Wren v. United States, 8222.

• Decision Date: 03 November 1965
• Docket Number: No. 8222.,8222.
• Citation: 352 F.2d 617
• Parties: James WREN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

352 F.2d 617 (1965)

James WREN, Appellant, v. UNITED STATES of America, Appellee.

No. 8222.

United States Court of Appeals Tenth Circuit.

November 3, 1965.

Carl L. Harthun, Denver, Colo., for appellant.

James R. Ward, Asst. U. S. Atty. (Newell A. George, U. S. Atty., on the brief), for appellee.

Before PHILLIPS, BREITENSTEIN and HILL, Circuit Judges.

HILL, Circuit Judge.

Appellant, by direct appeal, attacks his conviction of the offense of transporting a firearm in interstate commerce after having been previously convicted of a felony, under 15 U.S.C. § 902(e). After indictment and prior to trial, appellant filed a motion, under Rule 41(e), F.R. Crim.P., to suppress evidence and alleged the firearm he was accused of transporting was taken from him after an illegal search of his automobile. The trial judge held a hearing upon the motion, denied the same and sustained the search and seizure on two grounds. Because of our disposition of the case, we need only concern ourselves with the trial court's finding that Wren consented to the search.

It is fundamental in our judicial process, as guaranteed by the Fourth Amendment, that we are secure in our persons, houses, papers and effects against unreasonable searches and seizures. This constitutional right, like all others, may be waived by voluntary consent.¹ In order to constitute a voluntary consent it must clearly appear that the search was voluntarily permitted or expressly invited and agreed to by the person whose right is involved. In addition, such person must be cognizant of his rights in the premises, the consent must not be contaminated by any duress or coercion and the government has the burden of proof.² The question of whether consent has been given is a question of fact for the trial court to determine in accordance with the foregoing accepted principles of law and subject to appellate review within the "clearly erroneous" rule.³

The undisputed facts show that Wren and a companion named Kilgore registered at a Kansas City, Missouri, hotel on January 13, 1965. During the evening of that day they drove to Kansas City, Kansas, and after dark parked their car alongside the curb at 7th and Nebraska Streets, with a Robert Hall Store on one side and a Safeway Store on the other. Shortly thereafter the police received a call that two men were in a parked car at the above location and were molesting women who were walking by the parked car. Two police cars were dispatched to investigate. When the first police car arrived, Wren and his companion were directed to get out of the parked car and were questioned briefly by the officers and one of the officers looked inside the car without searching it. In a short time the second police car arrived and the officers from that car continued with the questioning of the two men. In answer to the officers' questions, the two men gave conflicting and unsatisfactory answers concerning the reasons for their being in Kansas City and at the particular location. Wren informed the officers that he was unemployed and had been for some time. Officer Hall directed one of the other officers to take Kilgore down to headquarters and Officer Pruett told Wren that he would like to search the vehicle. Wren then opened the trunk with his key to permit a search of that part of the car by Officer Pruett who also searched the inside of the car and found the questioned firearm underneath one of the seats.

We must first observe that the circumstances of this consent and search do not present a "dramatic excitement of drawn guns" as in Weed v. United States, 10 Cir., 340 F.2d 827, nor a consent given after arrest so as to compel this court to view the situation with caution and misgivings. Wion v. United States, 10 Cir., 325 F.2d 420, cert. denied, 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 309. Also, unlike Villano v. United States, supra, the incident did not begin with "a violent interruption of appellant's privacy at his home at an unnatural hour and without semblance of lawful authority, * * *."

The evidence is conflicting on the issue of consent. Wren testified that he did not give his consent to a search of his car, and that he opened the trunk of the car after the officers indicated they were going to search the car only because he was afraid they would break the key off in the lock. Officer Pruett, who made the search, testified that after one of the officers was told to take Kilgore down...