926 F.2d 22 (1st Cir. 1991), 90-1376, United States v. Wilkinson

Docket Nº:90-1376.
Citation:926 F.2d 22
Party Name:UNITED STATES, Appellee, v. Robert J. WILKINSON, Defendant, Appellant.
Case Date:February 11, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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926 F.2d 22 (1st Cir. 1991)

UNITED STATES, Appellee,

v.

Robert J. WILKINSON, Defendant, Appellant.

No. 90-1376.

United States Court of Appeals, First Circuit

February 11, 1991

Heard Nov. 8, 1990.

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[Copyrighted Material Omitted]

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John H. LaChance, Framingham, for defendant, appellant.

A. Clayton Spencer, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before BREYER, Chief Judge, SELYA, Circuit Judge, and PETTINE, [*] Senior District Judge.

BREYER, Chief Judge.

The convictions before us arise out of three events:

1) In May 1988, state police found cocaine and guns in Robert Wilkinson's house.

2) In October 1988, Wilkinson jumped bail.

3) In September 1989, federal agents found Wilkinson at the home of friends; they also found cocaine and guns in Wilkinson's duffel bag.

Subsequently, a federal jury convicted Wilkinson of:

1) simple possession of cocaine (in 1988), 21 U.S.C. Sec. 844(a);

2) jumping bail, 18 U.S.C. Sec. 3146(a)(1);

3) possessing cocaine with intent to distribute it (in 1989), 21 U.S.C. Sec. 841(a)(1);

4) carrying or using a gun in connection with a drug offense (in 1989), 18 U.S.C. Sec. 924(c); and

5) as a previously convicted felon, unlawfully possessing a gun (in 1988 and 1989), 18 U.S.C. Sec. 922(g)(1).

Wilkinson appeals these convictions. After reading his lengthy brief and the record with care, we find his arguments unpersuasive, and we affirm the convictions. We shall explain why.

I

The 1989 Search

On September 24, 1989, law enforcement officers found Wilkinson (who had jumped bail) at the home of his friends, Mr. and Mrs. Wilkes. They searched Wilkinson's duffel bag and found drugs and guns. Wilkinson says that, because the officers had no search warrant but only an arrest warrant, the Constitution forbids their search of his duffel bag, and, the court should have suppressed the drugs and guns as evidence. See Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 1098, 108 L.Ed.2d 276 (1990); Chimel v. California, 395 U.S. 752, 768, 89 S.Ct. 2034, 2042, 23 L.Ed.2d 685 (1969). The Government replies that the search was constitutional because Wilkinson gave his consent. The issue before us is whether the district court could lawfully find that Wilkinson's consent was voluntary, not "coerced." See Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973) (defendant's consent does not validate search if his "will has been overborne").

We review the district court's fact finding only for "clear error." United States v. Twomey, 884 F.2d 46, 51-52 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2592, 110 L.Ed.2d 273 (1990). The record reveals that four law enforcement officers entered the Wilkes' home. Wilkinson appeared at the top of a flight of stairs, hands on his head, telling the officers to leave Mrs. Wilkes alone, adding that "everything was his." Mrs. Wilkes gave the officers permission to search the house. Wilkinson's duffel bag was in the basement. Wilkinson then specifically told the officers they could search his duffel bag.

The record also shows that the officers had entered the house with guns drawn, there was considerable commotion, they had handcuffed and frisked Wilkinson, he repeatedly asked them to leave Mrs. Wilkes alone, he initially denied having any guns or drugs in the house, one of the officers then threatened they would "tear the place apart" unless he told them more, and he had taken drugs earlier in the evening.

On the other hand, the record supports the district court's findings that Wilkinson's "cognitive abilities were not compromised" by his earlier use of drugs, that the officers "lowered their weapons" once Wilkinson

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"was secured," that he "acted in a calm, professional manner and appeared to understand his options clearly," that he was "embarrassed" that the officers had found him in the home of his "good friends" whom he wished "to save ... from further involvement," and that he explicitly said the officers could search his bag, he told the officers where his bag could be found, and he pointed out the location of the guns in the bag.

Given these findings of fact, we cannot say, as a matter of law, that Wilkinson's consent was coerced. His will was not "overborne," in the sense of his having suffered a "critically impaired ... capacity for self-determination." Schneckloth, 412 U.S. at 225, 93 S.Ct. at 2047. That is to say, Wilkinson consented "voluntarily," in the sense that neither drugs nor any other circumstance made him unaware of, or mistaken about, any key fact, or unable physically to decide or to choose whether or not to agree to the search. See id. at 226, 93 S.Ct. at 2047. Moreover, the agents did not coerce his voluntary decision by improperly placing before him an impermissible choice; they did not, for example, threaten him with a gun in order to elicit an otherwise "voluntary" consent. See id. at 224 & n. 7, 93 S.Ct. at 2046 & n. 7. One of the officers did "threaten to tear the place apart," but the district court could reasonably find that this statement, in light of Mrs. Wilkes' consent to a search of the house, amounted (in rather strong terms) to no more than a permissible promise to search the house thoroughly and (likely) find the guns eventually anyway. Consequently, we cannot say that the search violated the federal Constitution; and admission of the evidence was lawful.

II

The 1989 Drug/Firearm Offense

The jury convicted Wilkinson of violating 18 U.S.C. Sec. 924(c)(1), which provides criminal punishment for any person who

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