U.S. v. Lee

• Decision Date: 31 December 2003
• Docket Number: No. 03-1376.,No. 03-1324.,03-1324.,03-1376.
• Citation: 356 F.3d 831
• Parties: UNITED STATES of America, Appellee, v. Ruth LEE, Appellant. United States of America, Appellee, v. Michael Sandmeyer, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 831

356 F.3d 831

UNITED STATES of America, Appellee, v. Ruth LEE, Appellant.

United States of America, Appellee, v. Michael Sandmeyer, Appellant.

No. 03-1324.

No. 03-1376.

United States Court of Appeals, Eighth Circuit.

Submitted: October 20, 2003.

Filed: December 31, 2003.

COPYRIGHT MATERIAL OMITTED

Alfred E. Willett, Cedar Rapids, IA, for Appellant Ruth Lee.

Roger L. Sutton, Charles City, IA, for Appellant Michael Sandmeyer.

C.J. Williams, AUSA, Cedar Rapids, IA, for Appellee USA.

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and MURPHY, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Ruth Lee and Michael Sandmeyer were convicted by a jury of possessing with intent to distribute 500 grams or more of a substance containing methamphetamine. See 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). In addition, Mr. Sandmeyer was convicted of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Mr. Sandmeyer maintains that the district court¹ erred in denying his motion to suppress, in denying his motion for judgment as a matter of law, and in instructing the jury. Ms. Lee challenges only the sufficiency of the evidence to support her conviction. For the reasons stated below, we affirm the district court on all points.

I.

This case began with an investigation into the suspected drug-dealing activities of Kenny Siepker, who allegedly took property ranging from Coca-Cola memorabilia to snowmobiles in exchange for methamphetamine. When police arrived at the farm where the defendants lived, they had a warrant to search for property of Mr. Siepker secreted there. The police asked for permission to search for the property without telling the defendants that they had a warrant, and after consultation Mr. Sandmeyer and Ms. Lee gave the requested permission. During the course of the search, which included outbuildings, a boat, and the farmhouse, the police repeatedly sought and obtained consent to extend the search. On the basis of drugs discovered in plain view in the farmhouse, the police obtained a second warrant to search for evidence of drug dealing by Mr. Sandmeyer. Even though this warrant was issued while the first search was ongoing, the police never informed the defendants of its existence because they consented to further searches. Mr. Sandmeyer now argues that his consent was not voluntarily given.

Unlike the waiver of constitutional rights associated with a fair trial, consent to a police search need only be voluntary, and the party giving consent need not be fully aware of his or her constitutional rights. See Schneckloth v. Bustamonte, 412 U.S. 218, 241, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The issue of whether consent was voluntary is a question of fact, id. at 248-49, 93 S.Ct. 2041, which requires an intensive inquiry, and our precedents direct courts conducting that inquiry to look at a number of different considerations, none of which standing alone is dispositive. See United States v. Chaidez, 906 F.2d 377, 380-81 (8th Cir. 1990). The government has the burden of showing that consent was voluntary, but on appeal we review the district court's factual findings under a clearly erroneous standard. Id. at 380.

Mr. Sandmeyer's first theory is that because he was not told of the officers' warrant, his consent was involuntary. There is no merit to this argument. Even if hypothetically a defendant's knowledge of his or her ability to refuse could be relevant to whether his or her consent was voluntary, it would be relevant only in those cases in which the defendant erroneously believed that he or she had no legal right to stop the police from searching. In this case, however, the facts that Mr. Sandmeyer was ignorant of were not ones that would have made him believe that he could prevent the search from proceeding. Therefore, it makes no sense for Mr. Sandmeyer now to argue that his ignorance affected the voluntariness of his consent. The Supreme Court in Schneckloth, 412 U.S. at 242-43, 93 S.Ct. 2041, held that the police need not obtain a warrant in those cases where they have probable cause to get one, so long as they obtain the voluntary consent of the person searched. Analogously, we reject the contention that the police must execute a warrant simply because they have it. It is enough that Mr. Sandmeyer voluntarily consented to the search.

