United States v. Arthur Maez

ceiling) outside and the Bor- than the (Foot- activity. of suspicion able agent’s knowledge that this der Patrol omitted). note transporting means a common of Moreno, v. States United contraband, coupled with initial at- Cir.1985), officials board- (11th customs through to drive tempt of defendant on the customs’ which ed a vessel ag- and his nervous and checkpoint suspected of list” of vessels “lookout behavior, reasonable itated furnished smuggling. Upon in narcotics involved referring justification for defendant’s vessel, learned the officers boarding the inspection point secondary vehicle to a States ship entered United that investigation (emphasis sup- for further foreign Cus- River) waters. (Miami from plied). at the scene and arrived Officer Herm toms previ- that from a agents the other advised order of the district that We hold vessel, he knew boarding this of ous Suppress was granting the Motion to court compart- concealed ship contained is RE- That Order clearly erroneous. hole drilled a second Agents then ments. for and the case is REMANDED VERSED of the fuel portion tanks. into another trial. hole indicated probe inserted into than fuel—occu- objects some solid —rather agents tank. The portion of the pied this gain saw to accеss an

then used electric thereupon compartment concealed marijuana. bales numerous

discovered seizure search and

The court held that this since one particularly justified previous from a agents recalled customs America, UNITED STATES ship contained the secret boarding that the Plaintiff-Appellee, compartments. v. case, previously have In the instant MAEZ, Defendant-Appellant. Arthur discovered Gordon that Officer observed routine compartment the secret No. 88-1128. inspection. border Appeals, States Court United Faulkner, States Finally, in Tenth Circuit. Cir.1977), pa- the border F.2d 870 pounds of 450 seizure April trol’s search and pickup in a truck marijuana concealed challenged as vio- camper was

an attached In that Amendment.

lative Fourth made at the border

case, contact was checkpoint permanent instead at

but height- so that a the United States

within ap- cause was probable

ened standard of suspicion the reasonable

plied, rather than so, the

standard, applies here. Even which

court observed/held: checkpoint permanent at a search [A] vehicle, if, stopping the after

is valid probable cause agent finds Patrol

Border the search. make

Ortiz, incongruity

L.Ed.2d (the ceil- inside camper’s structure lower approximately one

ing was foot occupants to remove

asked the themselves did, home, Maez then from the which custody. into We hold taken arrest violation unlawful occurred. obtained after the Because evidence objection at trial over Maez’ admitted tainted, was we reverse. Background and

Factual Posture Procedural A. McCue, Asst. Public P. Federal Stephen The Arrest Maez Steinmetz, (Ann Public Federal

Defender N.M., was also on Defender, Albuquerque, Albuquerque Two men robbed an bank brief), defendant-appellant. for Friday, August 1987. A bank cus- reported early tomer that an 1960’sFord (William Burnett, Atty. U.S. Asst. Paula Dodge tailgate pickup truck with a wooden Baca, Lutz, Atty., and Robert J. L. U.S. plate Mexico license number N.M., and New Albuquerque, were Atty., Asst. robbery. KO-1919 involved brief), plaintiff-appellee. was for on the also number, an FBI There was no such but HOLLOWAY, Judge, Chief Before dispatcher found that license number KD- BRORBY, Judge, and Circuit belonged pickup to a 1959 Ford truck ANDERSON, Judge *. District registered description to Maez. truck, robbers, both and Maez’ address was HOLLOWAY, Judge. Chief given the radio. over (Maez) charged was Defendant Deputy Pacheco heard the broad- Sheriff robbery, a violation with armed bank p.m. and con- cast at 3:00 He knew Maez (d) (1982) aiding 2113(a) & U.S.C. § tacted a informant who knew confidential of 18 abetting, a violation U.S.C. § lived. The informant directed where Maez suppress evi- motion to pretrial He filed a At the Pacheco to the Maez’ home. home of his home during a search seized dence matching description he he saw a truck incriminating he statements and truck and given. By p.m. been now it was 3:30 had denied That motion was thereafter. made II 18-19. Pacheco left and the Albu- R. hearing and the evi- suppression after police department and FBI querque were at trial. was admitted dence Maez home was left un- contacted. The arguing appeals, He convicted. approximately 3:30 and guarded between grant- suppress should have motion approxi- p.m. 4:30 Pacheco returned ed. p.m. meeting after with his mately 4:30 question presented paramount supervisor. point From that on the trailer v. New a violation door) (which front had one exit—the 1371, 63 York, The truck at the was under surveillance. a num- occurred when L.Ed.2d 639 geta- as the residence was later identified team, and a of armed officers SWAT ber way truck. arrest, surround- for an having no warrant officers, Maez, Albuquerque police Several occupied by home ed a mobile FBI met in a restau- children, and the speakers SWAT team and over loud wife and * Anderson, designation. Aldon J. Honorable Utah, sitting by Judge District of for the District plan parking explained rant lot to Maez’ arrest.1 ment consent form and the form They at the Maez’ home between arrived signed to Mrs. Maez before she it.2 Mrs. p.m. Ill R. 6:00 and 6:30 106. SWAT given Maez was time to read the form.3 dressed in black surrounded team members pursuant No evidence was seized to this (over speakers) trailer and loud asked II consent. R. 44-45. occuрants of the home to come out. II signed After she Albuquerque 38-39; R. III R. 143. None of the officers police department form, consent Mrs. Maez went to the door. Mrs. Maez heard some sign was asked to an FBI consent to search commotion outside. When she looked out Agent form. Guyman explained year the front door she saw her fifteen old looking would be for money, weapons, or walking son across the street clothing. He told Mrs. Maez that her hus- hands in the air. She watched as band Guyman had been arrested. filled agent searched and handcuffed. An FBI out the form and had Mrs. Maez read it out handcuffed; boy testified the Agent Marrero, loud. present who was suspect robbery never a however. signed, when the form was testified that Ill pointed R. 132. There were rifles at the Mrs. visibly upset Maez was when she Ill house. R. 152. Maez told her Mrs. signed the form. signed She said that she happening husband what was and he the forms because she said, had to. Ill R. go outside looked outside_” and “we have to bag containing $5,800, 157.4 A III R. 152. a Mr. and Mrs. blue stocking cap, ammunition, Maez were told to exit one at time. a box of and two

