United States v. Rothman

• Citation: 492 F.2d 1260
• Decision Date: 19 April 1974
• Docket Number: No. 73-1286.,73-1286.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Martin ROTHMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

492 F.2d 1260 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Edward Martin ROTHMAN, Defendant-Appellant.

No. 73-1286.

United States Court of Appeals, Ninth Circuit.

November 27, 1973.

Rehearing Denied April 19, 1974.

COPYRIGHT MATERIAL OMITTED

William M. Owens (argued), Encinitas, Cal., for defendant-appellant.

Harry D. Steward, U. S. Atty., Shelby R. Gott, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

Before DUNIWAY and CHOY, Circuit Judges, and RENFREW,^* District Judge.

OPINION

DUNIWAY, Circuit Judge:

Rothman appeals from his conviction for possession of marijuana with intent to distribute, 21 U.S.C. § 841(a) (1). He challenges the denial of his motion to suppress the marijuana as the fruit of an improper search.

When a motion to suppress has been denied we view the evidence in the light most favorable to the government. United States v. Sherman, 9 Cir., 1970, 430 F.2d 1402, 1404. On May 5, 1972, Rothman purchased an airplane ticket to Hawaii at the Western Airlines counter at San Diego airport. The ticket agent believed that he fitted the Federal Aviation Administration's profile of potential airplane hijackers. Rothman went to the boarding gate, where he passed through the magnetometer without activating it. He was then detained for questioning by a deputy United States Marshal who had been told that Rothman met the profile.

Rothman told the deputy that his name was Roberts and that he had no identification. Rothman then placed his jacket on the counter in front of the deputy, who reached into the jacket pocket thinking that the bulge in the jacket might be a weapon. Only money and keys were found. Rothman produced identification from his wallet showing him to be Rothman. The deputy told Rothman that a further identification check would have to be run in the office before he would be permitted to fly.

While the deputy was unlocking the door to his office, Rothman grabbed the deputy's right hand and jerked him approximately two to three feet. He was immediately arrested for assaulting a federal officer and his hands were handcuffed behind his back. He was given a Miranda warning.

Rothman's checked luggage was removed from the plane and brought to the office in which he was being held by the deputy. The deputy asked Rothman if he could search the luggage. Rothman refused permission to search. The deputy called the Federal Bureau of Investigation asking that agents be sent over to investigate the assault charge. A forty-five minute conversation ensued between Rothman and the deputy in which the only reference to the case was that Rothman asked the possible punishment for assaulting a federal officer and the deputy told him three to five years. The F.B.I. arrived, interrogated Rothman at length and then went into an adjoining room. At some point during the time that Rothman was in the office the handcuffs were removed and he was handcuffed again with his hands in front of him.

The following conversation then occurred:

Rothman: "Why don\'t you go ahead and open the bags?"

Deputy: "No, if you refuse to open them I don\'t want to open them now." Something was then said about a search warrant. "We can get one and probably will later on."

Rothman: "What is the use of going through all this, go ahead and open the bags, it is okay."

Deputy: "No, I don\'t want to open them now. I won\'t do it. Why don\'t you open it now? The keys are laying here on the desk, if you want to open it go ahead."

Rothman took the keys which had been placed in front of him and opened his luggage which contained thirty-nine kilos of marijuana.

Under the Fourth Amendment, warrantless searches, with a few specifically established exceptions, are "per se" unreasonable. Schneckloth v. Bustamonte, 1973, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854; Katz v. United States, 1967, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576. The government argues that Rothman voluntarily consented to the search, that the search was justified as incident to a lawful arrest, and that the search was a valid administrative search and thus that the motion to suppress was properly denied.

1. Consent

Voluntary consent to a search is a recognized exception to the Fourth Amendment warrant requirement. Schneckloth v. Bustamonte, supra, 412 U.S. at 219, 93 S.Ct. 2041. Davis v. United States, 1946, 328 U.S. 582, 593-594, 66 S.Ct. 1256, 90 L.Ed. 1453; Zap v. United States, 1946, 328 U.S. 624, 630, 66 S.Ct. 1277, 90 L.Ed. 1477. The test for consent is voluntariness and "voluntariness is a question of fact to be determined from all the circumstances" of a particular case. Schneckloth v. Bustamonte, supra, 412 U.S. at 248-249, 93 S.Ct. at 2059.

