United States v. Saundra Prescott

court was appellant denying to refer correct his decision motion to at all for sons Mar v. secondary area. United States suppress the evidence obtained to a from 563-64, tinez-Fuerte, 428 U.S. at the car trunk. went to the second appellant After

3074. The convictions are reversed the rea- area, requested her agent different ary son set forth in I part opinion of this search. The search was the to the consent the cause proceed- is remanded for further consent, touching not the of that product ings. Immigration Hoonsilapa v. the car. See REVERSED and REMANDED. Service, 575 F.2d 735 Naturalization Wilson, v. 1978); (9th United States Cir. 896, (5th 1977); United 897-98 Cir.

553 F.2d (1st Race, 12, F.2d Cir. v.

States Illinois, ; v.

1976) also Brown see 2254, 602-04, 45 L.Ed.2d 416 95 S.Ct. Moreover, any (confession). fourth

(1975) slight was so violation amendment America, UNITED STATES of given. that was taint the consent did Plaintiff-Appellee, O’Looney, v. 544 F.2d denied, v. Cir.), cert. (9th 390-91 (1976). PRESCOTT, Saundra Defendant-Appellant. appellant voluntarily Whether inspection to the trunk “is consented No. 77-2574. to be determined from question fact United States Court of Appeals, all totality of circumstances.” Ninth Circuit. Bustamonte, Schneckloth 227, 93 36 L.Ed.2d 854 Sept. 1978. (1973). hearing appellant’s After a mo Nov. Rehearing Denied judge suppress, district conclud tion the car appellant’s opening action ed given. voluntarily constituted consent

trunk finding may overturned ifswe

That finding

are convinced the dis erroneous, judge was clearly

trict Lemon, (9th 550 F.2d Cir.

States

1977). The fact that a uniformed Border agent requested appellant’s consent

Patrol search of the trunk does not automati-

cally vitiate her consent. United States (9th 1962) (en F.2d

Page, 302 Cir. Watson,

banc). United States v. See 46 L.Ed.2d 598 (valid

(1976) consent defendant while arrest); Townsend, United States v.

under (9th 1975).

510 F.2d Cir. Whatever the first officer obtain-

limited-information allegedly result of the unlawful

ed

touching compel the car is insufficient not a search inference that this “was consent, quiet of evi- surrender

with completed.” the search was Cf.

dence after Pacheco-Ruiz, 549 F.2d

United 1976). (9th Cir. district Weiss, Francisco, Cal.,

Michael H. for San defendant-appellant. Edelman,

Lawrence Asst. Atty., U. S. San Francisco, Cal., plaintiff-appellee. delivery, controlled 540 Grove was boarded adjacent up apartment and floor, Grove, lower was vacant. next on apartment upper door to 546 floor, CUMMINGS,* occupied by appellant, DUNIWAY, and was Saun- Before Prescott, Johnson, dra her friend James SNEED, Judges. Circuit young daughter. DUNIWAY, Judge: Circuit 13th, Early morning a team principal ques- we two case decide In this composed agents a dozen federal whether, police when the tions. One placed local entire 500 (a) cause to believe probable have block of Grove Street under surveillance. felony (b) committed a person noon, At a United approximately Parcel house, they may forci- particular is in a he truck arrived in the area. In Service and and seize him search for bly enter packages, were nine three which were warrant, in the obtaining a without first specially prepared those that had been for exigent circumstances. absence delivery Duvernay. the controlled He extent, whether, if so to what is and second the appeared, signed packages for all of a by occupant the house refusal a sidewalk, then, and with aid of two police, they when do not have admit friends, packages carried the into the build- occupant, warrant, may against be used ing at 540/542/544/546 Grove Street. Af- charged assisting with is federal when she ter a few minutes to interview delaying or prevent order to hinder in offender signature truck driver and check the on the in of 18 violation U.S.C. apprehension § receipt, group officers followed. accessory after the fact. which defines Upon entering building, the officers question to the first is that answer Our Grove, straight for assuming headed Our answer be obtained. warrant must Duvernay that would be found his own may question the refusal is that the second apartment. surprise, they To their found not be used. that the front door to had been pad- Realizing locked from outside. that I. FACTS Duvernay apart- could have entered the agents early investigat- In federal him, ment padlocked and the door behind that fraud scheme concluded one ing a mail proceeded they then to search elsewhere. using was credit cards Duvernay stolen ascertaining Duvernay After was not January On merchandise mail. obtain 542, the hiding apartment vacant on the 13,1977, supervised Inspector Russell Postal floor, lower some of the ran around Street, delivery to 551 Grove a controlled to the of the building back entered 546 Francisco, one addresses em- of several San rear through Duvernay door. was not parcels by Duvernay, of three con- ployed Russell, meanwhile, Inspector there. went clothing ‘electronic calculators taining to 544 and knocked on front door. manner. ordered in fraudulent Before responded. Prescott Russell identified him- Inspector delivery, Russell starting postal inspector self as a and told Prescott a search for 546 obtained warrant- Grove looking he was for her next-door not, Street, Duvernay’s apartment. He did lied, neighbor. saying Prescott that no one however, Duvernay. obtain a warrant apartment except husband, was in the her fact, daughter, upper Street is located herself. Duver- Grove building nay appeared two-story packages also had with the floor of apartments only 542 and hand minutes contains numbered before and Prescott had January day voluntarily apartment. On admitted him to her 544 Grove. Judge Circuit, Cummings, J. * TheHonorable Walter United States Circuit for the Seventh by designation. sitting to confer labels had been for a few minutes removed. Fragments Russell left who had searched 546. partially the officers with burned labels were found floating Duvernay himself Having satisfied in the toilet bowl. there, Russell returned to 544 with