red bandannas were seized. Mrs. Maez signed a third consent to search form relat- B. ing personal automobile; to her no evi- Mrs. Maez’Consents to Search dencе was seized from the automobile.5 By the time Mrs. Maez had left the trail- approximately p.m. er it was II R. 6:45 C. 49-50; escorted, III R. 75. She was her baby, two month old outside trailer Interrogation Maez’ fence, park past approximately police ten custody by Maez taken into Al- was presence officers and into the of five more. buquerque Department Police and turned thereafter, Shortly she was read asked to FBI approximately p.m. over to the 7:15 sign authorizing and consent forms they The officers asked if could search the search of the trailer. She owned the trail- trailer they er. Police officer and vehicles and when indi- Whitson filled in the warrant, Albuquerque police depart- they blanks on an cated had no search house, precisely get 1. It is not clear from the record when a warrant to search the but could meeting place. agent Garay thought took FBI testi- Ill R. one. 156. She that she would began p.m. fied that it getting around 4:00 Ill R. 130. have to wait outside while were Police officer Whitson said that he meeting at the sign warrant if she did not the consent form. p.m. between 4:30 and II R. During 5:00 46. holding this time Mrs. Maez was their Agent Guyman meeting 56; said that he was at the baby. II R. III R. 158. p.m. at 5:45 Ill R. 73. 5.The dissent’s focus on the voluntariness of the 2. This first consent to search form was obtаined quotation testimony third and its consent so that the officers could enter the trailer to misplaced. Nothing about it are was seized Maez, yet By search for who had not exited. pursuant to the third consent to search. Its signed, the time the form was he had exited. validity is not at issue. We note this because issue, the consent to search which is at search, 3. The form that there preceded indicates is a constitution- second consent to this third deny permission proper- fact, al ty. to to search the consent to search the automobile. I R. Exh. C. signed third consent form was over an hour after the search of the trailer. Ill R. 85. It is signed 4. Mrs. Maez also to testified that before she difficult validate the second consent Albuquerque police department events which occurred over an hour after consent it was form she signed. was told that the officers did not have then taken to an inter- environment not have been ideal no.6 He was ... ..., Miranda given Patsy he that nevertheless view room where [Ms. Maez] signed rights voluntarily willingly gave a waiver of warnings and officers prior permission no conversation to search.” II R. There 164. The form. p.m. 8:00 Maez’ concluded of the It was now court that all items which their arrival. “legally for an hour and one were seized from the trailer were interrogation lasted signed validly permission He a consent to taken under the half. II R. 35. relating his truck II 164. search....” R. search form interrogation. Guyman was called and The court further found that after the truck. he searched Miranda given warnings, willingly agent interrogation knowingly gave permission FBI Ga- to search During the pickup “in the dark veins on his the Ford which the holster was ray asked Maez about heroin found.” II R. The court admitted that used held that arm. Maez Maez, including and said that he had statements made three times a week regarding cap, hours valiums two before statements were “know- taken two custody. ingly willingly given” Ill R. 122. Maez ex- taken into after he Miranda driving pickup given warnings. II plained that he had been R. 165. vicinity (picking up pop the bank cans) robbery. He day also E. cap ownership admitted found out- Evidence At Trial However, doors. when side the bank trial, At bank teller Christina Carlsen Agent explained Denniston where it had that one testified of the robbers was wear- found, Maez denied that it was his. ing a and hat had a red bandanna over Agent Garay that about three testified bandanna, face. The found dur- which was interview, through quarters way ing pur- the search of the trailer conducted Ill 135. The interview Maez vomited. R. signed by suant to the FBI consent form Garay continued. testified that Maez did Maez, Mrs. was admitted into evidence. confused, fright- appear him to be not to Carlson identified Maez as the taller of the ened, drugs. influence of or under the two and the one who struck Maria- robbers dizzy Maez said that he felt from the vali- teller, Griego, na another unconscious with by ques- ums that he confused and was gun carrying. Griego identified three officers. Ill R. 145-146. tions of the

Maez one of the robbers. IV R. put gun She that he a under her chin. D. Griego although said that she could not Ruling on The Trial Court’s during robbery clearly see his face Suppress Motion to (because it was covered bandanna orally wearing cap), denied the motion and he was she was able to The trial court mustache, graying suppress. eyes, to The court found that “there see his and dark Maez probable was cause to arrest the defen- hair. She remembered about dant,” Griego disputed appeal. II R. five feet seven inches tall. also a fact recognized found that said that she a number of tat- 162-164. The court further “legally Maez’ arms on the of his Maez arrested ... after toos on and web was II R. 164. thumb. IV R. 105-114. came out his trailer.” bank, way out of the one of the The court found that “while the circum- On Harrison, Jr., presi- tense and whilе the robbers hit Ernest vice stances have been down, go my up his wife communicated and I shook head and ahead 6. Maez said that he and to, regarding with their heads their trailer. consent to search if because the trailer is under her she wanted reading paper something and "[S]he she had name." Ill R. 145. Mrs. Maez said that this, know, you she went like and husband, although no communication with her know, (indicating), you like that to let me know specifically she was not asked about nonverbal if trailer. it’s all if can search the communication. *Well, your up you,’ told her it's trailer. It’s (and FBI agent) wearing of the bank a former pants dent the same and a t-shirt. Mrs. ground. knocked him to the The taller brought three of her husband’s hats hat fell off. Harrison followed court, robber’s all of which were admitted in a corner the robbers around and saw them evidence. leaving light pickup in a colored with a jury guilty returned a verdict. Maez tailgate. He

wooden said that the taller trial, filed a motion for a arguing new wearing grey pants robber was Griego’s impermissibly identification was approximately five feet nine inches tall. suggestive unreliable, violating his due time, IV R. 42-43. At the same a bank process right to a fair trial. The trial court customer, Barnes, Michael saw what he denied timely the motion and a notice of gun thought was a and followed the truck appeal was filed. plate report- to see license number. He ed the number and also the truck described II early as an 1960’s Ford with a wooden tailgate. He testified that the taller robber Analysis wearing light blue shirt. He also argues that his arrest at his home photographs of the identified truck. without a warrant violated the Fourth ammunition, A box of .25 caliber which Amendment and that evidence subsequent- was found in Maez’ trailer ly obtained was tainted. We first consider search, evidence, was admitted as were whether Maez’ arrest was If lawful. bandannas, $5,844, totalling cash unlawful, arrest was we must then decide pictures various of the items seized. The subsequent whether the consents to search bills, cash consisted of 294 one dollar 118 given by Mr. and Mrs. Maez and Maez’ bills, bills, five dollar ten dollar 120 incriminating statements were tainted bills, bills, twenty fifty dollar dollar and the unlawful arrest. 15 one hundred dollar The bank had bills. bills, twenty four dollar none baited but A. guns found in the trailer. No

were bank wrappers were found. Maez’ Warrantless Arrest Agent Garay testified that a holster had The provides Fourth Amendment truck, been found in Maez’ but the holster people that to be secure “[t]he itself was never offered in evidence. houses, persons, papers, in their and ef Agent regarding Denniston testified state- fects, against unreasonable searches and interrogation. ments Maez made his seizures, violated, shall not no War driving Maez said he had been truck in his issue, cause, upon probable rants shall but cans). vicinity (picking up the ‍​‌​​‌‌‌​​‌​​‌‌‌‌​​​​‌‌​‌​​‌‌‌​‌​​​​‌​​​‌​​‌‌​​‌​‍of the bank affirmation, supported by par or Oath robbery, Maez denied the and claimed that ticularly describing place the to be money found in the trailer his. searched, persons things and the or to be Denniston also testified that admitted York, Payton v. New seized.” In 445 U.S. his, cap that and then recanted 573, 576, 590, 1371, 1375,1382, 100 S.Ct. 63 being after told that it had been found Supreme L.Ed.2d 639 Court held outside the bank. that, circumstances, police exigent absent

