U.S. v. Czeck

• Decision Date: 30 January 1997
• Docket Number: No. 96-2757,96-2757
• Citation: 105 F.3d 1235
• Parties: UNITED STATES of America, Appellee, v. Martin Robert CZECK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1235

105 F.3d 1235

UNITED STATES of America, Appellee, v. Martin Robert CZECK, Appellant.

No. 96-2757.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 10, 1996.

Decided Jan. 30, 1997.

Frederic Bruno, Minneapolis, MN, argued, for Appellant.

Joseph T. Walbran, Asst. U.S. Atty., Minneapolis, MN, argued, for Appellee.

Before BOWMAN and HEANEY, Circuit Judges, and SMITH, ¹ District Judge.

BOWMAN, Circuit Judge.

Martin Czeck was convicted after a jury trial of six crimes relating to controlled substances and firearms. On appeal, he raises two Fourth Amendment issues, and he challenges the sufficiency of the evidence on two firearms-related counts. We affirm.

I.

Pursuing different leads, Minnesota state and Hennepin County law enforcement officials began in early 1995 to suspect Czeck of distributing marijuana. On February 1 and February 16, state officers listened on a hidden transmitter as informant Theodore Ohm twice purchased a quarter-pound of marijuana from Czeck at Czeck's residence on Eleventh Avenue South in Minneapolis. Based on this information, officers obtained a search warrant for Czeck's residence, automobiles, and person. Several days later, on February 22, Ohm and an associate purchased an ounce of cocaine from Czeck at his residence.

Later in the evening of February 22, Czeck left his residence with his friend James Flores. Flores drove to his residence on Fifth Avenue South. The two men went into the house, and when they came out a few minutes later, Czeck was carrying a paper bag. As Flores and Czeck were driving back in the direction of Czeck's residence, a state police officer radioed a county sheriff's deputy to stop the car and arrest Czeck. When officers did so, they discovered a pound of marijuana in the paper bag at Czeck's feet and a number of keys on Czeck's person.

One officer then asked Flores to drive to a nearby parking lot. Because this officer had previously received information that Czeck was storing drugs at Flores's house, he asked Flores for permission to search the Fifth Avenue house. Flores agreed and signed a consent form. During the search, Flores directed officers to a locked yellow toolbox that he said belonged to Czeck. After obtaining a search warrant, officers opened the toolbox with one of the keys obtained from Czeck, and they discovered four pounds of marijuana inside.

Other officers executed the search warrant for Czeck's residence. On top of the kitchen cabinets, they discovered a .22 caliber pistol and a .357 Ruger in a wooden box. The .357 was loaded with hollow-point bullets, and a box of matching bullets was found elsewhere in the kitchen. Also nearby were three additional pounds of marijuana and a triple-beam scale.

Finally, based on information from an informant, officers obtained a search warrant for Czeck's brother's home. In the basement, they discovered two fire safes, which they opened with keys taken from Czeck. The safes contained approximately $135,000 in cash, plus jewelry and coins.

Czeck was indicted on two counts of distributing, one count of possessing with intent to distribute, and one count of conspiring to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1994); one count of using or carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (1994); and one count of being an armed career criminal (a five-time felon in possession of firearms), in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (1994).

Prior to trial, Czeck moved to suppress the bulk of the physical evidence against him, contending that the evidence was the fruit of his unlawful arrest and the unlawful search of Flores's residence. The District Court ² denied the motion. After a four-day trial, the jury found Czeck guilty on all counts, and the court sentenced him to a total of 360 months in prison. The court also ordered Czeck to pay a conditional fine of $125,000, depending on the outcome of forfeiture proceedings in state court.

II.

A.

Czeck's initial Fourth Amendment argument is that because the police unlawfully arrested him in Flores's car without an arrest warrant, the fruits of the arrest must be suppressed. Czeck concedes that the officers had probable cause to arrest him on the basis of the two controlled buys. The narrow question presented here, then, is whether an arrest warrant is required when police officers with probable cause to arrest a suspect do so while the suspect is riding in an automobile on a public street. We think no arrest warrant is required in such a situation.

