U.S. v. Hummer

• Decision Date: 25 October 1990
• Docket Number: No. 89-5454,89-5454
• Citation: 916 F.2d 186
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lester Leroy HUMMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 186

916 F.2d 186

UNITED STATES of America, Plaintiff-Appellee, v. Lester Leroy HUMMER, Defendant-Appellant.

No. 89-5454.

United States Court of Appeals Fourth Circuit.

Argued June 8, 1990.

Decided Oct. 17, 1990.

As Amended Oct. 25, 1990.

Alan Hideto Yamamoto, Fairfax, Va., for defendant-appellant.

Geoffrey Robert Brigham, Sp. Asst. U.S. Atty., Alexandria, Va., argued (Henry E. Hudson, U.S. Atty., Lawrence J. Leiser, Asst. U.S. Atty., William G. Otis, Asst. U.S. Atty., Alexandria, Va., on brief) for plaintiff-appellee.

Before WIDENER and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

WILKINS, Circuit Judge:

Lester Leroy Hummer appeals his convictions of interfering with commerce by threats, 18 U.S.C.A. Sec. 1951 (West 1984), traveling interstate in aid of racketeering enterprises, 18 U.S.C.A. Sec. 1952 (West Supp.1990), threatening to tamper with consumer products that affect interstate commerce, 18 U.S.C.A. Sec. 1365(d) (West 1984), and mailing threatening communications, 18 U.S.C.A. Sec. 876 (West 1976). He contends that evidence seized in a warrantless search of his truck should have been suppressed because his consent to search the vehicle was not freely and voluntarily given. Alternatively, he claims that he was arrested without probable cause prior to the search; therefore, evidence obtained during his detention, including the evidence seized during the search of his truck, should have been suppressed because the search was not sufficiently attenuated from the tainted arrest. Asserting that the district court improperly applied and departed from the sentencing guidelines, Hummer also appeals his sentence. We affirm.

I.

From February to April 1989, Hummer, an inventor of tamper-resistant consumer product lids, sent seven extortion letters to Coca-Cola threatening to poison its products with cyanide. In one letter, signed "deadly serious," Hummer stated that he was a "master[ ] in make-up"; another described in detail the method Hummer would use to penetrate and poison Coca-Cola's products. The method Hummer described was tested extensively by Coca-Cola and found by the district court to be not only feasible but also difficult to detect. Coca-Cola spent over $341,000 "in responding to the extortion threat." The last extortion letter demanded that the chief executive officer of Coca-Cola fly to Dulles International Airport on April 15, 1989, drive to a remote cul-de-sac near a thickly wooded location, and at 7:00 p.m., place $2,000,000 in a hole under a pine tree.

The FBI confirmed the existence of the location, the pine tree, and the hole and began surveillance of the drop site. At 6:15 p.m. on April 15, 1989, in a drizzling rain, FBI Agents William Bray and William Harris Christian, Jr. observed a man approaching the drop site from the woods. The man, wearing a fake beard, a white cap, a light colored shirt beneath a blue sweatshirt, blue pants, and white tennis shoes, spotted Agent Bray and ran back into the woods. Both Bray and Christian gave chase but were unable to overtake the man. Christian soon returned to the surveillance site and remained there.

Approximately ten minutes later, Christian saw Hummer approaching the drop site from the same general vicinity in which he had earlier pursued the fleeing man. Hummer was wearing a blue cap, a red jacket, torn blue jeans, and white tennis shoes. When Hummer saw Christian, he suddenly veered to his left, and walked parallel to the drop site away from the agent. Christian, believing Hummer may have been the first man's accomplice, drew his pistol and commanded, "Freeze!" Hummer ignored the command and continued to move away from the agent. After Christian gave a second command, Hummer stopped.

Christian identified himself and asked Hummer about his identity and his purpose for being in the woods. Hummer identified himself and explained that he had been jogging. Shortly thereafter, Bray, who had not been able to apprehend the fleeing man, transmitted by radio a description of the man to Christian. Overhearing the transmission, Hummer said, "Oh, that gentleman ran past me in the woods a few minutes ago." When Christian requested that Hummer open his jacket, he observed a blue sweatshirt and a light colored shirt underneath. Christian, realizing that Hummer's attire closely matched that of the fleeing man, concluded that Hummer was the same person observed fleeing earlier. Bray returned to the surveillance site and placed handcuffs on Hummer.

