U.S. v. Scott

Decision Date16 June 1978
Docket NumberNo. 77-5327,77-5327
Citation578 F.2d 1186
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Amos Annice SCOTT, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Walter C. Kurtz, Legal Services of Nashville, Nashville, Tenn., for defendant-appellant.

John H. Cary, U. S. Atty., Edward E. Wilson, Jimmie Baxter, Knoxville, Tenn., for plaintiff-appellee.

Before WEICK, EDWARDS and LIVELY, Circuit Judges.

WEICK, Circuit Judge.

Amos Annice Scott was charged in Count I of a two-count indictment with armed bank robbery and assault with a dangerous weapon, in violation of 18 U.S.C. §§ 2113(a) and 2113(d). Count II of the indictment charged his co-defendants, Vickie Nance and Elaine Katrina Smith, with having been accomplices after the fact by knowingly harboring Scott in order to prevent his apprehension, each aiding and abetting the other, in violation of 18 U.S.C. §§ 2 and 3. The defendants were tried by a jury which returned a verdict of guilty against Scott, and acquittal for both Nance and Smith. Scott was sentenced to twenty-five years' imprisonment, from which judgment of conviction he now appeals.

I

Scott contends that both his arrest and certain evidence introduced against him were the fruit of illegal entries of the apartment of co-defendant Nance; that such evidence should have been suppressed; that the District Court erred in its instructions to the jury; and that the District Court should have directed a verdict of acquittal in his favor.

We disagree, and we affirm the judgment of conviction.

At 6:15 p. m. on March 4, 1977, an armed robbery took place at a federally insured savings and loan association in Knoxville, Tennessee, in which more than fourteen thousand dollars were taken. The robber was described by witnesses as a black male, six feet tall, of medium build, and wearing a ski mask. By 6:20 p. m. Knoxville police officers, who had been alerted by radio dispatch as to the bank robbery, were at the scene, and a ski mask was found, immediately, in the alley behind the bank.

About an hour later a black male, who met the general description of the robber, was seen running between two houses on Milligan Street, about a block from the scene of the robbery. He was pursued by Sheriff Wilson and Officers McGoldrick and Dexter, among others. Shots were exchanged and Officer McGoldrick was shot in the face by the suspect, who was later identified as Scott. Officer Dexter returned the fire and from a distance of between 40 and 50 feet he shot the fleeing suspect in the left foot. The suspect fell toward his right side, but recovered and continued running.

After the shooting incident the suspect could not be located, and the search of the neighborhood continued. A local resident, Karen Miller, in whose apartment the robber was reported to have been observed, mentioned Scott's name as a person who frequented the area. FBI Special Agent O'Rear recalled that he had had occasion to arrest Scott previously, in December, 1975, on a charge of unlawful flight to avoid prosecution for armed bank robbery. Special Agent O'Rear took Officer Dexter to the local FBI office to view a photo spread, at about 4:00 a. m., at which time Officer Dexter positively identified Scott as the man who had shot Officer McGoldrick.

At the time of his 1975 arrest by the FBI Scott had been in the company of defendant, Elaine Smith, and it was known that Scott often used her car, the description of which was known to the FBI. Some time after midnight, I. e., on March 5, 1977, FBI Special Agent Risner was told by Smith's sister that Scott had picked up Smith at about noon on the day of the robbery, and also that Scott and Smith had friends on Graves Street, although no names or house numbers were known. Between 5:30 and 5:45 a. m. the defendant Smith's car was located by the FBI in front of a duplex at 915-917 Graves Street, about a block from Karen Miller's apartment and about a quarter-mile from the scene of the robbery.

At approximately 6:20 a. m. Knoxville Police Officer Pressley, Detective Wilson of the Knox County Sheriff's Department, and Special Agent Risner approached the apartment at 917 Graves Street. They had no warrant. Pressley and Wilson knocked on the front door for three or four minutes. During this time Agent Risner, listening at the back door, heard people walking around; he testified that he heard "too much commotion going on in that house to believe it was just one person getting out of bed." Agent Risner then walked around to the front door.