A warrantless arrest in a public place is valid if the arresting officer has probable cause. See United States v. Watson, 423 U.S. 411, 418, 423-24, 96 S.Ct. 820, 825, 827-28, 46 L.Ed.2d 598 (1976); cf. Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980) (holding that arrest in suspect's home ordinarily requires warrant). Several courts have upheld, without extensive discussion, arrests of suspects who were in automobiles located in public places. See United States v. DeMasi, 40 F.3d 1306, 1312 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 947, 130 L.Ed.2d 890 (1995); Ford v. United States, 352 F.2d 927, 928-29, 933 (D.C.Cir.1965) (en banc); cf. United States v. Wixom, 460 F.2d 206, 208-09 (8th Cir.1972) (concluding warrantless arrest was proper; not clear from facts whether suspects were in car or preparing to get in car at time of arrest). Czeck cites no authority for the proposition that a car that is in a public place is not itself a "public place" for purposes of the Watson exception to the warrant requirement. Based on the reasoning of other Fourth Amendment decisions, we believe the opposite is true: when a suspect is in a car that is in a public place (and the suspect is thus at least partially visible to the public), an officer with probable cause may arrest the suspect without a warrant. See California v. Acevedo, 500 U.S. 565, 579-80, 111 S.Ct. 1982, 1990-91, 114 L.Ed.2d 619 (1991) (explaining scope of permissible warrantless searches of cars); United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977) (recognizing "the diminished expectation of privacy which surrounds the automobile"); United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 2409-10, 49 L.Ed.2d 300 (1976) (holding that suspect standing in doorway of home is in public place); United States v. Hoyos, 892 F.2d 1387, 1393-94 (9th Cir.1989) (holding that suspect looking over backyard fence at police is in public place), cert. denied, 498 U.S. 825, 111 S.Ct. 80, 112 L.Ed.2d 52 (1990); United States v. Varkonyi, 645 F.2d 453, 457-58 (5th Cir. Unit A May 1981) (holding that suspect visible through business yard fence is in public place). We conclude that the warrantless arrest was proper.

It then follows that the search of the paper bag at Czeck's feet was authorized as a search incident to Czeck's arrest. See New York v. Belton, 453 U.S. 454, 460-61, 101 S.Ct. 2860, 2864-65, 69 L.Ed.2d 768 (1981) (holding that search incident to arrest may include contents of any container within passenger compartment); United States v. Arias-Cardenas, 36 F.3d 36, 38 (8th Cir.1994).

B.

Czeck also challenges the search of Flores's residence and the subsequent discovery of the yellow toolbox on two related grounds: the voluntariness of Flores's consent and the authority of Flores to consent to the search of the particular room at issue here.

We see no error in the District Court's finding that Flores's consent to the search was voluntary. ³ The government has the burden of demonstrating voluntariness by a preponderance of the evidence, and we will reverse only on a showing of clear error. See United States v. Miller, 20 F.3d 926, 930 (8th Cir.), cert. denied, 513 U.S. 886, 115 S.Ct. 226, 130 L.Ed.2d 152 (1994). Voluntariness depends on the totality of the circumstances, see Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973), and we have previously identified eleven factors that inform the inquiry, see United States v. Chaidez, 906 F.2d 377, 381 (8th Cir.1990). The essence of Czeck's argument is that Flores was in custody when he purportedly consented to the search and that the presence of multiple police cars and armed officers caused Flores to acquiesce in the officers' request. The custodial status of the consenting party is not determinative, however. See Miller, 20 F.3d at 930. Even if Czeck is correct that Flores was in custody at the time of his consent--a question we need not determine here--the District Court did not clearly err in concluding that Flores's consent was voluntary, in light of Flores's age, sobriety, and experience with the criminal justice system, as well as the facts that Flores was detained only briefly, did not rely on any police misrepresentations, was in a public place when he consented, aided the police in the search, and (most importantly) signed a consent form clearly explaining that he had the right to refuse consent. See Chaidez, 906 F.2d at 381; United States v. Hathcock, 103 F.3d 715, 719-20 (8th Cir.1997).

Nor do we believe that the District Court erred in finding that Flores had authority to consent to the search of the Fifth Avenue residence. Flores testified at the suppression hearing that he rented a room to Czeck--the bedroom in which the yellow toolbox was found--and that he never entered the room without Czeck's permission. Czeck also introduced evidence that two police officers indicated in search warrant applications that they had been told by informants that Czeck rented a room from Flores. The government countered with evidence that Flores referred to the room as his own bedroom, that the door to the room was unlocked, and that all of the contents of the room other than the toolbox appeared to belong to Flores (utility bills in Flores's name, an address book that...