U.S. v. Ritter

• Decision Date: 24 January 1985
• Docket Number: No. 84-5034,84-5034
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alberto RITTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 435

752 F.2d 435

UNITED STATES of America, Plaintiff-Appellee, v. Alberto RITTER, Defendant-Appellant.

No. 84-5034.

United States Court of Appeals Ninth Circuit.

Submitted Aug. 6, 1984.

Decided Jan. 24, 1985.

Michael E. Lasater, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Warren R. Williamson, Utsinger & Williamson, San Diego, Cal., for defendant-appellant.

Appeal from the United States District Court for the Southern District of California.

Before WALLACE and NORRIS, Circuit Judges, and HATTER, ^* District Judge.

HATTER, District Judge:

Alberto Ritter was charged in a two count indictment for possession with the intent to distribute approximately 7.3 kilograms of cocaine, a violation of 21 U.S.C. Sec. 841(a)(1). After numerous suppression motions were denied, Ritter entered a conditional guilty plea, and a judgment of guilty was issued by the trial court. He now appeals, challenging on four separate grounds the denial of his motions to suppress. Because we uphold each of the challenged rulings, the judgment of guilty is affirmed.

FACTS

On August 3, 1983, Ritter was stopped by a border patrol agent at the San Clemente checkpoint. He appeared extremely nervous, was visibly shaking, and told the agent he was from Central America, but was not carrying his immigration documents. The agent referred Ritter to the secondary inspection area.

At secondary, Ritter told Agent Michael Nicely that he never carried his immigration documents, and gave the agent permission to look in the trunk of his car, which contained five shoe box size packages, sloppily wrapped in colorful paper. With Ritter's consent, Nicely picked up the packages and detected a heavy, sand-like material inside. However, Ritter declined to permit Nicely to open the packages. He was then formally arrested for violating 8 U.S.C. Sec. 1304(e), by willfully failing to carry his immigration documents. Ritter was placed in a holding cell and was apparently advised of his Miranda rights. A third border patrol agent, George Pratt, also, advised Ritter of his Miranda rights, prior to asking him some personal questions so he could run a computer check on Ritter's immigration status.

At some point, Pratt asked for permission to search the packages in the trunk, and this time Ritter consented, saying something to the effect, "You got me, go ahead." The packages contained approximately three kilograms of cocaine, thus providing the basis for the charges contained in Count One of the Indictment.

Meanwhile, the computer check on Ritter's immigration status had been proceeding through the Chula Vista office, because the checkpoint did not have a computer. When no record of Ritter turned up on the computer, Agent Pratt was forced to call the main office of the Immigration and Naturalization Service in Washington, D.C. and was eventually informed that Ritter was a legally documented alien.

Shortly thereafter, Officer Terry Richhart, an Oceanside police officer assigned to the narcotics task force, conducted two interviews with Ritter. Based upon the information thus obtained, as well as the discovery of the cocaine in Ritter's car, Richhart was instructed by his supervisor to contact a deputy district attorney in order to obtain a nighttime "telephonic" search warrant for Ritter's condominium in Carlsbad.

The deputy district attorney called a municipal court judge who authorized a nighttime search warrant on the basis of an affidavit provided by Richhart via telephone. The subsequent search of Ritter's residence resulted in the seizure of over four kilograms of cocaine, providing the basis for the charges in Count Two of the Indictment.

ANALYSIS

Ritter raises the following four issues on appeal:

1. The constitutionality of 8 U.S.C. Sec. 1304(e);

2. Whether the consent to search the automobile trunk was vitiated because it was obtained without Miranda warnings;

3. The adequacy of the Franks v. Delaware hearing on the search warrant affidavit;

4. Whether the fact that the police violated Rule 41 of the Federal Rules of Criminal Procedure, by obtaining a telephonic search warrant from a state rather than a federal magistrate, requires the suppression of evidence.

A. The Constitutionality of 8 U.S.C. Sec. 1304(e)

Ritter challenges the constitutionality of 8 U.S.C. Sec. 1304(e) which makes it a criminal offense for a documented alien to fail to carry his or her alien registration card, or other immigration documents. Ritter contends that this statute violates his fifth amendment due process and equal protection rights, and is a violation of the eighth amendment prohibition against cruel and unusual punishment.