was not Prescott charged was as an accessory af- Francisco Police Foley of San Officer fact, ter the and convicted. This time the two knocked Department. responded. again and Prescott the back door II. VALIDITY OF THE INDICTMENT glass pane in the Communicating through Prescott claims that the evidence present- door, which Prescott declined to closed ed to the Grand Jury was insufficient identified them- Foley Russell and open, warrant .her indictment. The credentials, Jury Grand selves, and an- displayed their proceedings transcribed; were not looking for Duver- hence they were nounced shpw there stated, nothing is in the know the record to Prescott “I don’t what nay. government did, evidence the not, We have been here person next door. did present. mug merely Russell exhibited a Prescott speculates. a short while.” Duvernay and informed Prescott shot of indictment, An regular on its face for mail fraud. Duvernay was wanted and returned a legally constituted and no one was in Prescott insisted that Again unbiased Grand Jury, presumed to be husband, apartment except her who upon founded evidence, sufficient and a sleeping, daughter, and her who was ill. was heavy burden placed upon one who chal that she Russell then told Prescott could be lenges this presumption of validity, Martin harboring if were guilty of an offense she United Cir., 1964, 9 335 F.2d permission to search Duvernay and asked 949. Prescott’s showing is plainly insuffi asked, you “Do apartment. the Prescott cient. replied a warrant?” and Russell have nothing he did not. Prescott said in re- III. A REQUIRED WARRANT IS steadfastly but declined to unlock sponse her door. Prescott suppress moved to all fruits of into entry apartment, including all point, Foley

At this Russell and left and evidence that Duvernay and his packages briefly Duvernay searched for elsewhere. inside, had been found because the officers Finding nothing, they to the returned back had neither a warrant nor an excuse for not 544 and told Prescott they door of obtaining one. The judge district speak wished to to her husband. denied She motion. He took the agreed and returned a few minutes later view that Johnson, with James officers needed no who identified himself warrant to enter Foley apartment as James Prescott. Russell and they probable told because had cause they looking Johnson that were for Duver- to arrest Duvernay and to believe that he nay again requested permission and did, was inside. Believing, as he that a apartment. search Johnson refused. warrant was required event, not in any judge evidence, district took no and made Foley telephoned Russell and then ruling, no on the issue of exigent circum- Attorney’s United States Office to ask for “Forget stances. the exigent business,” he advice. At the conclusion of the conversa- counsel, told defense attempted who to ar- they tion returned and told Johnson that if gue that the officers could have obtained a the door were not unlocked in three quickly easily, warrant and without creat- seconds, they apartment would enter risk ing an undue that evidence would be forcibly. Johnson did not unlock the door destroyed Duvernay or that would flee. “It on the count of three the they seems to me that probable had cause They it in. immediately kicked located Du- Duvernay to arrest Mr. ... vernay packages, inside. Nine I believe including prepared they the three for the could come in there and get controlled deliv- him and ery, really were also found. All of the I’m not much packages impressed with the opened many had been of the mailing R.T. 31. facts.” 1348 of a man’s house in 844 of the order to arrest court cited section him on supporting probable his per legitimate Penal Code as cause is se is in

