United States v. Strouth

• Decision Date: 23 April 1970
• Docket Number: Crim. No. Cr. 7152.
• Citation: 311 F. Supp. 1088
• Parties: UNITED STATES of America, Plaintiff, v. Carlton Eugene STROUTH and Stanley Wayne Strouth, Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

311 F. Supp. 1088

UNITED STATES of America, Plaintiff, v. Carlton Eugene STROUTH and Stanley Wayne Strouth, Defendants.

Crim. No. Cr. 7152.

United States District Court, E. D. Tennessee, Northeastern Division.

April 23, 1970.

COPYRIGHT MATERIAL OMITTED

John L. Bowers, Jr., U. S. Atty., Edward E. Wilson, Asst. U. S. Atty., Knoxville, Tenn., for plaintiff.

Robert Widener, Bristol, Tenn., for Carlton Eugene Strouth.

Wendal D. Jackson and Thomas L. Rasnic, Bristol, Tenn., for Stanley Wayne Strouth.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

Agents of the federal bureau of narcotics and dangerous drugs and the Tennessee bureau of criminal identification went with the defendant Mr. Stanley Wayne Strouth to his living quarters on February 6, 1970 and, after his request, seized approximately 75,000 tables containing HCl and pentobarbital, which are depressant or stimulant drugs within the meaning of 21 U.S.C. § 321(v). Mr. Strouth (hereinafter, the defendant) moved the Court to suppress this evidence, claiming that such contraband was illegally seized without a warrant. Rule 41(e) (1), Federal Rules of Criminal Procedure. Evidence on the issues of fact necessary to a decision of the motion was received by the Court on April 10, 1970.

It is undisputed that the aforementioned agents entered the defendant's quarters without a warrant, not incident to a lawful arrest, although perhaps under exceptional circumstances; accordingly, the burden was upon the prosecution to produce facts to justify the seizure of this contraband without a warrant. Weaver v. United States, C.A. 5th (1961), 295 F.2d 360, 361 2. The burden on the prosecution to have proved the waiver by the defendant of his constitutional right to be secure in his home from unreasonable searches and seizures is particularly heavy, if the defendant was under arrest at the time of his waiver. Cf. Burke v. United States, C.A. 1st (1964), 328 F.2d 399, 402 5, certiorari denied (1964), 379 U.S. 849, 85 S.Ct. 91, 13 L.Ed.2d 52, rehearing denied (1965), 380 U.S. 927, 85 S.Ct. 902, 13 L.Ed.2d 815.

The prosecution claims that the defendant waived any objection to the admission of this contraband as evidence by orally requesting the officers to remove it from his residence and to allow him to turn over same to them. The right given by the Fourth Amendment is a personal right which "* * * may be waived * * *" by the defendant. Katz v. United States (1967), 389 U.S. 347, 359, 88 S.Ct. 507, 19 L. Ed.2d 576, 586 n. 20; Fox v. State (1964), 214 Tenn. 694, 701-702 4 5, 383 S.W.2d 25, certiorari denied sub nom. Thomerson v. Tennessee (1964), 380 U.S. 933, 85 S.Ct. 938, 13 L.Ed.2d 820, citing Hampton v. State (1932), 148 Tenn. 155, 252 S.W. 1007, Frix v. State (1923), 148 Tenn. 478, 256 S.W. 449, Byrd v. State (1929), 161 Tenn. 306, 30 S.W.2d 273, and Simmons v. State (1962), 210 Tenn. 443, 360 S.W.2d 10.

The defendant, who is 25 years of age, and was graduated from high school, went voluntarily to the Bristol, Tennessee police station as the result of a telephoned request he received at about 7:00 o'clock, p. m., on the above date. He made his presence known to uniformed officers in the reception room and was referred to a federal agent, Mr. Virgil L. Miller, who asked the defendant his name. The defendant identified himself to Mr. Miller and was then requested by a state agent, Mr. Gregory, to accompany him to the more private office of the chief of police. Therein, the defendant saw his brother and codefendant Mr. Carlton Eugene Strouth, Messrs. Miller and Gregory, and agents Moss and James F. Keasling.

Although the defendant claims that he was scared and nervous and that his "* * * mind went blank * * *" at about this time, he testified he remembered that Mr. Keasling, a state agent, showed him his (the latter's) identification card and also identified the other agents in the room; that Mr. Keasling advised him of his constitutional rights; that he recalls he was told that he was entitled to the assistance of counsel at all times; that he was questioned thereafter by all four agents; that he "* * * assumes * * *" he gave all his answers in the presence of his brother; that, upon being asked a question, which suggested to him that he was about to be charged with a violation of the criminal law, he requested the assistance of an attorney; that, at no pertinent time, did he withdraw this request for counsel; that Mr. Moss continued to question him thereafter; that he signed a form giving the officers his consent to search his living quarters; that he was transported approximately five miles in some seven or eight minutes to his place of residence, during which time the interrogation of him was continued by some of the officers; and, that the officers discovered the contraband, where he said it would be, and removed it from his residence.

