Government of Virgin Islands v. Berne

• Decision Date: 12 May 1969
• Docket Number: No. 17553.,17553.
• Citation: 412 F.2d 1055
• Parties: GOVERNMENT OF the VIRGIN ISLANDS v. Gerard E. BERNE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

412 F.2d 1055 (1969)

GOVERNMENT OF the VIRGIN ISLANDS v. Gerard E. BERNE, Appellant.

No. 17553.

United States Court of Appeals Third Circuit.

Argued January 31, 1969.

Decided May 12, 1969.

Rehearing Denied June 12, 1969.

Certiorari Denied October 13, 1969.

John E. Stout, Grunert & Stout, Charlotte Amalie, St. Thomas, V. I., and Thomas D. Ireland, Maas, Ireland & Bruno, Charlotte Amalie, St. Thomas, V. I., for appellant.

Vincent A. Colianni, Asst. U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee.

Before MARIS, FREEDMAN and ALDISERT, Circuit Judge.

Certiorari Denied October 13, 1969. See 90 S.Ct. 96.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The appellant was convicted by a jury of Rape in the First Degree and sentenced to one year's imprisonment.¹ Thirteen separate allegations of error are assigned in this appeal, ranging from assertions that the corpus delicti was not established to charges of prejudicial misconduct by both the trial judge and the Government's attorney. After careful consideration, we have concluded that the only assignment of error which presents a valid and substantial question is the argument that the conviction resulted in part from the admission of certain tangible evidence obtained in violation of the accused's rights under the Fourth Amendment to the United States Constitution.

In the early morning of May 17, 1967, the St. Thomas, Virgin Islands, police were called to the hotel room of a twenty-year-old tourist who stated that she had been raped at knife-point earlier that morning on a nearby beach. She informed the police that her dress and undergarments were in the trunk of the assailant's car. From the victim's description of the assailant and his automobile, the police immediately concluded that Gerard Berne was a prime suspect.

As a result, two uniformed police officers proceeded to the Berne home where they arrived at approximately 7 A.M. According to the testimony of the officers, Berne's mother called her son to the door where the following conversation occurred:

"I asked him if he had a car and where it was parked and he told me it was parked around by the airport and he took me around there."

The police testified that the following conversation ensued at the airport lot, which was approximately 100 yards from the house:

"I told him that I had spoken to the young lady at the Caribbean Beach Hotel and she stated that she was out with a person in this particular make car and she described you down to a T, that\'s the slang, and I asked him did he have any clothes belonging to this lady and he said `Yes.\' I asked him where it was and he said it was in the trunk of the car and took clothes out of the car and gave me."²

With the clothes in hand, the police then proceeded to the station. Berne was not arrested, was not restrained of his freedom in any way, and was permitted to return to his home alone. Later, Berne, in the company of his father, went to the hotel where the victim was staying. While attempting to see her, he was arrested and taken to police headquarters.

Upon arrival at the station, the defendant was advised for the first time of his constitutional rights to counsel and to remain silent, in full compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).³ He then signed a "Warning as to Rights"⁴ and voluntarily submitted to further interrogation, during the course of which, he informed the police that there was a hunting knife in his car. At police request, he returned with them to his car and surrendered the knife.

At trial, defense counsel objected to the introduction of the victim's clothes and the accused's knife on the grounds that they were the products of an unconstitutional search and seizure. Specifically, it was alleged that the first interrogation and seizure of the victim's clothes were in violation of the Miranda rule and the second seizure of the knife was illegal because the accused had not truly "consented" to the seizure.

The substantive right involved here is the individual's right to be protected against unreasonable searches and seizures. Since the word "unreasonable" is by definition a correlative term, dependent for meaning on attendant circumstances, the Supreme Court has consistently recognized that "each case must be judged on its own particular facts." Lewis v. United States, 385 U.S. 206, 212, 87 S.Ct. 424, 428, 17 L.Ed.2d 312 (1966). Because both seizures here occurred under significantly different conditions, we will treat the appellant's challenge to the legality of the seizures separately.