The sole defense witness was Mrs. officers not enter an individual’s home Maez. She testified that consent to make a warrantless rou when her husband left without 14, probable morning August felony the trailer on the of tine arrest even with shoes, case, officers, 1987, wearing police green he was tennis cause.7 In the instant shirt, pants, yellow agents FBI surrounded khaki a white and a hat. and a SWAT team trailer, guns pointed day Later that she left. When she re- the Maez’ and with at there, home, p.m. family him his to come turned around 3:00 Maez was asked 411, 423-24, Watson, public probable A 423 U.S. 96 warrantless arrest in Amendment, 827-28, (1976). 820, 598 46 L.Ed.2d cause does not viоlate the Fourth though exigent even circumstances do not exist. to come out of requested taken into Maez “was They did and out. home, he of the trailer which was or out custody. he living arrested after came and he was open.” II R. 164. We cannot i into the out The undisputed facts. agree light Application of team had surrounded Albuquerque SWAT seizure “when An arrest or occurs at the pointed rifles the Maez’ trailer with officer, physical force or of by means 39-41; Over the II III R. 152. home. R. way re authority, in some has show occupants asked speakers the “were loud Ter liberty of a citizen....” strained the mobile themselves from to remove 16, Ohio, 1, 88 S.Ct. 19 n. ry v. 392 U.S. ...,” II testified. home Officer Whitson (1968). 16, L.Ed.2d 889 1868, n. Maez saw the officers with R. 39. Mrs. York, 442 U.S. Dunaway v. New also son the house and her pointed rifles 2248, 6, n. 6, 200, n. She and handcuffed. told searched show “of official L.Ed.2d 824 happened. her what “[H]e husband person that ‘a reasonable authority such he looked out and to the door and went not free to have believed would got said, go outside,[’] and he have [‘]We ” has oc that an arrest indicates leave’ going Ill outside.” baby and we were 491, Royer, v. 460 U.S. Florida curred. ten presence of some R. 152. Given L.Ed.2d 229 officers, weapons of the SWAT the drawn (quoting (1983) opinion) (plurality trailer, surrounding the usе of the team Mendenhall, States frightening circum- loudspeakers, and the (1980) L.Ed.2d faced, family per- a reasonable stances joined by Jus Stewart (opinion of Justice he had to come out believed son would have circum Rehnquist)). “Examples of tice to the show and submit home seizure, even might indicate a that stances Accordingly, hold that Maez authority. leave, attempt not person did when in his home.8 while was arrested threatening presence of be the sever would strenuously argues weapon by an officers, display of a al here because there Payton does apply not language tone or the use officer ... entry Maez’ home. into was no warrantless indicating compliance with of voice firm drew a says It that the Court line compelled.” might be request officer’s Appel Brief of of the home. the threshold Mendenhall, 100 S.Ct. at The contention has considera lee at 11-14. whether an determination of 1877. “[T]he Payton does make re force ble because dependent occurred is has entry such as “non- peated references formally placed un the citizen suspect’s entry into consensual Hatfield, der arrest....” 576, 100 S.Ct. at 445 U.S. at home....” Cir.1987) (quoting 1068, (6th 1071 815 F.2d the Fourth The Amend 1375. Court Hardnett, 353, F.2d v. States 804 United firm line at the en a ment “has drawn dеnied, cert. Cir.1986), 479 U.S. (6th 356 exigent cir house. Absent trance to the (1987)). 1318, 1097, 107 171 S.Ct. 94 L.Ed.2d cumstances, may not that threshold reason at Id. warrant.” argues ably that without a government be crossed 590, And the He at 1382. Court 100 to exit his home. S.Ct. “chose “ the is ‘physical entry of home Appel noted that place.” Brief public in a arrested wording of against which the that the chief evil found And the trial court lee at 14. However, Cir.1986). (10th noted, an ulti- where judge the "defen- found the trial As finding such as consent is made there legally. He out of his— mate came was arrested dant home, supporting undisputed underlying facts requested come out of are to conclusion, living contrary and he that conclusion of the trailer in which out open.” appellate out court. See United States arrested after he came into drawn 1448, 7, Recalde, 1455 n. 1456 R. 164. v. Ill 761 Illinois, (10th Cir.1985) (citing 422 U.S. Brown v. sup- findings on a to We review the motion 2254, 2262, 590, 604, 416 45 L.Ed.2d S.Ct. clearly 95 press standard. under erroneous 1489, (1975)). Alonso, 1493 States v. 790 F.2d United 1451 ” Id. is directed.’ arrest occurs United Fourth Amendment within home.” United v. Al-Azzawy, 585, (quoting States 100 S.Ct. at 1379 784 F.2d at 893. We Court, District v. United States States agree important point and think the is that 2125, 2135, 297, 313, 32 intrusion, physical in cases of or coercion to (1972)). L.Ed.2d 752 home, case, leave the privacy as effectively of the home is invaded. Com Payton true also that involved cases It is mentаtors have endorsed such a view of officers, police acting probable with where Payton coming where a defendant’s out of warrant, entered the cause but without a 2 his home resulted from coercion. homes to make arrests. defendants’ LaFave, Search and Seizure 6.1(e) § Payton, the officers used crowbars case (2nd 1987). 592-94 ed. apart- open the door and enter the to break Payton, 576-77, ment. 445 U.S. at Payton recognizes that at “very core Riddick, S.Ct. at 1374-75. In the case of the Fourth stands the [of Amendment] the door of the officers knocked on right of a man to retreat into his own home lived, where Riddick and when his house gov- and there from be free unreasonable door, opened the entered and arrested son 589-590, ernmental intrusion.” 445 U.S. at 578, 100 Riddick. Id. 1376. In S.Ct. at Silverman (quoting 100 S.Ct. at 1381-1382 physical entry. cases there was both States, v. 505, 511, United U.S. argues does not 679, 682, (1961)). S.Ct. 5 L.Ed.2d 734 While the arrest in this case because the condemn “physical entry of the home is the chief evil physically enter the trailer. officers did not against wording which the of the Fourth however, persuaded, are the deci We Amendment is directed” the Court has “re- applied Pay- of the courts which have sions fused to lock the Fourth Amendment into crossing ton physical where a physical trespass.” instances of actual reasoning threshold did not occur and their United States v. United States District physical entry alone is not that the lack of Court, 2125, dispositive. Those courts have held that 2135, (1972). gov- 32 L.Ed.2d 752 Here the Payton is violated where there is such a intrusion, ernmental without consent and show of force that a defendant comes out warrant, without a was in the form of of a home under coercion and submits extreme coercion which effected the arrest custody. taken in his home. of Maez while he was We (9th Al-Azzawy, 784 F.2d and n. 1 finding judge hold that the of the trial denied, Cir.1985), cert. U.S. that, clearly contrary erroneous and (1986); 2255, 90 L.Ed.2d 700 United here, undisputed given circumstances Morgan, States v. 743 F.2d of Maez’ Fourth there was violation denied, Cir.1984), cert. rights. Amendment (1985); Scrog 85 L.Ed.2d 490 Arkansas, 276 Ark. gins v. State of ii 633 S.W.2d Cf. Exigent Circumstances Edmondson, States argument In addition to its (11th Cir.1986) (FBI weap agents, 1514-15 —which rejected there was no arrest of have drawn, door, occu ons knocked directed —that home, government says Maez in the door, did, pant open the which he probable for the arrest and that both cause inside). In both Al- agents arrested him exigent existed so that there circumstances Azzawy Morgan, case now Payton. of any was in event no violation us, the police the had surrounded before 13, Emergency 15. Appellee Brief of at requested their exit defendants’ homes and search may make a warrantless conditions Both courts reasoned that by bullhorn. probable or arrest constitutional where Payton Al-Azzawy, 784 was violated. Wisconsin, 466 see Welsh exists, cause Morgan, 893; 1166. F.2d at 743 F.2d at 740, 749-50, 2091, U.S. 104 circumstances, 2097- “In these it is the location 98, (1984), 80 L.Ed.2d 732 and here Maez arrest person, of the arrested and not the prob- dispute the existence of such agents, an does not ing that determines whether Moreover, Payton recognized accordingly no Court had occasion able cause. exist, exigent circumstances the con- emergency danger- that if to consider such an or suspect’s against 583, bar a stitutional ous situation. 445 U.S. at at States, apply. a warrant does not Steagald his home without v. United 1378. Here, 100 S.Ct. at 1382. U.S. U.S. 101 S.Ct. 68 L.Ed.2d 38 however, contends there was no as- government argued the first for exigency sertion of made the trial court appeal time on that the record did not government’s by the law enforcement wit- clearly petitioner, show that the who was Appellant or counsel. Maez’ Re- nesses its house, party’s arrested in a third had a agree reject ply Brief at 12.9 We expectation privacy reasonable in the exigent government’s argument of circum- grant home. The declined to Court appeal. made for the time on stances first government’s request for a remand for fac- findings tual on the issue: accept government’s We cannot exigent assertion of the circum belated initially ... enti- Government [T]he for basic reasons. Where stances claim against petitioner’s charge tled to defend to enter a home without a police seek war by asserting search of an unlawful that proving the burden of rant the state bears petitioner expecta- lacked a reasonable exigency exists. that sufficient home, privacy in tion of the searched Aquino, 836 F.2d 1268, 1271(10th States v. search, or that he consented to the Cir.1988) (citing Coolidge Hamp v. New exigent justified circumstances the en- shire, Government, however, try. The (1971)). L.Ed.2d That burden right lose its to raise issues factual heavy particularly police is where the seek this sort Court when it has before suspect’s to enter a home or the home of a contrary made in the assertions courts person third because warrantless seizures below, acquiesced it has in con- when presumptively home are unreason inside a courts, or when trary findings by those Aquino, 836 F.2d at 1271 (quoting able. questions it has to raise such failed 586, 100 1380). Payton, S.Ct. at timely litigation. a fashion exigent important It is that the facts on We conclude that this such a case. developed circumstances be and that find Magistrate’s report petitioner’s E.g., ings on them. be made motion, suppression adopted which was Cuaron, 700 F.2d at 586-91. Court, by the District characterized the itself, opinion an In the issue as whether arrest warrant was justify noted that while it was sufficient to the search of ‘the Supreme Court person’ arguable subject the warrantless arrest of home of a third for the 12. The Government App. Payton might justified by have been exi the warrant. circumstances, sought never to correct this character- gent none of the lower appeal, ization on and instead ac- any justification had relied on such courts supported government argues sup- that the record circumstances is the record and 9. exigent ports procedure.” Appel the existence of circumstances be- "dictated the arrest lee, Brief of (1) police cause: knew that one of the bank pp. McConney 15-16. held that armed and had used the butt of his robbers was question exigency "mixed is reviewable de (knock unconscious) handgun to a bank disable question novo as a of law.” 728 F.2d at 1204- customer; (2) large monеy sum of had been Cuaron, In United States v. bank; (3) police physical stolen from Cir.1983), assessing that in descriptions of items worn the robbers which government’s burden demonstrat (4) might destroyed; might seek to met, ing exigent circumstances was we "evalu warn the other robber or seek assistance if ap circumstances as would have ate ‍​‌​​‌‌‌​​‌​​‌‌‌‌​​​​‌‌​‌​​‌‌‌​‌​​​​‌​​​‌​​‌‌​​‌​‍the presence aware of the should become peared prudent, cautious and trained offi (5) police police; knew Maez was (citations omitted). Since we conclude cers.” addict and a convicted felon. heroin its that the waived raise Citing McConney, exigent appeal circumstances on for issue of (9th Cir.1984) (en banc), denied, cert. text, we do not undertake reasons stated (1984), the 83 L.Ed.2d 46 of the record. an evaluation exigent government argues that the existence of the District Court’s view ciently quiesced in purge an act of free will to claim. primary arrest, Fourth Amendment illegal taint of the petitioner’s it must suppressed poisonous as fruit of the 209, (emphasis Id. 101 S.Ct. at 1646 Guzman, tree. (quot 864 F.2d at 1520 added). Here, government concedes Illinois, Brown v. ing 590, 601, 422 U.S. argue it did not the issue its brief that 2254, 2260, (1975)). S.Ct. 45 L.Ed.2d 416 fact, Appellee, 15-16. In Brief of below. argued specifically defendant below Without citation to authority, govern- exist exigent cirсumstances did not initially argues ment that because Mrs. dispute did not and the arrested,11 Maez was not her consent to argument.10 Hence the district court had search the trailer cannot by be tainted her issue. no reason to consider the prior illegal husband’s arrest. disagree We reasons, reject For these we must issue, and think the in Wong as Sun stated claim of government’s argument its States, v. United 471, 488, up exigent circumstances be taken for the S.Ct. 9 L.Ed.2d 441 appeal. first time on this “granting establishment of the primary illegality, the evidence to which B. objection instant is made has been come at by exploitation illegality of that or instead by the The Taint Caused by sufficiently distinguishable means to be Payton Violation purged primary of the taint.” This conclu- Having Maez' determined that warrant- Supreme sion is mandated Court’s less arrest violated and the Fourth Ceccolini, decision v. States Amendment, go to consid- we must now on 55 L.Ed.2d 268 tainted the er whether the arrest Howard, See also United States subsequently given to search consents (9th Cir.1987). 828 F.2d him and his wife and his custodial state- ments, any or whether taint was sufficient- Ceccolini, (a the defendant business by intervening ly removed and attenuated suspected gambling) sup man moved to circumstances. damaging press employ statements of an ee, resulting from an unlawful search of i 269-72, 98 premises. Id. his business

