Amin v. State

• Citation: 695 P.2d 1021
• Decision Date: 21 February 1985
• Docket Number: No. 84-24,84-24
• Parties: Abdula AMIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 1021

695 P.2d 1021

Abdula AMIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 84-24.

Supreme Court of Wyoming.

Feb. 21, 1985.

Leonard D. Munker, State Public Defender, Sylvia Lee Hackl, Appellate Counsel; and Martin J. McClain, Asst. Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division; John Renneisen, Senior Asst. Atty. Gen., and Mary B. Guthrie, Senior Asst. Atty. Gen., Cheyenne, for appellee.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN, and CARDINE, JJ.

BROWN, Justice.

Appellant, Abdula Amin, was convicted by a Laramie County jury of aiding and abetting aggravated robbery. The case against Abdula Amin was consolidated for trial with the companion case of State v. Valerie Yvonne Amin, appellant's wife. According to appellant the issues are:

I. "Whether appellant's consent to the search of his car cannot be said to have been voluntary where he was not informed that he was a suspect in another matter and the search would be used to gather evidence linking him to that crime.

II. "Whether it was prejudicial error for the trial court to permit joinder and allow evidence to be admitted against appellant in violation of Section 1-12-104, W.S.1977.

III. "Whether the trial court's refusal to allow appellant's trial counsel a full and effective cross-examination of Valerie Amin deprived appellant of his constitutional right to confront witnesses against him.

IV. "Whether the trial court's decision not to instruct the jury on lesser-included offenses was error.

V. "Whether during the hearing on Appellant's status as an habitual criminal, he was denied his constitutional right to confront witnesses against him."

We will affirm.

During the early morning hours of July 10, 1983, Valerie Yvonne Amin was engaged in prostitution in the environs of the Lamp Lounge, a Cheyenne alehouse. At this time she approached James Whitehead, and offered her services for a modest fee. According to Whitehead he declined the proposition stating his reasons. At that point he was abducted by Mrs. Amin at gun point and forced to drive his car to a remote area about six blocks from the lounge. In this isolated area Whitehead testified that he was beaten and robbed by a man, later identified as Abdula Amin. According to Mrs. Amin, Whitehead accepted her offer, but then demanded a refund and attempted to forceably recoup the fee he had paid her. Mrs. Amin stated that her husband was in a car nearby but did nothing more than extricate her from Whitehead's car; however, she said another man who was with appellant approached Whitehead's car, but Mrs. Amin did not know what happened after that.

I

In his first assignment of error appellant alleges that the search of his car was illegal. Eleven days after Whitehead was robbed appellant was in custody in connection with a sexual assault charge, an offense not related to the July 10 robbery. At that time he was questioned by Cheyenne police officer, Donna Riekens. She told appellant the police "had a report from a male who had indicated that Mr. Amin had taken him to a secluded area and had sexually assaulted him," and "also informed him [appellant] that in the report the victim stated that he had used a weapon, a gun." Appellant denied the allegations and denied that he had any weapon. Riekens then asked for permission to search Amin's car and "may have said that I [she] wanted to look for a weapon." Appellant gave oral permission for a search and then signed a form entitled, "Waiver of Search Warrant." After Officer Riekens had obtained the consent to search, Detective Mel Fleharty told her that appellant was a suspect in an armed robbery incident that occurred July 10.

Appellant complains that the consent to search his car was vitiated because it "was obtained by guile and trickery." He cites Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921) in support of this contention. Appellant does not contend that the police officers exceeded the limits of the "Waiver of Search Warrant." The only expressed limitations of the waiver form were that the search be made by police officers, and only on appellant's vehicle. Otherwise, the waiver was unrestricted. The second paragraph of the waiver provided:

"I further authorize and grant permission to the said officers to seize any letters, papers, materials, or any other articles whatsoever which they may desire to seize, and I agree that the said officers may retain such letters, papers, materials or other article whatsoever for use as evidence in any criminal action that may be instituted against me." (Emphasis added.)

