United States v. Irion, 72-2595

• Citation: 482 F.2d 1240
• Decision Date: 12 November 1973
• Docket Number: 72-2596.,No. 72-2595,72-2595
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter Eugene IRION, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Evan LYON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

482 F.2d 1240 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Walter Eugene IRION, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James Evan LYON, Defendant-Appellant.

Nos. 72-2595, 72-2596.

United States Court of Appeals, Ninth Circuit.

July 26, 1973.

Certiorari Denied November 12, 1973.

Charles M. Sevilla (argued), Federal Public Defender, San Diego, Cal., for defendants-appellants.

Jeffrey F. Arbetman, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before BROWNING and CARTER, Circuit Judges, and JAMESON,^* District Judge.

Certiorari Denied November 12, 1973. See 94 S.Ct. 454.

JAMESON, District Judge:

Appellants were convicted in a nonjury trial of importation of a controlled substance (100 pounds of marihuana) in violation of 21 U.S.C. §§ 952, 960 and 963, and of possession with intent to distribute in violation of 21 U.S.C. § 841(a) (1).

Appellant Irion contends that (1) evidence was illegally obtained through a warrantless search of his motel room; (2) his statement was taken in violation of Miranda v. Arizona; and (3) the evidence was insufficient to sustain his conviction. Appellant Lyon contends that (1) the court erred in denying him standing to object to the evidence seized in Irion's motel room and in failing to suppress; and (2) the evidence was insufficient to sustain his conviction.

Statement of Facts

Appellants, with Peter Lesser and Robert Ralston, Jr., who were also indicted but not apprehended, sailed a 38-foot sailboat, the Storm Petrel, into Oceanside, California, from Mexico without clearing Customs at San Diego.

About 8:00 P.M. on November 29, 1971 Lesser and Ralston inquired of Officer David M. Wanner of the Oceanside Harbor Police about mooring the boat, then located in the harbor's haulout dock, which is not generally accessible and not for the use of transient vessels like the Storm Petrel. Wanner assigned a mooring slip directly in front of the Harbor Headquarters building. Shortly thereafter Lesser requested change for a telephone call. Wanner asked why the boat had not been moved to the assigned slip, and Lesser replied that one of the occupants had gone somewhere and had not yet returned.

Suspicious, Wanner proceeded to the fuel dock and began surveillance of the Storm Petrel and its occupants. The vessel was located in a darkened area about 100 to 150 yards from Wanner's point of observation. Wanner observed a vehicle, later identified as a Ford Pinto, arrive near the Storm Petrel. An occupant of the Pinto, carrying a small package, went down the rampway where the vessel was located. A few minutes later three persons carried large parcels about the size of duffel bags from the vessel and placed them in the Pinto. The Pinto left the mooring area, and Wanner's attempt to follow it was unsuccessful.

Later that evening, Wanner returned to the Storm Petrel and observed Ralston, Lesser and Lyon aboard the boat eating chicken. Wanner then became aware for the first time that, when the parcels were placed in the Pinto, there may have been four persons (including the driver of the Pinto) in the area of the Storm Petrel.

About 10:30 P.M. in a conversation at the patrol office, Ralston told Wanner that they had come directly to Oceanside from Mexico without reporting to Customs at San Diego. Wanner phoned this information to customs officials and requested assistance. About 11:30 P.M. three customs agents arrived at the harbor.

At about 3:30 A.M., Customs Agent Gore had a conversation with Ralston, Lesser and Lyon, all of whom denied that they knew anything about parcels being removed from the Storm Petrel and placed in an automobile. They proceeded to the Harbor Police Office, where Lesser stated that Irion had, during their journey, departed from the boat at Cabo San Lucas in Mexico.

Also about 3:30 A.M., Officer Bezenah of the Oceanside Harbor Police reported observation of a blue Ford Pinto in the parking lot of the Travelodge Motel in Oceanside. A check revealed that Irion was registered in Room 11 and that the Ford Pinto (a rent-a-car) had been rented by him the prior evening. On the basis of this information, Agent Gore, accompanied by two other officers, proceeded at about 3:35 A.M. to the room registered to Irion and knocked loudly on the door. The officers did not have a search warrant.