Mrs. Maez’ Consent Search arrested. employee was not at 1056-58. argu government’s first consider whether the con rejected We The Court given by to the witness testimony sent to search Mrs. Maez of a live that “the ment voluntary FBI in fact so as to remove trial no matter how excluded at not be should the taint of Maez’ unlawful arrest. con connection between proximate the close and preceded by a sent to search which is Fourth Amendment.” it and a violation only 274-75, 98 is valid if Fourth Amendment violation at 1059-60. While Id. voluntary it is in fact. the Court was whether issue before primary Guzman, drawn 1520-21 should be categorical distinction Carson, Cir.1988); found verbal evidence physical and between (10th Cir.1986), search, the cert. de unlawful result of an nied, specifically noted that the witness 93 L.Ed. Court (1986)). testimony was at issue was not a 2d 289 If the consent is not suffi whose government’s Suppress Physical accept Evi- 11. We contention that 10. In his "Motion To exigent argued defendant that “[n]o dence" the circumstances existed to for the sake of Mrs. Maez was not arrested justify the search analysis, given Mr. Maez our conclusion that residence_” argument again IR. 8. The while in the trailer. If under the was arrested Support made in the "Memorandum Briеf In Mendenhall, Royer Terry, Dunaway, Suppress Physical Evi- Defendant’s Motion To arrested, analysis, supra, Maez was it fol- Mr. Suppress Statements." dence and Motion To She was lows that Mrs. Maez was also arrested. government’s p. response brief R. 6. The position. same arguments. these I R. 11. does not contest 1454 Guzman, 275, 277, Id. at at 98 S.Ct. 864 F.2d at 1520-1521. These

