United States v. Young, 71-1589.

• Decision Date: 25 October 1972
• Docket Number: No. 71-1589.,71-1589.
• Citation: 471 F.2d 109
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby J. YOUNG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

471 F.2d 109 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Bobby J. YOUNG, Defendant-Appellant.

No. 71-1589.

United States Court of Appeals, Seventh Circuit.

Argued September 20, 1972.

Decided October 25, 1972.

Walter D. Cummings, Homewood, Ill., for defendant-appellant.

James R. Thompson, U. S. Atty., Mary L. Sfasciotti, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before DUFFY, Senior Circuit Judge, and CUMMINGS and SPRECHER, Circuit Judges.

DUFFY, Senior Circuit Judge.

Defendant, a former postal employee, was indicted and convicted for violation of 18 U.S.C. § 1709, embezzling mail while in the employ of the United States Postal Service.

Prior to trial, at a hearing, defendant moved to suppress evidence obtained from his apartment by officers of the Chicago Police Department on the grounds that the search was made without a warrant; that a warrant should have been obtained; that the search was unreasonable; and, that such search was not conducted incident to arrest. This motion was denied by the District Judge.

On December 9, 1970 at about ten o'clock p. m. in response to a telephone call summoning the police, two Chicago police officers arrived at an apartment building in Chicago, Illinois. The complaint had been lodged by a Mrs. Delgado, the manager of the apartment building, who had discovered mail in the garbage container on the third floor of the building. When the police officers arrived, Mrs. Delgado went to the third floor and retrieved the mail she had discovered. She told the policemen that a mailman lived in apartment 218.

The police officers and Mrs. Delgado went to the defendant's apartment. Officer Brown testified that the police knocked on the apartment door which was opened by the defendant. The officers identified themselves and told defendant that mail had been found in the building.

Officer Brown testified that defendant stated: "Well, come into the house . . . Come into my apartment, take a look around, I have nothing to hide." The officers then entered the apartment. They noticed, in plain sight, a dresser and a bed with mail strewn upon both pieces of furniture. The officers seized the items of mail.

After the police officers had entered the apartment, defendant telephoned police headquarters and complained that police had entered his apartment. Officer Brown testified that defendant made the call after the search had been completed and after the mail had been discovered.

During the search, one of the officers attempted to look inside of a drawer, but was stopped by defendant, who said: "O.K., stop right there". The officer complied.

After completion of the officers' search, defendant Young was taken into custody and advised of his Miranda rights. Defendant alleged at trial that at this time he expressed his desire to talk to legal counsel.

Later that evening, he was released to the custody of Investigative Aide Matthews of the United States Postal Service for questioning, after an appropriate Miranda warning was given. This questioning by Postal Authorities was continued the following day at the main post office whereupon the defendant was advised again of his constitutional rights. Defendant then signed a waiver of these rights and testified with respect to the police search. According to Inspector Matthews, who testified at a subsequent motion to suppress hearing, the defendant related that the police officers had entered his apartment at his invitation and with his consent.

The District Court denied defendant's motion to suppress and found that the officers had probable cause to investigate in light of the information they had received from Mrs. Delgado. The Trial Judge found that defendant gave his consent, although he later attempted to rescind consent after the officers had discovered the incriminating evidence which was in plain view.

On appeal, defendant asks us to overturn the findings of fact made by the District Court regarding the issue of consent. We are here involved with the credibility of witnesses. Appellate courts are very reluctant to overturn findings of trial courts involving the issue of consent, because a question of findings of fact is involved. United States v. Jordan, 399 F.2d 610 (2nd Cir., 1968), cert. denied 393 U.S. 1005, 89 S.Ct. 496, 21 L.Ed.2d 469 (1968). Byrd v. Lane, 398 F.2d 750 (7 Cir., 1968), cert. denied 393 U.S. 1020, 89 S. Ct. 625, 21 L.Ed.2d 564 (1969).

Here, two police officers testified that defendant consented to have the officers enter his apartment. Although Mrs. Delgado did not hear what defendant said to the officers, she did see defendant's gesture to the officers inviting them to come in.

We are of the opinion that the trial court's finding that defendant's consent to enter the apartment was voluntarily given is correct; that such finding supported by overwhelming evidence at trial was not clearly erroneous. See United States v. Thompson 356 F.2d 216, 220 (2 Cir., 1965). Furthermore, the attempted recision alleged by defendant does not render the original consent invalid for the reason that at a later time the defendant realized that his acquiescence might incriminate him. United States v. Simpson, 353 F.2d 530 (2 Cir., 1965), cert. denied 389 U.S. 1008, 88 S. Ct. 571, 19 L.Ed.2d 605 (1967); United States v. Dornblut, 261 F.2d 949 (2 Cir., 1958).

Defendant relies on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966) for the proposition that the minimal due process requirements before entry upon private premises by police without a warrant require a Miranda type warning by the police before their entry to the effect that the party need not allow the officer to enter without a warrant. By proposing this argument, it seems defendant suggests that notwithstanding the fact consent is freely given, or even if probable cause exists, that all searches are per se invalid unless accompanied by warnings similar to Fifth and Sixth Amendment warnings as to Fourth Amendment rights. The same arguments have been rejected by many courts. United States v. Cusumano, 429 F.2d 378 (2 Cir., 1970); Byrd v. Lane, supra; Gorman v. United...