U.S. v. Rosi, CA-93-10034

• Decision Date: 20 June 1994
• Docket Number: No. CA-93-10034,CA-93-10034
• Citation: 27 F.3d 409
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Valentine ROSI, aka Michael Valentine Edwards, aka Michael Valentine, aka Michael Edwards, aka Michael Valentine Rose, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 409

27 F.3d 409

UNITED STATES of America, Plaintiff-Appellee, v. Michael Valentine ROSI, aka Michael Valentine Edwards, aka Michael Valentine, aka Michael Edwards, aka Michael Valentine Rose, Defendant-Appellant.

No. CA-93-10034.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1993.

Decided June 20, 1994.

Jon M. Sands, Asst. Federal Public Defender, Phoenix, AZ, for defendant-appellant.

W. Allen Stooks, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: CANBY and NOONAN, Circuit Judges, and ORRICK, ^* Senior District Judge.

Opinion by Judge Orrick.

ORRICK, District Judge:

Defendant, Michael Valentine Rosi, was found guilty by a jury of transporting stolen property interstate in violation of 18 U.S.C. Sec. 2314. He appeals claiming the district court erred in denying (1) his motion to suppress evidence obtained in a warrantless entry and search allegedly in violation of his Fourth Amendment rights, and (2) his motion to dismiss the indictment because it failed to identify the states between which the evidence was transported. We affirm.

I.

This case involves the theft and interstate transportation of $249,000 stolen from Mr. Joseph Onofrio. Onofrio kept the money in a safe in his garage. On January 22, 1992, an "electrical repairman," later identified as Rosi, appeared at Onofrio's house, and after some conversation with Onofrio, suggested that Onofrio go in the house to disconnect household appliances. Onofrio did so and when he returned to the garage, he found that the safe was missing and the "repairman" gone.

FBI agents arrested Rosi on March 25, 1992, at a ski resort near Denver, Colorado. At the time of his arrest Rosi was with Susan Barber, in whose name the condominium where they were staying had been rented. Following his arrest, Rosi asked the FBI agents if he could change out of his ski gear and put on jeans. The agents acquiesced, and Rosi, who was handcuffed, provided the agents with a key to open the condo. The agents and Rosi then entered the condo, and Rosi changed his clothes.

One agent took Barber to an FBI vehicle for questioning and then escorted her to the condo. Barber did not object to entering the condo with the agent. Agent Knight asked Barber if Rosi had any possessions or money stored in the condo, and Barber responded that she didn't think so, and then added "[g]o ahead and look around." [E.R. at 20-21]. Accompanied by a female agent, Barber went into the bedroom she shared with Rosi to change her clothes. Barber told the agent that Rosi had told her that one of the two lamps in the room was more expensive than the other. When the agent reported this comment to Agent Knight, he went to the room and examined the two lamps, discovering that one weighed considerably more than the other. He turned over the heavier lamp, saw that the felt lining had been tampered with, pulled it back and found approximately $70,000 in cash. Barber was in the room while these events transpired and made no objections to Knight's actions.

The indictment charging Rosi with interstate transportation of stolen property was "bare-bones," alleging that Rosi "did transport in interstate commerce money of value in excess of $5,000, knowing said money to have been stolen." The indictment did not identify the states between which the evidence was transported.

II.

We first review the validity of the warrantless entry and warrantless search under the clearly erroneous standard because the voluntariness of a consent to search is a question of fact. See United States v. Castillo, 866 F.2d 1071 (9th Cir.1988); United States v. Licata, 761 F.2d 537 (9th Cir.1985). ¹

Preliminarily we, of course, recognize the deep-rooted principles governing the application of the Fourth Amendment to the facts concerning the warrantless entry and warrantless search in the case at bar. Compliance with the strictures of the Fourth Amendment in most cases can only be accomplished by obtaining search warrants before entering and searching. United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 744, 13 L.Ed.2d 684 (1965). Although warrantless searches are not absolutely precluded, the exceptions to the requirement for a warrant must be "jealously and carefully drawn." Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958).

