U.S. v. Childs

• Decision Date: 06 September 1991
• Docket Number: No. 90-30429,90-30429
• Citation: 944 F.2d 491
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Viento Lynn CHILDS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 491

944 F.2d 491

UNITED STATES of America, Plaintiff-Appellee, v. Viento Lynn CHILDS, Defendant-Appellant.

No. 90-30429.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted July 9, 1991.

Decided Sept. 6, 1991.

Paul S. Petterson, Asst. Federal Public Defender, Portland, Or., for defendant-appellant.

Leslie K. Baker, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before GOODWIN, ALARCON and HALL, Circuit Judges.

ALARCON, Circuit Judge:

Viento Lynn Childs appeals from the denial of her motion to suppress evidence seized without a warrant from a houseboat she and Robert Moore shared as their residence. The district court concluded that Moore's voluntary consent to the search justified the officers' failure to obtain a warrant.

Childs seeks reversal on the following grounds:

One. The district court erred as a matter of law in concluding that law enforcement officers are not required to obtain a valid consent from each joint occupant, who is physically present, to justify a warrantless search.

Two. The district court's finding that Moore's consent was voluntary is clearly erroneous.

Three. A consent to search is invalid if it is obtained following an unnecessary delay in taking the arrested person before a magistrate.

Four. A consent to search is invalid if it is obtained after a person has invoked his or her right to the assistance of counsel during custodial investigation.

We affirm because we conclude that (1) a joint occupant's voluntary consent is sufficient to justify a warrantless search regardless of the physical presence of the other occupant, and (2) the district court did not clearly err in finding that the consent of the co-occupant was voluntary.

I PERTINENT FACTS

We summarize the evidence in the light most favorable to the trial judge's decision on a motion to suppress. United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir.1988). In February 1990, the Multnomah County Sheriff's Office received information that Childs and Moore were distributing tar heroin. The informant reported that Childs and Moore lived in a houseboat. The informant also informed the Sheriff's Office that Childs and Moore sold tar heroin from a black and yellow taxi cab.

To verify this information, officers of the Multnomah County Sheriff's Office conducted a surveillance of the activities of Childs and Moore. The officers observed Childs and Moore conduct a narcotics transaction in a black and yellow cab. The officers also located the houseboat residence of Childs and Moore. The boat was named "Graciosa."

On March 9, 1990, and March 10, 1990, the officers used informants to make controlled purchases of heroin. A $3,000 controlled purchase was arranged for March 13, 1990. An informant advised the officers conducting the surveillance that Childs and Moore did not have any heroin to transport. Childs and Moore told the informant that they would be traveling to Salem to purchase heroin from a Mexican male.

On March 13, 1990, law enforcement officers of a multi-agency task force followed Childs and Moore as they drove from their houseboat to a residence. There, Jose Miguel Salgado entered the car driven by Moore.

Moore drove the car past Salem to a rest stop about 100 miles from Portland. There, Salgado was observed conferring with another Hispanic male. After this encounter, Moore drove the vehicle across an overpass to the north-bound lanes of the I-5 freeway toward Portland.

Based on the totality of the information concerning the activities of Childs and Moore, the officers concluded that a narcotics transaction occurred at the rest stop. As their vehicles approached Salem, the officers, after conferring by telephone with a federal prosecutor, decided to stop Moore's vehicle. While they were arranging for a marked police car to effect the stop, Moore abruptly pulled to the side of the freeway and parked. Because of the manner of the stop and the location, the officers formed the belief that the occupants of Moore's vehicle were planning to flee or dispose of evidence of a crime.

The officers drew their weapons, pulled the vehicle's occupants from the vehicle and ordered them to lie on the ground while they were being handcuffed.

A search of the car revealed 125 grams of tar heroin in a plastic bag on the rear seat of the car. The car had a cellular phone in the front compartment and another in the back-seat area. A small amount of tar heroin was found in Childs' purse.