California required. That no warrant was conflict view that fundamental with the basic princi- peace statute, requires a officer de ple of Fourth law dwelling an inside a effect arrest siring to searches seizures inside man’s house explain pur admittance and to demand per without warrant are se unreasonable in entering, forcibly assumes pose before the absence of some one of number of ” purport entry and does not to ex lawful ‘exigent well defined circumstances.’ cuse, failure to situations the first in all 477-78, 91 S.Ct. 2044. event, any federal a warrant. obtain This ques Circuit never decided the law, law, controlling here on the state tion either. United v. Flickinger, whether warrantless question of Cir., 1978, 1353; F.2d p. 1349 at extent lawful. To the that he seizure is Masterson, Cir., 1976, States v. 529 F.2d statute, ruling on California based his 31; McLaughlin, Cir., United States v. judge was therefore error. the district 517, 520, denied, 1976, 525 F.2d cert. the district declined to rule Because court 1198; 49 L.Ed.2d exigent circumstances and issue Bustamante-Gamez, Cir., United States v. sup- evidence at the adduced because denied, 1974, 488 F.2d cert. hearing permit is insufficient to us pression 40 L.Ed.2d 559. so, presented are squarely we on this to do While we have stated in dicta that whether, question absent appeal with requirement warrant applicable “is have police officers who emergency, entry in cases of to search property, one they cause to arrest whom probable also in of entry cases a suspect,” arrest dwelling reasonably may believe to be in Cir., v. Phillips, a warrant dwelling enter the without F.2d and see United States v. carry out the arrest. order Calhoun, Cir., 1976, 542 F.2d 1102- Court has never resolved Supreme we never have before held. so It has this issue. held that need no opinion the Court in Katz v. felony suspect proba- arrest a on warrant to States, 1967, 347, United 389 U.S. 88 S.Ct. public place; a United States v. ble cause in 507, 576, 19 L.Ed.2d Mr. Justice Stewart 1976, 411, 820, Watson, 423 96 S.Ct. U.S. 46 says that “the Fourth Amendment protects 598; Santana, v. United L.Ed.2d States 351, people, places,” id. at 88 S.Ct. at 38, 2406, 1976, 49 96 L.Ed.2d S.Ct. 511. But gives the Amendment itself spe- However, expressly has re- Court 300. emphasis cial to the protection of people in occasions, served, “grave numerous on their “The right houses: of people to be whether question” of an “en- persons, secure in their houses a dwelling person to arrest rea- try into a against unreasonable seizures, searches and within, upon probable sonably believed shall not be violated . . . .” The sin- felony, he a that had committed un- cause gling out of “houses” suggests that appears where no reason circumstances der especially draftsmen were anxious to safe- warrant could not have been why an arrest guard “the sanctities of a man’s home and sought, consistent with the Fourth privacies Boyd of life.” v. United States, United Jones v. Amendment.” States, 1886, 616, 630, 116 524, U.S. 493, 499-500, 1253, 1958, U.S. 78 357 S.Ct. 532, 29 746. L.Ed. 1514; 1257, lso, 2 a L.Ed.2d United See This is consistent with the emphasis Watson, 418, supra, v. 423 U.S. at fn. States placed upon 820; sanctity of the 6, 1975, home in Pugh, Gerstein v. England 113, n.13, 854, immediately revolution, before the 103, U.S. S.Ct. 54; exemplified is well Mr. Coolidge Hampshire, v. Justice New 477-81, opinion Brennan’s 29 L.Ed.2d Miller United U.S. S.Ct. States, 1958, Cooiidge 564. In the Court stated dicta at 78 S.Ct. entry that notion that the warrantless “the at L.Ed.2d 1332. Pitt, the packages, certainty Earl their that to William ob- attributed Remarks jects they sought of debate in would be Chathan, the occasion found within on inci- would not have excused their on the searches failure to Parliament 1763] [in obtain a warrant. Had they gazed of an excise through the enforcement dent principle: packages window and observed the cider, eloquently expressed lying table, on a in plain sight, they would none- may cottage in his man poorest “The obliged theless have been to submit their of the to all the forces bid defiance magistrate evidence to a for his disinterest- frail; may its roof may It Crown. ed determination intrusion was it; neces- shake; may through the wind blow “Belief, sary. founded, however well enter; may the rain may the storm sought an article is concealed in a dwelling enter; cannot King England justification house furnishes no for a search force dares not cross enter —all his place Agnello without warrant.” tenement!” of the ruined threshold States, 1925, 20, 33, United omitted) (footnote 4, 6, 70 L.Ed. 145. “Any assumption S.Ct. said, that Pitt the same occasion was on support magis- that evidence sufficient to id., fn. his castle.” “Every man’s house [is] trate’s disinterested determination to issue 7. justify a search warrant will the officers in the Court surprising thus not It is making a search without a warrant would “physical entry long recognized reduce the Amendment to a nulli- [Fourth] which the against the chief evil home is ty people’s and leave the homes secure the Fourth Amendment is di- wording of police in the discretion of officers.” John- Dis- rected,” v. United States supra, son United Court, 1972, trict 68 S.Ct. at 369. and has tradi- 32 L.Ed.2d stringent sanctity “afforded the most of the home is no tionally less to the sanc- protection” object threatened when the entry Fourth dwellings. person, tity private seizure of rather than a 543, 561, Martinez-Fuerte, 1976, 428 U.S. 96 thing. magistrate’s A disinterested deter Only 49 L.Ed.2d governmental mination that intrusion is have been held circumstances exceptional warranted is no less desirable when the in- justify a search conducted policeman’s quarry suspect, sufficient is a rather than judicial home without autho- private piece side of evidence. requires a Constitution

rization. “[T]he Supreme As the California Court has not- of the pass on the desires magistrate ed, thoroughly it would he incongruous “to privacy they violate police before pay homage body to the considerable of law cannot be true to that constitu- We home. developed protect that has to an individual’s excuse the absence requirement and tional belongings from search unreasonable and . showing warrant without a a search of home, seizure in his and at the same time the situation made exigencies assert identical considerations do not imperative.” McDonald course safeguard the operate to individual himself 451, 456, States, 1948, 335 setting.” People Ramey, in the same 191, 193, 93 L.Ed. 153. “When 263, 275, 629, 636, Cal.Rptr. Cal.3d reasonably yield to privacy must right of 1340 (inbanc), denied, 1976, P.2d cert. is, rule, right of search as a to be 97 S.Ct. 50 L.Ed.2d 299. officer, judicial police- not a a decided reasoning equally applicable This when agent.” enforcement man or Government person, present is a third the home with Johnson v. United consent, the householder’s for whom the 367, 369, 92 L.Ed. 436. looking. The police are Third Circuit is of opinion in this case arrested in such a case a search Had the officers warrant, street, just and then entered an arrest warrant is re- Duvernay Virgin apartment solely quired. to search for Government Islands Prescott’s 914 at IV. Cir., 928. REFUSAL OF Gereau, 502 F.2d ADMISSION however, be- think, that the distinction We there may trial, Because be a new and in arrest war- warrant and an a search tween judicial economy, interests we con- The Fourth one. is an artificial rant sider claim that Prescott’s her refusal to let It makes no such distinction. enter apartment without a provides: constitutionally warrant was protected con- issue, upon prob- shall Warrants duct which should not have been considered [N]o cause, or affirma- supported e., Oath charged, evidence offense able i. describing the tion, place or particularly harboring concealing and Duvernay. searched, or persons things and to sought Defense counsel repeatedly be seized. to argue jury to the that Prescott was not called, warrant, it be must whatever obliged consent to the of her searched,” place “the to be here describe and apartment that her refusal do so persons things “the or and apartment should not considered as evidence seized,” par- and the Duvernay here to be against her. The court refused to permit cels. argument this line give and refused to a proposed stated, jury instruction which

