Burge v. United States

• Decision Date: 08 May 1964
• Docket Number: No. 17170.,17170.
• Citation: 332 F.2d 171
• Parties: Thomas Murray BURGE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

332 F.2d 171 (1964)

Thomas Murray BURGE, Appellant, v. UNITED STATES of America, Appellee.

No. 17170.

United States Court of Appeals Eighth Circuit.

May 8, 1964.

Eugene P. Welch (appointed by the court), of Gross, Welch, Vinardi, Kauffman & Schatz, Omaha, Neb., made argument for appellant and filed brief.

Frederic J. Coufal, Asst. U. S. Atty., Omaha, Neb., made argument for appellee and filed brief with Theodore L. Richling, U. S. Atty., Omaha, Neb.

Before JOHNSEN, Chief Judge, MATTHES, Circuit Judge, and GIBSON, District Judge.

JOHNSEN, Chief Judge.

Burge has appealed from his conviction, on a jury-waived trial, of transporting in interstate commerce, for the purpose of sale and distribution, obscene, lewd, lascivious and filthy pictures and films, in violation of 18 U.S.C. § 1465.

He had been using the alias Hale in his pornographic activities. He was a seasoned defendant; had experience in previous felony convictions; and chose on this basis apparently to act as his own attorney.¹ The Court advised him that in its opinion, from the nature of the offense and the possible penalty, he "should be represented by counsel, at least have the benefit of counsel and advice". It again made suggestion that he accept appointment of counsel, saying: "The Court will not force counsel upon you", but "(i)n the Court's judgment, you should have the benefit of counsel". Burge replied, "I refuse counsel", and he repeated thereafter that he did not want the Court to make appointment of counsel for him. The record clearly and conclusively demonstrates that there was an intelligent and understanding waiver of counsel by him. It may be added that it further shows that the Court solicitously engaged throughout the proceedings in protecting the record for him by appropriate inquiries and suggestions.

The principal contention urged for reversal is that the District Court erred in denying a motion to suppress the pornographic materials and in permitting them to be received in evidence. The effect of the Court's holding, in denying the motion to suppress and in finding Burge guilty on the evidence, was that the materials had not been the subject of an illegal search and seizure; that Burge had voluntarily turned them over to the police and had freely and intelligently given his consent to their taking possession of them; and that there was no merit in his claim that the police had ordered him to unlock the trunk of his car and that he had simply submitted to this assertion of authority from fear of what might happen to him, because he was "getting a little too old to take chances of physical punishment".

The incidents of Burge's unlocking of the trunk of the car and his turning over the case of revolting photographs occurred in broad daylight and on a public street. The two police officers involved testified that a report had come in that Burge was engaging in pornographic activity and was carrying the pictures about in his automobile (he had been in Omaha about a month); that they were assigned the task of making an investigation and drove around in the business area of Omaha trying to locate the car; that they spotted the car, saw Burge leave it and enter a tavern, waited until he was coming out and then engaged him in conversation, telling him that they had information that he had lewd and filthy pictures.

Burge admitted that the officers' approach to him had been, "We have a complaint we want to check out with you", and that they indicated they had been told that he was carrying the pictures in his car. According to the officers, he admitted that he had such pictures in his car. They testified that they told him they were simply investigating and did not have a search warrant, but that he stated he was willing to turn over the pictures, and that it was on this basis he unlocked the car and handed them the case in which the pictures were contained. While Burge denied this and testified that the officers declared they had a search warrant, which they did not exhibit, the Court could properly regard his credibility in this respect with skepticism, on his indicated knowledge from previous search-and-seizure experience that he was entitled to have such a warrant produced and exhibited to him, and on his ultimate admission after interrogation by the Court that there were no threats of any nature made against him.

No purpose can be served by setting out the evidence in detail. If Burge freely and intelligently gave his consent to the officers' taking possession of the pictures, there would not be an illegal search and seizure. Honig v. United States, 8 Cir., 208 F.2d 916; DeLapp v. United States, 8 Cir., 53 F.2d 627. Unless the situation required the conclusion as a matter of law that the evidence was without any substantial probative basis to support a finding that such a consent existed, the question would be simply one of fact for the trier's determination. United States v. Page, 9 Cir., 302 F.2d 81. And with the matter of probative weight between the conflicting testimony of Burge and the police officers turning entirely on the question of their respective credibility, the Court's evaluation of that element and its application thereof to the evidence would make its finding of fact on consent without basis for seeking reversal. McDonald v. United States, 10 Cir., 307 F.2d 272. That is the situation which is here involved.

We might add that from the tactics in which Burge engaged throughout, as reflected by the record, it is difficult to believe that he was not acting with calculated scheme, and that what the police officers testified he did as to unlocking the car trunk and handing over the case of pictures was not part of a determined strategy. He could hardly have laid a better foundation for a deliberate attempt to charge illegal search and seizure — which would be his only possible hope in the situation of escaping conviction. On the unarguable realities of the pictures (sodomy, etc.) and his seasoned criminal experience, it does not seem likely that he would have been acting on any other basis in personally unlocking the trunk and handing the case of pictures to the officers, in a setting of broad daylight, public street and admitted absence of any threats, without demanding the production of a search warrant.

Again, his insistence upon representing himself and on being tried without a jury also strongly fits into the picture of such a calculated objective, with the greater freedom of stage and expression in which he could thus engage than under the restraints to which counsel would professionally be subjected, and under the controls which would necessarily be imposed in a jury trial.

Further, his immediate and peremptory demand, when the Court indicated that the pornographic materials would be received in evidence, that he be permitted to withdraw his previous plea and enter one of guilty (which the Court refused) adds an element of completion to the picture of his acting with organized scheme, as a manifest attempt to avoid...