defendant. 1059, nevertheless temporal proximity 1060-61. The Court factors include “[t]he “ which de confession, concluded that ‘verbal evidence pres the arrest and the the immediately from an unlawful en intervening circumstances, rives so par ence of and arrest as the offi try and an unauthorized ticularly, purpose flagrancy and of the present in case is no less Brown, cers’ action official misconduct....” 422 U.S. illegality “fruit” of the official than the 603-04, at (citation 95 at S.Ct. 2261-62 tangible fruits of the more common unwar omitted). Weighing these factors the court ” 275, Id. at at ranted intrusion.’ 98 S.Ct. question must decide the ultimate whether Sun, 485, (quoting Wong at 1059 371 U.S. sufficiently the consent was an act of free 416). Thus, the defendant could 83 S.Ct. at purge primary will to taint of the il raise the taint issue as to the statements Guzman, legal See arrest. 864 F.2d at employee. And the wit made while Royer, v. See also Florida 1520. 460 U.S. statements, op ness Ceccolini gave in 491, 501, 1319, 1326, 75 L.Ed.2d search, posed to a consent to the same States, (1983); Wong v. United Sun 229 question The analysis required here. is 471, 486, 407, 416, 9 (or whether the statements witness (1963); Carson, L.Ed.2d 441 793 F.2d at consent) in have “become so our case Recalde, 1152; the taint.” Cec dissipate as to attenuated (10th Cir.1985). 1458 colini, 435 98 S.Ct. at 1059 U.S. noted, judge As the district found that Sun, (quoting Wong U.S. voluntarily Mrs. Maez’ consent was and 419). S.Ct. willingly given, although expressed re- pre a consent to search Whether making finding.12 luctance in by Fourth Amendment violation is ceded judge illegal had also held there was no purge sufficiently an act of free will to arrest of Mr. Maez and no thus had reason illegal depends primary taint to consider whether Mrs. Maez’ consent fact, upon voluntary it is which sufficiently purge an act of free will to depends upon totality circum turn primary taint of her husband’s unlaw- Guz See surrounding stances the consent. ful arrest. man, 864 F.2d at 1520 (citing Schneckloth Bustamonte, 218, 248-49, 93 When consent is obtained after 2058-59, L.Ed.2d 854 an arrest there must be a break S.Ct. Carson, 1149). (1973) illegality 793 F.2d at the causal connection between v. Bustamonte obtained. Duna thereby Schneckloth applying the the evidence York, way v. New 200, 217-19, test to consents to search U.S. voluntariness 2248, 2259-60, 60 L.Ed.2d 824 subsequent Fourth Amendment obtained violations, Payton this court has considered the Here the violation of three factors articulated in Brown v. Illi undisputed train of events that fol nois, compel 45 L.Ed. lowed us hold that Mrs. Maez’ First, apply to confessions. 2d 416 which consent was tainted and invalid.13 However, part: proceedings 12. The court stated in where the below "result amply ed in a record of sufficient detail and And I find that while the circumstances will depth made,” may may from which the determination have been tense and while the environ- appellate may been that of the most court conduct a taint ment not have Brown, considering signing permis- analysis. ideal for of a 422 U.S. at 95 S.Ct. at search, 2262; Guzman, sion to ily that nevertheless she voluntar- quoted in 864 F.2d at 1521 n. 10. willingly gave permis- (volun the officers a Recalde, 1458-59 F.2d at also sion to search. This is Government’s Exhibit clearly tariness determination held erroneous where, although there was some evidence to 1. Ill R. 164-165. it, support the entire record indicated that the tainted); defendant’s consent was the taint district court did not discuss Patino, Cir. 1418-19 resulting Payton issue from the It is violation. 1987). try not our function to facts or to substitute our judgment argues inappropriate for The dissent that it is for the trial court in determin Guzman, ing analysis, factual issues. 864 F.2d at 1521. us to conduct a taint the trial proximity of the arrest and Mrs. Maez’ cannot be that the purposeful- officers taint of the clearly indiсate that ly consents violated in the sense that Payton purged. violation not The FBI was impropriety were aware the of their signed by consent form was ‍​‌​​‌‌‌​​‌​​‌‌‌‌​​​​‌‌​‌​​‌‌‌​‌​​​​‌​​​‌​​‌‌​​‌​‍Mrs. Maez at actions, as was the Brown. See in case approximately p.m., just 7:15 after she had Brown, 422 U.S. at 95 S.Ct. at 2262. summoned from the trailer the arrest, however, The manner of the created signed bullhorn. And when she the form frightening a family scene for the Maez park. Ill she was still the trailer R. Brown’s arrest.14 Id. did Agent Marrero, 64-66. present who signed was when Mrs. Maez Second, intervening the circumstances in- form, the FBI consent testified that she purging primary dicate no taint of crying upset signed was and when she the leaving her husband’s arrest. After signed form. She that she the consent trailer, immediately the Mrs. Maez was forms because she had to. Before police by Albuquerque asked officer Whit- leaving the trailer Mrs. Maez had seen her sign police department’s son to the consent year walking fifteen old son across the II R. 39. to search form. She was then air, street with his hands the and she approached by agent Gyman FBI who ex- watched as he was handcuffed. She was plained FBI that the wanted to search for holding her baby two month old from the money, weapons, clothing, and and the sec- time throughout she left the trailеr signed. ond consent form Ill R. 65- intervening signing 66. There were no circum- of all three consent forms. II R. any significance purge stances of undisputed 56-57. The clearly facts taint of the unlawful warrantless arrest of indicate that the taint of Maez’ Maez. purged not been when signed Mrs. Maez the FBI consent to search form respect and the purpose flagran-

With to the and violation, factor, the last Brown cy police department it consent.15 position credibility rejects majority’s court is in assess and 14. The dissent view that discern truth and that the case should be re- frightening the circumstances created a scene relating manded. But none of the facts to the family. reasoning for the Maez The dissent’s is confession, proximity pres- of the arrest and accepts difficult to understand since the dissent circumstances, intervening ence of or the fla- majority’s holding Payton that violation of grancy dispute. of official misconduct are in holding being v. New York occurred—that And these are the facts which are crucial to the grounded frightening on the scene that exerted analysis government upon taint and which the "extreme coercion which effected the arrest of proof. Brown, bore burden of See supra Maez while he was in his hоme.” at See 603-04, 2261-62; Guzman, at 95 S.Ct. at p. Payton holding 1451. Our follows state and 1520-21; Recalde, F.2d at 761 F.2d at 1457- federal courts which hold that a viola- "amply record is of sufficient detail tion occurs where there such show of force conclude, depth” and for us to as the Court did that a defendant out of his under comes home Brown, that the taint of the Fourth Amend- being coercion and submits to taken into custo- Brown, purged. ment violation dy. supra p. at 1451. The essential facts 603-04, U.S. at 95 S.Ct. at 2261-62. The leading frightening us to was a hold there scene suppression hearing developed the circumstanc- undisputed presence here were of ten arm- —the (II 4-58; 62-162) es in detail R. at III R. at pointed ed SWAT team members rifles vitiating the basic facts the consents and state- trailer, request to come out over the bull undisputed, throughout ments are as noted our horn, handcuffing year and the of the fifteen opinion. old son. Applying proper considering test of record, merely relying por- whole and not opinion 15. The dissent contends that our mis view, support tions as the dissent does to its reviewing reads the record. the denial of When are left with the firm conviction that a mistake suppress appellate a motion to an court must finding was made in the consents and Mr. Maez’ light consider the evidence in the most favor statements valid. The correct standard of re- government accept able to must the trial "although view is whether there is evidence to findings clearly court’s of fact unless erroneous. support findings], reviewing court on [the Jimenez, (10th United States v. F.2d the entire evidence is left with the definite and firm conviction that a mistake has been com- Cir.1988). appellate But an court must not sim Grier, ply mitted.” United consider from the record those facts which States v. (7th Cir.1989) might support findings ignore (quoting a trial court’s 1988)). D’Antoni, Cir. the record as a court’s factual 978-79 whole. trial form, argues gation signed that Mrs. Maez a consent to search authorizing consent, pickup her to refuse advised of a search of truck. Ill 112-115. R. Doc. consent forms them- Exh. B. orally and on the both Officer probative this fact is indeed Guyman selves. While searched the truck and found a dispositive of the voluntariness judge it is not holster. The district found that Schneckloth, Maez, advised of his Miranda issue. after 2047-48, 2059; Recalde, rights, knowingly gave per- “willingly F.2d at 1458-59. note that pickup....” We Mrs. Maez mission to search the Ford respect testified that she was told the officers true with Ill R. 165. As was that if she refused consent consent, judge could did sim- Mrs. Maez’ district get ply she illegal a warrant while waited prior outsidе. not discuss the effect of the Ill any arrest, R. 156. This tends to undermine having sal- violation or held that no utary effect that advice to re- unlawful arrest occurred. have had. United might fuse consent To determine whether Maez’ con Ocheltree,

