U.S. v. Creech

• Citation: 52 F.Supp.2d 1221
• Decision Date: 31 December 1998
• Docket Number: No. 98-40086-01-SAC.,98-40086-01-SAC.
• Parties: UNITED STATES of America, Plaintiff, v. Aaron Eugene CREECH, Defendant.
• Court: U.S. District Court — District of Kansas

52 F.Supp.2d 1221

UNITED STATES of America, Plaintiff, v. Aaron Eugene CREECH, Defendant.

No. 98-40086-01-SAC.

United States District Court, D. Kansas.

December 31, 1998.

COPYRIGHT MATERIAL OMITTED

Randy M. Hendershot, Office of United States Attorney, Topeka, KS, for plaintiff.

Aaron Eugene Creech, Topeka, KS, plaintiff pro se.

David J. Phillips, Marilyn M. Trubey, Office of Federal Public Defender, Topeka, KS, for defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

On September 9, 1998, the grand jury returned a one count indictment charging the defendant, Aaron Eugene Creech, with knowingly and intentionally possessing a double-barreled shotgun with a barrel less than 18 inches in length.

This case comes before the court upon the following pretrial motions filed by Creech (represented by Marilyn Trubey):

1. Motion to Suppress Evidence. (Dk.24).

2. Motion to Suppress Statement. (Dk.25).

3. Motion for Disclosure of 404(b) evidence. (Dk.26).

The government has filed a consolidated response. (Dk.27).

On December 9, 1998, the court conducted a hearing to consider the defendant's motions. At the conclusion of the hearing, the court took the matter under advisement. The court, having considered the briefs and arguments of the parties, the evidence presented, and the applicable law, is now prepared to rule.

Motion to Suppress Evidence. (Dk.24).

According to the defendant's brief, on August 3, 1998, officers with the Fugitive Task Force arrested him outside his home on county and city arrest warrants. Creech was apparently taken to his apartment. According to the defendant, before officers advised him of his Miranda rights, Detective Robinson asked Creech for consent to search his apartment. Creech asked the officers if they would obtain a search warrant if he refused to consent to the search. According to Creech, the officers responded that they would obtain a search warrant if he did not consent. The officers did not tell Creech that he had the right to refuse to consent to a search, and he did not think that he had that right. Creech consented to the search. Creech seeks to suppress the fruits of the search arguing that under the totality of the circumstances, his consent to search was not voluntary.

The government responds, arguing that the defendant's consent was the product of his reasoned choice. "Counsel indicates the defendant did not know he had the right to refuse, but if that is so, why did he ask the officers what would happen if he said `no'?" Government's Brief at 3. The government also contends that the officers' response to the defendant's question — that the officers would obtain a search warrant if he did not voluntarily consent to the search — was legally correct and therefore not improper. As to the defendant's argument regarding the failure of officers to provide Miranda warnings, the government argues that "[u]nder the proper totality of the circumstances test it is immaterial whether the defendant was given the Miranda warnings, which of course have nothing to do with a search anyway." Id.

Even if the defendant's consent was not voluntarily given, the government indicates that the evidence will establish that the defendant's roommate gave her consent to the search and that the evidence would have been discovered anyway. The government goes on to suggest that even if the roommate's consent was not valid, that the evidence would have been inevitably and independently discovered when officers obtained a search warrant from the information they possessed from the victim of not one but two robberies and a sexual assault by the defendant.

Legal Standards

Consensual Searches

A warrantless search of a suspect's premises is unreasonable per se under the Fourth Amendment unless the government shows that the search falls within one of a carefully defined set of exceptions, such as a valid consent. United States v. Butler, 966 F.2d 559, 562 (10th Cir.1992). Whether a consent to search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined by the totality-of-the-circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973). In determining whether a consent to search is voluntary, a court should consider the following: physical mistreatment, use of violence or threats of violence, promises or inducements, deception or trickery, and the physical and mental condition and capacity of the defendant. United States v. McCurdy, 40 F.3d 1111, 1119 (10th Cir.1994). Evidence obtained by a consent-based search is admissible only if the government (1) produces clear and positive testimony that the consent was unequivocal, specific, and freely given, and (2) proves that the consent was given without duress or coercion, express or implied. Butler, 966 F.2d at 562.

