United States v. Edward Martin Rothman
492 F.2d 1260
9th Cir.
1974
Check Treatment

*1 performing body function, legislative for the this would have a constitute duty provide adequate purposes to 183.740.” to reliable KRS 183.630 and duty responding services. this to KRS 183.476: Board has taken what we view as “ acquisition, estab- . . . position not unreasonable that noncon- construction, enlargement, lishment, tracting operators provide taxi maintenance, equipping improvement, airport they services at the unless first operation airports and and other of. permission. obtain the Given Board’s navigation and exercise facilities, public invita- circumstances of the granted any powers to air other statutory tion for bids and the broad chap- municipalities in this boards ter, grant power manage operate and hereby public, declared to be monopoly interest, public virtual in the functions, governmental municipal and we conclude that the in contract- Board public purpose, exercised for a and airport for cab service at the ” public necessity. . . matters of . exercising governmental a valid function See, Airlines, American Inc. Louisville apply. do antitrust laws Board, County and Jefferson Air 269 F. judgment District Court 1959). (6th 2d Cir. affirmed. regulatory Parker involved action capacity sovereign state as a and establishing gov laid the foundation for ernmental action as an antitrust shelter.

At least one Circuit has made the Par applicable

ker airport doctrine au Wiggins Airways,

thorities. E. W. Inc. Authority, v. Massachusetts Port 362 F. America, UNITED STATES of (1st 1966), denied, 2d Cir. cert. Plaintiff-Appellee, L.Ed.2d Authority 226. There the Port entered private into an exclusive ROTHMAN, lease Edward Martin Defendant-Appellant. corporation operations fixed base Logan Airport thereby Boston, No. 73-1286.

precluding private corporations other Appeals, United States Court of participating from in those activities. Ninth Circuit. concluded, First Circuit “It is clear Nov. [executing lease, that Authority] the Port Rehearing April Denied acting as an instrumen tality agency pursuant state, legislative imposed upon mandate operate manage airport regulations

establish rules and for its

use.” F.2d at 55. case, In the instant the state has

legislatively instrumentality, created an Board, charge

the Air is, whose inter alia, operate airport. There is no question in our own minds but that the

regulation ground transportation serv necessarily

ices is agement incident to the man operation airport of fa require ground

cilities. Air travelers

transportation and it would follow that agent Board, of the state in *3 (argued), William M. Owens Encini

tas, Cal., defendant-appellant. for Harry Steward, Atty., Shelby D. U. S. Gott, Atty. (argued), R. Asst. U. S. San Diego, Cal., plaintiff-appellee. CHOY, Before DUNIWAY Cir Judges, RENFREW,* cuit District Judge. OPINION Judge: DUNIWAY, Circuit appeals Rothman from his conviction possession marijuana intent distribute, 841(a)(1). 21 U.S.C. § challenges He the denial of his motion to suppress marijuana as the fruit of improper search. suppress motion When a has denied we view the evidence * Renfrew, Judge, The Honorable B. District Charles United States Northern District of Cali- fornia, sitting by designation. light government. length most favorable to the man at and then went into an ad- Sherman, Cir., 1970, joining during point room. At some May 5, 1972, 1404. On time that Rothman was the office the purchased airplane Rothman ticket to handcuffs were removed and he was again Hawaii at the Western Airlines counter handcuffed with his hands Diego agent airport. at San The ticket front of him. believed that he fitted the Avia- Federal following conversation then oc- profile poten- tion Administration’s curred : hijackers. airplane tial Rothman went “Why go you Rothman: don’t ahead boarding gate, passed where open bags ?” through magnetometer without acti- Deputy: “No, you open if refuse to vating it. He was then detained for open them I don’t want to them now.” questioning by [Something was then said about a Marshal who had been told that Roth- get “We can one warrant.] *4 profile. man met the probably and will later on.” deputy Rothman told the that his Rothman: “What the use of name was Roberts and that he had going through go this, all ahead and placed identification. Rothman then his open bags, okay.” the it is jacket on the counter front of the Deputy: “No, open I don’t want to deputy, jacket who reached into the them I Why now. won’t do it. don’t pocket thinking bulge in the you open keys lay- it now? The are jacket might weapon. money Only be a desk, you on here if want to keys pro- and were found. Rothman go open it ahead.” duced identification from his wallet showing depu- keys him Rothman to be Rothman. The took the which had placed ty opened told Rothman that a further identifi- front of him and luggage cation check thirty-nine would have to run in the which be contained permitted marijuana. office kilos before he would be fly. Amendment, Under the Fourth deputy unlocking While the searches, specifi with a few office, grabbed door to his Rothman cally exceptions, “per established se” deputy’s right jerked ap- hand and him unreasonable. Busta proximately two to three feet. He was monte, 218, 219, 93 S.Ct. immediately assaulting arrested for a 2041, 854; 36 L.Ed.2d Katz v. United federal officer and his hands were hand- States, 1967, 347, 357, given cuffed behind his back. He was government 19 L.Ed.2d 576. The warning. Miranda argues that Rothman con luggage sented to