States v. 993-94 search sufficiently sent to the truck was an Cir.1980). (9th purge act of free will to the taint of his illegal arrest tainted hold that Maez’ We illegal again arrest we consider the three to search the trail- subsequent the consents factors enunciated in Brown. proximi given by er Mrs. Maez and that her con- ty subsequent of Maez’ his arrest and con “ ‘sufficiently an act of sents were not free given sent 45 minutes later does not indi purge primary the taint’ the will to [of cate that the taint of the violation Brown, illegal 422 U.S. at arrest].” Illinois, In Brown v. purged. Sun, (quoting Wong 2261 371 95 S.Ct. at separated Brown’s initial statement was 416). The evidence U.S. at 83 S.Ct. at from his less than two FBI pursuant to the consent seized Brown, 422 hours. U.S. at 95 S.Ct. at form, including paper bag the search con- 2262. The Court there held that Brown’s $5,844, ammunition, taining two the box statement, Toy’s like James Wah statement bandannas, cap red and the dark blue knit Sun, Wong poison fruit of was the along suppressed, should have been Id. 422 ous tree. 604-05, U.S. at photographs of the seized evi- various Sun, 2262-63. See also Wong 371 U.S. dence.16 486-87, 83 S.Ct. at 416-17. From the time Maez was taken to the FBI interview ii room he was in the custody of at least

Maez’ Consent Search officers, see three III R. and was ini Patino, of ten. See tially presence exiting After the trailer Maez was taken (taint custody by Albuquerque police purged de- 830 F.2d at 1418 not where into company partment. continually He was then turned over to the defendant officer). Miranda given warnings. FBI He one His removal to the interview room in the caus was taken to an interview room at the does indicate break Albuquerque signed office of the FBI. He al connection between his arrest and the Florida, Hayes subsequent rights p.m., ap- form at 8:00 consent. waiver 811, 816, 1643, 1647, after proximately 45 minutes he had been (1985); Dunaway, custody. Ill R. 110-111. 442 U.S. at taken into He L.Ed.2d 705 interrogated. During 212-13, the interro- 2256-57. was then S.Ct. at cases, clearly held erroneous determinations in criminal as in civil ness determination cases, where, City, although see Anderson v. Bessemer some evidence there was 1504, 1510, 84 L.Ed.2d it, support the entire record indicated that the (1985), may clearly erroneous even where tainted). defendant's consent evidence, supported if on some the whole the court is left with a firm and definite record 16. photographs Eire those referred to conviction that a mistake has been committed. photographs were of the tainted evidence which Grier, (7th States v. F.2d trial. admitted at Recalde, Cir.1989). e.g. See Cir.1985) (voluntari 1457-59 Brown respect factor, to the second With III any intervening the effect of circumstanc- Maez’ Custodial Statements es, point does not to and During interrogation explained any do not find in the record circum- where he had been and what he had been stances dissipate which would tend to doing on day of the robbery. He said factor, respect taint.17 With to the last that he had possession been in of his pickup purpose flagrancy of the official mis- throughout day and had been in the conduct, the manner of the arrest was such area of the bank. He ownership admitted surprise, fright it would cause of capa him during shown to interroga- Brown, confusion. U.S. at by Agent tion Denniston. When told that at 2262. Maez testified that he felt cap had been found outside the doors of dizzy during interrogation; he vomitted the bank which had robbed, approximately quarters three way then ownership denied cap. Officer through interview, as one of the FBI Denniston testified about those statements agents Considering testified. Ill R. 135. cap at trial and the was admitted. IV R. three Brown factors, all we hold that 153-160. Maez’ consent to search the truck was not sufficiently purge an act of free will to The exculpatory and incriminating Guzman, primary taint. See 864 F.2d at by statements made Maez his inter 1520. rogation subject are to the analysis same as the consent to search the truck. See government The notes that the consent Taylor Alabama, 690-94, U.S. signed form was after Maez had been ad- 2667-69, 73 L.Ed.2d 314 vised of his Miranda rights, pro- which is (1982); Brown, 593-95, U.S. at Supreme noted, bative. But as the Court 2256-58; S.Ct. at Sun, Wong 371 U.S. at Miranda warnings, by themselves, “[i]f 486-87, 83 S.Ct. at 416-17 (exculpatory were held to attenuate the taint of an un- incriminating and statements entitled to arrest, regardless constitutional of how protection rule). of exclusionary purposeful wanton and the Fourth Amend- Applying the same Brown analysis, which violation, ment the effect of the exclusion- earlier, we made we hold that the state ary substantially rule would be diluted.” ments suppressed.18 should have been Brown, 602-03, 95 S.Ct. at Miranda 2261. warnings per do not se IV break the causal connection between an illegal arrest and subsequently evidence ob- judgment accordingly RE- Dunaway, tained. U.S. at 216- VERSED and the case is REMANDED for 17, 99 S.Ct. at 2258-59. proceedings further in accord this with opinion. circumstances,

We hold that in these not- withstanding the Miranda warnings, Maez’ BRORBY, Judge, dissenting. Circuit consent by prior illegal was tainted testimony arrest and the regarding Although agree hol- I majority’s ap suppressed. ster should have York, plication been v. New of government argues 17. The that because Maez the conviction if the constitutional errors were refused to consent to a search of his home he beyond Harring- harmless a reasonable doubt. capable exercising rights, of free from 250, 254, California, ton v. relevant, the taint of the arrest. While (1969); 23 L.Ed.2d 284 United States Recalde, dispositive. this fact is not the de- Quinones, v. Morales questions yet fendant refused to answer Cir.1987). concedes, however, form; subsequently signed a consent we never- paper bag containing that if admission of the Recalde, theless found that consent tainted. F.2d at 1459. ammunition, money, the bandannas, ‍​‌​​‌‌‌​​‌​​‌‌‌‌​​​​‌‌​‌​​‌‌‌​‌​​​​‌​​​‌​​‌‌​​‌​‍the box of the red photographs, and the dark blue error, cap knit its admission rights 18. While Maez’ cannot be Fourth Amendment were Appellee, p. violated considered and the evidence outlined harmless error. Brief of in Part B suppressed, should have been we could affirm 573, 100 (1980),I by testimony. 63 L.Ed.2d 639 stered the defendant’s As to home, agree the statements and the search of the mobile the defen- do not writ given Patsy dant testified that he left the decision as to by ten consents to seаrch up ‘Well, Pay by consent to his wife. “I told her extinguished Maez are Arthur your up you,’ it’s trailer. It’s and I ton violation Respectfully, I this case. down, my up go shook head if First, ahead for two reasons. must dissent to, she wanted because the trailer is under not majority reaches a result dictated her name.” Second, I cannot endorse the record. majority opin analytical framework Patsy The consent form which ion. signed reads as follows: record, my view of the upon Based 8/14/87 (date) and Arthur Patsy have no doubt voluntarily ALBUQUERQUE consented to the searches here- given in in. The force of the consents (Location) placed by the taint case overcomes MAEZ, I, having PATSY ANN Payton violation. The same is true of my informed constitutional made the defendant. The statements premises to have a search made of the only by majority reaches its conclusion dis- hereinafter mentioned without a search government’s regarding the evidence and my right warrant and to refuse to adopting the defendant’s after-the-fact search, hereby consent to such a autho- gloss happened day on what of his GUYMAN, rize SA E. CALVIN dispo- practice arrest. a sound A, Such blocks MARRERO, Special Agents JOSE sition in this case. Investigation, the Federal Bureau of Justice, Department suppression hearing, govern- At the complete my premis- conduct a search of agents ment called FBI as witnesses to two es located at 9600 CENTRAL SW demonstrate the of the con- voluntariness agents SPACE 41. These are authorized given by Maez to search her sents Mrs. my premises me to take from any Agent Special Guyman home and auto. MONEY, letters, papers, WEAPONS & testified, part, spoke he first that when property materials or other which Maez, Patsy explained to her that her may desire. being placed under arrest and husband was charged robbery permission being given with a bank which had This written He Special occurred earlier that afternoon. told me to the above-named descrip- Agents voluntarily her that her husband matched the and without threats belonging promises any tion of the robber and a vehicle kind. robbery.

