United States v. Herman Patayan Soriano

America, STATES UNITED

Plаintiff-Appellee, SORIANO, PATAYAN Herman Defendant-Appellant.

No. 01-50461. Appeals, States Court United Ninth Circuit. May 2003. and Submitted Argued 15, 2003. Filed Oct. 11, 2004. Amended March Rutherford, Deputy Federal

Jeffrey H. Defender, CA, Angeles, for the Los Public defendant-appellant. Kamenstein, United D. Assistant

Adam CA, for the Attorney, Angeles, Los States plaintiff-appellee. TASHIMA, BERZON, and

Before: CLIFTON, Judges. Circuit CLIFTON; Dissent Opinion by Judge by Judge BERZON ORDER

CLIFTON, Judge. Circuit dissenting opinion

The opinion at published filed October (9th Cir.2003), extent,” are amended some quite 346 F.3d 963 but is not thing, as follows: same and not a finding that Mu- kai’s consent resulted from Shanahan’s by adding a opinion is amended new threat. The district court considered end of footnote context, the entire including the state- concluding para- the first sentence of the ments made the other officers cor- reasons, graph: foregoing “For the we recting Shanahan’s statement and the affirm the denial of Soriano’s motion to fact that Mukai took time to think be- suppress, and thus affirm his conviction.4” giving fore consent. publication opin- 4. After the initial Finally, there was no conclusion that “a during this case and our court’s ions in con- voluntary consent can become simply petition rehearing sideration of Soriano’s banc, Judge en Berzon amended her dissent- because there time to deliberate.” ing opinion, notably to shift the basis of her added). (emphasis Id. Mukai’s consent dissent from conclusion that the district change “involuntary” did not from court had "clear error" in its fac- committed found, “voluntary.” The district court findings tual to an assertion that it had com- "legal stаge mitted certain errors.” At this explicitly based on totality “the of cir- majority we are not inclined to redraft our cumstances,” that Mukai’s consent was opinion respond comprehensive in more voluntary.” “free and That determina- fashion, simply but state we instead will that “simply” tion did not rest on the fact disagree analysis. with her that there was time available for Mukai note, however, compelled We feel to think. It was based on the entire dissenting opin- that we believe that the facts, collection of one of which was that ion, amended, significant as contains actually Mukai took the time to deliber- misstatements, particularly in its second stampeded ate and was not into consent- paragraph, newly added to the dissent ing immediately following Shanahan’s part as of the amendment. In broad improper statement. terms, we do not believe we made the dissenting opinion by is amended assumption or drew the conclusion at- replacing paragraph, the first 346 F.3d at paragraph. tributed to us More 975, with: specifically, incorrectly the dissent as- finding conflicting representations serts there was “a that im- Faced with officers, permissibly [plural] by coercive statements two law enforcement Hiroe - (emphasis only thing occurred.” Mukai did the that a reason- Infra added). finding, parent There was no such able could have done under the there asserting is no basis for that there circumstances: She consented to a than a single representation more statement search for fear that the by identified young the district court as of one of the two officers that her concern, being source the state- children would be taken from her if she Shanahan, by prove ment Officer which was did not consent would correct. immediately recognized followed corrective The trial court that when Inspector statements signing Postal Callas. the consent form Mukai did a finding, Nor was there as the dissent “have in mind to extent” [] some asserts, that Shanahan’s statement” did fear that her children would be taken impact the decision if to consent.” Id. from her she refused to accede to the Yet, (emphasis original). trial court The district officers’ demand. court found that Mukai did have her concluded that Mukai’s consent was vol- untary. concern for her children “in mind to True, deci- han’s threats. Callas indicated to the district court’s affirming

In at least two Mukai that her arrest was unrelated to sion, majority ratifies first, legal regarding errors: her decision consent. Shana- unacknowledged han, however, in uni- there is a officer assumption that where form, statements impermissibly coercive her threat and re- never recanted the decision to impact and did standing nearby, presumably occurred mained here, consent, can none- the decision earshot, for the remainder of the within reliance voluntary even theless be conversation. was reason- on the coercive statements full Replаce para- the second and third able; second, the conclusion that a (second graphs paragraphs and third full voluntary simply can become consent 978-79) with: on 346 F.3d time to deliberate

because there was rely impermis- on concerning whether otherwise, determining the district sibly coercive statements. posit a model of court and majority voluntary decisionmaking that cannot be outset, although I At the note underlying reconciled with the values con question ultimate whether Mukai’s the Fourth Amendment. That Mukai one, voluntary a factual sent was is see carefully think the situation Bustamonte, “seemed to 412 Schneckloth v. U.S. 2041, through ultimately signing before the 36 L.Ed.2d 854 93 S.Ct. form,” at-, errors, (1973), consent or “was told trial court’s described ante the ... above, it her decision and was application the involved it five or thinking for of con over” for either ten legal standards voluntariness Connecticut, minutes, found, 367 as the district court sent. See Culombe has 603, 1860, nothing 6 L.Ed.2d is- U.S. S.Ct. with voluntariness do. (1961) (explaining forcefully the volun- that the sue. Mukai testified inquiry requires applica tariness “the finally decision she made was the result - judgment tion ... of standards for in prediction of her fear Shanahan’s larger legal conceptions formed .concerning her children’s fate should she ordinarily characterized as rules of law prove fail to consent could true. That which, also, comprehend both induc but thought coming she for a while before from, of, factual anticipation tion and that conclusion does not make her con- Schneckloth, circumstances”); see also fear tinuing unreasonable. Coercion (“In deter U.S. at 93 S.Ct. hasty, emotionally- need not result a mining whether a defendant’s will was can people based decision. Reasonable case,” particular overborne a a court decide, cogitation based on rather than legal significance must “evaluate[] precipitous possible capitulation, a reacted.”) (citing of how accused Cu consequence simply unaccepta- future 1860). lombe, 367 U.S. at Schneckloth, ble. See (“[Voluntariness] 93 S.Ct. 2041 cannot I Accordingly, respectfully dissent. literally ‘knowing’ a be taken mean (the Replace paragraph the fourth person is un- Except choice. where 977) paragraph fourth on 346 F.3d at with: drugged conscious or or otherwise lacks choice, Second, capacity for conscious all [deci- the district court erred in con- ‘voluntary’ ... in the sense of that a are cluding person sions] reasonable would alternatives.”) determinatively Inspector representing credited choice of (citation quotation reassurances over Officer internal marks Callas’ Shana- and. omitted). here, Where, concluding threat- erred in otherwise. I re- spectfully dissent. inaccurate —Mu- consequence was ened arrested, legally not kai could amendments, Judge these Tashima With consent, course, refusing to so simply for Judge deny and Clifton have vоted to for children could not be removed rehearing for petition petition and for re- consent was not that reason either —the hearing Judge en banc. Berzon has voted voluntary, however well-considered. grant petition rehearing for and petition rehearing for en banc. circumstances, I conclude