The agents escorted Hummer to a government vehicle and advised him of his Miranda rights. Senior Agent Philip J. Rendin met them at a nearby intersection and placed Hummer into his vehicle where he informed Hummer that he was not under arrest, removed the handcuffs, and began questioning him. After Hummer said that he had parked a 1978 Ford pickup truck in the vicinity of the drop site, Rendin asked him for permission to search it. Rendin explained to Hummer that it was necessary that his consent be "free and voluntary ..., that he had the right to refuse to have a search done of his vehicle and a right to have [Rendin] go get a search warrant if he wanted." Hummer agreed to allow the FBI to search his truck provided he could be present. Because he also agreed to submit to a polygraph examination, Rendin and Hummer did not proceed immediately to the truck, but instead went to the FBI's Washington field office.

At the office, Hummer read rights and consent to search forms, stated that he understood the forms, but declined to sign them. Hummer then changed his mind and refused to take a polygraph examination. Several hours later, Rendin asked Hummer if he was still willing to consent to a search of his truck and presented another consent to search form for his signature. Hummer again declined to sign the form, but negotiated with Rendin over its wording and content. Pursuant to Hummer's suggestions, Rendin wrote a consent agreement by hand, changing the wording of the consent form and adding a provision for Hummer to attend the search. Hummer signed the agreement in which he consented to a search of his truck. The agreement stated that Hummer's written permission was given "voluntarily and without threats or promises of any kind." During the search, FBI agents seized, among other items, prototypes of and patent documents relating to Hummer's tamper-resistant bottles and caps for consumer products.

Prior to his trial Hummer filed a motion to suppress physical evidence and statements obtained from him incident to his arrest. The district court denied the motion. The court found that, at the point Christian noticed the similarity between the clothing of Hummer and the clothing of the man who fled into the woods, Christian had probable cause to arrest Hummer and that Hummer freely and voluntarily gave his consent for the search. The evidence was introduced at Hummer's trial and a jury convicted him of all counts.

II.

A.

It is well-settled that a person may waive the fourth amendment's warrant requirement by consenting to a warrantless search by law enforcement officers. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). The government bears the burden of proving the consent was voluntary, Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968), and the district court must look to the totality of the circumstances surrounding the consent in determining whether it was voluntarily given. Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2058-59. The determination that a defendant has voluntarily consented to a search is a finding of fact that will be upheld on appeal unless the finding of the district court is clearly erroneous. United States v. Wilson, 895 F.2d 168, 172 (4th Cir.1990).

The record supports the finding that Hummer voluntarily consented to the search of his truck. Although Agent Rendin stated at one point that a search warrant might be sought, Hummer was advised several times orally and in writing of his right to refuse the search. Hummer stated that he understood this right. Furthermore, he had no compunction against asserting it as a bargaining chip in his negotiations with Rendin.

The fact that a search warrant was mentioned "does not necessarily constitute a coercive factor negating consent." United States v. Vasquez, 638 F.2d 507, 528-29 (2d Cir.1980), cert. denied, 450 U.S. 970, 101 S.Ct. 1490, 67 L.Ed.2d 620, 454 U.S. 847, 102 S.Ct. 165, 70 L.Ed.2d 135, 454 U.S. 975, 102 S.Ct. 528, 70 L.Ed.2d 396 (1981); accord United States v. Dennis, 625 F.2d 782, 793 (8th Cir.1980); cf. United States v. Talkington, 843 F.2d 1041, 1049 (7th Cir.1988) (agent's threat to obtain a search warrant should be addressed as one factor under the totality of the circumstances test). Based on the totality of the circumstances, the finding that Hummer voluntarily consented to the search was not clearly erroneous.

B.

In the alternative, Hummer contends that even if his consent were voluntary, the evidence should have been suppressed because the FBI did not have probable cause to arrest him. Hummer argues that the illegal arrest tainted his consent to search the truck. Because we find that his arrest was supported by probable cause, we need not address the issue of whether the consent was sufficiently voluntary to purge the taint of the illegal arrest. See United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976).

"A finding of probable cause to arrest is proper when 'at the time the arrest occurs, the facts and circumstances within the officer's knowledge would warrant the belief of a prudent person that the arrestee had committed or was committing an offense.' " United States v. Garcia, 848 F.2d 58, 59-60 (4th Cir.), cert. denied, 488 U.S. 957, 109 S.Ct. 395, 102 L.Ed.2d 384 (1988) (quoting United States v. Manbeck, 744 F.2d 360, 376 (4th Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1197, 84...