joinWe the District of Columbia crime, part, cannot be a Circuit, States, 1970, nor can it be Dorman v. United “[i]t crime, evidence of citizen refuse (in banc), U.S.App.D.C. 435 F.2d 385 entry to his her home to a law enforce Circuit, the Second ment officer who does not that, appro have an Reed, 412, 1978, hold 572 F.2d priate proposed warrant.” The instruction circumstances, police exigent who absent law correctly, stated the in this least felony probable have cause to arrest sus case, there where was no forcible resistance. pect entering must obtain a warrant before prejudicial was error to permit dwelling carry out the arrest.1 government prove, as evidence of the there Prescott asks us to hold that were charged, offense that Prescott declined to exigent justify entry circumstances to no unlock her door when the officers did not points a warrant. out that her without She have a warrant. was five apartment located less than blocks House, Court from San Francisco’s Federal “When a law enforcement officer was well judges stocked with federal authority claims to search a home under magistrates early in the hours of the warrant, he announces in effect when the carried afternoon arrest was out. occupant right has no to resist the search.” argues also that had the officers de- She Carolina, Bumper v. North warrant, get Duvernay could layed 543, 550, escaped, have armed resistance was possibly When, hand, other the officer de unlikely given the nature of the non-violent entry warrant, mands but presents no there offense, and the evidence which is a presumption that the officer has no was not sought readily susceptible de- enter, right to because it is in certain However, judge struction. trial never carefully that, defined circumstances lack of question, reached this and we do not know a warrant excused. Camara v. Municipal showing government might what be Court, 528-29, to make in response 1727, able to Prescott’s con- 18 L.Ed.2d 930. occupant An can act We tentions. therefore think the bet- on presumption and refuse admission. proceed- is to ter course remand for further try whether, He not to need ascertain in a case, ings. particular the absence of a warrant also, States, Preliminary Proposed February 1978, of pp. 1. See Draft United Rule 41 at 70-72, Advisory to the of pp. Amendments Federal Rules Criminal Committee at Note Procedure, Committee on Rules of Practice and 73-76. Procedure the Judicial Conference

1351 to consents required is not surrender would not be “freely He and voluntar- excused. protection ily given.” on Bumper Carolina, Fourth v. North su- pra, 548, The Amendment of the officer. 391 at 88 so U.S. S.Ct. 1788. And see say right States, to refuse to 1968, a constitutional him Simmons v. United 390 gives U.S. His entry asserting 377, 389-94, 967, search. to consent 19 L.Ed.2d 1247. Camara, crime, supra, 387 be it cannot The rule that we announce does not 532-33, Nor 87 can it be at S.Ct. U.S. as have its raison d’etre the deterrence of District of Columbia of a crime. evidence unlawful law conduct enforcement offi 7, 468, 1950, 1, Little, S.Ct. v. cers, excluding the rule evidence does 471, 599: 94 L.Ed. in discovered and seized the course of an respondent objected to the Had Rather, pro unlawful to search. it seeks entry of her house without a officer’s right, tect the exercise of a constitutional warrant, might thereby she have the right here not to consent a warrant- objections. her waived entry. less in the home privacy holds right Supreme Court held that place system in our laws to' high too assertion defendant his constitution statutory interpretation justify a privilege against al self under incrimination punishment criminal on impose would the Fifth Amendment cannot be used than nothing respon- more who does one against holding him. In unconstitutional a' did here. dent provision per of California’s constitution omitted) (footnote mitting prosecutor on a de comment 1973, Bustamonte, also, v. Schneckloth See testify, fendant’s failure to Griffin Cali 233-34, fornia, 1965, States, Cir., 854; Miller United L.Ed.2d quoted the Court from Wilson F.2d 489-90. 1893, 149 States, 66, 13 v. United at penalized for One cannot be 37 L.Ed. 650: asserting right, regardless of passively “. . . the act was with a due framed as a criminal sus motivation. Just one’s regard also those who might prefer validly his Fifth Amend may invoke pect upon rely presumption of innocence to shield himself an effort privilege ment one, gives which the law to every and not Cole liability, criminal from wish to every be witnesses. is not one 437, 442; Cir., 1964, F.2d Unit safely who can venture the witness Cir., F.2d Courtney, ed stand, though entirely innocent may one withhold consent to a so charge against timidity, him. Excessive search, though pur one’s even warrantless facing nervousness when and at- others wrongdoing.2 to conceal evidence pose tempting explain transactions of a sus- character, forcibly entry picious charged resisted and offences Prescott Had against him, have a will em- might we differ- often confuse and apartment, her into opinion on that him to such a in- express degree We no barrass as to ent case. crease than passive prejudices We hold that rather remove question. one, against warrantless search is him. It is not however every to consent to a refusal honest, therefore, willingly cannot would conduct which be con- who privileged statute, placed witness wrongdoing. criminal stand. The as evidence of sidered use such a to the could refusal tenderness weakness those government If citizen, might who the causes impermis- an unfair from mentioned against witness, placed upon particularly the as- refuse to ask to be would be sible burden when right they may degree and future have been in some of a constitutional sertion nothing having with not reason she to do a search war- testified that did 2. Prescott spite motivation, prevent from rant. was to them of this she still had a let Johnson, right entry arresting an arrest warrant ask for a warrant and to refuse for whom produced. charge issued. It had when was had been none on a heroin 1352 Duvernay), association with case she by their have