Under A of the court on judge court erred in conclud- called for vote that the district A petition rehearing for en banc. vote subsequent statements ing that Callas’ taken, a majority and of the active adequate mitigate the devastat- were judges of the court failed to vote for en ing psychological effects Shanahan’s 35(f). rehearing. R.App. Fed. P. banc threats. Threats to the welfare of one’s overcome; easily a rea- children are petition rehearing petition for automatically person would not sonable rehearing en banc are DENIED. competing rep- on the basis of discount by a uniformed offi-

resentations threats OPINION cer who remained within earshot of the Patayan appeals Herman Soriano his subsequent proceedings and did not di- mail possession convictions for of stolen statement; ‍‌‌​‌​‌​‌‌​​‌‌‌‌‌​​‌‌‌​‌‌‌​‌‌​​‌‌​‌​​​‌‌​​‌‌​‌‌​‌‍and a savow her reasonable receipt of a stolen United States Trea- competing repre- confronted with check, sury and also the sentence that give the matter might sentations well challenges resulted. his convic- Soriano in thought some while the end conclud- ground tions on the that the district court ing that the risk of the threatened harm denying suppress erred in his motion to great to her children’s welfare is too a a during evidence found search of motel second, authorita- possibly credit a less girlfriend room he and resided. where his disavowing that risk. representation tive form girlfriend signed Soriano’s a consent short, court was correct in the district allowing the search. The is- warrantless suggesting “not for a moment that she court appeal sue on is whether the district in mind to some [the threat] didn’t have in clearly erred that her consent extent,” error, in legal and committed a voluntary, notwithstanding threat in light finding, coming of that to the by police made to her one of the officers on that “Ms. Mukai’s consent conclusion the scene that her children could be taken voluntary.” was free and If away sign if she did not the form. stands, challenges the conviction Soriano Replace paragraph the final of the dis- that given ground sentence he was on the (346 983) at senting opinion F.3d with: calculating in the district court erred sentencing amount for appropriate loss government It is the “bears reject challenges and purposes. both We demonstrating that con heavy burden affirm. freely voluntarily given.” and sent Chan-Jimenez, United States v. I. BACKGROUND (9th Cir.1997) (citing

Schneckloth, 412 U.S. officers from the On December (“LAPD”) 2041). government Department is unable to Angeles The Los Police a burden, regarding contacted a bank this and the district court were meet possibly prе- check had been had altered received information that there was Based on a description sented to teller. stolen mail Room placed He 228.. trying the man who was to cash the consent form on the table and asked for check, LAPD arrested Keenan cooperation. repeatedly officers San her Mukai told told Yung French. French the officers him that she did not know what to do. him the gave Inspector that Soriano stolen check and Callas told her that she was not crime, staying suspect that Soriano was Room 228 at a in the but that Soriano was, police again certain motel. He also told the cooperation. asked for her cards, checks, drug para- credit stolen He also told her that if she did not con- sent, phernalia could be found that motel the officers would seek to obtain a room and that the checks had been stolen search warrant to search the room. from the mails various residences Shanahan, LAPD Officer who was Angeles Los area. standing nearby, then told Mukai that if

The LAPD officers contacted the sign, United she did not might she be arrested (“US- Inspection States Postal and Service and her children placed would be in custo- PIS”) in responding dy for assistance to this with social Inspector services. Callas apparent mail theft scheme. Based on interrupted Shanahan and told Mukai that French, warrant, tip from but without a only way for her children to be taken LAPD and USPIS officеrs went to the from her and placed with social services investigate arrested, motel Soriano and search his would be if she were but that room. LAPD Detective Manente was in- did reason suspect formed the surveillance team that a that Mukai was involved. explained Callas woman left Room 228 and was headed to that since she was not at risk being lobby. arrested, approached Detective Manente her children were thus not at lobby her in the and identified himself as a risk. Callas then told again Mukai officer, informing he was she right had the to refuse consent. He there with other conducting an also read the consent form to her because investigation involving Soriano. wom- he did not know she could English. read an identified herself Hiroe Mukai and Mukai stated again that she did “not know she, Soriano, told the detective that and what to do.” finally signed She the con- their two children resided in Room sent form about ten minutes after Shana- and that lobby she had come to the to pay han’s threat. During time, this entire the rent. for Manente asked her consent roughly minutes, which lasted 30 a total of room, to search telling her that she six to seven officers were in lobby, consent, had a right to refuse including Shanahan, but that if Officer who remained did, she he would obtain a search warrant. present articulating after the threat. Mukai indicated that she was concerned The search of the motel room revealed n children, about her two small who were mail, checks, stolen numerous altered bank in still the room. Manente then left Mukai account and credit card per- information officers, with several other and taining to people, various other counterfeit postal three inspectors joined them the documents, INS and a stolen United lobby. Treasury States check in the amount of

Postal $1,138. Inspector approached Callas Mu- Postal inspectors also recovered kai, couch, sitting solvents, who acetone, was on a and sat such as used to chemi- down in a chair explained cally next to her. He alter payees checks so that and that he agent was a federal changed. and amounts could be

501 $15,484.62, Report indictment derived Following a Sentence two-count mail, § adding up stolen 18 U.S.C. the face amounts of the 20 possession of check, Treasury a stolen found in the motel room. ar- receipt and checks He 510(b), sup- § moved to gued Soriano the loss amount should have U.S.C. checks, from the including all evidence obtained excluded several of the press $9,661 search, was arguing that Mukai’s consent check made out to French. Al- though accept of threats and intimidation. the district court did not all invalid because suppression hearing, At the the district of the of the recommendations Pre-Sen- Mukai, $9,661 testimony Report, heard from Detec- tence it did find that court Manente, Inspectors payable and Postal Callas check to French tive was Soriano’s testified that she was possession. and Walters. Mukai The net result was a loss $12,932.62, she gave resulting and consent because amount of a base scared prevent going range her children from offense level of 11 and a wanted Guideline The district court con- to social worker. 8-14 months. Soriano was sentenced to threatened, months, Mukai had been years cluded that to be followed three voluntary. The supervised but that her consent was release. although

court reasoned that Officer Shan- custody a threat to the of her II. ahan uttered DISCUSSION children, interrupted Callas Inspector A. Suppress Motion to (a) clarify to Mukai that she took time to review de novo the district (b) We unquali- had an suspect, not a she (c) suppression court’s denial of a motion. consent, and right fied to refuse Jones, v. United States taken into custo- children would need to be Cir.2002). (9th The district court’s arrested,” dy “only if she was which was that a underlying factual going happen since she was not voluntarily consented to a search is re The court noted that Mukai suspect. for clear error. Id. viewed thought through her decision for 5 to 10 following Inspector expla- minutes Callas’s It is well settled that “a search that, Thus, nation. the court concluded pursuant conducted to a valid consent is circumstances, “totality gov- constitutionally permissible.” Schneckloth proof ernment has met its burden of [that] Bustamonte, voluntary.” Mukai’s consent was free (1973). 2041, 36 Whether L.Ed.2d trial, government At introduced vоluntarily given consent search physical evidence from Soriano’s motel totality from the of all “to be determined room, checks, including personal credit govern the circumstances.” Id. It is the personal applications, card identification prove that the consent ment’s burden information, chemicals used to alter voluntarily freely given. See checks, Treasury a United States Carolina, 543, v. 391 Bumper North U.S. government check. The established that (1968); 548, 1788, 20 L.Ed.2d 797 88 S.Ct. permission given Soriano had been Chan-Jimenez, v. 125 F.3d United States the undelivered mail and that the possess (9th Cir.1997). 1324, appeal, “On evi 1327 $1,138 Treasury check had been altered to question the of consent regarding dence jury change payee. the returned light in the most favorable must be viewed guilty on both counts. verdict to the fact-finder’s decision.” United (9th 618, objected v. 895 F.2d 622 sentencing, Kaplan, At Soriano to the States Cir.1990). Pre- calculation of the loss amount 502 provides have identified five fac Mukai’s children which