FIRST SEARCH AND SEIZURE

Initially, we reject the government's argument that no "search or seizure" within the meaning of the Fourth Amendment occurred when the defendant voluntarily delivered the evidence to the police. The argument misconstrues the fundamental purpose of the Fourth Amendment: to protect the citizen against unreasonable governmental intrusion. That a person may verbalize an approval to a police request to search or seize does not remove the transaction from the purview of the Fourth Amendment. If such were the case, then the application of the Amendment would depend in large measure on the persuasive powers of the police to extract a "voluntary" consent from the suspect.

There are certain things which consent obviously is not. Clearly, consent is not merely acquiescence to a claim of lawful authority, Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), nor is it dependent upon any affirmative assertion of rights by the subject. United States v. Rembert, 284 F. 996 (D.C.Tex.1922). Consent must never be equated to nonresistance to police orders or suggestions. Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649 (1951).

The district court concluded that Berne's consent was freely and voluntarily given. Appellant argues, however, that the absence of coercion, suggestion, duress or intimidation is not enough. Rather, he suggests that a new dimension has been added to the concept of consent in the wake of Miranda's holding that:

"The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. at 444, 86 S.Ct. at 1612.

It is appellant's contention that since his oral consent to the search and seizure was given without prior Miranda warnings, the communicative assent cannot be valid.

We recognize that the circumstances presented by this case bring into sharp focus the inter-relationship of the Fourth Amendment's prohibition of unreasonable searches and seizures and the Fifth Amendment's privilege against self-incrimination. As early as 1886, the Supreme Court noted that "the Fourth and Fifth Amendments run almost into each other," and that "compelling a man `in a criminal case to be a witness against himself,' which is condemned in the Fifth Amendment, throws light on the question as to what is an `unreasonable search and seizure' within the meaning of the Fourth Amendment." Boyd v. United States, 116 U.S. 616, 633, 6 S.Ct. 524, 534, 29 L.Ed. 746 (1886). In Davis v. United States, 328 U.S. 582, 587, 66 S. Ct. 1256, 1258, 90 L.Ed. 1453 (1946), the Court noted that the "law of searches and seizures * * * is the product of the interplay of these two constitutional provisions."

In the years since Boyd, the interpretation of the Fourth and Fifth Amendments has undergone considerable refinement. For example, the respective provisions of both amendments have been held applicable to state prosecutions through the 14th Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The refinement in interpretation has also provided a more precise delineation of the scope of each amendment. Generally, it has been held that the Fifth Amendment applies only to "evidence of a testimonial or communicative nature", whereas "the overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion." Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). As is so often the case, however, the refinement of concepts ironically tends to produce a complexity which creates as many new similarities as differences. In this fissioning process, decisions such as Miranda can generate a profound chain-reaction among interdependent concepts.

Thus, there is logical and rational support for the appellant's assertion that the safeguards associated with Miranda should also be applied to those situations where the legality of a warrantless search and seizure is justified on the basis of the accused's consent. If the validity of the search is conceived in the communicative assent of the accused, then the vice of self-incrimination is not dissipated because the search produces physical, as opposed to testimonial, evidence. Under such circumstances, the vitality of Fourth Amendment rights are critically dependent on the protective armor of the privilege against self-incrimination.

For the Miranda rule to measure the validity of certain "consent" searches, however, the conditions which pertained in Miranda must be met. An essential requisite for its application is that the accused be taken into "custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 445, 86 S.Ct. at 1630. It is only in the context of custody, with its inherently coercive effect and its consequent deprivation of significant freedom of action, that the Miranda warnings are required.⁵ Bearing this in mind, we turn to an examination of the events surrounding the first seizure.

In contrast to the situation in Miranda, where the accused was interrogated for two hours while being held incommunicado in a police interrogation room, the...