compromised would let the others, case, failure of the officer in. either declares de- In whether the ar- request gument not, to in a criminal action to is made or fendant the desired infer- create any pre- ence well may by jury. shall be drawn be a witness the This against him.” is sumption why the evidence is inadmissible in the Hale, case of silence. United v. su U.S., 66, S.Ct., p. p. 13 766. 149 pra, 2133; 422 at U.S. Doyle S.Ct. Amendment” words “Fifth are If the Ohio, 1976, fn.8, 426 U.S. 96 S.Ct. “statute,” for for “act” and substituted 91; 49 L.Ed.2d Grunewald v. United the spirit the Self-Incrimination Clause States, 1957, 391, 421-24, 353 U.S. 77 S.Ct. on the is reflected. For comment refusal 963, 1 L.Ed.2d 931. It also why is the the testify “inquisitori- is a remnant of to evidence is inadmissible in the case of refus justice,” system Murphy al criminal al to let officer search. Comm’n, 52, 55, Waterfront 378 U.S. 1594, 1596, 12 L.Ed.2d S.Ct. evidence, Inadmissible which can Amendment outlaws. It is a Fifth readily misinterpreted by the jury, penalty imposed by courts for exercising just should not put be admitted to the rele privilege. a constitutional cuts down vant setting. facts in their true For the making privilege by its assertion Hale, reasons Doyle, stated and Grune 613-14, at costly. S.Ct. at wald, supra, the facts in are issue so ambig (footnote omitted) uous as to Moreover, be irrelevant. they subject are so readily to misinterpretation reasoning equally applicable is This to by jury toas render a protec curative or using her against defendant refusal to tive instruction dubious value. entry consent to into her home See Bru without a ton v. 129-31, The right protects warrant. to refuse both n.8, 476; 88 S.Ct. 20 L.Ed.2d guilty, the innocent and the and to use its Oregon, 1978, Lakeside v. against be, exercise defendant would 55 L.Ed.2d dissenting Griffin, penalty opin said in imposed Court Stevens, J., ion of by 1091. exercising courts right. suggestion A that the defendant the right entry

Because to refuse may when wish have her refusal admit the does the officer not have warrant brought jury before the is beside equally point. available to the innocent and the She can waive her right silent, guilty, just right as is the to remain by refuse entry voluntary consent “ambiguous” (Schneckloth the refusal is as as the Bustamonte, silence supra) just as Hale, was held United States v. a suspect can voluntarily waive his right to 171, 176-77, (Miranda Arizona, 1966, 45 silence by prosecutor Yet L.Ed.2d 99. use 694). entry, use refusal like of the silence She can by also waive not objecting to by the prosecutor, objec- can have but one refusal, evidence of her or testifying to jury guilt. herself, tive —to induce the to infer just In it as a defendant can waive his silence, of the prosecutor case can Fifth Amendment privilege by not object if argue that the defendant had nothing ing testimony as to his refusal to answer hide, keep he would not questions, silent. the case or taking the stand at his entry, prosecutor refusal can trial.3 long But so as there is no waiver on that, argue if the were try- part, defendant her refusal cannot against be used ing something (in to hide or someone her. recognized It is well that as an alternative to lished that prejudi- the evidence of refusal is so excluding ground evidence on yet it cial right that it can be excluded and confusing prejudicial, waived, necessarily the evidence can be exclude it is it follows that appropriate limiting with an admitted instruc- defendant could seek to introduce and ask for Advisory limiting tion. See to Rule Note 403 of the instruction. Federal Rules of Evidence. Once it is estab- V. about hearing from TELLING LIES

Preventing jury the device commonly used at all is refusal the Finally, argues Prescott that we 103(c), F.R.Evid.: Rule error. See to avoid reverse, should not but order dismissal cases, pro- jury. jury Hearing of (c) charge, lying of the because her about Du conducted, the extent to ceedings shall be vernay’s presence apartment in her not a prevent to inadmissible so as practicable, violation of 3. She relies on U.S.C. § the suggested to being from evidence supra, Miller United and on Unit means, making as state- any such jury by Foy, Cir., ed F.2d ques- asking or proof or offers ments Magness, and Cir., 1972, the hearing jury. in the tions F.2d 976. Those cases do stand for the as in just appropriate here is use Its that such a lie is proposition not itself a privi- Amendment involving the Fifth cases follow, violation of It does not § how lege. ever, that the charge must be dismissed. true, at dissent demonstrates as the It is Prescott did more. Duvernay She received some do attach length, that costs elaborate apartment, together in her with the fruits in- rights, constitutional the exercise of to crimes, kept of his and him there while he privilege Amendment cluding Fifth opening the parcels was and removing and the Fourth self-incrimination and against to attempting dispose of the labels. Her to subjected not to be right Amendment would be lying evidence as to her intent in It does searches and seizures. unreasonable doing what she did. cost im- such a should be not follow that readily in which it can so in case be posed Reversed and remanded for pro- further The asserts as in this one. dissent avoided ceedings. evidence refusal to excluding a rule that one is in a case like this admit SNEED, Judge Circuit in (concurring Yet, it does not tell us how “mischievous.” part dissenting part): and deny The does not that the why. dissent merely asserts ambiguous. refusal I concur in opinion the court’s with the should be admitted so the evidence that exception of respect- Part IV from which I can, jury despite ambiguity, that fully dissent. an inference from unfavorable to draw IV Part enunciates a novel rule of consti- exactly why This is defendant. proportions tutional primarily drawn from evidence, ambiguous rath- admission applicable precedents to Fifth Amend- exclusion, is than “mischievous.” er its privilege against ment self-incrimination retrial, proceed case Should the made appendage and here to the Fourth to ex district court should take care from immunity unreasonable clude all evidence Prescott refused signif- search seizure. The functionally and, if search the evidence consent question posed by icant novel majority’s inadvertently, should instruct comes is, rule “Must evidence exercise of privileged refusal was jury that Prescott’s right the Fourth Amendment to resist be as evi conduct which cannot considered search without a warrant be excluded charged. govern the crime dence of option charged a defendant with proving should be restricted ment assisting a federal offender in order to hin- apartment came to Prescott’s the officers prevent apprehension, der or in violation denied Duvernay; Prescott of 18 when the search § U.S.C. was based there; they entered he was exigent circumstances not in viola- there, thus and found him apartment tion of the defendant’s Fourth Amendment They false. showing denials rights.” majority yes answer mat- as a they to show that permitted not be should law. I respectfully ter of door, as this would lead down the broke because I think the refused dissent answer should that Prescott had the conclusion no. enter. permission Griffin, Grunewald, such as

