UNITED STATES of America, Appellee, v. William Michael FARUOLO and Anthony Bernardez, Appellants.
Nos. 1126 and 1227, Dockets 74-1350 and 74-1802
United States Court of Appeals, Second Circuit
Argued July 17, 1974. Decided Oct. 29, 1974.
491 F.2d 490
[D]ue regard for the co-equal responsibilities of the state courts in determining constitutional issues and a recognition of their superior ability in this type of case where the state court has seen and heard the witnesses mandate that we accept their resolution of the facts against petitioner.
Stidham v. Swenson, No. 20,685 (8th Cir., filed March 28, 1974) (Slip op. at 13) (Gibson, J. dissenting).
I view the state courts’ proceedings as procedurally adequate and their findings substantively correct and would affirm the finding of the District Court, Stidham v. Swenson, 328 F.Supp. 1291 (W.D.Mo.1970), that Stidham‘s confession was voluntary without a remand for an evidentiary hearing.
James E. Eagan, New York City, for appellant Faruolo.
William Epstein, New York City (William J. Gallagher, Legal Aid Society, New York City), for appellant Bernardez.
Before MULLIGAN and WINTER,* Circuit Judges, and NEWMAN,** District Judge.
MULLIGAN, Circuit Judge:
These are appeals taken by Anthony Bernardez and William Faruolo from judgments of conviction entered on March 8, 1974 in the United States District Court for the Eastern District of New York, following the acceptance, on November 12, 1973, by District Judge Edward R. Neaher, of their pleas of guilty to the second count of a two-count indictment. Count one charged the appellants and six others1 with receiving and possessing goods stolen from interstate commerce,
Appellants’ sole contention on these appeals is that the district court erred in denying, after a hearing, their motion to suppress contraband which was seized without a warrant from Faruоlo‘s home.2 We agree with the district court that Faruolo voluntarily consented to the search and therefore affirm.
I
On August 10, 1972, Special Agent John Egan of the FBI received a report that a truckload of women‘s dresses and wearing apparel, which was being transported by Interstate Dress Carriers, Inc., had been hijacked earlier in the day. During the subsequent investigation, the truck driver provided a descrip-
* Of the United States Court of Appeals, Fourth Circuit, sitting by designation.
** Of the United States District Court, District of Connecticut, sitting by designation.
At approximately 11:13 on the morning of August 14, 1972, Egan observed a U-Haul rental truck pull away from the front of the Marco residence. The truck had a lock on the back and was followed by a green Cadillac with New Jersey license plates. After losing sight of the vehicles for a short time, Egan located them parked in the vicinity of the Staten Island home of appellant William Faruolo, where the truck was being unloaded by Faruolo, his son and several of the other named defendants. Its contents, which included some “Hangerpack” containers, were being carried from the truck into Faruolo‘s house through a side door.
At about 12:45 p. m., the unloading operation completed, Egan followed three of the defendants to the Country Club Diner on Staten Islаnd where they met with John Pastore. Defendant Richard Marco, Jr. and Pastore left the meeting together and the two were observed to drive to 45 Vera Street, Staten Island. There, Marco picked up a second U-Haul which he drove to Faruolo‘s home, where it was unloaded by several of the defendants. Special Agent William Edwards, who had joined Egan in the investigation, saw them taking large brown “Hangerpack” cartons, as well as hanging garments in plastic bags, from the truck into the Faruolo house.
At approximately 3:30 or 4:00 p. m., when it appearеd that they were finished and that some of the defendants were about to leave, Edwards, accompanied by a number of other agents, moved in to make the arrests. Edwards, with his gun drawn, proceeded to the back yard of the Faruolo home where he found Faruolo standing alone near a blue panel truck. Through the truck window, he could see that it was fully packed with hanging garments and on the ground beside the truck were folded “Hangerpack” cartons. After placing Faruolo under arrest, Edwards advised him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), except that he omitted to advise him that he had the right to have counsel appointed if he could not afford an attorney. Faruolo just placed his head in his hands, evidencing a state of disbelief. Edwards did not search him for weapons or place handcuffs on him at that time but he did keep his gun drawn for several minutes until he thought that the situation was under control. He requested that Faruolo be seated at a picnic table and they waited for other agents. Faruolo made no statements during this time other than giving his name, admitting ownership of the house and identifying his seventeen-yеar old son, who stepped out into the yard for a brief period. Edwards did not speak to the young man but he did suggest to Faruolo that he should direct him to return to the house, which was occupied by Faruolo‘s wife, among others.
