793 F.2d 1141 (10th Cir. 1986), 85-2217, United States v. Carson

Docket Nº:85-2217.
Citation:793 F.2d 1141
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. George L. CARSON, Defendant-Appellant.
Case Date:June 09, 1986
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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793 F.2d 1141 (10th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,


George L. CARSON, Defendant-Appellant.

No. 85-2217.

United States Court of Appeals, Tenth Circuit

June 9, 1986

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Benjamin L. Burgess, Jr., U.S. Atty. (Robin D. Fowler, Asst. U.S. Atty., with him on brief), Wichita, Kan., for plaintiff-appellee.

Michael S. Holland, Russell, Kan., for defendant-appellant.

Before BARRETT, LOGAN, and BALDOCK, Circuit Judges.

BARRETT, Circuit Judge.

Defendant-appellant, George L. Carson, was charged by information with the unlawful possession of doves contrary to the migratory bird treaties among the United States, Great Britain, and the United Mexican States in violation of 16 U.S.C. Sec. 703 and 50 C.F.R. Secs. 20.35 and 20.72. Carson was found guilty and sentenced by a United States Magistrate on March 8, 1983. Carson appealed the magistrate's decision to the District Court for the District of Kansas, and on November 10, 1983, the district court reversed the magistrate and dismissed the action finding that the evidence introduced against Carson was the product of an illegal search.

The Government appealed to this court from the district court's order pursuant to 18 U.S.C. Sec. 3731. Relying on the opinion of the United States Court of Appeals for the Fifth Circuit in United States v. Fike, 449 F.2d 191 (5th Cir.1971), we held that Carson's consent to a police search of his vehicle purged the taint of an illegal prior search. United States v. Carson, 762 F.2d 833, 836 (10th Cir.1985) (Carson I). In Carson I we remanded the case to the

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district court to determine whether Carson's consent to the subsequent search was voluntary.

On remand, the district court found, among other things, that Carson's consent to the search was voluntary. (R., Vol. I, p. 148). Consequently, the district court reinstated Carson's original conviction. Carson now appeals from the district court's order on the ground that this court was clearly erroneous in Carson I in relying on United States v. Fike, supra, and in failing to recognize, consider or apply the holding of United States v. Melendez-Gonzalez, 727 F.2d 407 (5th Cir.1984), or the constitutional principles applicable to evidence seized as a direct result of a prior illegal search.


The facts before us in this appeal are the same as those in Carson I. For the sake of clarity, however, we set out our statement of facts from Carson I, 762 F.2d at 834-35, below:

On September 1, 1982, the defendant was hunting doves in Russell County, Kansas. Joe Branick, a Russell County deputy sheriff approached him and observed him shooting nine doves. Tr. Vol. II, p. 4-5. While defendant was hunting, Branick looked into a five gallon pail and observed under a vest at least six dressed doves. Id. at 6. Branick also observed the remains of doves scattered on the tops of tall weeds in the field where defendant was hunting. Id. at 7. Branick concluded that these remains were fresh based on the way they clung to the weeds and the color of the blood. Id. Branick then got in touch with Doug Sonntag, a State Game Protector employed by the Kansas Fish and Game Commission concerning the legality of defendant's bag possession. Branick and Sonntag returned to the area where defendant was hunting and asked him for permission to search his pickup. Defendant consented, unlocked the vehicle, took out the pail, and sat in front of Sonntag, who picked up 12 freshly killed doves, lifted up a vest and removed 11 dressed doves. Id. at 11. Sonntag testified that it was his opinion that the dressed doves had been killed earlier that day because they were still warm, of a light pinkish color and their blood was wet and sticky. Tr. Vol. III, p. 11. A second State Game Protector, Madora, handled the doves later that evening and concurred with Sonntag that the dressed doves had been killed that day. Id. at 25, 27-28.

At trial before the magistrate and during cross-examination, Branick admitted that he lifted up the vest in order to observe the dressed doves. Tr. Vol. II, p. 22. Defendant objected to the evidence from this search later during testimony from Sonntag. Id. at 45. The trial was continued to allow the defendant to file and brief a motion to suppress. Id. at 55-57. The magistrate ruled on May 12, 1983, without a suppression hearing, that the defendant had waived his right to object to the evidence because he failed to file a pre-trial motion to suppress the evidence as required by Fed.R.Crim.P. 12(b)(3). The trial resumed May 23, 1983 and the defendant was found guilty.