Here, notwithstanding the fact that the government's agents never requested or obtained written or verbal consent to enter and search, the government's position is that this case is one of implied consent. The government "always bears the burden of proof to establish the existence of effective consent." United States v. Impink, 728 F.2d 1228, 1232 (9th Cir.1984). "That burden is heaviest when consent would be inferred to enter and search a home...." Shaibu, 920 F.2d at 1426. Under certain narrow circumstances, however, "courts will infer consent from the cooperative attitude of a defendant." Impink, 728 F.2d at 1232. The district court found that Rosi had allowed FBI agents into the condo so that he could change his clothes as he had requested and that Barber had "invited" the agents to search the lamp where the money was recovered. As a result, it found no Fourth Amendment violation, nor do we.

Rosi, however, argues that this Court's decision in Shaibu, 920 F.2d 1423, dictates a finding that the agents violated his Fourth Amendment rights by their warrantless entry and warrantless search of his condo. In Shaibu, police officers appeared at what they thought was a suspect's home and followed the owner into his home as he retreated without obtaining his express or even implied consent. The district court found that Shaibu's failure to object created an implicit invitation to enter and search the apartment. Id. at 1424. In Shaibu we disagreed, noting that "in the absence of a specific request by police for permission to enter a home, a defendant's failure to object to such entry is not sufficient to establish free and voluntary consent. We will not infer both the request and the consent." Id. at 1428.

This case differs from Shaibu. Here Rosi had already been lawfully arrested outside his condo and was in police custody. Rosi does not contend that his arrest was unlawful. Also, Rosi affirmatively requested the arresting agents for permission to change his clothes and provided the agents with a key to the condo in order to do so.

In a similar situation, we held that such a request necessarily implies consent for police to enter the home. In United States v. Gilbert, 774 F.2d 962 (9th Cir.1985), the defendant was arrested wearing only shorts and a tee shirt. She asked one of the arresting officers to go to her home and get some clothing for her that she said could be found on her bed. When the defendant attempted to suppress evidence that the officer had found in plain view in the bedroom, this Court held that "[defendant's] request that the officers obtain her clothing necessarily implied consent to enter the bedroom in which she said the clothing was located." Id. at 964.

Similarly, here, Rosi's affirmative request to change out of his ski gear before leaving for the police station and his provision of a key to the agents to open the condo, necessarily evinced his consent to have the agents enter the premises with him. Indeed, in Shaibu we specifically distinguished Gilbert noting parenthetically that the court held that the facts supported a finding of implied consent. Id. 920 F.2d at 1426. Based on the facts presented to it at the suppression hearing and our holding in Gilbert, the district court's finding that Rosi impliedly consented to the agents' warrantless entry into the condo was not clearly erroneous.

Rosi also argues that the agents violated his Fourth Amendment rights when they entered the condo with Barber. ² At the suppression hearing, Agent Knight testified that it was Barber's suggestion that they proceed to the condo. Barber testified that she recalled that it was the agents who had suggested that they go inside and that in response, she got out of the FBI car and went with them without objection. Either way, her own testimony indicates that through her affirmative acts of cooperation she impliedly consented to their request to enter the condo.

Rosi next argues that the agents' warrantless search of the lamp was also in violation of the Fourth Amendment. A review of the facts pertaining to the search of the lamp is helpful. While in the condominium, Barber went into a room that she shared with Rosi to change her clothes. A female agent accompanied her. Barber told the agent that Rosi had told her that one of the lamps in the room was more expensive than the other. At the suppression hearing, she testified:

Q: Were you cooperating with the agents at this time?

A: Yes.

Q: Had you always cooperated?

A: Yes.

* * * * * *

Q: (by the court): ... What did you expect would happen after you said that one was more expensive than the other?

A: That the money was in the lamp. I knew that.

Q (by the court): Did you know the money was there?

A: That's why I told them, I said, one lamp is more expensive than the other.

Q: What did you expect the agents to do when you told them that, Ms. Barber?

A: To find the money.

[E.R. at 59-61]

The government argues that United States v. Mejia, 953 F.2d 461 (9th Cir.1991), controls this case. In Mejia, police officers arrived at the defendant's house without a warrant and asked his wife if they could enter. When the officers then asked if there was anyone else at home, she said her husband was and proceeded to the bedroom. She did not protest when they followed her into the room. The officers identified themselves and ultimately convinced Mejia to sign a consent to search form. Id. at 463.

Mejia subsequently moved to suppress the items found in his home on the basis that the scope of his wife's...