U.S. v. Talkington

• Decision Date: 30 June 1989
• Docket Number: No. 87-1672,87-1672
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond Leroy TALKINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 591

875 F.2d 591

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Leroy TALKINGTON, Defendant-Appellant.

No. 87-1672.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 5, 1988.

Decided May 17, 1989.

Rehearing Denied June 30, 1989.

Diana N. Cherry, Metnick & Barewin, Springfield, Ill., for defendant-appellant.

J. William Roberts, Asst. U.S. Atty., Springfield, Ill., for plaintiff-appellee.

Before CUMMINGS, FLAUM, and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

This case is before the court for the second time. Therefore, we shall not repeat the basic facts of the case. A complete rendition can be found in our earlier opinion. See United States v. Talkington, 843 F.2d 1041 (7th Cir.1988). At that time, we determined that the state of the record and the findings of the district court did not afford us an adequate basis for review of the defendant's contentions that the search of his home was unconstitutional. Therefore, while retaining jurisdiction, we directed the district court to develop further the record with respect to this matter. Pursuant to that direction, the district court held a hearing and made, on the basis of that hearing, supplemental findings of fact and conclusions of law. United States

v. Talkington, 701 F.Supp. 681 (C.D.Ill.1988) (opinion) [hereinafter Supp. op.]. Upon receipt of this report of the district court, we permitted the parties to file supplemental briefs. The case is now before us for decision. We affirm the judgment of conviction.

ANALYSIS

A. The Fourth Amendment Claims

In our earlier opinion, we noted that the appellant's attack on the constitutionality of the search of his home involved two separate questions: 1) the constitutionality of the initial warrantless entry into the home; and 2) the voluntariness of the subsequent consent to search the home executed by Mr. Talkington sometime after the initial entry. 843 F.2d at 1044-49. We shall address each of these issues separately. However, as an initial matter, we stress that, in reviewing the factual findings of the district court at a suppression hearing, the standard of review is clear error. United States v. Oglesby, 764 F.2d 1273, 1278 (7th Cir.1985). As a general proposition, therefore, we are obliged to accept as not clearly erroneous the findings of fact of the district court, as long as they are supported by the record. Indeed, it was our recognition of the appropriate role of trial and appellate courts with respect to factual determinations that prompted our decision to require further amplification of the record. Unfortunately, the district court did not accept this additional task in the spirit in which it was imposed and its supplemental findings exhibit an extraordinary manifestation of pique. Consequently, and regrettably, we have deemed it necessary not only to review these findings to ensure that they are supported by the record but also to assure ourselves that they are the product of dispassionate judicial analysis. The following conclusions are based on an exhaustive analysis in which we carefully reviewed the record of the supplemental proceedings and compared it to that of the initial proceedings at trial.

1. The Warrantless Entry into the Home

In our initial opinion, we identified several areas of concern with respect to whether the initial warrantless entry into the home was justified by exigent circumstances. We noted that it was not clear whether the agents had a reasonable apprehension that evidence was being destroyed at that time. It was not clear whether, under the circumstances prevailing at the time, the agents had a reasonable opportunity to procure, telephonically or otherwise, a search warrant. Finally, we expressed concern as to whether the warrantless entry was a subterfuge designed to facilitate obtaining consent to search from the defendant. 843 F.2d at 1046-47. In its supplemental findings, the district court found that the warrantless entry was ordered because the agent in charge had grounds to believe that evidence was being destroyed. The district court further detailed the information known to the agent at the time the decision was made. 701 F.Supp. at 684.