Childs was advised of her constitutional rights by Detective James Miller of the Salem Police Department at the scene of the arrest. She waived her rights and made a brief statement. Because of the danger of continuing their investigation on the freeway shoulder, at 2:45 p.m., the officers transported Childs, Moore, and Salgado to the Salem Police Department. They arrived at the police station approximately fifteen to twenty minutes later.

Childs was taken to a small interview room where she was handcuffed to a metal table. Officer Douglas Alan Ross, of the Grisham Police Department, interviewed Salgado first. Shortly before 4:00 p.m., Officer Ross entered the interview room where Childs was being detained. Officer Ross asked her if she understood the rights explained to her at the scene of the arrest. Childs replied affirmatively.

Officer Ross asked Childs biographical questions to fill out the custody report. He also asked her one question about her personal usage of heroin. She answered this inquiry and then requested counsel. Officer Ross terminated the interview and left the room.

Officer Ross then conferred with the Commander of the Narcotics and Vice Detail of the Salem Police Department. Officer Ross was instructed to return and ask Childs if she consented to a search of the houseboat.

Officer Ross asked Childs if she would consent to a search of the "Graciosa" and handed her a "Consent to Search" form. Officer Ross told Childs that he would probably apply for a search warrant if she refused to consent. He also told her that he disliked persons who sell drugs. Childs signed the consent form at 4:03 p.m., within four or five minutes after Officer Ross entered the interview room. After obtaining Childs' consent, Officer Ross went to another interview room to speak to Moore. Officer Ross asked Moore if he had understood the advice concerning his constitutional rights that he had received at the scene of the arrest from Sergeant Bunnell of the Multnomah County Sheriff's Office. Officer Ross informed Moore that Childs had consented to a search of the houseboat and showed Moore the consent form she had signed. Officer Ross read another consent form to Moore. The form recites that a person may refuse to sign it. ¹ Moore consented to a search of the "Graciosa" and signed the form at 4:13 p.m. Thereafter, Moore was interrogated on his activities on that date, Childs' heroin addiction, and the amount of money she requires to support it. Officer Ross described Moore "as very cooperative."

At approximately 4:30 p.m., Childs and Moore were transported to Portland. On March 15, 1990, Moore and Salgado were taken before a magistrate. Childs was not taken before a magistrate until March 19, 1990.

A search of the houseboat disclosed color-coded plastic bags containing varying amounts of tar heroin, two scales, material for packaging, drug records, $1,000 in cash, two fire alarms, and a police radio.

At the suppression hearing, Moore testified that he initially stated that he did not The district court concluded that Moore voluntarily consented to a search of the houseboat. Citing this circuit's decision in United States v. Yarbrough, 852 F.2d 1522 (9th Cir.), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 140 (1988), the district court ruled that since the valid consent of one joint occupant justifies a warrantless search, it was not necessary "to get to the issue of [Childs'] consent for the reasons I have already stated."

                want to sign the consent form.   Officer Ross testified that no such statement was made to him.   Moore also testified that Officer Ross told him that he would get a 10-year sentence if he did not cooperate.   Officer Ross denied making that statement.   Moore further testified that when Officer Ross displayed Childs' signed consent form, Moore was told that it is already signed so he might as well do so also.   Moore said that he then "cooperated."   The district court expressly found that Moore's testimony was not credible
                

II DISCUSSION

A. Effect of Voluntary Consent by a Person in Common Authority

Childs argues that "[w]here both householders are arrested and questioned contemporaneously, valid consent from both should be required in the absence of a judicial search warrant." Appellants Br. at 13. We review de novo a district court's interpretation of the law. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Supreme Court held that:

[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.

Id. at 171, 94 S.Ct. at 993. In United States v. Yarbrough, we held that consent of a person who has "joint access or control" over property with others can authorize a search. 852 F.2d at 1534. We also noted that persons who have joint access or control "assume[ ] the risk that the third parties might consent to the search." Id.

Childs argues that the Matlock rule only applies when the co-occupant who challenges the search was physically absent at the time the other joint...