Our cases the most in determining tors to considered questioning serious basis for the voluntari- They of consent to search. voluntariness ness of Mukai’s consent to the search. If “(1) defendant was in custo are: whether unabated, that threat had remained Mu- (2) arresting had dy; whether kai’s consent could properly be set aside as (3) drawn; whether Miranda guns their Illinois, involuntary. Lynumn v. 372 (4) warnings given; whether the de were 917, U.S. 83 S.Ct. 9 L.Ed.2d 922 right notified that she had a fendant was (1963) (all of the officers on the scene told (5) consent; not to and whether thе defen defendant that her infant children would a search dant had been told warrant could cooperate; be taken from her if she did not Jones, 286 F.3d at be obtained.” 1152 held, voluntary confession was not but Castillo, v. (citing States 866 F.2d United coerced); Tingle, United States v. 658 (9th Cir.1989) 1071, (distilling from 1082 (9th (confession 1332, Cir.1981) F.2d 1336 widely the case law the five factors now alia, involuntary by, rendered inter Reid, used)); accord United States v. unmitigated officer’s statements that de- (9th Cir.2000) 1020, (citing fendant would not see her “for a child factors); Cormier, five United States and, while” if cooperate, she did not refer- (9th Cir.2000) (same); 220 F.3d child, ring specifically to her that she had Chan-Jimenez, (same). 125 F.3d at 1327 stake”). “a lot at No one determinative in- equa factor is Castillo, tion. 866 F.2d at 1082. It is not totality Under the of the circum factors, necessary to check off all five but stances, however, it not clear error for “many upholding of this court’s decisions the district court to conclude that .Mukai’s voluntary supported by consent as are voluntary. consent was .While court least several of the factors.” Chan-Jime must look at “possibly vulnerable sub nez, Nevertheless, 125 F.3d at 1327 n. 3. jective consents,” person state of the who only guideposts, these factors are not a court must also look at the “reason the. formula to resolve mechanized the volun- ableness of that fear.” United States v. Bustamonte, 412 inquiry. tariness Castrillon, (9th 716 F.2d n. 1 2041 (rejecting “talismanie Cir.1983) Bustamonte, (citing 412 U.S. at definition of ‘voluntariness’ mechanically 2041). 229, 93 S.Ct. Specifically, the court situations); aрplicable” all see also must determine “a whether in [Mu- United Morning, States v. position reasonably kai’s] would (9th Cir.1995) (“although we have estab being feared” her children taken into cus lished these factors to aid in the decision tody light totality of the officers’ full making process, every richness of Castrillon, conduct. 716 F.2d at n. 1 encounter must be ... Every considered (“To look subjective to Castrillon’s s encounter ha its own facts and its own fears, without considering the reasonable consent”). dynamics. every So does alleged mind, of his ness state of would unduly hamper application totality 1. The threat that might Mukai lose test.”). of the circumstances (cid:127) her children It We will review these five factors in was not clear error for the the dis below, context of case trict court this but there was a to find that Mukai’s fear for children, more important particular losing custody factor in the per of her while case, begin haps circumstances of this so we reasonable at the time Shana- when threat, with that. It away was the threat to take han made the was not reasonable reasonably of her could not make a different find- negate the voluntariness and did not with, given. ing. begin anyone consent was To who at the time that has consent elapsed Shana- or minutes between watched television shows movies about Several signing likely of the that police threat and Mukai’s would infer uni- han’s time, Inspector By form. formed officers are to other consent subordinatе uniform, children clarified that Mukai’s officers not in because that is Callas had how case, only away routinely depicted. taken Mukai was are In would be this arrested, suspect, was not a agent specifically and since she Callas was federal possibility. not a reasonable As identified himself to as such. A Mukai the entire emphasized, agent ordinarily district court federal viewed as hav- the Although ing authority police lasted some 30 minutes. more than a local offi- episode cer, certainly several times that she was more than the usual uni- Mukai stated do,” addition, patrol the district court formed “not sure what officer. Callas carefully think that she seemed to cut Shanahan off mid-sentence and con- found ultimately through talking before tinued to do the thereafter. That the situation nearby form. continued to stand signing the consent Shanahan does way. contrary, not cut the other To the reasonable To the extent remained and in the Shanahan silent differ on whether Mukai rea minds could place, same about twelve feet from where children such that sonably feared for her seated, Mukai was while Callas did ‍‌‌​‌​‌​‌‌​​‌‌‌‌‌​​‌‌‌​‌‌‌​‌‌​​‌‌​‌​​​‌‌​​‌‌​‌‌​‌‍the involuntary, her consent must be deemed Mukai, talking and was much closer to finding of the dis we cannot reverse the suggests acceptance Shanahan’s own trict court here under clear error review. charge, situation —Callas was in and Mu- Garcia, 667, 671 v. United States evaluating kai could see that. After this Cir.1998) (“ (9th two ‘Where there are еvidence, and other the district court found evidence, the fact- permissible views of the voluntary. that Mukai’s consent was That cannot finder’s choice between them be clearly was not erroneous. ”) (quoting Anderson v. clearly erroneous.’ City City, Bessemer 470 U.S. customary 2. The five factors (1985)). 84 L.Ed.2d So 518. Nor was the district court’s determina- differ, we long as reasonable minds could voluntary tion that Mukai’s consent was say cannot that one of those minds is with the other circumstances inconsistent clearly erroneous. encounter, notably the five factors conclusion in the dissent that The identified in other cases and described clearly court’s determination was district noted, factors are above. As we these' a different simply erroneous is based on assessing to consider in guideposts it of the evidence. The element evaluation consent, not a checklist of voluntariness critically important is the emphasizes as sup- satisfied. Most requirements be from the fact that “the threat came the district court’s determination. port immediately group uniformed officer Thus, First, Mukai,” regarding per it whether the surrounding post at 510. custody, here giving “that it was son consent was in may appeared to Mukai officer, Shanahan, that Mukai was not. Soriano concedes uniformed Callas, dissent, postal citing United States Ochel plain rather than clothes (9th Cir.1980), shots,” tree, ar calling post who inspector, custody can the threat of gues But we do not believe that 511. custody. But more coercive than actual was such that the district court evidence likely thorough by Inspector the case here. Soriano clear and detail that not was that argue Mukai’s consent Callas—both before and after the Shana- has not tried to any threat of han threat —that involuntary right was because she had the to re- of arrest here was The threat custody. “[k]nowledge fuse consent. And certainly nothing like the ephemeral, right highly to refuse consent is relevant in case, In this after threat in Ocheltree. determining whether a consent is valid.” threat, specifically Mukai was Childs, Shanahan’s 496; 944 F.2d at see also United that she was not a multiple told times Meza-Corrales, States v. 183 F.3d to put not her she suspect. It was (9th Cir.1999) (same). The fact that gave unless she would be arrested Mukai was “confused” and “did not know By of the room. con- to a search consent not, insists, what to do” does as Soriano trast, Ocheltree that we observed equate understanding to not that she had construction” that “only reasonable just right to refuse —she did not know there, at an air- person involved who was that right. whether to exercise agent’s the federal port, put could on factor, fifth The whether Mukai was told he retained in statement that would be obtained, that a search warrant could be to custody and not be board his permitted provide does question some basis to a gave unless he consent to search of plane voluntariness of Mukai’s consent. Cor- (noting his at 994 if briefcase. Id. mier, we consenting noted that when the pending defendant was allowed to leave party custody, is not as with Mukai warrant, search he would be to de- able here, application “the of the fifth factor evidence, creating the stroy the thus “clear hinges ... suspect on. whether a is in- if implication” suspect to the he did formed about possibility of a search consent, not be detained until a he would threatening warrant in a manner.” obtained). search warrant could be That 1112; F.3d at see also United States the situation Mukai faced. not. (9th Kim, Cir.1994) Second, guns whether the officers had (threatening a defendant with search drawn, not.1 here did warrant intimates that “withholding of Third, warnings, Miranda here futile”). ultimately consent would be inapposite warnings Miranda were since Here, officers, Callas, multiple including custody. Mukai was not in See United told Mukai that if give she did not consent (9th Ritter, States v. search, step to the their next would be Cir.1985) (“It ... make little would sense obtain, obtain, or to seek to a search war- require warnings, that Miranda which rant. parties dispute whether these right advise one of the remain silent and statements were made in a threatening counsel, light given by police .to however, manner. assuming, Even consent.”). requesting before of the statements in a some were made Fourth, regarding right notice of threatening imply not manner so as to consent, consent, futility here Mukai was informed in of withholding prob- when argue suspicion, 1. Soriano cites the officеr never took his hand off Chan-Jimenez inherently atmosphere gun, including appellant there was an coercive his when he asked lobby in the motel due to the number of he could search his truck. 125 F.3d at 1327. Here, present. quite guns But the record establishes that no Chan-Jimenez There, touched, drawn, Also, story. different an undercover officer were or referenced. case, pulled highway, custody. off a stranded desert with contrast to this Chan was in sight, appellant’s (holding a soul in where car was Id. at 1326 that a Fourth Amend- occurred). Despite broken down. reasonable had lack ment seizure