I. Doyle, and Hale, 171, United States v. 422 U.S. 95 S.Ct. Rights The Exercise Of Constitutional 2133, (1975). are, 45 L.Ed.2d 99 There on Not Be Without Costs. Need hand, the other recognize decisions which has not framed the issue as majority The not every contribution to testimonial I have. To them admission of precisely as compulsion by is barred the Constitution. of a refusal to admit the the evidence Repeated questions on cross-examination prosecutor equivalent of a would be the reasonably related to the direct examina on the commenting defendant’s failure to tion provoke that could the exercise of the post-arrest proscribed silence testify or his privilege are a hazard which a defendant California, 609, Griffin v. 380 U.S. 85 by must confront in deciding whether he will 1229, (1965) 106 and Doyle 14 L.Ed.2d S.Ct. take the stand on own behalf. United 610, Ohio, v. 96 426 U.S. S.Ct. 49 Hearst, 563 (9th F.2d 1341 (1976). principle The on L.Ed.2d 91 1977), denied, Cir. cert. 435 U.S. they rely in its sweeping was stated most (1978). S.Ct. 56 L.Ed.2d 90 Com Cf. in by form Mr. Justice Black his concurring Party munist of United States v. Subver Grunewald, opinion in Board, sive Activities Control S.Ct. (1960). S.Ct. 6 L.Ed.2d 625 (1957). There he said: That the may hazard exists induce him to special “I can think of no circumstances refrain from testifying, in which case the justify use of a would constitutional purpose of the Fifth privilege Amendment privilege person to discredit convict is served while the to right is testify im who it. The value of asserts constitution- however, paired. It might, induce the de al privileges largely destroyed per- if testify fendant to in a manner that elimi penalized relying sons can be any necessity nates to claim the privilege, them.” in which case the hazard has contributed to (Italics added). compulsion the testimony. Or, finally, The process rights due under Fifth the hazard may be accepted, Hearst, as in Fourteenth Amendments of Consti- and the privilege claimed as needed on require that tution the exercise of constitu- recognize cross-examination. All that un rights tional must free penalties be im- der such circumstances the exercise of the posed by say courts Mr. Black Justice privilege is not free of cost. majority.1 difficulty with this is that no broad principle such exists. claiming Nor is privilege by refrain- ing taking from the stand exist, without its costs it probable If were to its most every as attorney defense knows. Cf. Unit- manifestation would be connection with - ed Grayson, States v. -, Fifth privilege. Reducing 2610, 57 (1978) L.Ed.2d 582 cost Mr. exercising privilege is com- Justice - dissenting, p. n.5, Stewart patible purpose, with its viz. the proscrip- 2610. Such compulsion. by tion of testimonial costs could per- Schmerber be reduced California, 757, 764-65, mitting the defendant to determine wheth- (1966). Any jury 16 L.Ed.2d er the given burden should be a cautionary designed whatsoever exercise can viewed instruction to preclude an adverse Therefore, contributing compulsion. as to being inference from drawn his failure surprising it is not that we have testify. Supreme decisions recently Court majority acknowledge 1. The and, in revisions in say slip Heve to be erroneous as I response op. p. dissent that “some costs do qual- This latter “mischievous.” rights ity attach to the exercise exists because extent to which an ac- ”, However, p. principle . See can cused use the to distort selective- reasonably majority ly clear surrounding entry continue the facts to search required reasonably predicted view their result constitu- cannot be within the lim- normally require tional It law. is this belief con- promulgating its we sound requires principles I be- stitution their result which of law. was held that it was not improper See Lake- for a so the costs. reduce refused prosecutor, negotiating with the defend- Oregon, side (1978). plead An fur- ant to guilty, even threaten to L.Ed.2d 319 reindict claiming a more of the costs defendant on serious charge, reduction ther by requiring probable achieved which the had prosecutor could be cause to privilege charged that claim jury committed, believe had the defendant if the Diligent innocence. is evidence of plea forthcoming, was not privilege carry out which has in reveals no instance that threat when the rejected defendant considered; charge to so in- yet not plea bargain. been juries will draw the chances creases II. the failure to testi- inferences from