The knocks at the front door were answered by the defendant, Vickie Nance, who was the lessee of the apartment. According to the evidence as found by the District Court, at most one officer had a pistol drawn. Officer Pressley asked Nance if Amos Scott was there. Her response, according to her own testimony, was: "If there's going to be any shooting in here I'm getting out." She then grabbed her little girl and ran next door. Nance testified that she had no recollection of the officers' stating the reason for their presence at her door, and denied having given them permission to enter. All three officers, however, testified that before Nance ran out of the house Officer Pressley asked her if they could look around. Sheriff Wilson, whose testimony was credited by the District Court recalled specifically that she responded, "Yes, you can look."

The officers searched the apartment and found Scott in a bedroom, hiding under the bed. His left foot was wrapped in a bloody bandage. In plain view next to Scott under the bed was a paper bag filled with the bank's money. This bag was marked and left in place, and the room was then sealed off. Scott was arrested and was taken to a hospital where an examination revealed a bullet wound in the left foot.

While the initial entry and arrest were taking place another FBI agent obtained from Nance express oral and written consent to search her apartment. She was informed that she had the right to refuse, but she stated at the time of giving her consent that she had nothing to hide and therefore had no reason for objecting to a search of her apartment. Nance repeated these identical statements in her testimony at the trial. After Nance gave consent, the FBI agents contacted a United States Attorney, who advised them that a consent search could be made.

The second entry and search ultimately disclosed a .38 caliber pistol hidden between the mattress and springs of the bed under which Scott had been found. This pistol was later determined to be the gun used to shoot Officer McGoldrick in the face. The paper bag was found to contain $7,080, of which $500 was marked "bait" money. Two ski masks were also found. All of this evidence was introduced against Scott at the trial.

Scott contends that the two searches of Nance's apartment violated his rights under the Fourth Amendment. It is our opinion, however, that Nance's consents to both searches were freely and voluntarily given.

The burden was on the Government to prove that consent, justifying a warrantless entry, was freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); United States v. Killebrew, 560 F.2d 729, 733 (6th Cir. 1977).

As this Court has continually held, consent must be proved by clear and positive testimony, and, to be voluntary it must be unequivocal, specific, and intelligently given uncontaminated by any duress or coercion. United States v. McCaleb, 552 F.2d 717, 721 (6th Cir. 1977); Simmons v. Bomar, 349 F.2d 365, 366 (6th Cir. 1965).

Voluntariness of consent to search is an issue of fact to be found by the trial court, Rosenthall v. Henderson, 389 F.2d 514, 516 (6th Cir. 1968), and such findings are subject to the "clearly erroneous" rule, United States v. Canales, 572 F.2d 1182 at 1187-1188 (6th Cir. 1978).

No single fact is determinative of the voluntariness of a consent to search, but rather, voluntariness is to be determined "from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973). In that case the Supreme Court cited its previous decisions regarding the voluntariness of confessions, stating:

In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted. (412 U.S. at 226, 93 S.Ct. at 2047)

See United States v. Hearn, 496 F.2d 236, 243-44 (6th Cir.), Cert. denied, 419 U.S. 1048, 95 S.Ct. 622, 42 L.Ed.2d 642 (1974).

We hold that these principles were correctly applied by the District Court in its finding that Nance did voluntarily consent to the initial search of her apartment. The Court credited the clear and specific testimony of Sheriff Wilson, who testified that Nance said, "Yes, you can look." The Court observed that this testimony was consistent with Nance's own testimony that she had nothing to hide and had only wanted to leave, and also with her defense to the charge of knowingly harboring Scott.

The Court also found as fact that under the credible evidence no force or duress was present. The entry was peaceable, and the officers, not being certain that Scott was present in that particular apartment, had no reason to make any coercive inquiry. They followed Nance next door, but did not prevent her from leaving the apartment. At most, one officer may have had a gun drawn; this, however, was a reasonable precaution, not a coercive gesture.

Furthermore, according to Nance's own testimony she had no idea at the time that Scott was wanted for bank robbery and assault with a dangerous weapon, and she knew of no reason that she would be suspected of wrongdoing. She therefore had no reason to believe that any threat to herself...

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