870 F.2d 536 (9th Cir. 1989), 86-5194, United States v. DeSantis

Docket Nº:86-5194.
Citation:870 F.2d 536
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Rocco Richard DeSANTIS, aka Rick DeSantis, Defendant-Appellant.
Case Date:March 16, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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870 F.2d 536 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Rocco Richard DeSANTIS, aka Rick DeSantis, Defendant-Appellant.

No. 86-5194.

United States Court of Appeals, Ninth Circuit

March 16, 1989

Submitted Oct. 31, 1988.

Page 537

Michael J. Treman, Santa Barbara, Cal., for defendant-appellant.

Frank J. Marine, U.S. Dept. of Justice, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before FLETCHER, ALARCON and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Rocco Richard DeSantis ("DeSantis") was convicted of violating 18 U.S.C. app. Sec. 1202(a)(1), possession of a firearm by a felon. On appeal, DeSantis claims that the district court erred by admitting into evidence both the firearm in question and statements made during a verbal exchange between U.S. marshals and himself.

I

On June 29, 1984, DeSantis was convicted of conspiring to distribute heroin, in violation of 21 U.S.C. Sec. 846, and possession with intent to distribute heroin, in violation of 21 U.S.C. Sec. 841(a)(1). This court affirmed the conviction on May 29, 1985, 765 F.2d 150, and DeSantis sought review from the Supreme Court. In the interim, DeSantis was free on appellate bond. On June 5, 1985, the district court, finding him to be a flight risk, revoked DeSantis' bond and issued a warrant for his arrest.

On September 13, 1985, Inspectors Martino ("Martino") and Woolsey ("Woolsey") went to DeSantis' residence to execute the arrest warrant. The inspectors entered the living room of his apartment after identifying themselves as U.S. marshals and explaining that they had a warrant for his arrest.

The inspectors told DeSantis that the court had revoked his bond and had issued an arrest warrant. Woolsey then cursorily searched DeSantis while Martino conducted a brief security sweep of the apartment and determined that no one else was in the apartment. According to the inspectors, Woolsey read DeSantis his Miranda rights, which DeSantis indicated he understood.

At this point, DeSantis asked if he would be going to court. When told that he was, he asked if could change his clothes, because he was barefoot and wearing jogging pants and a T-shirt. He indicated that his clothing was in the adjoining bedroom. In response to this question, Martino asked whether there were any weapons in the bedroom. DeSantis stated that "there was a gun on the shelf in the closet." The inspectors accompanied DeSantis, who was not handcuffed, into the bedroom to get the clothes. DeSantis indicated that the revolver was in the closet, which was two to three feet away from him. Martino seized the loaded .38 caliber revolver from an unzippered pistol case on the closet shelf. According to the inspectors, "[a]s soon as [Martino] retrieved the gun from the shelf, [DeSantis] volunteered that he had received the gun as part of a [sic] inheritance from his father." Id. The inspectors then gave DeSantis some clothing from the closet after searching them.

The inspectors claim that at no time at the apartment did DeSantis request an attorney or suggest that he wanted to remain silent. As they were all leaving the apartment, however, DeSantis did ask for his telephone book to get his attorney's telephone number, which he was given. DeSantis, in his testimony, disagreed, stating that he asked to call his lawyer as soon as the inspectors entered the apartment in order to "see if the matter could be straightened out, but was refused."

The district judge initially granted DeSantis' request to suppress the statements to the inspectors and denied his request to suppress the gun. The judge later overturned her ruling suppressing the statements, thereby denying DeSantis' suppression motion in its entirety.

The district court conducted a bench trial and found DeSantis guilty of violating section 1202. Judgment was entered on July 7, 1986, and DeSantis filed a timely notice of appeal on July 17, 1986. This court has jurisdiction under 28 U.S.C. Sec. 1291.

II

DeSantis' claim on appeal is that the statements and the firearm were erroneously

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admitted into evidence in violation of his constitutional rights under the fifth and sixth amendments. According to DeSantis, his asserted desire to speak with counsel mandated total cessation of further questioning, including questions solely intended to secure the inspectors' own safety.

We are called upon in this case to decide whether the "public safety" exception, first articulated in New York v. Quarles, 467 U.S. 649, 657, 104 S.Ct. 2626, 2632, 81 L.Ed.2d 550 (1984), applies to the situation in which an accused asserts a right to speak with counsel. This question of first impression requires us to determine whether the considerations undergirding Quarles necessitate relaxation of certain procedural safeguards enunciated in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). Our review of this legal issue is de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

III

DeSantis contends that his asserted right to speak with his lawyer prior to being questioned 1 defeats the government's argument that he voluntarily waived...

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