After five knocks, the "do not disturb" latch was lifted. Gore announced himself as a customs agent. Irion opened the door about 18 inches. Gore displayed his credentials, again announced who he was, and informed Irion that he desired to talk to him. Irion said either: "Come in, but let me get my pants on first", or "Come in, but I'd like to put on my pants."¹

Upon entering the room the officers observed three duffel-type bags leaning on the wall directly in front of them. After Irion returned from the bathroom, Gore asked Irion if he had anything to declare to Customs. Irion replied, "Nothing of any value." Gore then asked Irion if they could see the items removed from the Storm Petrel earlier that evening. Irion pointed to the bags and said, "There they are."

Gore asked Irion to open the bags. Irion attempted to open one bag, but, as it was sealed tightly with masking tape, he requested a knife. Understandably hesitant to give Irion a knife, Gore went to a nightstand, picked up a knife belonging to Irion, and opened the bag. Upon examination of the contents, a brick of marihuana was found. The other two bags also contained marihuana, along with sleeping bags, blankets and some books on navigation. In all, the duffel bags contained about 100 pounds of marihuana. Thereupon Irion was placed under arrest and advised of his constitutional rights.

Later that morning Gore arrested Lyon near the harbor area and advised him of his rights. Lyon later stated to Gore that he "had no money in the weed, that Irion was nothing but a drunkard anyway, or alcoholic, and refused to make any comment as to where the weed was purchased or where the other individuals could have gone."

Warrantless Search of Irion's Motel Room

Irion first contends that the district court erred in denying his motion to suppress the evidence obtained through the warrantless search and in holding that he consented to the search of his motel room. Relying upon the holding of this court in Bustamonte v. Schneckloth, 448 F.2d 699 (9th Cir. 1971) and related cases² he argued primarily that "where, as here, there is no evidence that the appellant knew, or was informed by the officer, that he had a right to withhold permission for the search of the dwelling, effective consent cannot be found."

Certiorari having been granted in Bustamonte v. Schneckloth when this case was argued on January 8, 1973, an order was entered vacating submission pending the decision by the Supreme Court in Bustamonte.

Schneckloth v. Bustamonte was decided May 29, 1973, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. In reversing the prior holdings of this court upon which Irion relied the Court held that knowledge of the right to refuse consent is but one of a number of factors to be considered in determining whether a consent is given voluntarily. The Court recognized that when the subject of a search is not in custody and the prosecution attempts to justify the search on the basis of his consent,³ the Fourth Amendment requires that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. "Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent." Id. at 248, 93 S.Ct. at 2059.

Irion contends further that he conditioned his consent to entry upon his first putting on his pants and that this condition was ignored by the agents, "who slithered through the eighteen inch door". Both the court and Government counsel questioned the accuracy of a similar statement by Irion's counsel at the oral argument:

"THE COURT: He said, `Come in, but I would like to put my pants on.\'

"MR. ARBETMAN: And the testimony was that he was allowed to do so.

"THE COURT: The door was opened far enough so that they could pass through without squeezing their way in and then they noticed 3 duffel bags."

There was substantial evidence to support the conclusion of the district court that Irion did not condition his consent to entry on his first putting on his pants and that, in any event, the agent granted his request to put on his pants.⁴

It is true, as appellants argue, that when, as here, consent is obtained "under color of the badge", coercion is implied and "the government must show that there was no coercion in fact." United States v. Page, 302 F.2d 81, 84 (9 Cir. 1962). We recognized in Page, however, that appellate courts usually sustain a trial court's finding that there was consent to a search, even though the consent was obtained under authority of the badge,⁵ particularly where there is a finding of express consent. Id. at 84 and cases cited in footnote 10. Here the district court found that the agents were permitted to enter the motel room "freely and voluntarily" and that Irion consented to the entry and the search of the duffel bags.⁶

Considering the totality of the surrounding circumstances, we conclude, as did the district court, that Irion's consent was in fact voluntarily given and not the result of duress or coercion, express or implied.⁷

Was Miranda Warning Required?

Irion argues that the statement he made to the customs agents after their entry into the motel and observation of the duffel bags was inadmissible as "custodial interrogation" within the meaning of Miranda v. Arizona, 384 U. S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As...