UNITED STATES of America, Appellee, v. Henry Howard BASWELL, Appellant.
No. 84-2552.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 15, 1986. Decided June 10, 1986.
792 F.2d 755
“When findings are based on determination regarding the credibility of witnesses, Rule 52 demands even greater deference to the trial court‘s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener‘s understanding of and belief in what is said.”
Anderson, supra, at 1512.
To support his contention that Smith‘s testimony lacked credibility, apрellant points to Smith‘s alleged inability to describe with particularity the duties of Purchasing Manager; Smith‘s alleged lack of knowledge concerning the skills or training necessary of successful performance of the Purchasing Manager position; Smith‘s alleged inability to say whether the skills that Hoelzeman acquired in his former jobs were transferrable to the Purchasing Manager position; Smith‘s failure to contact the police department regarding Hoelzeman; Smith‘s alleged lack of familiarity with how the Ambulance Service was structured when Hoelzeman was director; Smith‘s alleged inconsistency between his testimony at his deposition and in court concerning consultation with the personnel director about Garlington and Hoelzeman; and Smith‘s failure to loоk into Hoelzeman‘s educational qualifications. Much of the testimony pointed to by appellant does not directly relate to the credibility of the witness and some of the testimony is only remotely related to the specific findings of fact to which appellant objects. The transcript contains ample testimony supporting the challenged findings of fact. Smith testifiеd that he was aware of appellant‘s chronic tardiness when he interviewed appellant for the Purchasing Manager position. He also testified that he reviewed appellant‘s personnel file and spoke with the Personnel Director and Nursing Director concerning appellant‘s tardiness. Smith testified that he reviewed Hoelzeman‘s personnel file and it indicated that Hoelzeman had managed the Ambulance Service successfully. Finally, Smith testified that he considered Hoelzeman‘s managerial experience as Ambulance Service Director and background as a police officer in selecting him for the position.3
The district court‘s findings of fact are plausible when viewed in light of the entire record and are nоt “clearly erroneous.”
We affirm the judgment in favor of the hospital.
N. Alan Lubin, Memphis, Tenn., for appellant.
Linda Lipe Glenghorn, Asst. U.S. Atty., Little Rock, Ark., for appellee.
Before McMILLIAN and JOHN R. GIBSON, Circuit Judges, and MURPHY,* District Judge.
McMILLIAN, Circuit Judge.
Henry Howard Baswell appeals from a final judgment entered in the District Court1 for the Eastern District of Arkansas upon a jury verdict finding him guilty of possession of cocaine with intent to distribute in violation of
Viewing the evidence in the light most favorable to the government, United States v. Clark, 743 F.2d 1255, 1257 (8th Cir.1984) (motion to suppress); United States v. Jackson, 714 F.2d 809, 812 (8th Cir.1983) (sufficiency of evidence to sustain jury verdict), we summarize the facts as follows.
Appellant had a key and free access to a vacation house
On May 27, 1984, appellant approached Williams and asked him to open the house. Williams did so and subsequently observed from a distance appellant hurriedly walking into the house carrying a green bank pouch. Appellant placed the pouch in the attic where he thought it would be hidden; appellant аcted without Bowie‘s knowledge. Appellant locked the door upon leaving the house. After appellant departed, Williams entered the house and looked around. He ultimately located the pouch in the attic, opened it, and saw three plastic bags containing a white powder which he suspected to be cocaine. Williams replacеd everything as he had found it, returned to his home, and called a friend who was a former narcotics agent. Williams’ friend notified the Drug Enforcement Administration (DEA).
DEA agents Morris and Lowery and police officer Burks soon contacted Williams. Williams informed them he was caretaker of the vacation house and had a key and then explained how and where he had located the pouch. Williams let Morris into the house and directed him to the pouch, which Morris retrieved from its hiding place in the attic. The agent‘s field test of the powder was positive for cocaine.
After the agents put the house under surveillance, Williams notified them that appellant might be leaving the area soon. Morris and Burks went to appellant‘s place of emplоyment, identified themselves, and informed him that they suspected he had hidden the cocaine they found. Appellant suggested that they go somewhere more private to talk. The three men entered the agents’ car to go to another location. During the drive, appellant volunteered that the cocaine was his, but explained that it was strictly for his personal use аnd that
Appellant was indicted by a federal grand jury on August 20, 1984, for possession with intent to distribute cocaine. Appellant made pre-trial motions to suppress the evidence seized as a result of the search of Bowie‘s house and to suppress all the statements he made to government agents. A hearing on the motions was held on October 22, 1984. The distriсt court ruled that the seized evidence and appellant‘s initial oral statement were admissible. A jury trial on October 31, 1984, resulted in a guilty verdict. This appeal followed.
Appellant initially challenges the legality of the search of the vacation house and the seizure of the cocaine. The district court found, and the government concedes, that appellant‘s relationship to the house and its principal owner created in him a legitimate expectation of privacy in the premises sufficient to entitle him to challenge the legality of the search and seizure. Nor is there any question concerning the voluntariness of Williams’ consent. The sole issue is whether Williams’ third-party consent is binding upon appellant.