adverse fy- The Principle Appreciable of Impairment. costs, thought albeit to be only are Not A definitive treatment of the entire issue amount, the proper attached to in tolerable properly of the “costs” that may be visited privilege, of Fifth exercise those exercising on rights in can be assessed very substantial costs justice process the criminal appears in privi to exercise the improper efforts for Stynchcombe, 17, 30-31, Chaffin v. 412 U.S. contempt, ex Imprisonment for lege. 93 S.Ct. 36 (1973). L.Ed.2d 714 unjustified result of an can be the ample, Mr. majority opinion Justice Powell’s stat- alleged Fifth Amendment refusal ed: grand jury. a testify before Cf. grounds Jackson, “Jackson States v. 390 [United States, 41, 79 359 U.S. v. United Brown 570, 1209, U.S. 88 20 S.Ct. L.Ed.2d 138 (1959), 539, overruled on 3 L.Ed.2d 609 S.Ct. hold, (1968)] did not as subsequent deci- States, v. United 382 Harris grounds, other clear, sions have made the Constitu- 352, 15 (1965), 162, L.Ed.2d 240 86 S.Ct. U.S. tion every government-imposed forbids Commission, v. 378 Murphy Waterfront choice process in the criminal that has the 1594, 52, 12 678 84 S.Ct. U.S. discouraging effect of the exercise of con- Fischel, (9th 557 F.2d 209 Matter of (1964); rights. stitutional v. Brady United Moreover, 1977). good a faith belief in Cir. 742, S.Ct. of the privi soundness of assertion (1970), L.Ed.2d 747 Parker v. North Caro immunity from con provide not lege does lina, 397 U.S. S.Ct. R. Witte Matter of Fred Center tempt. Cf. (1970), L.Ed.2d 785 and North Carolina v. (9th 1976). Cir. 544 F.2d 1026 No. Glass Alford, S.Ct. recently held Supreme also The Court (1970), L.Ed.2d 162 defendants entered of can attached to exercise costs in pleas guilty po- of order avoid the right, 28 statutory U.S.C. defendant’s “a tential of death imposition sentences perhaps right a constitutional § jury. was dissuaded Each from exercis- his own behalf.” testify on jury his ing rights plead trial and to p.-, Grayson,-U.S.-, was, sense, in ‘dis- guilty. not Each (1978). To p. 57 L.Ed.2d asserting rights, but couraged’ his from in sentencing judge to consider permit the Court found no constitutional infirmi- proba- the defendant’s sentence fixing ty the claim in despite each case that testi- of the defendant’s untruthfulness ble compelled contrary Jackson result. impair impermissibly held mony was Brady particularly instructive. testify. The bur- right the defendant’s Court there canvassed several common not considered intolera- of the risk was den circumstances which plea-bargaining ble. the accused is confronted with the ‘cer- attending tainty that, probability’ the ex- if he deter- tolerable risk Another right plead mines inno- right recently was to exercise a constitutional ercise of trial, jury cent he will Hayes, and to demand in Bordenkircher recognized (1978). higher receive a sentence than would 54 L.Ed.2d 604 is, rights. of ment’s case. That a waiver those whether the assertion have followed Although not, at itself is admissible or the familiar ex- discourag- clusionary has a rule is available protec- circumstance to afford every such tion to the against on the defendant’s assertion defendant ing “arbitrary effect these imposition government invasions officials.” The rights, de- his trial upheld as an inevita- the majority’s choices was fendant needs rule when difficult any legitimate system it she rights is established that ble attribute asserts encourages nego- extent, no do exist. To tolerates least omitted). (Footnote theory, are pleas.” the defendant’s Fourth Amend- tiation rights impaired by ment the admission in Powell, Justice invoking Mr. Mr. Justice they evidence of the fact have been Ohio, Crampton opinion Harlan’s asserted. California, case to McGautha companion 183, 91 28 L.Ed.2d 711 majority’s concern perhaps is with (1971), way: matter this put possibility nub the remote that one answering knock the of demanding entrance to inquiry, very its by that the “Recognizing search, aware that his nature, refusal Fourth case-by-case on a must be made grounds might Amendment come out in a Crampton indicated basis, the Court ] [in later, trial some time timidly will admit the question is whether the ‘threshold protest. Although officers without it re- impairs ap- an the election to compelling mains unclear how such admission would of be- any policies extent the preciable impair any rights, Fourth Amendment per- rights 412 U.S. at the involved’.” hind the haps majority timidity believes that S.Ct. at 1985.