When Egan and Agent Thomas Armstrong arrived, at most, no more than five minutes after Faruolo‘s arrest, Edwards holstered his gun and informed Egan that the individual under arrest was Faruolo, that it was his house and that he had been given his Miranda rights. Egan then advised Faruolo that he was an FBI agent investigating a hijacking and asked him for permission to search his house. Faruolo was informed that he did not have to permit the search if he did not want to and that the house would not be searched without his consent. Egan, however, did point out that if Faruolo did not consent, a search warrant would be applied for and further conveyed his belief that one would be issued. He also stated that a warrant, because of the late hour, probably could not be obtained until the following morn-
Faruolo was subsequently left in the custody of Special Agent Charles Steadman, while Egan and Edwards proceeded with the search. Faruolo and Steadman went into the house where Steadman correctly and fully advised Faruolo of his Miranda rights. Faruolo consented to an interview, during which he admitted that he knew the merchandise was stolen, but he then indicated that he would like to speak to an attorney before answering any more questions and the interrogation terminated.4
II
Appellants’5 principal argument on appeal is that the facts established at the suppression hearing failed to show by clear and convincing evidence that Faruolo‘s consent was freely and voluntarily given. Specifically, it is urged that Faruolo reluctantly signed the consent form because he feared that the agents would arrest his seventeen-year old son whom they had observed unloading the contraband and also because of Egan‘s representation that he could get a sеarch warrant.
We adhere to the view reaffirmed in United States v. Mapp, 476 F.2d 67, 78 (2d Cir. 1973) that we must look to the “totality of the circumstances” in determining whether a consent to a search is voluntary or not. Looking at all the circumstances, we conclude that the Government here satisfied its burden of establishing that Faruolo‘s consent was freely and voluntarily given. After an evidentiary hearing in which agents Egan, Edwards and Steadman as well as the appellant Faruolo testified, the district court found that:
Egan did not state that Faruolo‘s wife or son would be prevented from leaving the house [if a warrant could not be obtained until thе following morning]. Nor did he, or any other agent, threaten that either wife or son would or could be arrested.
Record at 376. These findings were consistent with the testimony of the agents and the only evidence to the contrary was Faruolo‘s testimony which Judge Neaher said he disbelieved. Id. The issue was one of credibility which the district court, who saw and heard the witnesses, resolved in favor of the agents. United States v. Fernandez, 456 F.2d 638, 640 (2d Cir. 1972).
The argument is reduced therefore to the proposition that Egan‘s statement that he would apply for a warrant, which conveyed thе impression that one would be obtained, constituted a coercive factor negating consent. In comparable cases this and other courts6
In United States v. Bracer, 342 F.2d 522 (2d Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 427, 15 L.Ed.2d 359 (1965), the defendant was arrested while in possession of drugs but he did not consent to a search of his residence until he was advised that a warrant would be obtain-
son of the fact that before signing the form the defendant asked the police officer if the officer could get a search warrant and the officer replied ‘Yes, we probably can.’ The officer‘s statement was in response to defendant‘s inquiry, and it was not a misrepresentation of the facts.”
Notes
aware of that fact. Thus, when the defendant remarked, “If I don‘t sign this, you are going to get a search warrant,” an agent responded, “I don‘t want you to sign it on that basis.” Although we expressed some reservation about what the result would have been had the agent allowed the defendant to base his consent upon the mistaken belief that a warrant could be obtained, we upheld the consent as voluntary since the defendant was aware of his right to resist аnd the agent had not misled him.
