Tatum v. United States, 18484.

• Citation: 321 F.2d 219
• Decision Date: 29 July 1963
• Docket Number: No. 18484.,18484.
• Parties: Marion Baxter TATUM, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

321 F.2d 219 (1963)

Marion Baxter TATUM, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 18484.

United States Court of Appeals Ninth Circuit.

July 29, 1963.

Fred N. Howser, Arcadia, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, and Benjamin S. Farber, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before ORR, MERRILL and BROWNING, Circuit Judges.

ORR, Circuit Judge.

Appellant is by profession a private investigator having thirteen years experience in that line and as a peace officer. One Frederick S. Thompson was at one time employed by a corporation known as Fiberite. He left the employ of Fiberite and went to work for U.S. Polymeric, a competitor. Fiberite suspected Thompson of having knowledge of certain formulas used by it in the manufacture of its product. It was apprehensive lest Thompson divulge to its competitor the composition of the formulas and decided to put him under surveillance. For this purpose it employed appellant.

At this time Thompson was residing in the Blue Bird Motel in Santa Ana, California. In pursuance of his job to "spy" on Thompson, appellant rented a room adjoining the one occupied by him. Appellant placed a "bug" in Thompson's room and connected it by wire with a receiver installed in the room appellant occupied; Thompson discovered the "bug" and contacted the Santa Ana police.

The officers made an investigation and found the "bug" in Thompson's room. They then knocked on the door of the room occupied by appellant. He invited them to enter, and upon doing so the officers discovered a receiver to which the "bug" was attached by wire. They placed appellant under arrest charging a violation of California Penal Code sec. 653h.

Appellant was then asked if he had a car. He replied in the affirmative. He was then asked by the officers if they could search it. He replied that they could do so provided he was present. The officers, accompanied by appellant, proceeded to the car. The car door was unlocked by the appellant. A search was made and two tape recordings of telephone conversations were found, and also handwritten and typewritten transcriptions of one of the conversations. The recordings and transcriptions were later turned over to Federal officers who instituted proceedings charging appellant with a violation of section 605, Title 47, United States Code, "unauthorized publication or use of communications".

A four count indictment was returned against him. He was tried before the court sitting without a jury and found guilty on counts one and four.

Appellant asserts on appeal that the search of the car and the seizure of the tape and transcriptions was illegal. A timely motion to suppress was made and denied. The officers, testifying as government witnesses, declared that appellant gave his consent to the search. Appellant testified that he did not.

It is implicit in its judgment of conviction that the trial court, as trier of the fact, credited the testimony of the officers. This leaves for consideration the question of whether the consent was valid. This court, sitting en banc, in the case of United States v. Page, 302 F.2d 81 (9th Cir. 1962), has set up certain bench marks which outline the area in which the facts must place a claimed consent in order to sustain a "valid search".

First; whether such consent has been given is in the first instance a question of fact for the trial court. In this case the trial court...