United States v. Carson
| Decision Date | 01 August 1985 |
| Docket Number | No. 83-10049-01.,83-10049-01. |
| Citation | 614 F. Supp. 507 |
| Parties | UNITED STATES of America, Plaintiff, v. George L. CARSON, Defendant. |
| Court | U.S. District Court — District of Kansas |
Benjamin L. Burgess, Acting U.S. Atty., Wichita, Kan., for plaintiff.
Michael S. Holland, Russell, Kan., for defendant.
This matter involves a motion to suppress in a case in which the defendant is charged with unlawful possession of protected migratory birds in excess of the daily bag limit, in violation of 16 U.S.C. § 703. This matter was originally before the Court on the defendant's appeal from the Magistrate's orders, in which the Magistrate held that the defendant waived his right to raise a motion to suppress, and found the defendant guilty. This Court found the Magistrate abused his discretion in refusing to consider the merits of the motion to suppress, found the search unlawful, granted the motion to suppress, and entered judgment of acquittal. The United States appealed this Court's order to the Tenth Circuit Court of Appeals. The Court of Appeals reversed this Court, holding the defendant's consent to a search following an earlier illegal search purged the second search of the taint of illegality and validated the second search for Fourth Amendment purposes. The Court of Appeals remanded to this Court for a fact finding as to the validity of the defendant's consent. This Court heard oral argument on the consent question on July 12, 1985, and now finds there was a full and voluntary consent to the second search and reinstates the conviction of the defendant.
The facts of this case are that defendant George L. Carson, at the time of the incident, was employed as a wildlife biologist by the Kansas Fish and Game Commission. On September 17, 1982, Mr. Carson was hunting doves. Joe Branick, a Russell County Deputy Sheriff, was investigating the theft of some shotgun shells and approached Mr. Carson, who was in a wheat stubble field sitting on a five-gallon pail hunting turtle doves. Mr. Branick observed Mr. Carson shoot nine turtle doves. When Mr. Carson walked into the field, Mr. Branick searched Mr. Carson's pail, looking for evidence of the stolen shells. Mr. Branick observed several freshly killed doves on top of a hunting vest, lifted the hunting vest, and observed six dressed doves. Mr. Branick had no cause to believe that Mr. Carson had killed more than his daily bag limit at the time Mr. Branick searched the bucket. (Docket No. 3, p. 23.) As Carson and Branick left the field, Branick observed feathers and other remains of doves clinging to weeds and on the ground in an area where Mr. Carson picked up a shotgun he had left earlier that day.
Mr. Branick left Mr. Carson and contacted Doug Sonntag, a state fish and game officer, to inquire whether Mr. Carson had exceeded his daily bag limit. Mr. Branick and Mr. Sonntag returned to the field and asked Mr. Carson if they could look inside his hunting pail. Mr. Carson consented. Mr. Sonntag removed 12 freshly killed doves from on top of the vest, lifted up the vest and removed 11 dressed doves. The Kansas regulations provide for a daily bag limit of 12 doves and a possession limit of 24. The Magistrate found that all 23 doves had been killed the same day, and found the defendant guilty of the charge.
The Tenth Circuit Court of Appeals, in reversing this Court's suppression of the evidence, held that the defendant's consent, if voluntary, vitiated any illegality of the first search. The Court of Appeals stated as follows:
The district court correctly held that the magistrate should have granted relief from the waiver provisions of Rule 12(f). The search by Branick when he picked up the vest to reveal the six dressed doves was in violation of the Fourth Amendment in that the dressed doves were not in plain view.
United States v. Carson, 762 F.2d 833, 835 (10th Cir.1985). The Court of Appeals then went on to discuss the effect of the defendant's consent to the subsequent search. The Court stated as follows:
Id. at 836, citing United States v. Fike, 449 F.2d 191, 192-93 (5th Cir.1971). The Court remanded, stating:
Because the validity of the second search involves a question of fact, the voluntary consent to the second search, the district court, on remand, may wish to remand the case to the magistrate for determination of the facts.