Rothman’s checked was re- that the search was justified brought plane moved from the as arrest, incident to a lawful being the office in which was held search was a valid adminis deputy. deputy trative search asked Rothman and thus that the motion luggage. suppress if properly he could search the Roth- denied. permission man refused to search. The deputy called the Federal Bureau of In- 1. Consent vestigation asking agents be sent investigate charge. Voluntary over to the assault consent to a search forty-five recognized A exception minute conversation ensued is a to the Fourth deputy between Rothman and requirement. in Amendment warrant only which the Bustamonte, supra, reference to the case was Schneckloth v. possible punish- Rothman asked the U.S. at S.Ct. Davis v. assaulting States, 1946, ment for a federal officer and 593- U.S. years. 1453; told him Zap three to five 90 L.Ed. arrived, interrogated States, The F.B.I. v. United Roth- 328 legitimate need for such 630, 66 90 L.Ed. 1477. searches S.Ct. equally important requirement and the of as test for consent is voluntariness suring question is a absence coercion.” Id. at “voluntariness fact 227, 93 from all the circumstances” S.Ct. at 2048. con determined Warrantless permissible particular of a case. Schneckloth sent searches are they because investigate police Bustamonte, supra, 248-249, enable at “stigma situations where the and embar at 2059. more ex rassment” arrest a “far government ini bears pursuant tensive search to warrant” proving tial burden consent. United Id., at at avoided. Cir., Davis, part 2048. “Consent searches are 893, slip op. appeal at 31. On we exam investigatory techniques standard of law finding ine the trial court’s of fact agencies. They normally enforcement (such consent) fact of as the under highway person’s on in a occur “clearly erroneous” rule. United States office, home or and under informal and banc) (in at unstructured conditions.” Id. 231- 81, 85. 232, 93 at 2050. The consent finding The trial court’s investigation a tool of primarily upon consent was based Roth- supplementary viewed the Court as original permit man’s refusal investigatory aid to informal routine search. The trial court reasoned “normally per work in a occur op- because Rothman was aware of his territory.” own Id. son’s familiar refuse, *5 tion to his eventual consent was 247, 93 S.Ct. at 2058. voluntary. present In the the “com case Bustamonte held that “knowl peting sig policy concern” of the is less edge right of a to refuse is a factor nificant under than normal consent be account, prosecu taken into [but] Here, search conditions. Rothman was required tion is not to demonstrate such arrested and handcuffed and had in knowledge prerequisite as a to establish incommunicado for some time ing voluntary consent.” v. Schneckloth opened bags. by when he He was no Bustamonte, supra, 249, 412 U.S. 93 at atmosphere means in informal or on S.Ct. at 2059.1 Bustamonte ways. The'knowledge two cuts grounds. Rather, familiar he ar was right of the to re rested, handcuffed, strange isolated in a longer fuse is necessary consent no a con given place, warning a formal Miranda consent, dition for valid but neither is interrogated by and then three officers necessarily a sufficient condition. It is period approximately over a two only an part element to be considered as hours. an environment is akin to Such “totality the required of circumstances.” What specter “the in incommunicado is a sifting “careful terrogation in some remote station unique facts and circumstances of each squarely “inapposite” house” and is case.” pra, Bustamonte, Schneckloth su v. questioning contemplat environment 233, 412 U.S. at 93 S.Ct. at 2050. per ed when consent searches were held competing “Two 247, concerns must missible. Id. at 2041. In determining govern accommodated in a situation such this the meaning ‘voluntary’ of a prove voluntary consent—the burden to con- ment’s 1. Page, supra, Bustamonte is limited its facts to cases States v. 302 F.2d United 81. consenting party in tody. factor, which the is not in cus Arrest a but one albeit critical Bustamonte, determining supra, one, whether not the con- 248, 412 However, voluntary. approach U.S. 93 S.Ct. 2041. sent was This is com- applied patible “totality we have never a different test for with the Court’s applies pre consent searches on the basis of the test of circumstances” test and consenting party. consent Cipres arrest all consent search situations. 95; States, infra, v. United F.2d 343

