U.S. v. Smith, 75-4372

• Decision Date: 13 December 1976
• Docket Number: No. 75-4372,75-4372
• Citation: 543 F.2d 1141
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles F. SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1141

543 F.2d 1141

UNITED STATES of America, Plaintiff-Appellee, v. Charles F. SMITH, Defendant-Appellant.

No. 75-4372.

United States Court of Appeals Fifth Circuit.

Dec. 13, 1976.

P. Nicholas Greenwood, Birmingham, Ala. (Court-appointed), for defendant-appellant.

Wayman G. Sherrer, U.S. Atty., James C. Thomason, III, Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before RIVES ^*, GEWIN and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Charles F. Smith appeals his conviction for violation of 18 U.S.C. § 1708, unlawful possession of stolen mail. ¹ He argues primarily that the district court erred in denying his motion to suppress evidence seized in the warrantless search of his car by police and a statement which Smith thereafter made to police. We affirm on the ground that Smith voluntarily consented to the search and voluntarily gave the statement after being informed of his Miranda ² rights.

I. FACTS

The district court held a pre-trial hearing on Smith's motion to suppress at which Detective Jack Hughes of the Anniston, Alabama Police Department and Smith testified. Hughes stated that early on the morning of May 24, 1975, an informant telephoned him and told him that Smith and Linda Vice ³ had possession of a stolen United States Treasury check for about $400; that Smith and Vice were at Vice's parents' house on Palmada Drive in Anniston; and that they were driving a dark 1963 Chrysler. ⁴

Hughes and a Detective Ramey drove to the house and waited outside for 30 or 45 minutes. Smith and Vice came out and left in the Chrysler, with Smith driving. The officers followed them for five or six blocks and, at between 8:30 and 9:00 a. m., stopped them. ⁵

The officers approached Smith, identified themselves as policemen, and asked Smith to produce his driver's license. As Smith did so, Hughes smelled alcohol on Smith's breath and asked how much he had had to drink. Smith replied that he had had a couple of cans of beer.

The officers took Smith into custody on suspicion of driving while intoxicated. Ramey drove Smith to the Anniston police station in the officers' car, while Hughes drove the Chrysler there with Vice as a passenger. At the station officers administered a photoelectric-intoximeter (PEI) test which indicated that, although Smith had been drinking, he was not legally intoxicated.

While Smith took the PEI test, the officers checked their records and found that Smith had not registered with the City of Anniston as a convicted felon. The officers arrested Smith on a city misdemeanor charge for failing to have done so. Hughes read Smith and Vice their Miranda rights. ⁶ Both stated that they understood those rights.

The officers then told Smith and Vice that they were suspected of possessing a stolen Treasury check, which they denied. Hughes asked Smith if the Chrysler was his, and Smith answered that it was. Hughes asked whether Smith would give the officers permission to search the automobile. Either before or after he asked Smith this, Hughes completed blanks on a consent-to-search form for Smith's address, the officers' names, the property to be searched, its location, and the date and time.

Hughes testified that he told Smith the form was a "permit to search" Smith's car; that he read the completed form to Smith; that he handed the completed form to Smith, who looked it over; that he asked whether Smith understood what the form was; that Smith answered he did; and that Smith then signed the form. ⁷ Record Vol. II at 17-20, 38, 41-42. Hughes further testified that he did not tell Smith he had to "cooperate" with Hughes or that a search was "inevitable," nor did any officers make any threats or promises to Smith. Id. at 26-29. Hughes stated that Smith was not handcuffed at the police station, although he may have been on the drive there. Id. at 27, 33-34.

Hughes also testified that he did not tell Smith he had the right not to consent to a search, although the consent form itself so states on its face. Note 7 supra. He said that Smith did not, at any time that morning, claim that he could not read.

After Smith signed the consent form he, Vice, Hughes, and Ramey went to the car, which had been parked behind the police station and locked. The officers unlocked it and found, in the glove compartment, nine pieces of mail addressed to Delores Nash, including a Treasury check for $444.24.