505 exists, ty could deemed justify a warrant be reliable on that cause to able Estrada, basis. v. significantly fifth factor is See United States 733 weight of the (9th Cir.1984) (“ 683, Meza-Corrales, 686 183 F.3d ‘Admissions diminished. See crimes, like 1125; against proprie of admissions F.2d at 622. Kaplan, 895 interests, tary carry their own indicia of on the information from Based credibility at least to support a —sufficient French, to have been suffi appears there ”), probable of cause search’ cert. grounds probable cient to establish cause denied, 850, 168, 469 105 U.S. S.Ct. 83 for a search warrant of the motel room. (1984) (quoting L.Ed.2d 103 United States provided with detailed French Harris, 2075, v. 403 U.S. 91 S.Ct. illegal activity information about Soriano’s (1971)). L.Ed.2d Although 29 723 it is not in the and the evidence that could be found record, clear if from the even we assume motel room. “Probable cause exists when that French had been offered favorable probability is a fair or substantial therе statements, in exchange treatment for his activity.” chance of criminal States United not per this would render them se unrelia (9th Cir.2001) 919, 264 F.3d 924 Bishop, v. Harris, 573, 583-84, 403 ble. See U.S. 91 Gates, 213, v. 462 (quoting Illinois U.S. (“That may S.Ct. 2075 the informant be (1983)). 235, 2317, 527 103 S.Ct. 76 L.Ed.2d paid promised or a ‘break’ does not elimi It is that “the determination of well-settled opprobrium nate the residual risk and of upon totality cause probable is based conduct.”). having admitted criminal Even known circumstances if favorable treatment had not been of Bishop, at the time of the search.” 264 him, presumably fered to French was mo Gates, 238, (citing F.3d at 924 462 U.S. provide information after his tivated 2317). “When search warrant hope arrest out of that his cooperating solely tip, on an [as is based informant’s would result more lenient treatment for case,] analysis proper this is whether himself the authorities. He could totality from probable cause exists goal if he gave achieve false informa the circumstances to determine sufficient tion, so the circumstances which he reliability knowledge level of and basis of provided the information further served to 924; tip.” Bishop, for the 264 F.3d at see reliability. corroborate its See United Elliott, 710, also United States 322 F.3d Davis, States v. 617 F.2d (9th Cir.2003). (D.C.Cir.1979) (an par admitted criminal reliability. ticipant strong We will start with has a incentive to tell the reliability, truth he lie to the considering police,” Wdien courts because “should “[t]he may employ prosecution”), a number of methods to de he “risks disfavor with the denied, if termine an informant’s information сert. S.Ct. (1980); ... may reliable. It be demonstrated 64 L.Ed.2d United States v. cf. (2d Cir.1991) interest,” Salazar, against penal admission for ex 50-51 Here, ... ample. Bishop, (“Though previ 264 F.3d at 925. the informant had not ..., on trying ously after French was arrested for been relied face-to-face check, thought ... more reli pass divulged an altered he infor informant must ... exposed responsi anonymous tipster mation which himself to than an [be able greater risk bility potential for other crimes and for the former runs the cause] charges conspiracy. may His statements that he be held accountable his false.”).2 proves criminal amounted to admissions of activi- information Mendoza, citing challenges reliability tip, States v. 2. Soriano French's United mastermind, a it that French cites to line of cases where is undeniable The dissent implicating implicated activity a third- himself criminal well a suspect’s statements police of the him for excess what had at “inherently unreliable” party deemed were episode that time: the an passing one of “blame-shifting” or “self-exculpatory” as check, plus potentially altered whatever statements, self-inculpatory opposed evidence might have obtained from Post, (citing 514 William- statements. (unrelated searching his motel room States, 594, v. 512 U.S. 599- son United Soriano).3 activity with This case is there- 600, 2431, 129 L.Ed.2d 476 Hall, fore unlike a like a case where sus- 116, (1994); Virginia, 527 Lilly v. U.S. pect on drug charges was arrested various 1887, 131, 144 117 119 L.Ed.2d S.Ct. dealer, pointed police and the to his with- Illinois, (1999); Lee v. U.S. inculpating out himself in additional (1986); 90 L.Ed.2d 514 and S.Ct. Hall, activity. criminal 113 F.3d at (9th Hall, United States v. 113 F.3d 157 French, Hall, 159. Although like Cir.1997)). those, But this case is not like “red-handed,” id., caught gave up French did not incriminate suspects where the him, a lot than police against more had anything themselves as to more than the thereby rendering his statements self-in- already Having caught had. been culpatory activity. admissions of criminal offense, the suspects for a criminal were simply trying primary respon- to shift the The dissent also on fact that focuses Here, sibility to others. French was French forgery, for a crime arrested picked trying pass up for one altered dishonesty, argues and a such rec- check, much, told the but about' dishonesty ord of requires that there be Soriano, telling much more. In about he additional corroboration before probable having own involvement to admitted his Elliott, cause can be established. See opened deposited bank accounts and al- 714-16; see also United States occasions, multiple tered checks on (9th well Reeves, Cir.2000). 210 F.3d beyond specific violation for which he cases, In those per- informants were had been arrested. His statement also prior sons with records involving crimes of potentially put conspiracy himself into dishonesty. The informant in Elliott was with Soriano that extended to a scheme of having history described as a criminal in- checks, widespread theft and alteration of cluding prior “fourteen ... convictions from the mail. Al- including theft аn forgery, arrest for a crime of dishones- though may painted ty....” he as the Soriano 322 F.3d at 714. informant in (9th Cir.1971), 441 F.2d 1108-09 3. French also indicated that he received sto- proposition accomplice’s tip that an len checks and credit cards from a different (where accomplice acting is as a first-time Jo,” person, "Jo who resided at a different informant) must be corroborated. But Men- Hills, motel in Room North 112. French did not hold that was al- corroboration doza registered guest related that he was a in that ways necessary in informant situa- first-time gave key per- room and authorities Rather, corroboration, tions. we held that mission to search that room. Authorities coupled case, particular with the facts in that other subsequent searched that room search probable was sufficient to establish here, at issue and found various stolen checks cause in the factual circumstances of that documents, and counterfeit identification id.,