1265 This is another case instance of sent is increased. investigation which, 84; 81, supra, Judd v. custodial “view 303 64, totality circumstances,” 1951, U.S.App.D.C. we States, 89 United compelled to hold 649, consent 190 F.2d voluntary sys was not because it was long tematically psychologically estab “It has been coerced. validly to a can consent that one lished Moreover, this is not a case given though search, the consent be even necessary a consent was which custody.” is in United while defendant proper. probable If cause for a search 81, Page, supra, 302 ample available, had officers originally the defendant fact get time to Unit warrant. Johnson v. may evidence that consent refused to 10, 15, States, supra, 68 ed 333 U.S. S. knowingly consented 367, no 92 L.Ed. 436. There was Ct. to the con absent facts or de risk that evidence would be lost States, supra, trary. Davis v. United stroyed or that Rothman would flee. 1256, 592, 582, L. 90 S.Ct. U.S. justification short, for the there expression However, a mere Ed. 1453. produced tactics coercive official enough acquiescence not be finding judge’s this consent. The trial finding consent. sustain clearly of consent is erroneous. 1968, Carolina, Bumper U. v. North 797; L.Ed.2d S.Ct. S. Incident 2. Search Arrest States, United Johnson v. 436; Amos 92 L.Ed. court found that The trial States, U.S. v. United probable had cause to arrest 654; Cipres agree. 65 L.Ed. Rothman for A assault. We States, 9 search incident to a lawful 97. Where the consent is obtained is, conditions, under certain arrest gov through misrepresentation exception to the Fourth Amendment’s ernment, Carolina, Bumper v. North su requirement. warrant Cali Chimel v. pra, 20 L.Ed. fornia, 1969, 752, 755, *6 797, inherently 2d or under coercive government 2034, The 23 L.Ed.2d 685. pressure badge, and the color of the John argues lug that the of Rothman’s search States, 10, supra, son United v. gage a valid search incident to the was 367, 436; 68 S.Ct. 92 L.Ed. United States indisputably valid arrest. Marshall, Cir., 1973, 1169, v. 9 488 F.2d In Court Chimel 1188-1189, such consent not volun search to an arrest held that a incident tary. go beyond area from not “the must might within which defendant] [the psychological The atmo weapon or some have obtained either sphere in consent is obtained thing could used as evidence that be is a critical factor in determination against 768, at at 89 S.Ct. him.” Id. of Channel v. United voluntariness. incident searches 2043. Warrantless States, 1960, 217, 220; Cir., 9 F.2d 285 only justified ex to the arrests are thus States, supra, F.2d Judd v. United 190 they prevent necessary to tent looking 649, In at factual issue 651. protect or to destruction of evidence voluntariness, the court must be Coolidge arresting v. New officer. subjective aware of the “vulnerable 443, Hampshire, 1971, 457 n. U.S. 403 as the state” of the defendant as well 564; 11, 2022, Chi 29 L.Ed.2d 91 S.Ct. possibility “subtly coercive 752, California, supra, 395 U.S. mel v. Bustamonte, questions.” v. 763, 2034, 23 L.Ed.2d 685. supra, at 412 at 93 U.S. government points inherently to United nature of The and the coercive Cir., 1971, Mehciz, interrogation, 437 F.2d 9 Id. at 93 custodial S. denied, 402 cert. Ct.