Hughes asked Smith whose mail it was. Smith replied that it was Vice's sister's or sister-in-law's, and Vice nodded her agreement. Hughes asked what the sister's or sister-in-law's name was. Almost simultaneously, Smith and Vice answered, "Delores Nash." As the four returned to the detective office, however, Vice changed her story and said that Delores Nash was not her sister or sister-in-law.

In the detective office Hughes telephoned Delores Nash and determined that the mail had been removed from her mailbox without her authorization. After questioning, Smith gave Hughes a statement. Hughes wrote it down, read it, and gave it to Smith to look over. Smith then signed it. ⁸ Although Smith's version of the morning's events generally tracked Hughes', it differed in certain critical particulars. Specifically, Smith testified that Hughes never arrested him on a failure-to-register charge and that Hughes obtained his consent to search by threatening to hold him and Vice until Hughes could obtain a search warrant. ⁹ Smith also said that he could not read or write more than his own name, and that he had so informed Hughes. Smith acknowledged, however, that he had understood the consent form gave Hughes permission to search his car; and that the signature on the form was his own.

After hearing this testimony the district court, ruling from the bench without on-the-record explanation, denied Smith's motion to suppress the mail seized and Smith's statement. ¹⁰ The jury found Smith guilty after a trial at which the mail and statement were admitted as evidence against him. The district court imposed a five year sentence, and Smith appeals.

II. DISCUSSION

Because the district court did not enter findings of fact or conclusions of law following the pre-trial hearing, or indicate the legal theory on which it held the evidence admissible, we have "independently review(ed) the record to determine whether there is any reasonable view of the evidence that supports . . . admissibility." United States v. Horton, 488 F.2d 374, 380 (5th Cir.1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1974), citing United States v. Montos, 421 F.2d 215, 219 n.1 (5th Cir.), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970). ¹¹ Because credibility determinations are for the trial court, we assume that the district court accepted Hughes' version where it conflicted with Smith's. United States v. Montos, supra, 421 F.2d at 219 n.1. We conclude that the evidence obtained in the search was admissible on the theory that Smith voluntarily consented to the search, ¹² and that the statement was admissible on the theory that Smith gave it voluntarily after being fully apprised of his Miranda rights.

A. Voluntariness of the consent to search. "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). Voluntariness "is a question of fact 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). The government's evidence of voluntariness here was strong. Smith was informed of his Miranda rights and the object of the search before he consented. No one made any threats or promises to him. No one told him he had to consent. He signed the consent form understanding its contents.

In arguing that the government did not meet its burden of showing voluntariness Smith emphasizes the facts that he was in custody at the police station when he signed the consent form and that Hughes did not tell him he had the right not to consent. ¹³ While these facts must be taken into account in deciding whether Smith's consent was voluntary, they are not determinative.

In Schneckloth v. Bustamonte, supra, the Supreme Court held that where a person was not under arrest or in custody when he allegedly consented to a search, the failure of police to inform him of his right not to consent was insufficient to render the consent involuntary as a matter of law. In United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the Court held the same was true where a person had been legally arrested, informed of his Miranda rights, and was in police custody (but "not in the confines of the police station") at the time of his alleged consent. 423 U.S. at 424, 96 S.Ct. at 828, 46 L.Ed.2d at 609. Although custody and failure to inform of the right to refuse "may be . . . factor(s) in the overall judgment," the Court said, they were "not to be given controlling significance." Id. ¹⁴

The fact that Smith gave his consent when he was in custody at the police station, while another "factor in the overall judgment," does not justify a departure from the "totality of the circumstances" approach established in Schneckloth and Watson. This case simply does not raise "the spector of incommunicado police interrogation in some remote station house" alluded to in Schneckloth, supra, 412 U.S. at 247, 93 S.Ct. at 2058. Because Smith was told he had the right to consult an attorney, note 6 supra, it can hardly be said he was held "incommunicado." At most, little more than two hours elapsed between the time Hughes and Ramey first stopped Smith and the time Smith signed the consent form. ¹⁵ Little, if any, questioning took place before Hughes asked...