particular Compare case. Id. at 1108. leading indepen- to arrests and indictments Mendonsa, with United States v. case, dent of this we which do not further (9th Cir.1993) (corroboration 368-69 is neces- discuss. sary anonymous if the is from an information tipster unique reliability problems due to the anonymous tips). associated with da, (basis knowledge F.2d at 686 been convicted previously Reeves had 210 F.3d at falsely reporting a crime. established when informant “admitted to contrast, there no indication extensive involvement in the criminаl 1045. record, prior criminal or that French had appellants scheme with and based his unreliability reporting any history of personal knowledge statements on and ob servation”). suggesting possibility “the criminal acts police that would lie to the to frame an he Thus, the information received to the Perhaps innocent man.” Id. more practical, from French “suffices for the from dishonest infor- point, information in judgment common-sense called for mak may provide proba- a basis for mants still ing probable-cause a determination.” the cause. turned out to be case ble Such Gates, 2317. S.Ct. Reeves, in of which Elliott and both in Because it is reasonable to conclude that ultimately affirmed. The convictions were have a the officers could obtained search these circumstances of the reliability under room, for warrant the motel their state of own criminal by admission French his ments to that effect to Mukai did not serve nature, activity, though even of dishonest to invalidate her consent to the search any by doubt raised the fact overcomes here. in a dishonest crime. that he was involved finding conclude that the of Since we say that Supreme Court did not ad- voluntarily that the district court Mukai crimes, ones, except of dishonest missions clearly consented to the search was not er- reliability. Har- carry their own indicia of roneous, suppress prop- motion to ris, 403 U.S. at 91 S.Ct. 2075. erly denied and the convictions must be Because of the nаture of what French affirmed. told the and the circumstances statement, he his we conclude which made Sentencing B. Enhancement reliability component prob- that the to the application A district court’s inquiry was satisfied. That able cause sentencing guidelines reviewed for brings us to consider the basis of the an abuse of discretion. United States v. knowledge. informant’s Cir.2000). (9th Munoz, 233 F.3d considering basis of “When findings, Factual such as whether Soriano knowledge, courts look for how the infor $9,661 check, possessed the are reviewed by knowledge.” mant came his or her the factual find for clear error. Id. Since (internal Bishop, quota 264 F.3d at 925 ing disproportionate here does not have a omitted). tion marks and citation this including effect on the sentence— case, quite authorities tipped French $9,661 differ only check made two-level on first-hand observa specifically based proven only by a ence—the facts must be tions, name, them with providing Soriano’s preponderance of the evidence. United number, and what exact motel and room (9th Hopper, 177 F.3d 832-33 States room, viz., items would be found Cir.1999); Munoz, see also checks, drug para stolen credit cards 1126-27. detailed, phernalia. These first-hand ob argues the district satisfy knowledge Soriano servations basis (basis attributing the knowledge clearly court erred component. See id. him, information, $9,661 up in an resulting check to established informant’s adjustment of five levels instead of hearsay, not based on but ward which “was disagree. first Estra three levels. We Soriano knowledge”); came from first-hand presented suggests was not Soriano also the check notes that the check trial, authority belongings, cites no for could have been French’s evidence at but only may it insinuating Since was French have visited why it had to been. sentencing amount for the room near the time of arrest. But that relevant to the loss guilt, it was not clear does make the Soriano purposes, not clearly possessed it into account at the the check erroneous. error to take Munoz, phase. government 233 F.3d at The established that there sentencing that the check were various alteration 1127. also notes chemicals found Soriano room, but does not Soriano’s that the check was stolen fingerprints, did not have his mails, authority proposition from the that it had been altered to cite amount, change payee must be found on and the and that person’s fingerprints two other checks made out to French were object an for it to be deemed within his in found Soriano’s wallet. These circum- possession. That is not the law. The conclude, room, enough by a motel stances were check was found Soriano’s evidence, that preponderance Soriano and it not clear error to infer that was check, if possessed the even French had it. responsible Soriano was for He also was, guest been a in the room. It there- attempts resрonsibility to disclaim for the fore, not error clear for the district court by arguing check that the check was made (cid:127)to attribute the check to Soriano. payable to French. But if was Soriano checks, selling altering or would natu- III. CONCLUSION (or rally payable be made to his customers names). Indeed, reasons, their other For foregoing fictitious two the we affirm the payable checks made to French were denial of Soriano’s motion to suppress, and found Soriano’s wallet. thus affirm his par- conviction.4 We also concern, publication opinions 4. being After the initial of the trict court as a source of that Shanahan, during by our court's this case and consider- the statement Officer which petition rehearing ation of Soriano’s for en immediately by followed corrective state- banc, Judge dissenting Berzon by amended her Inspector ments Postal Callas. Nor was opinion, notably asserts, to shift the basis of her dis- finding, there a as the dissent that sent from a that conclusion district court impact Shanahan’s statement "did the deci- had committed "clear error” in its factual (emphasis original). to consent.” Id. sion findings to an assertion that it had committed The district court found that Mukai did have "legal stage certain At this we are errors.” her concern for her children "in mind to majority opinion not inclined to redraft our extent,” quite some but that is not the same fashion, respond comprehensive a in more thing, finding and not a that Mukai's consent simply disagreе but instead will state that we resulted from Shanahan's threat. The district analysis. with her context, including court considered the entire note, however, compelled We feel by made statements the other officers dissenting we opinion, correcting believe that as Shanahan's statement and the fact amended, misstatements, significant contains giving that Mukai took time to before think paragraph, newly second added to the dissent consent. terms, part Finally, of the amendment. In broad there was no "a conclusion assumption we do not we voluntary simply believe made the or can consent become because drew the conclusion (emphasis attributed us in that there was time to deliberate.” Id. added). paragraph. specifically, change More the dissent in- Mukai’s consent did not from correctly "involuntary” "voluntary.” asserts there was "a The district found, impermissibly [plu- explicitly totality coercive statements court based on "the circumstances,” (emphasis ral] occurred.” at- add- that Mukai's consent was Infra ed). finding, voluntary.” There was no such and there is "free and That determination did asserting "simply” no basis for that there was more not rest on the fact that there was than, single statement the dis- identified time available for Mukai to think. It was application legal based on involved the stan in its affirm his sentence ticularly for voluntariness of consent. computation of the loss dards district court’s Connecticut, Culombe v. 367 U.S. amount. (1961) (ex 1860, 6 L.Ed.2d 1037 81 S.Ct. AFFIRMED. inquiry that the voluntariness plaining re application ... of quires “the standards BERZON, Judge, dissenting: Circuit judgment larger legal informed conflicting representations Faced with conceptions ordinarily characterized as officers, Hiroe law ‍‌‌​‌​‌​‌‌​​‌‌‌‌‌​​‌‌‌​‌‌‌​‌‌​​‌‌​‌​​​‌‌​​‌‌​‌‌​‌‍enforcement by two which, also, comprehend rules of law but only thing reason Mukai did from, of, induction and anticipation both done under the parent could have able circumstances”); factual see also Schneck to a search circumstances: She consented (“In loth, 412 U.S. at 93 S.Ct. 2041 of one of representation that the for fear determining whether a defendant’s will young officers that her children the two ease,” particular overborne in a taken from her she did not would be legal signifi court must “evaluate[] prove correct. The trial consent would reacted.”) (citing cance how the accused signing that when recognized court Culombe, 1860). 367 U.S. at in mind [ ] consent form Mukai did “have that her children to some extent” her fear I Accordingly, respectfully dissent. from her if she refused to would be taken Yet, demand. the accede to the officers’ I.

trial court concluded that Mukai’s consent voluntary. was partial recounting disturbing A necessary facts of this case is for a full decision, affirming the court’s district understanding my of reasons for dissent- majority ratifies at least two unac- ing: first, knowledged legal errors: the as- that where there is a sumption When Mukai asked the officers who first coercive statements oc- impermissibly lobby it approached why her the motel impact and did the decision to con- curred they fami- was that wanted to search her here, sent, can the decision nonetheless room, told, know ly’s motel she was “We on voluntary even if the reliance mail, going what’s on. There stolen reasonable; and coercive statements was drug activity.” She was asked a some second, that a consent can the conclusion questions occupants about the of series voluntary there simply become because room, relationship to Herman the hotel her concerning time to deliberate whether was Soriano, using whether or not she was rely on coercive state- impermissibly to work, drugs, place the location of her ments. occupation. Detective Manente and her consent, outset, told her that if she refused although At the I note that would a search warrant. question ultimate whether Mukai’s consent obtain encounter, one, Throughout the minute Mu- voluntary is a factual see Bustamonte, LAPD kai was surrounded six seven Schneckloth v. (1973), agents and was contin- L.Ed.2d 854 officers and federal above, errors, her consent. ually pressed trial court’s described facts, consenting immediately following Shanahan’s collection of one of based on entire actually was that Mukai took the time improper which statement. stampeded into to deliberate and was not you response your from the out- want to think about kids ... primary Mukai’s about her two еxpress thinking concern when set was about the consent form. children, in the motel room. who remained Callas reiterated that if Mukai did testified, “the concerns As Manente consent, the officers would obtain search children, what ... for her she had were time, During warrant. this Shanahan re- happen with her children.” going precisely mained where she had been when repeated Mukai these concerns Offi- spoke when she to Mukai—about twelve arrived, subsequently as he tes- cer Callas feet from where Mukai was seated. At no tified. time did make effort to Shanahan backdrop that against It was this Shana- disavow statement. place. threat took Mukai testified at