The defendant appealed the judgment to the district court who found that the magistrate had abused his discretion in failing to hear the reason for the defendant's failure to file the pre-trial motion to suppress and for failing to address the question of whether the search was legal. The trial court then set aside the conviction and dismissed the action because it determined that Branick's search was illegal.

In Carson I, we affirmed the district court's ruling that the magistrate erred in refusing to grant defendant relief from the waiver provision of Rule 12(f) of the Federal Rules of Criminal Procedure. Id. at 835. We also agreed with the district court that the first search by Branick, in which he picked up the vest to reveal the six dressed doves, was in violation of the Fourth Amendment. Id. We noted, however, that neither the district court nor the magistrate

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discussed the validity and effect of the subsequent consensual search. Id.

Before considering the validity and effect of the consensual search, we quoted the defendant's testimony regarding the second search as follows:

The officers returned to the area and encountered defendant at his pickup. Defendant testified, Tr. Vol. III, pp. 60-64:

"Q. What occurred when the two of them came to the pickup?

A. We stood around talking a little bit, and just visiting. Mr. Branick said, well George, he said, I want to tell you that I think you shot too many doves and I couldn't believe it. I thought, uh, oh, here we go again. So I asked him, I said what makes you think that? And he said because I saw some feathers and some blood and something else, he said, sticking in some weeds or something, which I never did see, quite frankly.

Q. Did he tell you at that time he had searched your bucket?

A. No, he did not.

Q. Okay, what else did he say?

A. Well, he asked again, Mr. Branick asked if he could ... if they could look into my pickup and I said, well certainly....

Q. What happened then?

A. We got back to the ... the pickup where the vehicles were. I unlocked the truck on the driver's side. I reached across the passenger side and got the bucket and brought it out toward the rear of my pickup and set it on the ground. Mr. Sonntag then proceeded to take the freshly killed undressed doves off the top of the hunting jackets, laid them on the ground. Then he lifted out two hunting jackets, then lifted off the plastic bag....

Q. Now, in regard to the doves, how many dressed doves were there?

A. There were 12."

Carson I, 762 F.2d at 835-36. In light of this testimony, we held in Carson I that Carson's consent to the second search purged the evidence obtained thereby of any taint from the unlawful first search. We supported our holding relying exclusively on the Fifth Circuit's decision in United States v. Fike, supra. Carson I, 762 F.2d at 836. Recognizing, however, that the admissibility of the evidence obtained through the second search depended upon whether Carson's consent was voluntary under Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), a finding not made by either the magistrate or the district court, we remanded the issue to the district court as follows:

The argument [by the Government] is that the defendant's consent to the second search was brought to the attention of the trial court but not considered by it. Because the validity of the second search involves a question of fact, the voluntary consent to the second search, the district court, on remand, may wish to remand the case to the magistrate for determination of the facts.

Id. at 837.

On remand the district court found that Carson's consent to the second search was voluntary:

This Court, having reviewed the transcript and record of trial proceedings before the Magistrate ... finds that under the totality of the circumstances, Mr. Carson's consent was the product of his own free will and unconstrained choice. The Court finds that Mr. Carson's consent to the search was voluntary.

(R., Vol. I, p. 137.) Based on this factual determination the district court reinstated and affirmed Carson's conviction by the magistrate. (R., Vol. I, p. 148.)

In the instant appeal, Carson challenges his conviction contending that this court clearly erred in Carson I in holding that "defendant's consent purged the second search of any taint from the first search." Carson I, 762 F.2d at 836. First, Carson contends we clearly erred in Carson I in relying on United States v. Fike, supra, in light of the Fifth Circuit's subsequent decision

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in United States v. Melendez-Gonzalez, supra, and constitutional principles articulated by the Supreme Court. Second, Carson contends that even if the subsequent consensual search purges the taint of the prior illegal search, the evidence should be excluded because it was obtained as a direct result of the initial illegal search.


Before considering the merits of this appeal, two procedural issues raised by the parties should be addressed....

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