to him had used in the been suppression hearing, govern- At the ment introduced and the court received the response question: to counsel’s “Can executed consent form into evidence. respond- you describe how she reacted and Agent Guyman you?” Special ed to testi- Special Agent regard- Marrero testified fied: ing Patsy Maez’ consent to search the ve- stated, in part,

She had indicated that there was no hicle. He as follows: problem going to that we would be through- home She was mobile search the trailer. She had indicated out the search. belonged

that the trailer to her and it Q you during to tell Were able possession. In essence I her what her, you ap- times that observed did she did is I out the form and had filled search you pear to be—could describe how she her read it out loud to me and then she appeared? appear frightened, Did she et signed it. cetera? He appear frightened. further testified: “She read it out loud A She did not She any ques- say sad, to me and she I appeared did not have I would and if tions_ appeared say resigned It to me that she un- so she had a look her about agent’s got feeling I testimony derstood.” The is bol- as far as—somehow happening what was was not a total that Mrs. Maez signed testified that she her, unpleasant it consent to shock to but was an search forms because she felt she “had to.” experience for her. She stated she was “scared upset angry” during the whole home, Maez Special Inside the trailer procedure, but that she was crying. Agent again Patsy Marrero advised Maez On government cross-examination the she not under that arrest and was brought out the facts that Mrs. Maez had obligation agents. no under to talk to the worked for the Department New Mexico if she When asked would consent to a Human years, Services for nineteen vehicle, agreed search of her to the “[s]he currently she clerk-specialist. was a asking questions search and without her past In the she had notary public. been a explain we did to her that she was under no She testified that she knew her husband consent, obligation give though she penitentiary four “[a]bout any questions relating ask didn’t to the during times” their sixteen-year marriage. consent.” “I it to I showed her. read it to In my view the portrays record a scene Patsy her and I had her read it.” is far removed from thundering executed a consent to search her vehicle as police drama of depicted in abuse the ma- her well as home.1 jority opinion. Patsy Maez is a literate cross-examination, Special Agent On woman who has position held a Marrero was asked: “So would it be fair to for years. nineteen She has endured a say your assignment accompany was to marriage to a man who has been in and out Maez, Ms. Mrs. Maez so that she would of incarceration. In the robbery bank sign Special a cоnsent to search form?” case, the instant Arthur Maez was identi- Agent responded: Marrero fied as the man who used a firearm to My assignment No. accompany was to knock employ- unconscious a female bank she, explain her and to her if not so that agent ee. He admitted FBI to an that at would, My arrest, she but rather if she would. the time of his latest using assignment heroin sign approximately per wasn’t to her three make times week. One My assignment help Patsy consent. was to wonders who her was afraid angry of and understand what consent entailed man. believe we make a mistake when totally up and it was her whether or perception we substitute our of the facts signed not she it. for that the trial court.2 cried, Special Agent asked if she When Likewise, I accept majority’s cannot might Marrero testified: have had a “[S]he interpretation of the record as to the con- wasn’t, eye, in her tear but she she hadn’t given by sent to search and the statements into anything broken down tears or like custody. Arthur Maez in Special while uncontrollably crying that. She wasn’t Agent Garay testified that he advised the sobbing just sitting and all this. She was rights defendant of his orally constitutional minding there her child.” asked if When custody he was taken into when at 7:15 questioned Patsy he Maez about the bank p.m. transported The defendant was then itself, robbery Special Agent Marrero re- Albuquerque. to the FBI office in Until sponded: “My conversation with her was point, that there had no conversation making limited to sure that she was com- agent. between defendant and the water, you like fortable. Would some she yes. baby office, getting heavy, Is the can I Special Agent Garay At the FBI help you any way, thing, in again that sort of but advised Arthur Maez of his constitu- relating investigation....” rights. Forty-five to minutes tional after Although pursuant determining 1. no evidence In voluntariness of the con- was seized statements, consent, record, judge sents and the trial must deter- this the context the whole Patsy impact illegal mine the of the arrest on Patsy this consent is relevant to show Maez’ Maez, impact and Arthur not its on our sensibil- persistence consenting to searches. ities. usurpa- its disposition of the case or with aloud the advise- arrest, read the defendant trial court’s function. tion of the iden- executed waiver rights ment Addi- by his wife. one executed tical to the judge majority notes that the district and exe- read aloud tionally, the defendant Patsy Maez’ consent was volun- found pickup truck. to search cuted a consent willingly given. The district tarily and admitted documents were Both of these judge observed: hearing. suppression at the into evidence I find that the circum- And will while agreed counsel Garay Special Agent may have been tense while stances “to appeared be aware defendant that the may not have been that the environment he was inter- going on” when of what was considering for of the most ideal a man with an was The defendant viewed. search, that signing permission of a record, appeared to un- extensive criminal willing- voluntarily nevertheless she appear to did not rights, and derstand his permission to ly gave the officers a inter- frightened or be confused search.... defendant vomited Although the view. majority’s contention that Contrary to the in- way through the three-quarters of “expressed reluctance in judge the district Garay testified that terview, Agent Special making finding,” majority op. at this symptoms of recognize he trained to recognizing interpret I the comments as influence of persons are under who give consent the fact that one can voluntar- appeared to the defendant drugs, and that less ily under circumstances which are even Deputy Pacheco of himself. have control thoughtful reflection. than conducive to Depаrt- County Bernalillo Sheriff’s commonly, us that Experience teaches part: testified ment family suspects and/or members when taken Q you told he had And that he give rights and infor- constitutional waive officers, two valiums? enforcement mation to law case, In I setting pastoral. is less than A Yes. voluntarily Patsy no doubt that have any had taken Q you Did he tell of her to the search mobile consented drugs evening? other medication arrest, if spite home. if under the He asked so, I inclined to hold to do would be asked Any said no. heroin and he influence of demonstrates her consent that the evidence no. He vomited drug other and he said illegali- strong enough to overcome the gave that we after he drank the water Similarly, arrest. ty of her husband’s him. Arthur Maez’ inclined to hold that would be are not noted Many of these facts rights waiver of Miranda and consent majority opinion. Again, majority’s of this case under the circumstances search the facts for perception of substitute their illegality of the arrest. overcame the court. that of the trial majority correctly concludes that majori- me as much as What troubles preceded by search a consent to facts, however, is the ty’s perception of the sufficiently Amendment violаtion is Fourth legal principles to majority’s application purge primary of free will to an act is both unwar- produce an outcome which illegal depends taint present- questions ranted and The trial voluntary unwise. is it fact the consent to court, opining ed are whether that the although incorrectly for review lawful, to the FBI was given by Patsy did hold a factual hear search arrest was remove the taint voluntary in so as to that the consents and ing fact and determined arrest, voluntary. reviewing In of Arthur Maez’ unlawful statements were suppress, to search the trial consent of a motion whether Arthur Maez’ denial by this sufficiently findings accepted must be in-custody were court’s statements clearly are erroneous. the taint of his court unless purge acts of free will to 866, Guglielmo, 834 F.2d v. 1453, 1456, United States Majority op. arrest. v. Cir.1987)(citing United States (10th majority’s 868 agree I do not with