han’s conflicting repre- Faced with somewhat suppression hearing: sentations two law enforcement officers I crying shaking was start and fe- concerning happen what would if she re- [saying] calm male officer beside was search, give fused to consent to the Mukai down, down, long took me for calm so signed the form after understandable hesi- 10, 15 minutes and then sud- time about explained: “Why tation. As I signed she name, fe- denly, I don’t know her but form, I feel like I to. I’m uniform wearing [Officer male officer scared. small possibility Even go up show front of me. Shanahan] worker, might get my children to the social She was so frustrated because took so I happen.” don’t want it to long.... you only have two She said Mukai, Soriano, Unfortunately for sign If you’re going pa- choice. this system justice, our Officer Shanahan’s help gоing get or we per and us baseless threat worked. door, they kick search warrant and might you might, kick the door and I II. my

might arrested and two children [be] will be in social worker. majority commendably As the recog- fully The district court credited this testi- nizes, the central in determining focus the mony, finding that “the LAPD officer did voluntariness of Mukai’s consent must be sign tell that if to her she refused she on Officer Shanahan’s threat. While the might be arrested and that her children majority recognizes that the threat stand- Critically— go would to social workers.” ing consent, alone could invalidate Mukai’s although both the trial court and the ma- it concludes the district court did not jority ignore this fact—the threat came clearly relying err in on lapse of time only from in uniformed officer by Inspector clarification in Callas immediately group surrounding Mukai. concluding that Mukai’s consent was vol- Officer Callas was not uniform. (1) untary. This conclusion disregards the attempted Callas testified that he to ex- degree by of coercion created a threat Mukai, plain accurately situation (2) children; away parent’s take attrib- visibly who was distraught, stating: utes to Mukai believing some basis for Now, if you get your Inspector Shanahan, do arrested chil- Callas over Officer go type lay dren will have to in some person when reasonable would have services, (3) protective choice; social services or no emphasizes basis such a someplace. thought At that time we have no that Mukai hard about whether to you’re consent, information give yet involved and no rea- Mu- deliberation—as you son I judge [to] arrest this time. don’t kai testified and as the expressly representations. account reassured Callas’ A took into recognized reasonably — children, carried threat to the welfare of one’s that the threat would be the risk however, out, voluntary easily choice in the not discounted on the precluding competing Fourth Amendment. basis of a reassurance. Given required by the sense threat, per- the nature a reasonable First, threat was baseless Shanahan’s son would share Mukai’s disinclination to attempt “prey in a deliberate made it disregard possibility” “even a small instinct,” United States upon the maternal would be carried out. (9th 1332, 1336 Cir. Tingle, 658 F.2d Second, the district court erred in con- 1981), repeatedly expressed Mukai after cluding For a that a reasonable would regarding her children. concern determinatively greater Inspector than the credited there is no threat parent, away children. “The Callas’ reassurances over Officer Shana- threat to take one’s True, han’s threats. Callas indicated to parent and child em relationship between value Mukai that her arrest was unrelated to her and fundamental primordial bodies a Shanahan, regarding decision consent. society. law enforcement our When uniform, however, upon the mater officer never deliberately prey standing fear in a mother recanted her threat and rеmained nal instinct and inculcate earshot, nearby, presumably within for the not see her child order that she will ‘improper remainder of the conversation. ‘cooperation,’ they [ ] exert elicit ” influence.’ Id. attempts Callas’ to reassure Mukai sim- ac- ply presented conflicting undermines Mukai with a psychological coercion Such id.; prospects, affording see count of her without of consent. See the voluntariness Illinois, of the two deciding 372 U.S. her basis for which Lynumn also v. State of (1963) result, to a accounts was accurate. The 9 L.Ed.2d (confession a realistic voluntary person, where a reasonable was least Shanahan, police offi- risk that it was the uniformed mother encircled three officer, Callas, plain than children would lose rather cers and told that her away postal inspector, calling who was financial aid and be taken clothes their state position imple- and was in a cooperate); did not United shots from her she (6th 397, 403-04 ment her threat. Ivy, States v. Cir.1998) (officer’s Ivy’s threat to arrest Further, Mu- continued to advise Callas away her child were “at-

wife and take arrested, children kai that if she were her Ivy’s resolution not tempts] to overcome’s away. Even if this would indeed be taken to a search and therefore “con- consent” true, a reason contingent statement were objectively improper police an ac- stituted have felt person would nonetheless able significantly intensifying tion ... the coer- F.2d at 1335-36 Tingle, coerced. Cf. consent”). A request for cive tenor separa (warnings long prison of term and person given would have reasonable though coercive even tion from child were “[ejven Mukai, weight, as did small [a] Tingle suspect and information was they might get my children possibility accurate). Moreover, arguably therefore to the social worker.” respective state Shanahan’s and Callas’ her Mu- ments that Mukai’s arrest would mean

The district court did not disbelieve custody placed in state that she considered children would be representation kai’s decision, Ivy, 165 F.3d but indi- were not even accurate. See making that risk in her (noting parents that even if both person that a would not at 403 cated reasonable arrested, so, supervision al- have been were “there were have done as she would custody, having underlying as reconciled with the values to state such ternatives relative”). Fourth Amendment. That Mukai “seemed stay a friend or the child with think carefully through the situation of mitigate the effect Shana- Rather than ultimately signing before the consent threat, continued reference to han’s Callas’ form,” ante at or “was told that it was chil- under which her the circumstances ... thinking her decision and it over” placed social services dren would be minutes, for either five or ten as the dis- threat and thus reinforced echoed the found, nothing trict court has to do with for her children’s well- reasonable fear forcefully the voluntariness issue. Mukai liberty. being and for her own Additional- finally testified that the she decision made ly, repeated statements Mukai Callas’ was the result of her fear that Shanahan’s into should not take her children’s fate prediction concerning her fate children’s making account in her decision could well prove should she fail consent could true. have been understood as a directive to thought That for a while com- she before taking her chil- make a decision without ing to that conclusion does not make her account, than dren’s interests into rather continuing fear unreasonable. Coercion as an assurance that were not at risk hasty, in a emotionally- need result should she fail to consent. people based decision. Reasonable can de- Third, mitiga- as additional evidence cide, cogitation preci- based on rather than tion, the district court considered Mu- pitous capitulation, that a possible future kai to ten minutes after took five Shana- consequence simply unacceptable. is mind, up noting: to make han’s threat Schneckloth, 412 U.S. at S.Ct. a long given “That was time.” Yet (“[Voluntariness] literally cannot be taken facing weight of the decision Mukai and ‘knowing’ Except to mean a choice. where situation, stress of the five to obvious drugged is unconscious or or long ten minutes was not all. On the capacity otherwise lacks for conscious contrary, person might a reasonable well choice, ... ‘voluntary’ all are [decisions] long, weighing repre- have taken representing the sense of a choice of alter- sentation of one officer that her children natives.”) (citation and quotation internal could suffer harm as a result of her deci- omitted). Where, here, marks hedged by an- against implication sion consequence threatened was inaccurate— other that her failure to consent could not arrested, legally Mukai could not itself affect her fate or that of her children. course, consent, simply refusing so Indeed, person might a reasonable well her children could not be removed for that authority have been confused as to the reason either —the consent was not volun- postal inspectors in relation to the tary, however well-considered. officers, postal as contact with in- circumstances, Under I conclude spectors presumably less common for that the concluding district court erred in average gravity citizen. Given the subsequent Callas’ statements were conflicting repre- the risk involved and the adequate mitigate psy- the devastating sentations, parent a reasonable would take chological effects of Shanahan’s threats. prudent time to decide whether the course Threats to the welfare of one’s children prevent was to believe the worst and act to overcome; easily are not per- reasonable it. automatically son would nоt discount on otherwise, determining In the district competing representations the basis of majority court and posit a model of threats uniformed officer who re- voluntary decisionmaking that cannot mained subsequent within earshot