The Court first addresses the question of fact concerning the voluntariness of the consent to the second search. At the July 25, 1985 oral argument, counsel for both parties agreed that the trial record was sufficient for this Court to make a finding of fact as to whether Mr. Carson's consent was voluntary.
The United States points to three places in the record in which Mr. Carson consented to the search. In Mr. Carson's letter of September 9, 1982, to Steve Sorenson, Mr. Carson wrote, (Govt. Tr. Ex. 11, p. 3.) At trial, Mr. Carson testified, "Well ... Mr. Branick asked if he could ... if they could look into my pickup and I said, well certainly...." (Tr. Vol. III, p. 61.) Mr. Carson testified further, "... (Id. at 62.)
The defendant argues that the failure of the county deputy sheriff and the state game protector to inform Mr. Carson of the initial search deprived defendant of his ability to make a voluntary and intelligent consent to the search.
A search conducted pursuant to consent is an exception to the requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Valid consent must be freely and voluntarily given, and not the result of coercion or duress, express of implied. Id. Voluntariness is a question of fact to be determined from the totality of the circumstances. Id.; United States v. Shields, 573 F.2d 18 (10th Cir. 1978). One factor in determining whether the individual consented is whether he knew or was advised of his right to refuse the search. Id. Nonetheless, the government is not required to advise an individual of his right to withhold consent in order to find a voluntary consent. Shields, supra. Moreover, the prosecution is not required to demonstrate as a prerequisite to establishing voluntary consent, that the individual had knowledge of or was advised of his right to refuse. Schneckloth, supra.
The law, as stated above, is that the government need not advise an individual of his constitutional right to withhold consent to search. There is no authority for the defendant's argument that the government must disclose the facts, for example, of prior surveillance in order for a subsequent consent to be voluntary. On the facts of the case at bar, this Court rejects defendant's assertion that the county sheriff and state game protector were required to advise Mr. Carson of the initial search in order for Mr. Carson's consent to be knowing and voluntary.
This Court, having reviewed the transcript and record of trial proceedings before the Magistrate, and with particular reference to the testimony and evidence quoted above, finds that under the totality of the circumstances, Mr. Carson's consent was the product of his own free will and unconstrained choice. The Court finds that Mr. Carson's consent to the search was voluntary.
The defendant additionally contends that the Tenth Circuit Court of Appeals remanded the case to this Court to make a fact finding not solely on the issue of whether the consent was voluntary, but also as to all facts surrounding the validity of the consent. The defendant argues that even if this Court finds the consent was valid, under the facts of this case the consent was not an independent act sufficient to break the causal connection between the primary illegality and the evidence found as a result of the second search. This Court agreed to consider the defendant's argument concerning attenuation of the taint, requested the United States to submit a reply brief on the issue, and entertained oral argument on the issue.
The defendant argues that the challenged evidence was the direct result of the state's illegal conduct because the officers requested defendant's consent on the basis of what Branick illegally discovered in the first search, and therefore, the consent was not sufficiently independent of the illegality to break the causal connection between the illegality and the discovered evidence. The defendant argues that the challenged evidence is a direct result of the government's exploitation of the initial illegal search, a taint the defendant's consent cannot cure. The defendant strenuously argues that the challenged evidence was the direct result of illegal government conduct because the second search yielded the identical evidence as the earlier illegal search. Defendant argues that a consent cannot cure the illegal taint if what is ultimately discovered and offered at trial is the very same evidence discovered as a result of illegal governmental intrusion.
On the other hand, the United States argues that a consent, so long as it is voluntary, will always break the causal connection between any illegality and any evidence discovered subsequent to the consent. The United States argues that consent is an independent act of the defendant's free will, determined by the defendant's actions and state of mind, and is totally unrelated to any conduct — legal or illegal — of government officials. The United States totally rejects defendant's argument that there is...
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