U.S. v. Duran

• Decision Date: 17 March 1992
• Docket Number: No. 91-1926,91-1926
• Citation: 957 F.2d 499
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cesar DURAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 499

957 F.2d 499

60 USLW 2635

UNITED STATES of America, Plaintiff-Appellee, v. Cesar DURAN, Defendant-Appellant.

No. 91-1926.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 18, 1991.

Decided March 17, 1992.

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.

I.

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

A.

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 arrest. This may very well be true, but while one's lack of prior experience with the criminal justice system may be relevant to voluntariness in some circumstances, it was not here. The form Karen signed informed her that she had a right to withhold consent, and further that any evidence discovered as a result of the search could be used against her in a court of law. These warnings put her on par with the experienced arrestee in terms of what she really needed to know under the circumstances. That the form contained these warnings, in fact, weighs heavily toward finding that her consent was voluntary. United States v. Mendenhall, 446 U.S. 544, 558-59, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980); United States v. Valencia, 913 F.2d 378, 381 (7th Cir.1990); United States v. Morgan, 725 F.2d 56, 58 (7th Cir.1984).

Cesar also points out that Karen, who was 22 or 23 years old at the time, had only a high school education and was not familiar with legal matters. While the definition of voluntariness takes into account "evidence of minimal schooling [and] low intelligence," Schneckloth, 412 U.S. at 248, 93 S.Ct. at 2058, Karen's characteristics along those lines suggest just the opposite of what Cesar would have us conclude. See Mendenhall, 446 U.S. at 558, 100 S.Ct. at 1879 (22-year old defendant with an 11th-grade education "plainly capable of a knowing consent"); Welch v. United States, 466 A.2d 829, 843-44 (D.C.App.1983). Cesar next complains that the police told Karen that they would obtain a warrant in the event she did not consent to a search. This may have induced Karen to grant her consent, but it was not coercive under the fourth amendment. Although empty threats to obtain a warrant may at times render a subsequent consent involuntary, see Talkington, 843 F.2d at 1049 (consent invalid when police lied in telling suspect that they were in the process of getting a search warrant); Dotson v. Somers, 175 Conn. 614, 402 A.2d 790, 794 (1978) (consent invalid where police had insufficient grounds upon which to base a warrant application), the threat in this case was firmly grounded. Karen's admission that Cesar dealt marijuana would have provided the police probable cause had they sought a search warrant, so their threat to do so in the event she refused consent was entirely proper. See United States v. Colonia, 870 F.2d 1319, 1324-25 (7th Cir.1989); accord United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir.1983), cert. denied, 471 U.S. 1021, 105 S.Ct. 2030, 85 L.Ed.2d 313 (1985).

As further evidence that Karen's consent was coerced, Cesar points out that the police did not supply Karen with a diaper to replace the one their younger daughter had soiled sometime after the arrest. The magistrate judge found that the police offered Karen an opportunity to use a bathroom at the station to wash her daughter, but that she declined because she had no diapers. While the child's condition probably made Karen's stay at the police department distinctly more unpleasant, the officers did all they had to under the circumstances; their refusal to leave the station and procure a diaper, or to permit Karen to do the same, was not coercive.

The other factors Cesar raises strike us as more substantial. That Karen consented while being held in custody in the Janesville police station bears on the issue of voluntariness. Cf. Mendenhall, 446 U.S. at 559, 100 S.Ct. at 1879 (in upholding validity of defendant's consent, emphasizes that her presence in police office was voluntary). The potentially coercive effect of her custody, however, was mitigated by the circumstances; Karen was arrested during the day and without a show of force, was not kept under close restraint at the station, and was not subject to an aggressive display of weaponry, and was not harshly interrogated--in fact, Karen characterized Witt's conversation with her as "gentlemanly". See 3 Wayne R. LaFave, Search and Seizure § 8.2(b), at 183 (2d ed. 1987) (citing cases); cf. Talkington, 843 F.2d at 1048-49.

Finally, Cesar points to Karen's fragile emotional state at the time she consented, which was exacerbated by her failure, for about a week prior to her arrest, to take medicine (Prozac) prescribed for a nervous disorder. This factor also bears on voluntariness, and the district court erred in discounting its importance; contrary to the court's suggestion, it is immaterial whether her fragile emotional state arose from official coercion or not. Talkington, 843 F.2d at 1047-48 (citing Schneckloth, 412 U.S. at 229, 93 S.Ct. at 2048). Nonetheless, the fact that a consenting party is extremely upset at the time she...