The record provides ample support for the district court's conclusions. The agent in charge was aware of earlier talk of burning the counterfeit money among those under suspicion. He knew that there was a fire in the backyard and that there was no known reason for the fire. R. 150 at 16-27. He knew that there was counterfeit money in the house and that Mr. Talkington wanted to get rid of it. This agent also had reasonable grounds to fear that the surveillance of the residence had been detected by the occupants. The district court also determined that, given the geographic dispersion of the officers, there was insufficient time to procure a warrant. 701 F.Supp. at 685. Our independent review of the record convinces us that the determination of the district court is not clear error. The record similarly refutes Mr. Talkington's challenge to the district court's finding that the initial entry was not a subterfuge for the procurement of the later consent to search by Mr. Talkington. See at 686; see also R. 152 at 304; R. 155 at 552-57. Accordingly, we believe that the findings of the district court support a determination that there were exigent circumstances

that justified the warrantless entry into the home of Mr. Talkington.

2. The Voluntariness of the Consent to Search

In our initial opinion, we expressed concern about the state of the record with respect to whether Mr. Talkington's consent to search the premises could be considered voluntary. 843 F.2d at 1048. We expressed particular concern as to whether the agent's threat to search the person of Mrs. Talkington (who was not a suspect) might have rendered the consent involuntary.

Here, the findings of the district court in response to our remand are somewhat problematic. See 701 F.Supp. at 686-688. Ordinarily, whether consent to a search is voluntary "is a question of fact to be determined from the totality of the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). The district court's analysis, however, manifests a marked lack of focus on the totality of circumstances, and an inordinate stress on tangential matters. In its initial ruling on the consent to search, the district court did not address the question of voluntariness, although it was clearly the principal objection of the defendant. See R.86 at 282 (suppression hearing). Moreover, shortly before the consent ruling, the district court commented that the Talkingtons were "terrorized" by the entry of the officers into their home. Id. at 280. In its supplemental findings after remand, the district court again skirts the issue of Mr. Talkington's voluntariness in consenting to the search. It instead makes much of the fact that the officers made known their intention to "search," as opposed to "body search," the person of Mrs. Talkington. At 687-689. Yet, the district court does not deny and indeed confirms that, before consenting to the search of the premises, Mr. Talkington was aware of the intention of the officers to search the person of his wife and that, in agreeing to waive his Miranda rights and in agreeing to consent to the search of the premises, Mr. Talkington first requested that, in return, the officers "go easy on Betty." At 683. Under these circumstances, the conclusion of the district court that "[t]he record reflects no treatment of Mrs. Talkington (standing alone or in combination) which had the effect of coercing Mr. Talkington to voluntarily consent to the search of 409 Amherst," 701 F.Supp. at 688, is not self-evident. Indeed, given the degree of scrutiny required in our review of this particular case, it would indeed be difficult to say that this conclusion is fairly supported by the record.

It is not necessary, however, for us to resolve definitively this difficult question. The initial entry into the house, which we determined as having conformed to constitutional standards, supra Part A.1., produced sufficient evidence of counterfeit money to support the judgment of conviction. After the entry, an agent was instructed to observe Mr. and Mrs. Talkington to prevent the destruction of evidence. The agent then noticed the defendant make a furtive movement into the seat cushion of his chair; fearing that the defendant was reaching for a weapon, the agent ordered Mr. Talkington to rise. The agent then searched the chair and found a roll of counterfeit bills. R.88 at 220-22. Under these circumstances, ¹ we find it unnecessary to determine definitively whether the record can be said to support the determination of the district court that the appellant consented One last matter must be addressed before leaving this issue. The record reveals that at least some of the government agents who participated in this operation were under the misapprehension that Mr. Talkington's consent to the search of the premises somehow amounted to permission to search his wife's person as well. 701 F.Supp. at 684. Since this question was not squarely before the district court, we cannot fault it for not correcting the misapprehension through any extensive treatment of the matter. However, because the district court's supplemental opinion can be misinterpreted as condoning such a misunderstanding, see id., we point out that such a proposition is simply unsupportable. It ought not govern the action of the government in future cases.

voluntarily to the search of the premises. ²

B. The Trial Error Claims

1. The Ostrich Instruction

Mr. Talkington also submits that the district court committed reversible error when it instructed the jury that:

You may infer knowledge from a combination of suspicion and indifference to the truth. If you find that a person had a strong suspicion that things were not what they seemed or that someone...