1461 Cooper, 1360, (10th Cir.), cites the United States F.2d 1364 majority 733 15 the denied, Grier, 1255, cert. v. 3543, 908, 467 U.S. 104 S.Ct. (7th Cir.1989), 866 F.2d 935 United States v. proper use of that case demands that we (1984); 847 82 L.Ed.2d Gabriel, 1447, (10th F.2d 1450 715 Cir. pay attention quotation to the full therein. 1983)). finding ‘clearly “A is erroneous’ The Seventh Circuit case utilized although support there is evidence to when majority urge states the law as I herein it, reviewing court on the entire evi and which has been set forth in numerous is left with the definite and firm dence Grier, cases of our own circuit. conviction that a mistake has been commit court said: Co., Gypsum ted.” United States v. 333 “A district court’s denial of a motion to 364, 395, 542, 525, 68 S.Ct. L.Ed. 92 suppress evidence will be affirmed on in, e.g., cited Anderson v. Bes 746 appeal clearly unless it is erroneous. We City, semer 564, 573, 470 U.S. 105 S.Ct. rely will on the findings district court’s Eve 1504, 1511, (1985); 84 L.Ed.2d 518 showing of fact absent of clear error. v. raard Accident and Indem. Hartford applies This standard to the district Co., 1186, (10th Cir.1988). 842 F.2d 1191 findings credibility court’s on the of wit- “Questions of fact are reviewed under the nesses, findings that will not be reversed deferential, ‘clearly erroneous’ standard as clearly finding unless erroneous. ‘A is 52(1). Although set forth Fed.R.Civ.P. “clearly although erroneous” when there procedure, the standard is a rule of civil it it, is support reviewing evidence to applied pro is to certain issues in criminal court on the entire evidence is left with Ortiz, v. United States ceedings.” 804 the definite and firm conviction that a (10th Cir.1986). 1161, 2 F.2d 1164 n. “If mistake has been committed.’ United made, findings up are not this court must Co., v. Gypsum States United States ruling if any hold the there is reasonable 364, 395, 525, 542, 333 U.S. 68 S.Ct. 92 it.” Unit support view of the evidence to L.Ed. 746 ‘Where there are two Fountain, ed v. States 878, 776 F.2d 884 permissible evidence, views of the (10th Cir.1985) (citing Anderson, 470 U.S. factfinder’s choice between them cannot 1506); Colon-Sanchez v. 564, 105 S.Ct. at erroneous.’ Anderson v. Bes- clearly Marsh, denied, (10th cert. Cir.), 733 F.2d 78 City, semer 564, 574, 470 U.S. 855, 181, 83 L.Ed.2d 115 (1985).” 84 L.Ed.2d 518 Cooper, 733 F.2d at (1984); 1364). D’Antoni, United v. States (Quoting 856 appeal, the On evidence must be viewed (7th Cir.1988)). F.2d 978-79 Further- light in the most favorable to the district more, I am not left the definite findings. Guglielmo, court’s 834 F.2d at firm conviction that a mistake has been Lopez, 777 (citing judge committed the trial as to his find- also United (10th Cir.1985)). F.2d In Lone Star Steel ing of voluntariness. Freeman, v. (10th States F.2d America, Co. v. United Mine Workers Cir.1987). differently, Stated the review (10th Cir.1988), ing court must consider evidence applied concept: “Where there are two government. light most favorable to the evidence, permissible views the fact- Ashby, v. United States 864 F.2d Jimenez, finder’s choice between them cannot be Cir.1988); United States (10th clearly (Citing erroneous.” United Cir.1988); 864 F.2d Co., v. Yellow Cab 338, 342, 70 Soto-Ornelas, States 863 F.2d (1949)). Obviously, States v. 94 L.Ed. 150 (10th Cir.1988); Smith, permissible are (10th Cir.1986). there at least two views reasons, the evidence. For these I would heard, suppress Where a motion to findings not overturn the trial court’s witnesses, weight credibility of the to consents were volun- and statements evidence, given drawing of be and the tary. Foun judge. inferences are for the trial tain, (citing Cooper, Furthermore, agree at 879 cannot 1374). Although procedure majority at in footnotes 13 used to еffect its to “take the majority result. The chose horns,” analysis, conduct taint

bull Terry Floyd, Rose Marie FLOYD and her suppress the evidence in this case. husband, and Connie Gale and Michael inappropriate particularly Gale, husband, Such initiative is her Michael Gale and upon in Based the cold slab of a this case. Gale, wife, Patterson, his Connie Gloria conjure readers entire- transcript, different Patterson, Nolan, Edmond Thomas J. judge, ly The trial and different scenarios. Scharhag, Eugene Champ, Robert H. position judge, is in a the trial Hoehler, IV, Sally Frederick Ann W. in a case like this. Reso- discern the truth Collins, Dramis, Sandy Michael R. Dix of the issue of voluntariness Dix, lution Gary husband, Dix, and her Dana credibility of the witness- case turns on the By Through parents Gary and her Dix judge can assess the Only es. the trial Dix, Sandy guardians and as and next reliably. participants The ma- credibility friends, Dix, By Alexander and address whether the jority does not even Through parents Gary his Dix and findings “clearly are errone- judge’s trial Dix, Sandy guardians as and next ous,” disregards findings and yet and friends, Self, Rooney Gerri Ash Susan opposite result. With all due an husband, renders Rooney, and her William Jan judges, my appellate fellow respect Jacobs, et and Bruce her Jacobs hus should “mind our there are times when we band, Embry, Khoury Alexander Salim business,” this is one of those own and wife, Khoury, and Deborah his Bruce view, my should remand for times. In Jacobs, wife, My Jacobs Janet his (f/k/a consistent with our proceedings further Myriam Riley) riam Carrasco Payton holding to the violation. After as Terry Floyd Floyd, and Rose Marie given opportunity the trial court is an Gary Dix, wife, Sandy Dix and his Sal light the facts in assess Khoury Khoury, im and Deborah violation, then, us, if the case returns to we wife, Mantz, Gregory By Through findings under should review parents, Netta Mantz and Harold D. “clearly standard of review. erroneous” Mantz, guardians and next friends Mantz, Mantz, Gregory Netta Harold D. Illinois, Brown v. Citing Mantz, By Through his father Ha- 45 L.Ed.2d ma Mantz, Plaintiffs-Appellants, rold D. jority concept footnotes the that “where proceedings 'resulted in a record below depth amply sufficient detail and from AIRLINES, INC., EASTERN made,’ may which the determination Defendant-Appellee. analy taint appellate court conduct a No. 86-5381. (quoting Brown, Majority op. sis.” 2262). 95 S.Ct. at This is U.S. Appeals, United States Court of procedure appro not a case which Eleventh Circuit. Brown, priate. the Court noted that the 5,May purposefulness. illegality quality “had a of the arrest impropriety was obvi-o Brown, us....”

at 2262. Remand in Brown would ‍​‌​​‌‌‌​​‌​​‌‌‌‌​​​​‌‌​‌​​‌‌‌​‌​​​​‌​​​‌​​‌‌​​‌​‍have disposition in mechanical

resulted case,

case. Such is not true the instant consequently I must dissent.

Case Details

Case Name: United States v. Arthur Maez

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Apr 19, 1989

Citation: 872 F.2d 1444

Docket Number: 88-1128

Court Abbreviation: 10th Cir.