957 F.2d 499 (7th Cir. 1992), 91-1926, United States v. Duran

Docket Nº:91-1926.
Citation:957 F.2d 499
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Cesar DURAN, Defendant-Appellant.
Case Date:March 17, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 499

957 F.2d 499 (7th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,


Cesar DURAN, Defendant-Appellant.

No. 91-1926.

United States Court of Appeals, Seventh Circuit

March 17, 1992

Argued Oct. 18, 1991.

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[Copyrighted Material Omitted]

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Grant C. Johnson, Asst. U.S. Atty., Office of U.S. Atty., Madison, Wis. (argued), for plaintiff-appellee.

Charles W. Giesen, Morris D. Berman (argued), Giesen & Berman, Madison, Wis., for defendant-appellant.

Before POSNER, FLAUM and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Karen Duran, wife of appellant Cesar Duran, could not figure out how to lace a pair of recently purchased leather "L.A. Gear" high-top tennis shoes, so she sought assistance at a Foot Locker store in the Janesville (Wisconsin) Mall. Karen left the shoes with a Foot Locker employee who agreed to lace them; in the interim, she shopped elsewhere in the Mall and had lunch with her two daughters, who were then two and three years old. After Karen departed, the employee discovered in the shoes three packages of what appeared to be marijuana, and called the police. Detectives Laura Massey and Douglas Witt of the Rock County Metro Unit joined a Janesville police officer at the scene, examined the packages, and determined that they indeed contained marijuana. Upon Karen's return to the Foot Locker, the officers took her to the back room and placed her under arrest. Detective Massey proceeded to search Karen's purse (with her consent), and found over $3,000 in cash, a small container of cocaine, and some drug paraphernalia. The Janesville officer read Karen her Miranda rights and, along with the detectives, transported her and the children to the Janesville Police Department.

At the station Detective Witt escorted Karen and the children to an interview room and again advised Karen of her Miranda rights. Karen indicated her willingness to talk, and advised Witt that she, her husband Cesar, and the children lived in a house on Highway H near Hanover, Wisconsin. After further questioning, Karen admitted that Cesar sold large quantities of marijuana in the Janesville area. At Witt's prompting, she then signed a form consenting to a search of the Duran residence, as well as several outbuildings and an old farmhouse on the property. The police discovered a number of weapons during the search, as well as approximately 28 pounds of marijuana in the old farmhouse, and promptly took Cesar into custody.

A federal grand jury indicted Cesar for one count of possessing marijuana with the intent to distribute in violation of 21 U.S.C. § 841(a) and one count of using a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). Cesar filed a number of pretrial motions, one of which sought to suppress the seized marijuana on the ground that Karen's consent to the search of the old farmhouse was defective. After an evidentiary hearing, a magistrate judge recommended that Cesar's suppression motion be denied, and the district court adopted the recommendation. United States v. Duran, No. 90-CR-93-S (W.D.Wis. Feb. 19, 1991). Cesar pled guilty to the marijuana possession count, and the government dismissed the firearms count. The district court accepted Cesar's plea and sentenced him to 30 months of imprisonment, followed by 5 years of supervised release.

Cesar appeals the district court's ruling on the suppression motion (having reserved the right to do so in the plea agreement). He further appeals the district court's refusal to reopen the suppression hearing to permit him to probe Detective Witt regarding misconduct in a different case. We affirm.


The fourth amendment permits police to conduct a warrantless search without probable cause if an authorized individual voluntarily consents to the search. Florida v. Jimeno, --- U.S. ----, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Karen consented to the search of the Duran property, but Cesar challenges the search on two distinct grounds; he contends that Karen's consent was involuntary, and that Karen had neither actual nor apparent authority to consent

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to a search of the old farmhouse. We consider each contention in turn.


Consent searches are valid only if the consent was freely and voluntarily given. Schneckloth, 412 U.S. at 222, 93 S.Ct. at 2045. The question of whether a consent was voluntary, as opposed to the product of duress or coercion, "is a question of fact to be determined from the totality of all the circumstances." Id. at 227, 93 S.Ct. at 2048. The government bears the burden of proving voluntariness by a preponderance of the evidence, id. at 222, 93 S.Ct. at 2045; United States v. Lechuga, 925 F.2d 1035, 1041 (7th Cir.1991), and we will not reverse a district court's finding on this issue unless clearly erroneous. United States v. Talkington, 843 F.2d 1041, 1047 (7th Cir.1988); accord United States v. Battista, 876 F.2d 201, 207 (D.C.Cir.1989); United States v. Arango-Correa, 851 F.2d 54, 57 (2d Cir.1988).

The district court determined that, all things considered, Karen voluntarily consented to the search. Cesar lists a number of factors in an attempt to prove the court wrong, but most of them do not help his cause. First, Cesar notes that this was the first time Karen had ever been placed under...

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