U.S. v. Patayan Soriano

• Decision Date: 15 October 2003
• Docket Number: No. 01-50461.,01-50461.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herman PATAYAN SORIANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 494

361 F.3d 494

UNITED STATES of America, Plaintiff-Appellee, v. Herman PATAYAN SORIANO, Defendant-Appellant.

No. 01-50461.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 2003.

Filed October 15, 2003.

Amended March 11, 2004.

COPYRIGHT MATERIAL OMITTED

Jeffrey H. Rutherford, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

Adam D. Kamenstein, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California Lourdes G. Baird, District Judge, Presiding.

Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.

Opinion by Judge CLIFTON; Dissent by Judge BERZON

ORDER

CLIFTON, Circuit Judge.

The opinion and the dissenting opinion filed October 15, 2003, and published at 346 F.3d 963 (9th Cir.2003), are amended as follows:

The opinion is amended by adding a new footnote 4, 346 F.3d at 975, at the end of the first sentence of the concluding paragraph: "For the foregoing reasons, we affirm the denial of Soriano's motion to suppress, and thus affirm his conviction.⁴"

^4. After the initial publication of the opinions in this case and during our court's consideration of Soriano's petition for rehearing en banc, Judge Berzon amended her dissenting opinion, notably to shift the basis of her dissent from a conclusion that the district court had committed "clear error" in its factual findings to an assertion that it had committed certain "legal errors." At this stage we are not inclined to redraft our majority opinion to respond in a more comprehensive fashion, but instead will simply state that we disagree with her analysis.

We feel compelled to note, however, that we believe that the dissenting opinion, as amended, contains significant misstatements, particularly in its second paragraph, newly added to the dissent as part of the amendment. In broad terms, we do not believe we made the assumption or drew the conclusion attributed to us in that paragraph. More specifically, the dissent incorrectly asserts that there was "a finding that impermissibly coercive statements [plural] occurred." Infra at ___ (emphasis added). There was no such finding, and there is no basis for asserting that there was any more than a single statement identified by the district court as a source of concern, that being the statement by Officer Shanahan, which was immediately followed by corrective statements by Postal Inspector Callas. Nor was there a finding, as the dissent asserts, that Shanahan's statement" did impact the decision to consent." Id. (emphasis in original). The district court found that Mukai did have her concern for her children "in mind to some extent," but that is not quite the same thing, and not a finding that Mukai's consent resulted from Shanahan's threat. The district court considered the entire context, including the statements made by the other officers correcting Shanahan's statement and the fact that Mukai took time to think before giving consent.

Finally, there was no conclusion that "a consent can become voluntary simply because there was time to deliberate." Id. (emphasis added). Mukai's consent did not change from "involuntary" to "voluntary." The district court found, based explicitly on "the totality of circumstances," that Mukai's consent was "free and voluntary." That determination did not rest "simply" on the fact that there was time available for Mukai to think. It was based on the entire collection of facts, one of which was that Mukai actually took the time to deliberate and was not stampeded into consenting immediately following Shanahan's improper statement.

The dissenting opinion is amended by replacing the first paragraph, 346 F.3d at 975, with:

Faced with conflicting representations by two law enforcement officers, Hiroe Mukai did the only thing that a reasonable parent could have done under the circumstances: She consented to a search for fear that the representation of one of the two officers that her young children would be taken from her if she did not consent would prove correct. The trial court recognized that when signing the consent form Mukai did "have [] in mind to some extent" her fear that her children would be taken from her if she refused to accede to the officers' demand. Yet, the trial court concluded that Mukai's consent was voluntary.

In affirming the district court's decision, the majority ratifies at least two unacknowledged legal errors: first, the assumption that where there is a finding that impermissibly coercive statements occurred and did impact the decision to consent, as here, the decision can nonetheless be voluntary even if the reliance on the coercive statements was reasonable; and second, the conclusion that a consent can become voluntary simply because there was time to deliberate concerning whether to rely on impermissibly coercive statements.

