United States v. Erma Smith ( 1978 )

EDWARDS, Circuit Judge,

dissenting.

Respectfully, I dissent from the opinion of the court. I think it will inevitably be read as authorizing both stop and search in drug cases on a standard of “reasonable suspicion.” In this respect its rationale and its result are inconsistent with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and are directly violative of Terry’s companion case, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

Terry’s rationale depended on 1) a policeman with enough information concerning a possible violent crime about to be committed to have a duty to investigate further, 2) a need for the officer to protect himself from weapons while investigating, and 3) a narrowly limited intrusion (a “pat down”) upon the privacy of the person searched. In this case only the first condition is met. The Terry opinion clearly did not authorize a search of a person on less than probable cause when there was, as here, no suggestion of any threat to the officer’s safety.

I recognize, of course, that the result reached here is premised on the claimed voluntariness of the search of Smith’s purse, as found by the District Judge. But in my view, United States v. McCaleb, 552 F.2d 717, 720 (6th Cir. 1977), requires the holding that the arrest occurred when the agent took Smith to the office. Nothing in this record indicates that she was free to leave, and there is no reliance in the opinion upon the Fourth Amendment requirement of probable cause.

In United States v. McCaleb, supra, which is the leading case on this subject in this Circuit, Judge Peck’s opinion said in part:

As this court stated in Manning v. Jarni-gan, 501 F.2d 408 (6th Cir. 1974), “[t]he difference between an investigatory stop and an arrest has yet to be spelled out. [However], this was clearly a deprivation of liberty under the authority of law. It does not take formal words of arrest or booking at a police station to complete an arrest.” 501 F.2d at 410. When appellants were taken to the private office and were not free to leave, the arrest was clearly complete. See, United States v. Jackson, 533 F.2d 314 (6th Cir. 1976). United States v. McCaleb, supra at 720.

I see no meaningful way of distinguishing our instant case from McCaleb’s conclusion that when appellants were taken to a private office and were not free to leave, the arrest was clearly complete. McCaleb also dealt with the suggestion, repeated by the government in our instant case, that in any event, consent to the search of a purse which proved to contain several marijuana cigarettes was voluntary given. In McCa-leb we said:

Consent “must be proved by ‘clear and positive testimony,’ Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921), and ‘must be unequivocal, specific and intelligently given, uncontaminated by any duress or coercion,’ Simmons v. Bomar, 349 F.2d 365 (6th Cir. 1965).” United States v. Hearn, supra, 496 F.2d at 244. “[T]he mere fact that a person has been arrested in violation of his constitutional rights casts grave doubt upon the voluntariness of a subsequent consent. The Government has a heavy burden of proof in establishing that the consent was the voluntary act of the arrestee and that it was not the fruit of the illegal arrest.” United States v. Bazinet, 462 F.2d 982, 989-90 (8th Cir.), cert. denied, 409 U.S. 1010, 93 S.Ct. 453, 34 L.Ed.2d 303 (1972); see also, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Manning v. Jarnigan, supra, 501 F.2d at 411-412. United States v. McCaleb, supra at 721 (footnote omitted).

Additionally, it should be noted that in United States v. Craemer, 555 F.2d 594 (6th Cir. 1977) (cited in the majority opinion), Judge Celebrezze affirmed suppression of evidence in an airport search. The opinion relied upon United States v. Hunter, 550 F.2d 1066 (6th Cir. 1977), and accurately described the holding in the Hunter opinion in the following language:

The Government makes the additional contention that, even if the agents did not have probable cause to search, the facts known to the agents were sufficient to warrant an investigative stop under the stop and frisk principle of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This argument is unavailing after our decision in United States v. Hunter, 550 F.2d at 1070-72, where we held that a search by DEA agents under circumstances similar to those present in this case exceeded the legitimate scope of a Terry search. In Hunter we noted that Terry authorizes a limited protective search for weapons but does not permit the search of luggage for narcotics. United States v. Craemer, supra at 597.

See also United States v. Hunter, supra at 1070.

In our instant case, like McCaleb and Hunter, appellant Smith was stopped by a Drug Enforcement Agent who identified himself as such. She was never told that she was not under arrest, was free to depart, or did not have to accompany the agent to the airport office. Under these circumstances, she was clearly under arrest when, after the agent took her to the airport office, he asked to search her purse. In such a setting, the “voluntary” agreement of appellant Smith should be regarded as a product of the illegal arrest. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

We do not find the sort of detailed facts bearing on voluntariness in this case upon which Mr. Justice Stewart relied in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In Schneckloth the Court held:

We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Schneckloth v. Bustamonte, supra at 248-49, 93 S.Ct. at 2059 (footnote omitted).

Contrary to the facts in Schneckloth, appellant in our instant case was in custody, and the investigation had focused upon a specific offense. In our instant case also, there was no evidence of “congenial” atmosphere and no indication that appellant “even attempted to aid in the search.” Schneckloth v. Bustamonte, supra at 221, 93 S.Ct. at 2044. Even though (as indicated above) our instant appellant was in custody, she was never given Miranda warnings.

The majority opinion also cites United States v. Canales, 572 F.2d 1182 (6th Cir. 1978). This ease is, however, completely distinguished from the instant ease by the fact that the defendant therein himself suggested the removal of the discussion to an airport office. The opinion of the court said:

However, the trial court found that Canales himself initiated the trip to the DEA office so that the ensuing conversation would be accorded some measure of privacy. If this finding is not clearly erroneous, the defendant’s presence in the DEA office was as a volunteer and not an arrestee. That the defendant would request to be taken to the DEA office so that the conversation would be outside the presence of his wife and stepson could be viewed as somewhat extraordinary. However, it is not so incredible that it requires this Court to find1 it clearly erroneous.

United States v. Canales, supra 572 F.2d at 1187-1188.

Canales is no support for the majority opinion.

I regret to say that in my judgment the court’s opinion represents overruling what until today has been regarded as settled law in this Circuit. I also feel that if it is accepted by our Circuit, it would represent serious erosion of the Fourth Amendment which our forefathers regarded as one of the most important rights sought by the American Revolution.