In our view, in light of these cases, the well founded advice of a law enforcement agent that, absent a consent to search, a warrrant can be obtained does not constitute coercion. There is an admission by the officer that he has no right to proceed unless the defendant consents. There was in fact, here, a fair and sensible appraisal of the realities facing the defendant Faruolo. No person, even the most innocent, will welcome with glee and enthusiasm the search of his home by law enforcement agents. However, in view of all the circumstances9 which we have detailed, we are persuaded that after realizing the facts, including that he had the right not to consent, Faruolo decided freely and voluntarily to consent to the search.
The argument that Miranda warnings are a prerequisite to an effective consent to search is not at all persuasive. The contrary was implicit in United States v. Mapp, supra, 476 F.2d at 76-79, where no Miranda warnings were given, and explicit in United States v. Kohn, supra, 365 F.Supp. at 1034. There is no possible violation of fifth amendment rights since the consent to search is not “evidence of a testimonial or cоmmunicative nature.” Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966).
Affirmed.
NEWMAN, District Judge (concurring):
This case involves determination of the voluntariness of consent to a search obtained in response to an agent‘s statements concerning his procuring of a search warrant. I concur in the Court‘s opinion affirming the convictions because the decision to affirm is no more than an application of controlling precedents of this Circuit to the issues presented. However, the case is for me a close one, and I think additional words are appropriate to indicate the seriousness of defendant‘s claim and to suggest that in cases of this sort, the line surrounding permissible governmental statements about search warrants should be drawn not one whit beyond the facts of this case.
It has become a frequent practice for courts to state as a general rule the Government‘s heavy burden to establish the voluntariness of consent to a search and then to find that burden met. Assessment of the “totality of the circumstances,” United States v. Mapp, 476 F.2d 67, 78 (2d Cir. 1973), and a reluctance “lightly” to overturn trial court fact-finding on the issue of consent, United States v. Bracer, 342 F.2d 522, 524 (2d Cir. 1965), have combinеd to produce a rarely broken line of cases in which findings of consent have been upheld. See, e. g., cases collected in Annot.: Validity of Consent to Search Given by One in Custody of Officers, 9 A.L.R.3d 858 (1966). Neither consideration, however, should insulate cases of this sort from careful scrutiny. The Supreme Court has recognized that despite abundant evidence of willingness to permit a search, consent sufficient to validate a warrantless search is not properly found when obtained in response to certain representations by law enforсement officers on the subject of
In this case, the District Judge made the following finding of fact as to what the agent said to the defendant concerning a search warrant:
Egan further stated that if Faruolo did not consent to a search, a search warrant would be applied for, and he conveyed to Faruolo the belief that a warrant would be obtained.
The danger inherent in predicating consent upon a defendant‘s response to such a statement is perhaps more clearly discernible if the facts are transposed to the analogous context of waiver of an indictment. Both the warrant and the indictment procedures are designed to assure that a neutral fact-finder intervenes to determine whether probable cause has been established before a home can be searched or a defendant placed on trial. The requirement of a warrant can be obviated if there is voluntary consent; an information can be filed if the accused waives indictment. Generally, waiver of indictment occurs only after a meticulous inquiry of the defendant by the trial judge, in which the defendant is told (a) what a grand jury is, (b) that he has a right to have
his case considered by a grand jury, (c) that a grand jury may either indict or decline to indict, and (d) the consequences of each alternative action. One may speculate whether an accused would be considered to have validly waived indictment if the waiver proceeding consisted solely of the prosecutor‘s telling him that if he did not consent to a prosecution by information, an indictment would be applied for and, in the prosecutor‘s view, an indictment would be obtained.
