U.S. v. Briley

• Citation: 726 F.2d 1301
• Decision Date: 02 February 1984
• Docket Number: No. 83-1487,83-1487
• Parties: UNITED STATES of America, Appellee, v. Geoffrey William BRILEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1301

726 F.2d 1301

UNITED STATES of America, Appellee, v. Geoffrey William BRILEY, Appellant.

No. 83-1487.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 14, 1983.

Decided Feb. 2, 1984.

James M. Rosenbaum, U.S. Atty., Deborah Kleinman McNeil, Asst. U.S. Atty., D.Minn., Minneapolis, Minn., for appellee.

Stephen W. Cooper, Neighborhood Justice Center, Inc., St. Paul, Minn., for appellant.

Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

HENLEY, Senior Circuit Judge.

Geoffrey William Briley appeals from his conviction for bank robbery under 18 U.S.C. Sec. 2113. The primary issue on appeal is the legality of Briley's arrest. Specifically, Briley contends that his warrantless arrest in his home violated the fourth amendment. In addition, he contends the police lacked probable cause to arrest him and that the identification procedures utilized were impermissibly suggestive. We affirm the judgment of the district court. ¹

On September 29, 1982 the First Federal Savings and Loan Association in St. Paul, Minnesota was robbed of approximately $2,246.00. When the robber entered the bank, threw a knapsack on the counter and demanded money, one of the tellers put the money and what is known as a security pack in the knapsack. As the robber fled, the teller saw the security pack explode and observed the escaping red dye. Two tellers interviewed on the day of the robbery described the robber as a young male, about 5'6"' tall, with short brown hair and a scar near his right eye, wearing a hat and sunglasses.

On November 1, 1982 FBI Agent Dennis Conway was informed that "Crimestoppers" had received an anonymous telephone call that First Federal had been robbed by a person named Jeff Reiley who lived at Apartment 13, 1635 Sherburn Avenue, St. Paul. The caller also stated that when Reiley robbed the bank, a red dye explosive had gone off.

Agent Conway then went to the address given by the caller. A woman named Rosalie Rivera came to the door and let Conway in. Conway identified himself and asked Briley, who was in the apartment, if his name was Jeff Reiley. He replied that his name was Briley. Conway told Briley that he was suspected of the robbery. They talked for some time and Briley denied any involvement in the crime. No arrest was made and Conway left after the interview. Thereafter, Agent Conway notified the St. Paul Police Department and advised them of the information he had on the case and that Briley fit the description of the robber.

Officer Johnson of the St. Paul Police Department put together a photospread consisting of twelve pictures to show to witnesses. Officer Johnson showed the photospread to three of the witnesses at separate times and at different locations. Although none of the witnesses made a positive identification, one of them stated that Briley had the same cheekbones as the robber, one indicated that Briley could very possibly be the robber, and one witness did not pick Briley's photo. Thereafter a "probable cause pickup" for Briley was listed in the Daily Operations Report that is supplied to all officers as they come on duty. Evidently no attempt to get a warrant for Briley's arrest was made, although there appears to have been ample time to do so.

On November 18, 1982 two St. Paul police officers noted that the Operations Report listed for Briley an address in their patrol area, and went to 1635 Sherburn to see if they could determine Briley's whereabouts. The officers checked the mailboxes at the apartment building and found the name "Rivera" was listed for Apartment 13. When the officers rang for the caretaker, a man answered and said that he did not know where Briley was but that he had lived in the building. When asked for Briley's forwarding address, the caretaker led them back to his apartment. The officers stated that they were looking for Geoffrey Briley. A woman in the apartment named Rosalie Rivera replied that she did not know where he was at that time. She then mentioned that she was Briley's girlfriend and asked why they wanted to see him. The officers replied only that it was an important matter. Because they did not obtain any information about where Briley was, the officers turned to leave the apartment and the building. As they did, Rivera said, "All right, he's in my apartment. Come with me." She took them to Apartment 13, opened the door and gestured with her hand at Briley, who was standing in the apartment. The officers asked him if he was Briley and he said he was. The officers arrested Briley and took him to the police station.

The next day a lineup containing Briley and four others was conducted. Each subject was required to turn and speak. The three witnesses who viewed the lineup were seated apart and did not communicate with each other. Although one of the witnesses made no identification, another wrote on her identification form that Briley looked and sounded like the robber. The third witness wrote that Briley's facial features, build and voice were much the same as the robber's and noted Briley's scar under his right eye.

Later that same day Agent Conway and a St. Paul police officer interviewed Briley. Briley was given his Miranda rights and he said that he understood them. During the interview Briley admitted his involvement with the robbery and also implicated a person named Jon Tucker. Tucker was located and interviewed but initially denied any involvement. At a second interview held in Briley's apartment, Tucker waived his rights and gave a statement implicating himself and Briley.

Subsequently both Briley and Tucker were indicted for the First Federal robbery. Tucker pleaded guilty pursuant to a plea agreement while Briley waived a jury trial and was tried to the court on stipulated facts. He was found guilty and sentenced to serve six months of a three year sentence. Time served was to be followed by three years probation. He was also required to make restitution of his share of the robbery proceeds.

Briley contends that the warrantless arrest in his home violated his fourth amendment rights. He alleges that his confession and any identifications resulting from the subsequent lineup must be suppressed as the fruit of that illegal arrest. The government responds by stating that Briley's arrest was not illegal since the police entered the apartment by virtue of Rosalie Rivera's consent. The district court agreed with the government and held that Rivera's consent negated any illegality that may have attended Briley's warrantless arrest.

Our starting point of analysis is the Supreme Court's decision in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In Payton the Court held that the fourth amendment "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." Id. at 576, 100 S.Ct. at 1375 (emphasis added). While Payton did not deal with the issue of whether an initial consensual entry would justify a subsequent warrantless arrest, we have held that a valid and voluntary consent may be followed by a warrantless in-home arrest. See United States v Shigemura, 682 F.2d 699, 706 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 741, 74 L.Ed.2d 962 (1983); United States v. Ruiz-Altschiller, 694 F.2d 1104, 1106-07 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 3117, 77 L.Ed.2d 1371 (1983). Thus, we look to the question whether Rivera's consent to the entry of the apartment was valid.

The test for determining whether a consent is valid is a familiar one. The question is "whether ... the consent is given voluntarily and without coercion." United States v. Dennis, 625 F.2d 782, 793 (8th Cir.1980). This is a question of fact to be determined from all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-2048, 36 L.Ed.2d 854 (1973). It is clear that the burden is on the government to show that the consent was freely given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791-1792, 20 L.Ed.2d 797 (1968). It is also clear that a third party may give consent as long as the third party had "common authority" over the premises. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974); Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969). Common authority has been defined as "mutual use of the property by persons generally having joint access or control for most purposes...." See Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7. Since Rivera and Briley shared the apartment, either could consent to the officers' entry.

Briley contends that Rivera's consent was invalid since the officers only told her they wanted to talk to Briley, and did not say they would arrest him. The government alleges that a consent to enter may be voluntary and therefore will justify a subsequent arrest even where obtained by deception.

The government cites United States v. Ruiz-Altschiller, supra, for this proposition. This case does not stand for such a broad statement. Cases such as Ruiz-Altschiller deal with the situation where an undercover police officer obtains consent to enter a home by concealing his true identity. Commonly the suspect invites the undercover agent into his home for the purpose of conducting illegal business, typically a drug transaction. The Supreme Court has found no constitutional infirmity in such a set of circumstances.

[W]hen ... the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent ... may accept an invitation to do business and may enter ... for the very purposes contemplated by the occupant.

Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427, 17 L.Ed.2d...