At the outset, I note that although the ultimate question whether Mukai's consent was voluntary is a factual one, see Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the trial court's errors, described above, involved the application of the legal standards for voluntariness of consent. See Culombe v. Connecticut, 367 U.S. 568, 603, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961) (explaining that the voluntariness inquiry requires "the application... of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which, also, comprehend both induction from, and anticipation of, factual circumstances"); see also Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041 ("In determining whether a defendant's will was overborne in a particular case," a court must "evaluate[] the legal significance of how the accused reacted.") (citing Culombe, 367 U.S. at 603, 81 S.Ct. 1860).

Accordingly, I respectfully dissent.

Replace the fourth paragraph (the fourth paragraph on 346 F.3d at 977) with:

Second, the district court erred in concluding that a reasonable person would have determinatively credited Inspector Callas' reassurances over Officer Shanahan's threats. True, Callas indicated to Mukai that her arrest was unrelated to her decision regarding consent. Shanahan, however, the only officer in uniform, never recanted her threat and remained standing nearby, presumably within earshot, for the remainder of the conversation.

Replace the second and third full paragraphs (second and third full paragraphs on 346 F.3d at 978-79) with:

In determining otherwise, the district court and the majority posit a model of voluntary decisionmaking that cannot be reconciled with the values underlying the Fourth Amendment. That Mukai "seemed to carefully think the situation through before ultimately signing the consent form," ante at ___, or "was told that it was her decision and ... was thinking it over" for either five or ten minutes, as the district court found, has nothing to do with the voluntariness issue. Mukai forcefully testified that the decision she finally made was the result of her fear that Shanahan's prediction concerning her children's fate should she fail to consent could prove true. That she thought for a while before coming to that conclusion does not make her continuing fear unreasonable. Coercion need not result in a hasty, emotionally-based decision. Reasonable people can decide, based on cogitation rather than precipitous capitulation, that a possible future consequence is simply unacceptable. See Schneckloth, 412 U.S. at 224, 93 S.Ct. 2041 ("[Voluntariness] cannot be taken literally to mean a `knowing' choice. Except where a person is unconscious or drugged or otherwise lacks capacity for conscious choice, all [decisions]... are `voluntary' in the sense of representing a choice of alternatives.") (citation and internal quotation marks omitted). Where, as here, that threatened consequence was inaccurate — Mukai could not legally be arrested, of course, simply for refusing to consent, so her children could not be removed for that reason either — the consent was not voluntary, however well-considered.

Under the circumstances, I conclude that the district court erred in concluding that Callas' subsequent statements were adequate to mitigate the devastating psychological effects of Shanahan's threats. Threats to the welfare of one's children are not easily overcome; a reasonable person would not automatically discount on the basis of competing representations threats by a uniformed officer who remained within earshot of the subsequent proceedings and did not disavow her statement; and a reasonable person confronted with competing representations might well give the matter some thought while in the end concluding that the risk of the threatened harm to her children's welfare is too great to credit a second, possibly less authoritative representation disavowing that risk. In short, the district court was correct in "not suggesting for a moment that she didn't have [the threat] in mind to some extent," and committed legal error, in light of that finding, in coming to the conclusion that "Ms. Mukai's consent was free and voluntary."

Replace the final paragraph of the dissenting opinion (346 F.3d at 983) with:

It is the government that "bears the heavy burden of demonstrating that consent was freely and voluntarily given." United States v. Chan-Jimenez, 125 F.3d 1324, 1327 (9th Cir.1997) (citing Schneckloth, 412 U.S. at 222, 93 S.Ct. 2041). The government is unable to meet this burden, and the district court erred in concluding otherwise. I respectfully dissent.

With these amendments, Judge Tashima and Judge Clifton have voted to deny the petition for rehearing and petition for rehearing en banc. Judge Berzon has voted to grant the petition for rehearing and petition for rehearing en banc.

A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of...