bemay construed consent to the search that, event, in any and a firm insistence on III. rights Fourth Amendment furthers the of Fourth Appreciable Impairment No purposes. Amendment’s Amendment Policies. unpersuaded. I am lawyer, Even a much within the of the anal- Placed framework one less who is a lawyer, unlikely not is to Powell, the ysis Justices Harlan and of the permit possibility that by his assertion visiting de- upon is whether the question rights Fourth Amendment might be admit- in this case the admission of her fendant in ted evidence in a prosecution later to rights assertion of her Fourth Amendment response influence his policeman’s to a subjected her to an election between knock and demand to enter and search. forsaking asserting rights her that “im- More immediate govern concerns will his pairs an of appreciable any to extent the response. Nor it likely that a mere timid policies” rights. behind Fourth Amendment failure to assert Fourth rights Amendment purpose The Amendment’s “is safe- will be interpreted as consent to search. guard security privacy See, the of States, individu- Amos v. United 255 U.S. against arbitrary als invasion of govern- (1921); S.Ct. L.Ed. John- v. Municipal ment officials.” Camara son United 333 U.S. Court, 1727, 1730, 367, (1948); L.Ed. 436 United States v. (1967). impairment 18 L.Ed.2d 930 No to Page, (9th 1962), F.2d Cir. en an extent appreciable (Opinion would result from the by J.). banc Duniway, And final- in admission of defendant’s assertion ly, of inadmissibility the assertion Fourth case. That this is so becomes clear quickly Amendment rights not likely to embolden exigent when it is remembered should those less inclined assert those rights. war- justify circumstances not exist Aside from the fact the cases which prosecution search all rantless basis come before this court timidity reflect no in disappears. presence asserting defendant The Fourth rights, Amendment Duvernay parcels apartment link inadmissibility causal between and the leaving nothing of govern- vanishes with vigor which Fourth rights Amendment travenes the Fourth Amendment than justify does is too attenuated asserted are impair will admissibility proper search based on a warrant. conclusion policies of any extent appreciable an inculpatory nature of the assertion Amendment. the Fourth play calls into no Fifth Amendment consid must, that recognizes, as majority erations. The assertion bears no mark of pur- to the deterrent compulsion; is unrelated its rule testimonial defendant was rule exclusionary devised by served not when it. pose custody she made Miranda policies of Arizona, to further the courts by the law The conduct of (1966).

Fourth Amendment. L.Ed.2d 694 It is true but for will uninfluenced enforcement coming the officers to the defendant’s door fact, majority's as in theory, as well there would have been no assertion of which, will be need- repeat, generally I rule rights; Fourth Amendment this does none of his only when the accused ed confrontation with the offi make her vio- been rights have Fourth cers police interrogation.” a “custodial prop- based on searches Warrantless lated. Irion, F.2d are a second exigent circumstances er (9th 1973). 1244-45 Cir. Admission of the asser Amend- the Fourth under of searches class impair appreciable tion will not ex discouraged. judicially that should ment Fifth any policies tent Amend enforcement, are necessary to law are They ment. interest, violative of and not public in the Nothing contrary I have said is Amendment. the Fourth Little, holdings of District of Columbia (1950), L.Ed. IV. Court, Municipal and Camara Of Fifth Impairment Appreciable No (1967). 18 L.Ed.2d 930 Policies. Amendment of The defendant’s assertion Fourth if without rights, Amendment even founda- case which problem true The tion, constitute the crime with which cannot that, although admission is presents jury on re- charged. the defendant is Amend- of Fourth assertion defendant’s so trial should be instructed. Little and apprecia- an impair to does not rights ment support proposition do not Camara the Fourth of policies ble extent rights an assertion of Fourth Amendment is to incul- Amendment, tends the assertion prosecution inadmissible in a such as before the crime of of the defendant pate us. To extend the reach of these cases majority. troubles charged. This she is point inculpatory confuse evi- issue is principle the do so. In not should aof crime with the dence elements of by an presented from no different evidence, Perhaps majority crime. believes prose- in a from to exclude effort only by excluding evidence of the assertion fire- of a by felon possession cution for jury prevented convicting can the from 1202, good arm, U.S.C.A.App. § under 18 solely ground of the assertion con- erroneous, felon faith, assertion trary holding of Little Camara. that notwithstand- agent to an undercover so, has more proper- If exalted a situation Amendment entitled law the Second ing the 403, Fed.R.Evid., Rule into a ly governed by The asser- arms.” keep bear him “to of constitutional law. principle mischievous I think ad- should inculpatory, tion is missible, notwithstanding its reference suspect right. I

supposed V. had the offi- majority agree would Holding Respect With To Part What Our with a equipped themselves this case cers in To Ought .IV Be. as- had the defendant warrant and proper But, inescapable was invalid. that admis- the warrant conclusion serted that based on sion of her warrantless search of defendant’s assertion Fourth repeat, no con- in this case rights circumstances more would proper exigent any of the appreciable extent to an impair the Fourth or Fifth

policies either Therefore, I would hold that

Amendments. the exercise the defendant

evidence right to resist a Fourth Amendment

of her warrant can be without a admitted evidence, either the option defense, any retrial of the

prosecution or charges having violated 18

defendant admitted, jury If should be

U.S.C. § required cautionary instruction

given the This would

by Little and Camara. unjust under the circum- result because occur, will of this case a retrial

stances if the warrantless search was

repeat, only suppression

proper; improper, if will make a trial and

fruits of the search extremely unlikely.

conviction America, Plaintiff,

UNITED STATES SHERMAN,

John William and Therese Defendants; Coupez,

Ann Company, a Delaware Cor-

Seattle Times Wilson,

poration, and John Arthur

Petitioners-Appellants. COMPANY, a TIMES

SEATTLE Corporation,

Delaware and John Wilson, Petitioners,

Arthur STATES DISTRICT COURT

UNITED OF

FOR the WESTERN DISTRICT

WASHINGTON, Respondent. 78-2492, 78-2493.

Nos. Appeals,

United States Court

Ninth Circuit.

Sept.

Case Details

Case Name: United States v. Saundra Prescott

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 14, 1978

Citation: 581 F.2d 1343

Docket Number: 77-2574

Court Abbreviation: 9th Cir.