513 potential activity (drug-use), and did not disavow her state- about criminal proceedings ment; person and a confronted Shanahan said she could be arrested reasonable refusing for competing representations might well consent. Given the conflict- with ing provided by information thought some while in the Shanahan and give the matter Callas, it reasonable for risk of the was Mukai to concluding end threat- possible believe that her arrest was if she ened harm to her children’s welfare is too did agree to the search. second, great possibly to credit a less au- representation disavowing thoritative (2) Consideration of the fifth factor— short, In the district court was cor- risk. whether the officers threatened to obtain a suggesting in “not for a rect moment provides search support further warrant — in [the threat] she didn’t mind for person the conclusion that a reasonable extent,” error, legal some committed would have construed the combination of light finding, coming of that to the Shanahan, Manente, statements made conclusion that “Ms. Mukai’s consent was and Callas to connote that refusing con- voluntary.” free and Kim, sent futile. was United States v. Cf. (9th Cir.1994). 25 F.3d

III. majority concludes that this factor de- weight serves little govern- becаuse the my analysis I forego- would end with the cause, probable ment had represen- so the ing and reverse the district court’s ' tation truthful. Kaplan, 895 F.2d that the search was consensual. The ma- (where exists, probable at 622 cause con- however, jority, goes on to the five-factor likely sent not to be held invalid based on analysis applicable to the consent issue warrant). threats to obtain a search In conducting more usual circumstances. view, however, my the informant’s self- analysis, majority errs two serving inherently statements were sus- respects: pect insufficiently and thus reliable es- (1) of whether the Consideration probable tablish cause. in custody weighs against the volun- forgery. French’s arrest was for “When tariness of Mukai’s consent. While not in history an informant’s criminal includes custody, explicitly Mukai was threatened dishonesty, crimes of additional evidence custody with arrest. The threat if con- must be included in affidavit ‘to bolster sent is withheld is more coercive than the credibility reliability the informant’s or the custody, actual fact of as the implication ” Elliott, tip.’ v. United States that the individual’s consent will favorably (9th Cir.2003) (quoting F.3d affect her fate is all the more direct. Reeves, United States 210 F.3d Ocheltree, Compare United States v. (9th Cir.2000)). noted, Elliott As (9th Cir.1980) (where there “[otherwise, past ‘an criminal informant’s detention, was a “threat that unreasonable involving dishonesty is fatal to the reliabili- amounting to arrest” would result con- information, ty of the informant’s and his/ refused, sent was consent was not volun- testimony support probable cannot tary) Kaplan, with 895 F.2d 622 n. 3 ” Reeves, (quoting cause.’ Id. (because (9th Cir.1990) defendant had al- 1045). arrested, ready been threat of detention forgery while search warrant was obtained did not French’s arrest was suffi- involuntary). Although reliability, render consent cient to raise doubts about his dishonesty Mukai that “[a]ny involving Callas informed she was not a as crime neces- suspect, interrogated sarily impact Mukai had also been has an adverse on an infor- self-exculpatory state (quoting plausibility Id. at 716 credibility.” mant’s 1045) Reeves, 600, 2431; (emphasis add- 210 F.3d at ments.” Id. at S.Ct. see ed). Elliott, case, Hall, in In this v. also United States previ- (9th Cir.1997) that the informant had were aware (applying William 159-60 convicted) (though not ously arrested been co-participant’s son to conclude that state occasion. See id. at forgery for on one in inculpating the defendant were ments in Elliott had no other 714. The informant probable to cause sufficient establish involving crimes of arrests or convictions history co-participant where had criminal Elliott, id. As dishonesty. dishonesty). Supreme of The Court has put his French’s arrest was sufficient repeatedly recognized that the blame-shift credibility regardless of his lack accomplice issue— of an are “in ing statements majori- any history. other criminal herently Lilly Virginia, unreliable.” ty is correct that “information from dis- 116, 131, 1887, 144 527 U.S. 119 S.Ct. may provide informants still a basis honest (“[W]e (1999); L.Ed.2d 117 see also id. cause.” See ante at 507. But probable years spoken have over the with one voice only that case where there are addi- declaring presumptively unreliable ac here, present not tional circumstances complices’ confessions that incriminate de history giving an informant’s such as fendants.”) (internal quotation marks and See, Elliott, tips. e.g., reliable 322 F.3d at omitted). sum, citation “when one per (concluding the informant’s “rec- son accuses another of a crime under cir providing drug-related six reliable ord of cumstances which the declarant stands tips preceding in the three months was another, gain by inculpating the accusa sufficient to overcome doubts raised presumptively suspect.” tion is Lee v. Illi prior per- his motives and criminal and nois, 476 U.S. 106 S.Ct. behavior”); Reeves, sonal 210 F.3d at (1986). L.Ed.2d 514 (concluding 1044-45 the informant’s A close examination of Keenan San provision prior tips of three reliable were Yung why French’s statements illustrates enough outweigh concerns raised not, they majority’s were counter to the Here, history dishonesty). criminal conclusion, against penal statements his history tips. there is no such of reliable police report interest. de- Shanahan’s Instead, majority bases its conclusion scribed the information about Soriano that French’s information was reliable on provided upon French his arrest: characterization of his statements as state- against penal ments interest. See ante handcuffing suspfect], While wrong. 505. That characterization is susр[ect] began telling me about how he Susp[ect] wasn’t the one.... stated Supreme As the Court cautioned Wil ago, short a guy some time he met States, liamson v. United through named a mutual Herman friend. 599-600, 129 L.Ed.2d 476 fi- susp[ect]’s Herman became aware of (1994), principles underlying the idea nancial dire straits and offered to assist against interest are statements outstanding him with his bills if he uniquely trustworthy apply to ac do help explained would him. Herman complice inculpate statements that another suspfect] open that all he had to do was person. “Self-exculpatory statements are deposit bank accounts and checks for exactly people which are ones most false; likely Susp[eet] complied deposited him. to make even when are other, him proximity and mere several for until Herman cleaned self-inculpa- tory, statements does not increase the out one of the accounts and left

515 Williamson, 599-600, 512 at 114 money.... Susp[ect] S.Ct. with no susp[ect] is involved with that Herman 2431. continued forging very deep stealing and check in Justice O’Connor’s observation numerous stolen checks in his and has in plurality opinion particu- is Williamson Travel Inn located at hotel room at the larly apt inculpating here: oth- Statements Blvd. He also stated Sepulveda 8525 subject er individuals “did little to [the 6 approximately] has sto- that Herman liability.... to criminal Small declarant] pos- in his room and phones cellular len big in conspiracy get fish often shоrter sibly narcotics. people running sentences than who are majority por- correct that the is

While show, especially whole the small físh are indicating that tions of French’s statement willing help big the authorities catch the deposited accounts and opened he bank Williamson, 604, ones.” 512 U.S. at may exposed him to additional checks (in- (with J.) Scalia, (plurality) S.Ct. liability criminal and thus constitute state- omitted); citation at ternal see also id. interest, against penal ments his the same 607-09, J., (Ginsburg, S.Ct. 2431 con- parts true of the of French’s state- is not in curring part concurring judg- and regard partic- to Soriano’s ments with ment) (declarant’s were not statements reliability ipation. At issue here is not the against statements interest because French’s statements portion ”). painted ‘big “the defendant as fish’ activity, criminal but the about his ‍‌‌​‌​‌​‌‌​​‌‌‌‌‌​​‌‌‌​‌‌‌​‌‌​​‌‌​‌​​​‌‌​​‌‌​‌‌​‌‍own implicating French’s statements Soriano implicating Sori- portion of his statements primarily shifting focused on blame to So- instructed, ano. As Williamson riano, portrayed whom-he as the master- making fact that a The check-forging mind behind the scheme. broadly self-inculpatory confession does result, As a the statements about Soriano not make more credible the confession’s properly cannot be considered declarations non-self-inculpatory parts. One of the penal carry interest and do not against ways lie is to mix false- most effective reliability with them the indicia of normal- truth, truth that especially hood with ly self-inculpatory attendant state- particularly persuasive because seems self-inculpatory nature. ments.1 its during attempts distinguish present a homicide. See majority Wil- that he was