Mr. Sandmeyer maintains next that given the totality of the circumstances he did not consent voluntarily. Looking to the record, we cannot say that it was clear error for the district court to find against Mr. Sandmeyer on this point. In assessing a defendant's ability to consent voluntarily, courts have looked to the defendant's age, intelligence, and education, whether or not he or she was intoxicated, whether he or she had been informed of his or her Miranda rights, and whether he or she had previous experience with the criminal justice system. See, e.g., United States v. Alcantar, 271 F.3d 731, 737 (8th Cir.2001), cert. denied, 535 U.S. 964, 122 S.Ct. 1380, 152 L.Ed.2d 371 (2002).

It is true that the record indicates that Mr. Sandmeyer was never told of his Miranda rights. Miranda warnings, however, are not required for consent to a search to be voluntary, although they can lessen the probability that a defendant was subtly coerced. See United States v. Payne, 119 F.3d 637, 644 (8th Cir.1997), cert. denied, 522 U.S. 987, 118 S.Ct. 454, 139 L.Ed.2d 389 (1997). In this case, moreover, the other relevant considerations work against Mr. Sandmeyer's claim. He is in his forties, graduated from high school, and has some college education. Evidence introduced by the government shows that in 1996, he was convicted of the manufacture and delivery of methamphetamine and was previously arrested for possession of drugs with intent to deliver. There is no contention that he was intoxicated at the time of the search. In short, the record supports the finding that Mr. Sandmeyer is a fully functioning adult who has a greater than average familiarity with the criminal justice system. Nor does the record reveal any activity on the part of the searching officers that would assist Mr. Sandmeyer's claim. There is some dispute as to the precise number of officers involved during each phase of the search, but there is no evidence that the officers improperly invoked their authority or physically intimidated the defendants. Rather, undisputed testimony suggests that they were punctiliously courteous and allowed Mr. Sandmeyer and Ms. Lee to consult at length and in private about whether to permit the searches.

Mr. Sandmeyer asserts that even if the search was consensual the police exceeded the scope of the permission that he gave them. We reject this argument. The police officers either asked if they could "look at" or "look in" Mr. Sandmeyer's boat for Mr. Siepker's property. At the time that the request was made, the boat itself was in plain sight. Mr. Sandmeyer assented, and the police found a PVC pipe containing methamphetamine stashed in one of the internal compartments of the boat. Mr. Sandmeyer argues that his assent to "looking at" the boat did not extend to an internal search of the boat's compartments, but referred only to outer, visual inspection. At the time that the request was made, however, the officer was already "looking at" the boat in the sense that Mr. Sandmeyer wants us to understand the phrase. The police obviously had no need to ask him if they could do that. Furthermore, at no time did Mr. Sandmeyer object to the officer's search. Given these facts, it was not clear error for the district court to conclude that Mr. Sandmeyer consented to a full search of the boat. There is nothing unreasonable about this interpretation of the exchange, and it is supported by the circumstances.

When the officers asked Mr. Sandmeyer for his consent, they repeatedly stated that if he had nothing to hide, then he should not object to the search. Mr. Sandmeyer argues that this constituted an implied assertion of authority, thus rendering his consent involuntary. In support of this contention he cites United States v. Pena-Saiz, 161 F.3d 1175, 1177-78 (8th Cir.1998), where we held that consent to a search given by a party who believed that she was under arrest and unable to refuse was involuntary. The facts of Pena-Saiz, however, are quite different from those presented here. In that case, the defendant was stopped in an airport, taken to an interrogation room, and informed by the police that they would search her packages because "[t]his is what we do. We talk to people, we search people's bags, we pat search people. This is what we do everyday." Id. at 1176-78. In contrast, the officers never detained Mr. Sandmeyer and certainly never subjected him to the close and intimidating confinement that the defendant experienced in Pena-Saiz. Nor did they tell Mr. Sandmeyer that the search they were conducting was a routine activity for which they had proper authority.

We conclude, moreover, that even if Mr. Sandmeyer's consent to the search was involuntary, the police would inevitably have discovered the incriminating evidence against him anyway. See Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). In applying Nix v. Williams, we have held that there must have been a reasonable probability that the evidence would have been discovered by lawful means and that the government was actively pursuing a parallel investigation at the time of the constitutional violation before the evidence will be admissible. United States v. Conner, 127 F.3d 663, 667 (8th Cir.1997).

When the police arrived at the farm, they already had a warrant to search for the property of Mr. Siepker, a suspected drug dealer. Thus, they were "actually pursuing a substantial, alternative line of investigation at the time of the [alleged] constitutional violation." See id. Mr. Sandmeyer argues that the warrant did not extend to the search of such confined spaces as the...