The government bears the initial burden of proving consent. United States v. Davis, 9 Cir., 1973, 482 F.2d 893, slip op. at 31. On appeal we examine the trial court's finding of fact (such as the fact of consent) under the "clearly erroneous" rule. United States v. Page, 9 Cir., 1962, (in banc) 302 F.2d 81, 85.

The trial court's finding of voluntary consent was based primarily upon Rothman's original refusal to permit the search. The trial court reasoned that because Rothman was aware of his option to refuse, his eventual consent was voluntary.

Bustamonte held that "knowledge of a right to refuse is a factor to be taken into account, but the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent." Schneckloth v. Bustamonte, supra, 412 U.S. at 249, 93 S.Ct. at 2059.¹ Bustamonte cuts two ways. The knowledge of the right to refuse consent is no longer a necessary condition for valid consent, but neither is it necessarily a sufficient condition. It is only an element to be considered as part of the "totality of circumstances." What is required is a "careful sifting of the unique facts and circumstances of each case." Schneckloth v. Bustamonte, supra, 412 U.S. at 233, 93 S.Ct. at 2050.

"Two competing concerns must be accommodated in determining the meaning of a `voluntary' consent — the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." Id. at 227, 93 S.Ct. at 2048. Warrantless consent searches are permissible because they enable the police to investigate in situations where the "stigma and embarrassment" of arrest or a "far more extensive search pursuant to a warrant" may be avoided. Id., at 228, 93 S.Ct. at 2048. "Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway or in a person's home or office, and under informal and unstructured conditions." Id. at 231-232, 93 S.Ct. at 2050. The consent search as a tool of police investigation is viewed by the Court as a supplementary aid to routine informal investigatory work which "normally occur in a person's own familiar territory." Id. at 247, 93 S.Ct. at 2058.

In the present case the "competing concern" of the policy is less significant than under normal consent search conditions. Here, Rothman was arrested and handcuffed and had been in incommunicado custody for some time when he opened the bags. He was by no means in an informal atmosphere or on familiar grounds. Rather, he was arrested, handcuffed, isolated in a strange place, given a formal Miranda warning and then interrogated by three officers over a period of approximately two hours. Such an environment is akin to "the specter of incommunicado police interrogation in some remote station house" and is squarely "inapposite" to the questioning environment contemplated when consent searches were held permissible. Id. at 247, 93 S.Ct. 2041. In a situation such as this the government's burden to prove voluntary consent is increased. United States v. Page, supra, 303 F.2d 81, 84; Judd v. United States, 1951, 89 U.S.App.D.C. 64, 190 F.2d 649, 651.

"It has been long established that one can validly consent to a search, even though the consent be given while defendant is in custody." United States v. Page, supra, 302 F.2d 81, 83. The fact that the defendant originally refused to consent may be evidence that he knowingly and voluntarily consented to the search, absent facts to the contrary. Davis v. United States, supra, 328 U.S. 582, 592, 66 S.Ct. 1256, 90 L. Ed. 1453. However, a mere expression of acquiescence may not be enough to sustain a finding of voluntary consent. Bumper v. North Carolina, 1968, 391 U. S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Amos v. United States, 1921, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Cipres v. United States, 9 Cir., 1965, 343 U.S. 95, 97. Where the consent is obtained through a misrepresentation by the government, Bumper v. North Carolina, supra, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed. 2d 797, or under inherently coercive pressure and the color of the badge, Johnson v. United States, supra, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; United States v. Marshall, 9 Cir., 1973, 488 F.2d 1169, 1188-1189, such consent is not voluntary.

The psychological atmosphere in which the consent is obtained is a critical factor in the determination of voluntariness. Channel v. United States, 9 Cir., 1960, 285 F.2d 217, 220; Judd v. United States, supra, 190 F.2d 649, 651. In looking at the factual issue of voluntariness, the court must be aware of the "vulnerable subjective state" of the defendant as well as the possibility of "subtly coercive police questions." Schneckloth v. Bustamonte, supra, 412 U.S. at 229, 93 S.Ct. at 2049, and the inherently coercive nature of custodial interrogation, Id. at 247, 93 S. Ct. 2041.

This case is another instance of a custodial investigation in which, "viewing the totality of the circumstances," we are compelled to hold that the consent was not voluntary because it was systematically psychologically coerced.

Moreover, this is not a case in which a consent search was necessary...