1266 support posi searches are 1663, L.Ed.2d 139 its forbidden. v. Cali Chimel fornia, supra, 752, 767-768, was valid inci tion that as Mehciz its dent to the arrest. L.Ed.2d 685. distinguishable. easily In progeny are 3. Administrative Search were searched those cases suitcases government argues pursuant possession time at the the defendants’ regulations under the Mehciz, issued Federal of supra, arrests. States v. United Aviation Act of 146; 49 U.S.C. § 437 F.2d United States 1354(a), 1421, 1424, Maynard, 439 F.2d permissible search is arresting as administra- In cases the those had officers tive search. probable cause to make the searches apart from arrests. those cases bag Appellant’s was activity de criminal which the part searched an administrative were arrested related to the fendants screening program searching airline briefcases; contraband found in the carry-on luggage passenger’s such as provided contraband additional evidence approved Davis, charges convict defendants on the supra, 893; States, 482 F.2d they for which were arrested. Moore, Cir., 1973, at occurred, appel 1363. When the search lug Rothman did not have already lant under arrested; arrest there gage him when he was possibility might nowas that he take a had been checked with the airline. flight day. therefore, immobilized, Rothman was so that screening airport was program to the justified unrelated search can on the designed grounds which was to catch protecting pre the officer or hijackers, potential provide and not to serving evidence. search occurred general permission to object search unrelated sometime after the arrest. The possible hijacking. brought “To meet the test had to searched to the de reasonableness, and administrative fendant from outside area. arrest screening search doubtful, therefore, must be as limited in It is that this search as is consistent with intrusiveness would even have satisfied the old Rabi satisfaction of the contemporaneous administrative need nowitz search stand justifies Coolidge it.” United Hampshire, supra, States v. Dav ard. v. New is, supra, 443, 456-457, 910. This warning case falls within our in Davis: L.Ed.2d 564. Here there was no connec tion at all between the arrest and the danger, “There is an obvious none search. The had officers reason theless, screening passen believe that produce the search would gers carry-on luggage and their *7 anything support charge. to the assault weapons explosives and will be sub provide probable The assault did not general verted into a for search evi luggage. cause to search the offi The occurs, dence of If crime. this the merely open cer bags wished to the as courts will exclude the evidence ob procedure.” what he called “standard (At 909, omitted.) tained.” footnotes government argue The does not that general Such a search can any exception other to the Fourth justified merely not be on the of basis a requirement ap Amendment warrant legal arrest. The can not circum plies here. The search of vent the Fourth Amendment’s warrant luggage improper. Rothman’s We requirement by arresting person a appellant’s need reach other claims bringing then person that into contact of error. possessions with his which are otherwise to judgment unrelated the arrest. As the The is reversed and the case Chimel, Court general reiterated in grant such is remanded with to directions Maynard,

2. United States v. F.2d 1086. majority accepts preponderance suppress the test. motion to Rothman’s tending ap- support proceedings may as Evidence to involuntari further such holding appellant of propriate. ness includes the approximate