United States v. Glover, 104 F.3d 1570, 1583-84 (10th Cir.1997).

Miranda Warnings

Although some circuits specifically include the presence or absence of Miranda warnings as a factor for determining whether a consent to search is voluntary, see, e.g., United States v. Hathcock, 103 F.3d 715 (8th Cir.), cert. denied, 521 U.S. 1127, 117 S.Ct. 2528, 138 L.Ed.2d 1028 (1997); United States v. Torres-Sanchez, 83 F.3d 1123, 1129 (9th Cir.1996), the Tenth Circuit apparently does not specifically included the presence or absence of Miranda warnings as a factor to be considered in determining the validity of a consensual search. Although an analysis of the "totality of the circumstances" would include a consideration of all relevant facts and circumstances — ostensibly including the presence or absence of Miranda warnings — the Tenth Circuit has held that "a consent to search is not the type of incriminating statement which the Fifth Amendment was designed to address. Consenting to a search is not `evidence of a testimonial or communicative nature' which would require officers to first present a Miranda warning." United States v. Rodriguez-Garcia, 983 F.2d 1563, 1568 (10th Cir.1993).

In any event, the failure to give Miranda warnings, would not automatically invalidate the consensual nature of the search.

While [the officer] gave no Miranda warnings, never informed the defendant of his right to refuse the request for consent, and never explained that a search warrant could be obtained, the absence of these warnings does not invalidate the consent. As the [U.S. v.]Castillo, [866 F.2d 1071 (9th Cir. 1988)] Court explained, the fact that some factors are not established does not automatically mean that the defendant's consent to search was not voluntary. Id. at 1082.

Torres-Sanchez, 83 F.3d at 1130.

Validity of Third Party's Consent

The law is well-settled that a warrantless entry and search by law enforcement officers does not violate the Fourth Amendment's proscription of "unreasonable searches and seizures" if the officers have obtained the consent of a third party who possesses common authority over the premises. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). "The common authority justifying the consent need only rest `on the mutual use of the property by persons having joint access or control for most purposes.'" United States v. Sealey, 830 F.2d 1028, 1031 (9th Cir.1987) (quoting Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988). In Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), the Supreme Court held that a warrantless entry by law enforcement officers is valid when based upon the consent of a third party whom the police, at the time of entry, reasonably believe to possess common authority over the premises, but who in fact does not have such authority.

"The government has the burden of proving the effectiveness of a third party's consent." United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir.1992) (citing Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148 (1990) and United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990)).

Inevitable Discovery

Evidence obtained illegally and subject to exclusion can be introduced at trial if the prosecution can show that, absent the illegality, an independent investigation inevitably would have led to discovery of the evidence through lawful means. See Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). In United States v. Larsen, 127 F.3d 984, 986 (10th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1105, 140 L.Ed.2d 159 (1998), the Tenth Circuit concluded that "the inevitable discovery exception applies whenever an independent investigation inevitably would have led to discovery of the evidence, whether or not the investigation was ongoing at the time of the illegal police conduct."

Findings of Fact

Officers participating in Creech's arrest and the search of his apartment testified during the December 9, 1998, hearing. Creech did not testify, proceeding only by proffer.

On August 3, 1998, law enforcement officers came to the exterior of the apartment building where Creech resided with the hope of arresting him on outstanding warrants for robbery and other crimes occurring during the robbery. The officers also hoped to obtain Creech's consent to search his apartment for the stolen goods.¹ The officers encountered Creech as he was exiting the building. Creech was not surprised by the officers appearance to arrest him. Creech was placed under arrest but was not read his Miranda rights.

Although arrested, Creech was not placed in handcuffs. The officers asked Creech if they could take him inside his apartment. Outside Creech's apartment, officers also asked Creech if they could search his apartment. Creech asked the officers what would happen if he did not consent to their request. The officers informed Creech that if he did not consent, they would then seek to obtain a search warrant for the apartment. Creech consented to the search of his apartment.

Inside the...