Channel v. United States

• Decision Date: 07 December 1960
• Docket Number: No. 16879.,16879.
• Citation: 285 F.2d 217
• Parties: Robert Edgar CHANNEL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

285 F.2d 217 (1960)

Robert Edgar CHANNEL, Appellant, v. UNITED STATES of America, Appellee.

No. 16879.

United States Court of Appeals Ninth Circuit.

December 7, 1960.

Bernard P. McCullough, San Francisco, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Robert J. Jensen, Russell R. Hermann, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before BONE, HAMLEY and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge.

Robert Edgar Channel appeals from a judgment convicting him under counts one, three and five of an indictment charging violations of the Narcotic Drugs Import and Export Act of 1956, 21 U.S.C.A. § 174. He contends here that the trial court erred in denying his motion under rule 41(e) (1), Federal Rules of Criminal Procedure, 18 U.S. C.A., to suppress certain evidence allegedly obtained as the result of an illegal search and seizure.

A package containing twenty-three grains of heroin found in Channel's apartment during a search without warrant was received in evidence over objection. This evidence is the subject matter of count five of the indictment charging him with possession of this quantity of narcotic drugs. It is also part of the subject matter of count one charging him and one George Washington Searls III with conspiring to receive, conceal and sell narcotic drugs, including the twenty-three grains referred to above. While these twenty-three grains are not directly involved in count three, Channel contends that under the circumstances the reception of this evidence also prejudiced him with regard to that count.

Agents of the Federal Bureau of Narcotics placed Channel under arrest in a Los Angeles parking lot about 11:00 a. m. on September 26, 1958. The agents made a display of firearms, handcuffed Channel and took him to an office of the Bureau where he was questioned for thirty to forty-five minutes. Two of the agents then went to Channel's apartment, gaining entrance with a key obtained from the owner of the building. During their search of the apartment for which no search warrant had been obtained, the agents found the twenty-three grains of heroin. While the search was in progress, Channel remained in the custody of the agents at the Bureau office.

The Government contends that a search warrant was not necessary because Channel consented to the search. In support of this position, the Government relies upon the testimony of two agents who participated in the interrogation. Their accounts of statements by Channel allegedly granting his consent to the search were given at the hearing on the motion to suppress evidence.

One of these agents was Billie N. Walton. He testified that during his questioning prior to the search Channel said, "I have no stuff in my apartment and you are welcome to go search the whole place." Walton testified that the agents then asked Channel where the key to his apartment was and that Channel replied he did not have one but his wife and the landlord had keys. Walton further testified that Channel suggested they might contact one of those persons through the superintendent and gave them directions to reach his residence.

The second agent who testified at the hearing was Lee Bennett. He gave this testimony relevant to our present inquiry:

"A. * * * In answer to a question of mine * * * Well, it was more of an inference than a question. I said, `You probably have more stuff at your apartment.\' He said, `No, my apartment is clean. There is nothing there. You can go out and search the place.\' At that time I picked up some keys off the table, which had been taken from his person, and I said, `This doesn\'t look like a house key.\' He said, `No, the house key isn\'t there. You will have to see the super, but he will let you in.\' He mentioned how to find the super, he was in the back, and so forth. * * * Q. Did you at any time get this alleged consent in writing? A. No, sir. Q. To your knowledge did any of your brother officers? A. No, I don\'t think so."

Bennett testified that neither he nor anyone in his presence had asked Channel if the agents might search his room. He further stated that Channel was never told they were going to search his residence.

Appellant Channel testified that when the searching of his apartment was being discussed, Bennett, Walton and another officer were in the room. Channel first testified that he said "no" when Walton asked for permission to search the apartment, and later reiterated that "they" had requested permission and that he had declined. Still later Channel testified that he refused Bennett permission to search the apartment. Channel stated that he believed he was still handcuffed at the time this interrogation took place.

A search and seizure may be made without a search warrant if the individual freely and intelligently gives his unequivocal and specific consent to the search, uncontaminated by any duress or coercion, actual or implied. The Government has the burden of proving by clear and positive evidence that such consent was given. Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649, 650.

The order of the trial court denying the motion to suppress represents a finding of fact to the effect that Channel gave his unequivocal and specific consent to search his apartment and that such consent was not the result of duress or coercion. It is therefore apparent at the outset that the trial judge accepted the testimony of agents Walton and Bennett and rejected that of Channel. In so far as this involved an evaluation of credibility, we are not in a position to hold that the trial court erred in this regard. In re Fried, 2 Cir., 161 F.2d 453, 1 A.L.R. 2d 996.

But the relative credibility of witnesses is not the central issue. The real question presented here is whether the testimony of Walton and Bennett, taken at full value, warrants a finding that Channel freely and intelligently gave his unequivocal and specific consent to the search.

Channel's words of purported consent, as testified to by one Government witness, were, "I have no stuff in my apartment and you are welcome to go search the whole place." As testified to by the other Government witness, they were, "No, my apartment is clean. There is nothing there. You can go out and search the place." These appear to be no more specific and unequivocal words of consent than those uttered by the defendant in Judd, which the court there summarized as, "I have nothing to hide, you can go there and see for yourself."

Holding that such a statement made by a defendant in jail did not meet the test referred to above, the court said in Judd:

"* * * Conceivably, that is the calm statement of an innocent man; conceivably, again, it is but the false bravado of the small-time criminal. But, however it be characterized, it hardly establishes willing agreement that the officers search the household without first procuring a warrant. Comparable statements have been held insufficient where the victim of the search was safely in his home, his place of business, or in his automobile. Surely they acquire no more force when procured under the circumstances here present * *." 190 F.2d at page 651.

It is true that in Judd the court also noted that one of the officers who made the search interpreted Judd's words as giving consent to "go in" his home but not consent "to search it." But what Judd actually said, "You can go there and see for yourself," seems as much to contemplate a search as Channel's words, "You can go out and search the place."

In neither case was there any specific statement by the defendant that the search could be made without a warrant. If this element may be supplied by inference it could be said that since consent was not needed to search with a warrant, Channel must have...