of a due process violation. These include:

(1) The police had probable cause to suspect Clara Penn of heroin dealing.

(2) The police had a quite broad, but undisputedly valid, search warrant and were legitimately in the house.

(3) The policeman had a legal right to be alone with Reggie in the bathroom and the kitchen.

(4) The police never threatened or badgered Reggie.

(5) The police did not trick or deceive Reggie.

(6) The police conduct violated no law.

(7) The police had reason to believe that Clara Penn involved her children in her drug operations.

(8) Before the bribe was offered, Reggie told the policeman he knew where the heroin was hidden, and in fact he did know.

(9) Heroin dealing is an extremely serious crime, and the...

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