1. The U.S. at 119 S.Ct. 1887. liamson, Lee, mischaracterizing Lilly, Lee, In the co-defendant had confessed that suspects cases which "the did not them as ques- premeditated he and Lee tion, the murders in anything incriminate themselves as to more only evidence avail- whereas the other already had.” Ante at 506. than police were able to was that the murders spur Williamson, provocation on the committed after the course of his confes- In Lee, 530, 534-35, See 476 U.S. moment. knowledge sion the informant admitted to his S.Ct. 90 L.Ed.2d 514. he was that there was cocaine in briefcase correctly majority notes that the in transporting, "essentially forfeiting] his provide incul- in Hall did not much ormant possible charge pos- defense to a of cocaine patory beyond information what session, knowledge.” lack of See 512 U.S. But already See ante at knew. 505-06. (O'Connor, J.). 114 S.Ct. 2431 The in- that, Williamson, Lilly, and Lee demonstrate potentially implicated himself in formant also contention, contrary majority's mere to the conspiracy possess or with Williamson self-inculpatory proximity to non-cumulative Williamson, 512 U.S. distribute cocaine. change the fact statements does not S.Ct. 2431. self-exculpatory con French’s statements partici- Lilly, the confessed to cerning qualify informant statements Soriano do not burglary robbery, agаinst interest. pating and admitted 516 against penal interest and apparent is even more statements his

This conclusion on that cannot be deemed reliable basis. provided that French when we consider statements his ar- self-serving these concluding after that French’s information rest, knowing police that the had informa- sufficiently support proba reliable to liability. By tion his criminal supporting cause, majority ble considers that also Soriano, the implicated French the time the officers had corroborated the informa pock- had found a check French’s police regarding tion Soriano’s motel and room name, et made out French’s which was But in number. the corroboration of one and, police report, fact, according easily to the was nocent and discoverable residence, police had also location of Soriano’s does not “obviously altered.” reliability. establish v. key See United States pocket from French’s a to retrieved Mendonsa, (9th 366, 989 F.2d 369 Cir. room, where, his hotel as French was 1993) a (distinguishing “mere confirmation aware, there was extensive evidence of “prediction of innocent static details” from check-forging and mail-theft French’s significant activity carry of future out scheme. French had also heard Wash- particular activity”); compare criminal ington representative, Mutual Bank who J.L., 266, 272, 120 v. Florida 529 U.S. S.Ct. arrest, at the scene of his had arrived (an 1375, (2000) 146 254 L.Ed.2d accurate policе relate to the the circumstances of subject’s description readily of observa attempt forged failed to cash a French’s location knowledge ble does not show of person check. believes that the “Once Gates, activity), concealed criminal with sufficient evidence to convict (informa 245, 462 U.S. at 103 S.Ct. 2317 him, his statement that another tion reliable it range where contains “a of criminal important enterprise more to his relating just easily details not obtained gains credibility than he little from its existing facts and conditions at the time of Hall, inculpatory aspect.” 113 F.3d at tip, par but to future actions of third 159. ordinarily ties easily predicted”). Par agree majority I with the that “admis- where, here, ticularly the informant has may sufficiently sions of crime” reliable history a criminal involving dishonesty, the support probable cause. United States corroboration of a few innocent details is Harris, 573, 583, inadequate to 403 U.S. demonstrate that the infor (1971). Hall, worthy mation is I belief. See 29 L.Ed.2d 723 am also well (“The at 159 innocent details do even probable aware that cause determinations tip less to corroborate a from a man certainty not demand the we associ- “do[ ] report known have made a false to the Gates, ate with formal trials.” Illinois v. police” than an do corroborate S.Ct. (corroboration anonymous tip.); id. of the (1983). Nonetheless, L.Ed.2d 527 Wil- of suspect’s color vehicle and the location general reflects the need to liamson care- of his trailer was inadequate to establish fully “in- distinguish statements which are information).2 reliability co-participant’s unreliable,” herently Lilly, 527 U.S. at from truly S.Ct. those which are circumstances, totality Under the “against interest.” self-serving statements, French’s inherently French’s unreliable concerning only by easily statements Soriano were not corroborated one discover- majority distinguishes hislory requiring dishonesty may present reliability 2. The cases anonymous tips. corroboration of ante at problems greater presented by than those an However, illustrates, 505-06 fn. 2. as Hall anonymous tipster. See 159. statements of an with a informant criminal fact, were insufficient and innocuous able Hall, 113 CALIFORNIA DEPARTMENT probable cause. OF establish Cf. (“How trooper RESOURCES, could the tell F.3d at 159 WATER leading them informant]

whether Petitioner, [the competitor, or to an supplier, to his man?”). repeated The officers’

innocent Company, Southern California Edison would obtain a search statements Intervenor-Petitioner, provide if Mukai refused therefore warrant Mu-

strong support for the conclusion that Public Utilities Commission of The involuntary. consent was kai’s California; Pacificorp, State of

[**] * NS Intervenors-Respondents, hour, by ringed For half an Mukai was Southern California Edison pres- six to seven law enforcement officers Company, Intervenor, suring give her to consent to a search of told

her hotel room. While Mukai was Dynegy Inc., Marketing, Power postal inspector giving that her оr failure Intervenor-Respondent, give consent would not affect her chil- dren, she was also a uniformed .told Segundo L.L.C.; Long El Power Beach member of the LAPD that her refusal L.L.C.; I Generation Cabrillo Power separation consent could lead to arrest and L.L.C.; L.L.C.; II Cabrillo Power children. The uniformed officer from her Quality Air South Coast Maintenance nearby for next five to ten min- stood District, Intervenors, during which Mukai made her deci- utes Dur- sion and never recanted the threat. Idacorp Energy L.P., Intervenor- time, ing this Mukai was reminded if Petitioner, arrested, in- she was her children would away. told deed be taken She was several L.L.C.; Power Coral Constellation refused, times that she the officers Source, Inc., Power Intervenors- warrant, obtain a search even would Respondents, A though probable lacking. cause was parent— reasonable reasonable —a Colorado; Company Public Service faced with this situation would not have Capital Corporation; Pinnacle West liberty felt at to refuse consent. Company, In Arizona Public Service government It is the “bears the tervenors, heavy demonstrating burden of con freely voluntarily given.”

sent was Energy Marketing, Mirant Americas Chan-Jimenez, United States L.P.; L.L.C.; Mir Mirant California (9th Cir.1997) (citing Schneck Delta, L.L.C.; ant Mirant Portrero 2041). loth, L.L.C., Intervenors-Respondents, burden, government is to meet this unable concluding

and the district court erred in Inc., Intervenor, Puget Energy, ‍‌‌​‌​‌​‌‌​​‌‌‌‌‌​​‌‌‌​‌‌‌​‌‌​​‌‌​‌​​​‌‌​​‌‌​‌‌​‌‍Sound respectfully otherwise. I dissent. Agency;

Northern California Power Agency Transmission of Northern California; The Public Power M-S-R Company, Intervenors-Respondents,

Case Details

Case Name: United States v. Herman Patayan Soriano

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 11, 2004

Citation: 361 F.3d 494

Docket Number: 01-50461

Court Abbreviation: 9th Cir.