Before we consider this issue on the merits, we must first consider what is the proper standard of review, which is dependent on whether the issue is one of fact or law. It is not clearly settled whether the determination of authority to consent is a factual finding or a legal conclusion. Most cases merely hint at the applicable standard of review without directly resolving
Third-party consent to search has usually been given by persons who jointly occupy or possess property. E.g., Marvin v. United States, 732 F.2d at 675 (renter); United States v. Reeves, 730 F.2d 1189, 1193-94 (8th Cir.1984) (consent of deputy sheriff for search of office jointly occupied by deputy and sheriff). Thus the rules concerning consent searches relate primarily to searches authorized by a co-occupant.
This court has stated that a consent search is valid if it is shown “that permission to search was obtained from a third party who possessed ‘common authority over or other sufficient relationship to the premises or effects sought to be inspected.‘” Marvin v. United States, 732 F.2d at 675, citing United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974) (footnote omitted). Common authority exists where there is
mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his [or her] own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
United States v. Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7.
This court has not previously decided how the above-quoted rule is to be applied when the third party does not have “mutual use” and “joint control for most pur-
Nonetheless, Williams’ consent may be valid under an agency theory of authority. In Stoner v. California, 376 U.S. 483, 488-89, 84 S.Ct. 889, 892-93, 11 L.Ed.2d 856 (1964), the Supreme Court recognized that an agent could consent to a search, id., but also warned against “strained applications of the law of agency or by unrealistic doctrines of apparent authority.” Id. at 488, 84 S.Ct. at 892.
The district court found an implied agency relationship existed between Williams and Bowie. The district court further found that Williams, as a person who was “expected to kind of look out for the property,” had the right to enter the house to investigate suspicious circumstances, and that he had “implied authority from Mr. Bowie” to authorize the entry of investigating officers if he thought someone was doing something unlawful without Bowie‘s knowledge. Upon reviewing the evidence before the district court, we cannot say that the district court clearly erred in finding that Williams had implied authority6 to consent to the entry and search of the vacation house. Thus, the district court did not err in denying the motion to suppress the evidencе.
Nor do we find error in the district court‘s refusal to suppress all of appellant‘s statements to the government agents. The district court found, after hearing the testimony and making credibility determinations, that the agents informed appellant that he did not have to talk with them; that appellant agreed to talk with them and they entered the agents’ car at appellant‘s suggestiоn; that appellant was the focus of the investigation but not yet under arrest; and that appellant made voluntary non-custodial statements during the car ride that were not in response to any interrogation. The district court further found that once appellant stated that the cocaine was for his personal use and that he was not a dealer, appellаnt was, in effect, under arrest because the agents would have prevented his leaving the car; that Miranda warnings were then required before further questioning; and that because the government did not prove they were given, appellant‘s subsequent oral and written statements were inadmissible.
”Miranda warnings are required only where there has been such a restriction on a person‘s freedоm as to render him ‘in custody.‘” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (per curiam). The record indicates that appellant was not “deprived of his freedom of action in any significant way” before making his initial statements. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). After the agents informed appellant that he was under no obligation to talk to them, appellant suggested going somewhere more private in the agents’ car, and he voluntarily entered thе car. Although the agents initiated contact with appellant, they were not interrogating him when he made statements during the car ride. We agree that the circumstances did not amount to a custodial interrogation; thus, appellant‘s initial statements obtained without Miranda warnings were properly admitted. See United States v. Jones, 630 F.2d 613, 616 (8th Cir.1980) (per curiam).
Appellant‘s final point on appeal is that there was insufficient evidence to sustain a verdict of guilty to the charge of posses-
In reviewing a challenge to the sufficiency of the evidence, we view the evidence and all reasonable inferences therefrom in the light most favorable to the government. E.g., United States v. Hudson, 717 F.2d 1211, 1213 (8th Cir.1983). It is the role of the jury and not the reviewing court to evaluate the credibility of witnesses and to weigh their testimony. Id. The jury could have reasonably believed that Burks’ testimony regarding quantity and value was evidence of an intent to distribute. Moreover, possession of even a relatively small quantity of cocaine is sufficient to show intent to distribute the drug when there is other evidence of such an intent. United States v. Koessel, 706 F.2d 271 (8th Cir.1983) (26.09 grams of cocaine); United States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir.1979) (5 grams of cocaine). In the instant case, Officer Burks testified that appellant stated that the cocaine was his and that he used it to procure sexual favors.7 We are satisfied that there was sufficient evidence to support the jury‘s verdict.
The judgment of the district court is affirmed.
JOHN R. GIBSON, Circuit Judge, concurring.
I concur in the judgment of the court affirming the conviction, but write separately because I believe that the court need not have boldly reached out to examine the question whether third-party consent is a factual issue, subject to review under the clearly erroneous standard. The court expressly concludes, after de novo review, that Williams had the authority to consent to the search of the vacation house. See ante at 758 n. 5. We therefore need not entertain this question of admitted difficulty, one which the parties did not address. I believe that some unnecessary conflict is creeping into our opinions following Miller v. Fenton, — U.S. —, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), see United States v. McGinnis, 783 F.2d 755, 759 n. 2 (8th Cir.1986), and I would refrain from deciding more than we need to decide. Cf. United States v. Impink, 728 F.2d 1228, 1232 (9th Cir.1984) (pre-Fenton decision leaving this precise question unresolved because court would affirm under either standard). When the issue is squarely presented, and we have the benefit of counsels’ contributions, this difficult question can be given the careful attention and deliberate consideration it deserves.
JOHN R. GIBSON
CIRCUIT JUDGE