United States v. Page, No. 17404.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: CHAMBERS, BARNES, HAMLEY, HAMLIN, JERTBERG, MERRILL, KOELSCH, BROWNING and DUNIWAY, Circuit
• Citation: 302 F.2d 81
• Parties: UNITED STATES of America, Appellant, v. Ernest T. PAGE, Appellee.
• Docket Number: No. 17404.
• Decision Date: 18 April 1962

302 F.2d 81 (1962)

UNITED STATES of America, Appellant,
v.
Ernest T. PAGE, Appellee.

No. 17404.

United States Court of Appeals Ninth Circuit.

April 18, 1962.

302 F.2d 82

Cecil F. Poole, U. S. Atty., John Kaplan and James F. Hewitt, Asst. U. S. Attys., San Francisco, Cal., for appellant.

Robert H. Miller and Albert E. Polonsky, San Francisco, Cal., for appellee.

Before CHAMBERS, BARNES, HAMLEY, HAMLIN, JERTBERG, MERRILL, KOELSCH, BROWNING and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge.

The government appeals from the granting of a motion to suppress evidence, following the granting of a mistrial. (18 U.S.C. § 1404) Page was indicted for violating 21 U.S.C.A. § 174, and the motion was directed to certain narcotics found by government agents during a search of his home. The court below heard the motion upon Page's affidavit and upon the oral testimony of Page and of four of the agents. It then ruled that, as a matter of law, it was bound to grant the motion under the decision of this court in Channel v. United States, 1960, 9 Cir., 285 F.2d 217, and the cases therein cited, particularly Higgins v. United States, 1954, 93 U.S.App. D.C. 340, 209 F.2d 819. We ordered a hearing en banc to consider whether Channel should be overruled, as the government contends. We conclude that the order must be reversed, but that Channel should not be overruled.

The court below assumed, without deciding, "that the testimony of the government witnesses is to be accepted and the testimony of the defendant rejected". This being the nature of the ruling, we set forth the evidence in the light most favorable to the government.

At about 11:00 A.M., four narcotics agents arrived at Page's home in San Francisco. They had some reason to believe that he was engaged in the narcotics traffic, but not enough to constitute probable cause for his arrest, and they had neither a search warrant nor a warrant for his arrest. Two of the agents, Cain and Campbell, knew that Page had a dog, and refused to go into the house until the dog was in a place where it could not get at them. Another agent, Wilkins, rang Page's doorbell. Page answered; Wilkins identified himself as a narcotics agent, showed his badge, said he would like to talk to Page, and asked to come in; Page said "surely", and let Wilkins in. The fourth agent, Feldman, seeing Wilkins go in, opened an adjoining door and entered the garage, but made no search there.

Once inside, Wilkins asked Page to put his dog, a large German Shepherd, in the bathroom, saying that he had other agents with him and they were afraid of the dog. This was done. Cain and Campbell then entered and were greeted by Page. Wilkins let Feldman come in by way of steps leading into the house from the garage. One or more of the agents then told Page that they had reason to believe he was trafficking in narcotics. They asked him "if he minded if we looked around." Page denied that he was in the narcotics traffic, and said he had "nothing here", "nothing to hide", and that the agents were "welcome to look", "to go right ahead and search the whole place". Feldman told Page that he was not required to consent to a search, and Page said, "go ahead and search, I've nothing here". The search proceeded, and the narcotics in question were found. There was other evidence which, if believed, would support a finding that Page did not consent. We do not set it out because the court, in its ruling, assumed that such evidence should be rejected.

The question presented is, does the evidence, viewed most favorably to the government, require a decision, as a matter of law, that the search was illegal and therefore a violation of Page's rights under the Fourth Amendment to the United States Constitution? We are of

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the opinion that it does not. The question is one of fact, for the trial court to resolve

We have no reservations as to the importance of maintaining the protection afforded to the citizen by the Fourth Amendment. As the Supreme Court said in Gouled v. United States, 255 U.S. 298, at 304, 41 S.Ct. 261, at 263, 65 L.Ed. 647:

"It has been repeatedly decided that these Amendments the Fourth and Fifth should receive a liberal construction, so as to prevent stealthy encroachment upon or `gradual depreciation\' of the rights secured by them, by imperceptible practice of courts or by well-intentioned but mistakenly overzealous executive officers."

See also Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461. There are dozens of pronouncements to the same effect.

Nevertheless, it has been long established that one can validly consent to a search, even though the consent be given while the defendant is in custody. (United States v. Mitchell, 1944, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140; cf. Davis v. United States, 1946, 328 U.S. 582, 593, 66 S.Ct. 1256, 90 L.Ed. 1453; Zap v. United States, 1946, 328 U.S. 624, 628, 66 S.Ct. 1277, 90 L.Ed. 1477; cf. Bram v. United States, 168 U.S. 532, at pp. 549, 557, 558, 18 S.Ct. 183, 42 L.Ed. 568).

Whether such consent has been given is, in the first instance, a question of fact for the trial court. (See Rule 41(e), Rules of Criminal Procedure, 18 U.S.C.: "The judge shall receive evidence on any issue of fact necessary to the decision of the motion to suppress"; Crosby v. United States, 5 Cir., 1956, 231 F.2d 679, 681; Patterson v. United States, 5 Cir., 1950, 183 F.2d 687, 689; Ford v. United States, 9 Cir., 1926, 10 F.2d 339, 346; Steele v. United States, 1925, 267 U.S. 505, 511, 45 S.Ct. 417, 69 L.Ed. 761; United States v. Mitchell, supra; cf. Gila Valley G. & N. Ry. Co. v. Hall, 232 U.S. 94, 103, 34 S.Ct. 229, 58 L.Ed. 521; Rios v. United States, 364 U.S. 253, 262, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Kovach v. United States, 6 Cir., 1931, 53 F.2d 639). In Marsh v. United States, 2 Cir., 1928, 29 F.2d 172, Judge Learned Hand stated the rule at p. 173:

"The circumstances made the trooper\'s story somewhat doubtful, and an easy complaisance in any plausible tale may deprive defendants of their constitutional rights. This caution we are not, however, ourselves in a position to exercise, because, except in plain cases, we cannot tell from the cold record where the truth lies. For the future we take this occasion to press upon the District Judges that they search the testimony in such cases with care, remembering that the protection of defendants must in most cases rest finally with them."

Because of the importance of preserving constitutional rights, various rules have been stated for the guidance of the trial judge in determining whether consent to the search was in fact given. The government must prove that consent was given.¹ It must show that there was no duress or coercion, express or implied.² The consent must be "unequivocal and specific" and "freely and intelligently given".³ There must be convincing evidence that defendant has waived his rights.⁴ There must be clear and positive

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testimony.⁵ "`Courts indulge every reasonable presumption against waiver' of fundamental constitutional rights".⁶ Coercion is implicit in situations where consent is obtained under color of the badge, and the government must show that there was no coercion in fact.⁷ The government's burden is greater where consent is claimed to have been given while the defendant is under arrest.⁸

It is still true, however, that it is the trial judge who hears the witnesses and who must pass upon their credibility. We sometimes tend to forget that the testimony of a...