incommunicado hours, deputy’s response ly to two the Judge RENFREW, (dissent- District possible appellant’s inquiry about the ing) : assaulting punishment for a offi federal starting the basic from same While by cer, interrogation him F. majority, premises I am to as the unable handcuffing agents, appellant, the B.I. appellant join its that did conclusion deputy’s a warrant remark that the search of his consent to probably obtained, could and would be question baggage. is a to Voluntariness deputy’s suggestion that, if final and the by consideration of all be determined bags appellant opened, wanted then specific case. of each circumstances open he should them Evidence himself. government the initial The bears burden tending support finding to a volun proof, suppress but a motion to once 2 warning, Miranda tariness includes the denied, appellate court must has been appellant’s permit a refusal initial light favor- in a most view evidence search, testimony that he that his knew “clearly government. The able right refuse, suggestions had a he upon apply review erroneous” rule does open bags, that findings of of the trial court’s fact. deputy’s response would not majority court be holds long appellant open them as refused clearly finding low erred open them. “compelled consent and is that instead hold that not volun to tary the consent was this on evidence sides With both systematically psy question, because it was un- the decision below ” chologically Majority opinion, doubtedly coerced on the trial court’s based supra, p. opinion, suscepti- psychological 1265. Nowhere of the assessment bility however, majority appellant does the state what subtle coercion persuasion majority have suggestion. standard should criticizes Generally, applied appellant’s the trial court. ini- trial court’s reliance on consent to a a permit search without warrant refusal to but tial positive” significantly ques- must be shown “clear and on the factor bears Eyman, appellant’s psychology. Sherrick v. 389 F.2d evidence. 648, This tion of (9 1968), denied, involving great cert. 393 question, Cir. extent an analysis by L.Ed.2d de- trier of fact of the (1968); Tomich, witness, State of Montana v. to the meanor of the best left (9 1964). “clearly Indeed, 332 F.2d That Cir. erro- trier of fact. vague preponder upon mean principle. standard rule neous” is based ance or evidence estab evidence 302 F.2d See United States v. lishing beyond (9 1962). consent reasonable preponderance If the Cir. appropriate doubt.1 rule is the evidence proof case, re- in this then standard A brief review of the evidence easts great completely possibility doubt on versal unwarranted. 478-479, *8 Twomey, 477, 479, upon by majori 1. n. 92 A decision relied 404 much the ty, Bustamonte, 619, 218, (1972). It is now v. 412 30 L.Ed.2d 618 pre 223-227, 2041, 93 in this least that the 36 L.Ed.2d 854 settled Circuit judging (1973), ques ponderance applies involving in volun refers the to cases the test case. in a tion of a aid tariness of a confession federal voluntariness of confession to Cluchette, determining F.2d in 465 the relevant considerations United v. States deciding (9 1972). for to Cir. the voluntariness of consent appropriate a search. of The issue the persuasion Arizona, 86 S.Ct. standard of in area is 2. v. 384 U.S. that Miranda (1966). 1602, 16 preponderance L.Ed.2d 694 the reasonable whether Lego used. v. doubt standard See should ' taking clearly in a The is erroneous. reasonable of the facts combination government, light doubt would have to arise from consider- to the most favorable appellant’s psychology, i.e., stressing supporting vol- ation a factor the facts of clearly leap untariness, applying er- does the the which not forth from printed great page to a of is too barrier the record.4 roneous rule overcome for reversal. unpersuasiveness majori The of that This conclusionleads me to believe supports ty’s facts assessment of the either standard has the reasonable doubt majority actually is inference adopted majority been or its deciding principle on the basis of a new holding not is one of law and of facts. appears principle That to be: law.5 former, If the use a reasonable person No can to a consent important doubt standard itself an is custody in search while if authori question which the Coürt should consid- opportunity ties a have reasonable to ob depth adopting. iner before Here it is Perhaps tain a the ma search warrant. adopted by implication it has —if jority in in would allow that some adopted anomaly has been creat- —and stances consent ato warrantless search require The ed. Constitution does not ruling legally voluntary, but could in standard use reasonable doubt case, facts, in this with its undramatic determining the voluntariness of confes- indicates that instances of voluntariness Lego Twomey, v. sions. 489, creating exceptions, would be rare thus 30 L.Ed.2d 618 the anomalous in which a de situation (1972). Circuit, Lego upon This based fendant in could to the confess Twomey, adopted preponder- has commission of a crime but not consent judging ance standard the voluntari- belongings.6 By to the ness of in a confession federal cases. making question law, this one of the ma Cluchette, jority opinion would, course, conflict (9 1972).3 Cir. This view should with Schneckloth v. 412 U. Bustamonte, apply fortiori, think, a one would to 218, 224, S. L.Ed. searches. (1973), 2d 854 which admonishes But even if the reasonable doubt against the use of rules in mechanical here, appropriate standard is am not I determining ruling convinced that the lower voluntariness. court’s probable holding Lego Twomey available, 3. cause for a search was that ample constitutionally get' required state courts are officers had a war- not time * * * test, to use rant. in There [citation omitted] reasonable doubt a but Supreme expressed footnote no risk lost or a that evidence would be Court destroyed persuasive broader Rothman flee. view: “It is no would more impose short, justification proof there the stricter as an standard supervisory power produced exercise of coercive official this than as a con- tactics which Majority opinion, supra, p. consent.” stitutional rule.” U.S. at n. S.Ct. at 626. majority quotes often from Schneck forget 4. “We sometimes tend to tes Bustamonte, loth v. timony witness, presented aof to us in a (1973). case, 36 L.Ed.2d That record, may impression -upon cold make an however, support majority’s does de not directly contrary us to that we which would approached cision in that Court have received jieard had we seen and greater willingness the facts with a much ought witness. It be assumed respon Though find consent. Judges any United States District less custody, Bustamonte was not in dent preserve rights determined constitutional there that he was no evidence that he knew than we are.” majori could refuse to allow search. (9 1962). Cir. ty contrast, begin here, seems Perhaps, key presumption following language majority 5. The involuntariness. opinion strongly suggests legal principle: majority says, Bustamonte both cuts majority’s “Moreover, ways, justify the this not a ease but does *9 necessary proper. consent search or If swath. majority’s concern that I share permitted to use sub- not be

authorities always op- tactics within the tly coercive po- atmosphere

pressive psychological consent for a to obtain

lice majority on differ with search. I deterring judicial such means rights. preserving individual tactics only trustworthy device is the find- by judge. The trial ma- of facts effect, substituting jority, by, in either appellate court as the main fact-find- announcing prophylactic

er, a new law, all as- has failed to consider

rule ignores pects of issue. It the consent allowing social use

other interests by a discovered search to evidence in fact consented vol- accused

untarily, preponderance as shown using evidence: interest guilt

the best evidence innocence viewing

and the interest in individuals agents knowingly capable of free

voluntarily waiving their constitutional

rights. reasons, respectfully

For I these dis-

sent.

Barry QUINONES, Appellant, J. America,

UNITED STATES and Unit ed States Bureau of Narcotics and Dan gerous Drugs Agents and Em

ployees.

No. 73-1538. Appeals, States Court

Third Circuit.

Argued Jan.

Decided March