At the suppression hearing appellant testified that he did not read the waiver and that he signed it only because he was told the police "were looking for a gun and gun only." Officer Riekens testified that she did not say that she was only looking for a weapon.

Appellant speculates that at the time Officer Riekens questioned him about the sexual assault charge she also knew that he was a suspect in the July 10 aggravated robbery case and that she was also trying to collect evidence for the robbery case. This suspicion is not borne out by the record. So far as the record reveals, Riekens learned that appellant was a robbery suspect when Detective Fleharty told her, after she had obtained the waiver of search warrant from appellant. It is not significant that Detective Fleharty speculated that Riekens knew that appellant was a robbery suspect before he told her.

The test for determining whether the consent for a search is valid was established in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and has been followed by this court in Stamper v. State, Wyo., 662 P.2d 82 (1983), and Parkhurst v. State, Wyo., 628 P.2d 1369 (1981). Specifically, the test requires an inquiry into the "voluntariness" of the consent in light of "the totality of the circumstances." Stamper v. State, supra.

To determine whether a consent was given voluntarily the totality of the circumstances must be considered, such as absence of coercion by the interrogating officer in obtaining consent and a valid reason for the search. Schneckloth v. Bustamonte, supra. If a defendant permits a warrantless search in the mistaken belief there is nothing to incriminate him where the search will take place, the search is voluntary. United States v. Smith, 308 F.2d 657 (2nd Cir.1962). The state has the burden of establishing by a preponderance of the evidence that the consent to search was voluntary. Stamper v. State, supra. Such determination is a question of fact to be decided in light of all the circumstances of the case. United States ex rel. Harris v. Hendricks, 423 F.2d 1096 (3rd Cir.1970).

A consent to search may be restricted in scope to designated items, restricted to certain places, or limited in purpose. A time limitation or limitation on persons permitted to conduct the search may be a further restriction on a consent search. A search based on consent is proper so long as the search is kept within the bounds of the actual consent. Police officers may not procure a waiver of search warrant on the representation that they are looking for certain named items and then use that consent as a license to conduct a general search for whatever might be discovered. United States v. Dichiarinte, 445 F.2d 126 (7th Cir.1971); and State v. Lerch, 63 Or.App. 707, 666 P.2d 840 (1983).

On appeal the evidence is viewed in the light most favorable to the prevailing party. Parkhurst v. State, supra. The evidence most favorable to the state was that Officer Riekens talked to appellant about him being a suspect in a sexual assault case, and obtained appellant's unrestricted consent to search his automobile and seize any material for use in any criminal action. After obtaining a waiver of search warrant, Officer Riekens learned that appellant was a suspect in an aggravated robbery case, and also learned of the items the police department was looking for in that case. When the consent search of the automobile was conducted, Riekens, accompanied by a lab technician, found and seized a cassette player and a wig; afterwards Officer Riekens told appellant what had been seized. Appellant did not object or comment. The cassette player and wig were used in evidence in the aggravated robbery case. Considering this evidence, which the trial court was entitled to believe, there is no indication of trickery, deceit or guile used by the police officer in order to obtain a waiver of search warrant. It was not error to admit into evidence the items seized in the search.

II

In his second assignment of error appellant contends that it was error to join his case with his wife's case for trial and admit her testimony in evidence so far as it tended to incriminate him. Mr. and Mrs. Amin were charged in separate informations with participating in the same acts or series of acts constituting aggravated robbery.

Rule 12, Wyoming Rules of Criminal Procedure, provides:

"The court may order two (2) or more indictments or informations or both to be tried together if the offenses, and the defendants, if there is more than one (1), could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information."

Rule 11(b), W.R.Cr.P., allows two or more defendants to be charged in the same information if they are alleged to have participated in the same acts or transactions or in the same series of acts or transactions constituting an offense or offenses. Under this rule it is not required that all defendants be charged in each count of the information.

In Wright, Federal Practice and Procedure: Criminal § 213, p. 766 (1982), discussing joinder of defendants under Rule 13, Federal Rules of Evidence, which is identical to our Rule...