The analogy is not exact, but it does highlight the dangers involved. Were the slate clean, I would be inclined to reject a finding of voluntariness obtained in response to statements about the obtaining of a warrant that did not in some way affirmatively communicate the discretionary aspect of the warrant-issuing process. If a person is confronted with only the choice of permitting an immediate searсh without a warrant or waiting the brief interval necessary for a warrant to be obtained, he is misled into believing that the only variable in the choice is time, rather than the far more important variable of whether the warrant will be issued at all. If he consents because he has been led to believe that obtaining a warrant is a virtually automatic formality, then regardless of his apparent willingness to permit the search, he has responded to a situation as “instinct with coercion” as the one in Bumper, where the officer gained entry not with the assurancе that a warrant could be obtained, but with the statement that he had already obtained one. Bumper v. North Carolina, supra, 391 U.S. at 550, 88 S.Ct. 1788. If the waiver on which consent to a search is premised is really to be the “intentional relinquishment of a known right,” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), there ought to be some indication that the warrant-issu-
On two occasions this Court has left open the significance of an agent‘s statement concerning the likelihood of obtaining a search warrant. In United States v. Jordan, 399 F.2d 610 (2d Cir. 1968), the defendant heard one agent say to another that a warrant could be obtained in any event. This Court upheld a finding of consent because “[e]ven if this last statement were held to be coercive,” it did not vitiate the oral consent that had preceded it. Id. at 614. In United States v. Curiale, 414 F.2d 744 (2d Cir. 1969), the defendant himself said to the agent, “If I don‘t sign this, you are going to get a search warrant,” to which the agent replied, “I don‘t want you to sign [the consent to search form] on that basis. If you are going to sign it, do it voluntarily.” Id. at 746. Perceiving the dangers lurking in such conversations, this Court specifically declined to decide whether the voluntariness of the consent “would have been compromised by the agents’ complete failure to respond to the appellant‘s statement.” Id. at 747.
Two other decisions, however, uphold a finding of consent in response to statements no more coercive than what was said here. In United States v. Bracer, 342 F.2d 522 (2d Cir. 1965), consent was found notwithstanding that it was given “with knowledge that the agents could or would obtain a warrant.” Id. at 525. In United States v. Kohn, 495 F.2d 763 (2d Cir. 1974), consent was found notwithstanding the agent‘s statement that they “had the ‘right’ to get one, and that since it was so late they would have to ‘secure’ the premises, leave a guard, and return with a warrant in the morning.” United States v. Kohn, 365 F.Supp. 1031, 1033 (E.D.N.Y.1973).
I agree with Judge Mulligan that these decisions permit a finding of consent to be made notwithstanding an agent‘s having expressed his well-founded view that a warrant can be obtained. But two qualifications ought to be emphasized.
First, the agent should be permitted to do no more than give his prediction. Even if he need not explain the discretionary aspect of issuing warrants, he surely should not be permitted to convey the idea that no discretion exists. Any intimation that the warrant will automatically be issued should be considered as coercive as the announcement of an invalid warrant in Bumper. Drawing the line at this point admittedly makes validity of consent turn in some instances on subtle shifts of wording by the agent. But words spoken in the process of obtaining consent to waiver of a constitutional right ought to be chosen with care. The officers are not proceeding in haste to make a split-second decision of their authority to apprehend a fleeing suspect. They face a situation that normally calls for the delay necessary to obtain a search warrant. If they are to forego this requirement, it should not be too much to ask that they take care not to confront the accused with a choice that totally obliterates the important protective function of the warrant-issuing process. The agent can always be on the safe side of the line by plainly indicating that he will apply for a warrant and believes one will be issued, but that the decision whether to issue the warrant rests with the judge or magistrate to whom the agent will apply. Here, according to the District Court‘s finding, the agent stated he would apply for a warrant and predicted its issuance. Whether the prediction was reasonable should not be determinative. That inquiry focuses on what was in the mind of the agent. But determination of consent must focus on the effect of the agent‘s words upon the defendant. While the words used here did little to convey the discretion-
Secondly, trial courts considering the voluntariness of consеnt obtained in response to statements about procuring warrants need not rush to find consent whenever the agent‘s verbal formula falls within the ambit of language approved in Bracer, Kohn, and this case. If consent is really to be determined upon a totality of the circumstances, then the extent to which an agent minimizes the nature of the choice confronting a householder ought to weigh significantly against a finding of consent. Nearly fifty years ago Judge Learned Hand urged District Judges considering search and seizure questions to “search the testimony in such casеs with care, remembering that the protection of defendants must in most cases rest finally with them.” Marsh v. United States, 29 F.2d 172, 173 (2d Cir. 1928).