Messrs. Miller and Keasling testified that, before the defendant was asked any questions, except his name, he was advised by the latter of his constitutional rights to silence, to counsel and against self-incrimination, and offered the use of a nearby telephone; that Mr. Keasling then advised the defendant that his brother had implicated him in a narcotics violation; that his brother requested at once to be permitted to leave the room; that, thereupon, the defendant inquired of his brother: "how much have you told them?", to which his brother and codefendant responded: "everything; tell `em the truth", and left the room; that the defendant, in response to interrogation, admitted that he had taken narcotic drugs from a drug-manufacturing firm, while he was employed there; that he had stored a large quantity thereof in the attic of his residence and wanted to get the drugs out of his house and wanted to turn them over to the officers; that, when the defendant was asked what he had done with the money he had received from his sales of the drugs, he stated he thought he might need a lawyer; that Mr. Keasling then again offered him the use of the telephone, to which the defendant did not react; that the defendant made no further response to any question propounded to him within the office, except that Mr. Keasling asked him if he wanted to give the officers his written consent to search his residence; and, that this defendant signed a consent-to-search form, but that he was not informed, before executing such form, of his constitutional right to demand a search warrant.

Mr. Keasling testified further that he did not ask any questions of the defendant en route to his residence and did not overhear any questions asked of him by any of his fellow officers, although he considered he had obtained sufficient information and authority to make the search theretofore and was paying no particular attention to the conversation in the rear seat of the vehicle which he was operating. The agents and the defendant continued to the place of his residence, where the 75,000 tablets aforesaid were retrieved by the agents from the attic and seized. It is not contended that any other search of the defendant's residence was made or that any other items of his property were seized.

Although, after the defendant had indicated to the interrogating officers in any manner at any stage of the process that he wished to consult with an attorney before speaking further, all questioning of him should have ceased, Miranda v. Arizona (1966), 384 U.S. 436, 444-445, 86 S.Ct. 1602, 16 L.Ed.2d 694, 707 4, 5, 6, rehearing denied sub nom. California v. Stewart (1967), 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121, and any statement he may have made thereafter will be excluded on the trial, this does not preclude a finding by the Court that the defendant waived his right under the Fourth Amendment to the federal Constitution for his residence to be secure from unreasonable searches and seizures, infra.

The Court finds that, after being warned of the rights he had under the Fifth and Sixth Amendments to the Constitution, and before exercising his constitutional right to the assistance of counsel, the defendant admitted unequivocally, specifically, and voluntarily to the agents that he had a quantity of contraband stored in the attic of his residence, and that he wanted these tables removed therefrom and turned over to the agents. The Court finds no evidence of misrepresentation of any fact by the agents, no evidence of any demand or request (at that time) by the agents that they be allowed to search the defendant's premises, and no evidence that the defendant was under duress or any type of coercion, actual or implied, when he volunteered his determination that the narcotics be removed from his residence and turned over to the agents. It is not clear whether the defendant had been formally arrested at this point in time, but in any event, the fact that he may have been in custody of the agents was "* * * not itself sufficient to render the consent involuntary. * * *" United States v. Jordan, C.A. 2d (1968), 399 F.2d 610, 614 3, certiorari denied (1968), 393 U.S. 1005, 89 S.Ct. 496, 21 L.Ed.2d 469, citing Gorman v. United States, C.A. 1st (1967), 380 F.2d 158, 163-164, and referring also to United States v. Paradise, C.A. 2d (1958), 253 F.2d 319; Schaffer v. State (Del.Sup., 1962), 184 A.2d 689, certiorari denied (1963), 374 U.S. 834, 83 S.Ct. 1882, 10 L.Ed.2d 1056. Under the above circumstances, the Court finds and concludes that the defendant waived any objection he might otherwise have enjoyed to the admission of the evidence he produced and surrendered against himself.

Whether the defendant waived his right to be secure in his residence against unreasonable searches and seizures is a question of fact. Cf. Rogers v. United States, C.A. 10th (1966), 369 F.2d 944, 948 10, certiorari denied sub nom. Ferguson v. United States (1967), 388 U.S. 922, 87 S.Ct. 2125, 18 L.Ed.2d 1371, rehearing denied (1967), 389 U.S. 890, 88 S.Ct. 20, 19 L.Ed.2d 205. A consideration of...