Turning first to the due process and equal protection argument, it is clear that Ritter's challenge will fail because of the broad "plenary" power of Congress to legislate in the area of immigration and naturalization. While state laws which operate to the disadvantage of aliens are usually subjected to strict scrutiny, the power of Congress to legislate regarding aliens while not unlimited, greatly exceeds that of the states. Mathews v. Diaz, 426 U.S. 67, 84-86, 96 S.Ct. 1883, 1893-1894, 48 L.Ed.2d 478 (1976). In Mathews, the Supreme Court noted that there are a multitude of federal statutes which distinguish between citizens and aliens, pointing out that the whole of Title 8 of the United States Code, regarding aliens and naturalization, is founded on the legality of distinguishing between citizens and aliens. 426 U.S. at 78 n. 12, 96 S.Ct. at 1890 n. 12.

In United States v. Campos-Serrano, 404 U.S. 293, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971), the Court stated that the essential purpose of the alien registration card is to identify the bearer as a lawfully registered alien residing in the United States, and to govern the alien's activities within the country. Id. at 299-300, 92 S.Ct. at 475. The difficulty experienced at the checkpoint in trying to verify Ritter's status is an example of the type of inconvenience and delay which can easily be avoided by simple compliance with the statute. Clearly, Congress has the power to require aliens to carry identification, and such a requirement, as embodied in Sec. 1304(e), does not violate the fifth amendment.

Ritter's next contention, that Sec. 1304(e) violates the eighth amendment cruel and unusual punishment clause, is, also, without merit. Ritter points out that the eighth amendment imposes substantive limits on what can be made criminal and punished as such, but overlooks the fact that this particular use of the cruel and unusual punishment clause is to be applied sparingly. The primary purpose of the clause is directed at the method or kind of punishment imposed for a criminal violation. Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. 1401, 1410, 51 L.Ed.2d 711 (1977).

An example of the rare type of case in which the clause has been used to limit what may be made criminal is Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), in which a state law making it a crime to be addicted to narcotics was held unconstitutional because it criminalized the status of being ill. Id. at 666, 82 S.Ct. at 1420. Clearly, Sec. 1304(e) does not come within the purview of this unusual sort of case, and does not violate the eighth amendment.

B. The Consent Search/Miranda Issue

Ritter contends that Agent Nicely should have given him Miranda warnings before requesting permission to look in the car trunk and handle the packages contained therein. There is, however, no basis for the suggestion that a request to search must be preceded by Miranda warnings, or that the lack of prior Miranda warnings vitiates a consent to search. United States v. Lemon, 550 F.2d 467, 472 (9th Cir.1977) (a consent to search is not the type of incriminating statement toward which the fifth amendment is directed), accord Tremayne v. Nelson, 537 F.2d 359, 360-61 (9th Cir.1976).

In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Supreme Court refused to impose a knowing and intelligent waiver standard in consent search situations. The Court pointed out the vast difference between the rights protected by Miranda, which go to the essence of a fair trial, and those protected by the fourth amendment, namely, the right to privacy and to be left alone. Id. at 242, 93 S.Ct. at 2055.

Unlike fourth amendment rights, Miranda rights affect the integrity of the truth finding process in a criminal trial. Thus, there is the requirement of a knowing and intelligent waiver of those rights. But fourth amendment rights "are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial." Id. The Supreme Court refused to require that a warning of the fourth amendment right to refuse consent be given before consent is requested. Id. at 231-32, 93 S.Ct. at 2049-2050. It would, therefore, make little sense to require that Miranda warnings, which advise one of the right to remain silent and the right to counsel, be given by police before requesting consent.

To validate a consent search, the government must demonstrate that the consent was voluntary. Voluntariness is a question of fact to be determined from all the surrounding circumstances. Id. at 248-49, 93 S.Ct. at 2058-2059. Whether Miranda warnings were given is one factor for the court to consider. See generally United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); United States v. Perez, 644 F.2d 1299, 1303 (9th Cir.1981).

The absence of Miranda warnings is not, however, dispositive of whether an individual voluntarily consented to a search. Hubbard v. Jeffes, 653 F.2d 99, 103-04 (3rd Cir.1981); accord United States v. Robinson, 625 F.2d 1211, 1218 n. 10 (5th Cir.1980); United States v. Tobin, 576 F.2d 687, 695 (5th Cir.) cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978); United States v. Garcia, 496 F.2d 670, 673 (5th Cir....