Allan L. Robbins, Warden, Maine State Prison v. Kenneth MacKenzie

COFFIN, Circuit Judge

(dissenting).

I am unable to concur in the court’s opinion. In my view it does not measure the facts by the rigorous standard required; goes beyond precedent in construing consent from ambiguous conduct; and establishes a novel and unworkable double level of Fourth Amendment rights.

When entry into a person’s premises by officers of the law not having a warrant is sought to be justified by that person’s consent, the applicable standard is a rigorous one. A “[c] onsent to a search, in order to be voluntary, must be unequivocal, specific and intelligently given, uncontaminated by any duress or coercion, and is not lightly to be inferred.”1 Simmons v. Bomar, 6 Cir., 1965, 349 F.2d 365, 366. There must be “clear and positive” evidence of such consent. United States v. Smith, 2 Cir., 1962, 308 F.2d 657, 663, cert. denied, 372 U.S. 906, 83 S.Ct. 717. There is a burden on the government to show “clearly” that consent was “freely and intelligently” given. Kovach v. United States, 6 Cir., 1931, 53 F.2d 639.

In assessing the voluntariness of consent, the coercive effect of an unexpected confrontation with an officer of the law must be carefully weighed. In United States v. Smith, supra, 308 F.2d at 663, the court said, “When a law enforcement officer knocks at the door, identifies himself, and asks to be allowed to search the premises, the acquiescence thus obtained is generally not considered to be voluntary consent”. In Judd v. United States, 1951, 89 U.S.App.D.C. 64, 190 F.2d 649, 651, the court said, “Nonresistance to the orders or suggestions of the police is not infrequent * * *; true consent, free of fear or pressure, is not so readily to be found”. See also Lee v. United States, 1956, 98 U.S.App.D.C. 97, 232 F.2d 354, 355; Higgins v. United States, 1954, 93 U.S.App.D.C. 340, 209 F.2d 819, 820.

In the case before us, the officers came to the rooming house shortly after 8 a. m. The night before, Albert had drunk six or seven large and small bottles of beer, had gone to bed after 2 a. m., and, when the officer knocked, did not think he was “still drunk” but was “just sick from drinking”. Officer Rideout testified at the hearing on defendant’s motion to suppress evidence as.follows:

“Q. Did he [Albert] ever invite you to come into the room?
“A. He opened the door and turned around and walked away * * *. When I knocked on the door I identified myself and told him I would like *51to talk with him. If Mr. Albert had not wanted to invite me into his room or to talk with [sic] all he had to do was say so and keep the door locked. When unlocking the door I took that as an invitation that he would talk with me. The invitation extended to the room because he turned and walked back into it.”

Officer Rideout at another point stated that he was admitted by Albert and “shown the courtesy of looking about the room. * * * ”

Albert called by the state as a witness, described his attitude at the moment of entry as follows:

“Q. Did you want him to come in?
“A. No (laughing).
“Q. Why didn’t you object to his coming in ?
“A. It’s pretty hard.
“Q. Was it because he was a police officer ?
“A. That’s right.”

He was clad in shorts and T-shirt. A conference in the corridor might well not have seemed a reasonable alternative to him.

From this record (together with the facts reported in the opinion of the court) my brethren are satisfied that the government has sustained its burden of proving by clear and positive evidence that consent to entry was unequivocal, specific and intelligently given, free of fear or pressure. I think that such a conclusion is unwarranted by both the facts of this case and the sizeable number of relevant decided cases.

Putting aside for the moment Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, a survey of cases from lower federal courts indicates a lengthy tradition — before and after Johnson — of reluctance to infer consent, under even more positive evidence than that in the case at bar. The cases where entry has been made and consent claimed are of three kinds: those where the entry was “to talk”; those where search was desired without prior arrest; and those where search followed arrest.

Of the “entry to talk” cases, Pekar v. United States, 5 Cir., 1963, 315 F.2d 319, is perhaps closest to the facts of the present case. The defendant was suspected of stealing luggage from an air terminal. FBI agents, finding that a person meeting their description was in a certain hotel room, knocked on the door, said they wanted to talk about an FBI investigation, waited ten minutes, repeated their request, and showed their identification cards through the louvers of an outer door. Defendant finally opened the door, the agents entered, observed the purloined luggage, and asked if defendant minded their looking around. The court reversed the lower court, saying that defendant was “impliedly coerced” and that “the agents’ superior position to that of the ‘confused’ defendant was the motivating force behind defendant’s opening of the door and allowing the agents to ‘look around’ once they were inside.” 315 F.2d at 325.

In Higgins v. United States, supra, 209 F.2d at 820, a police officer identified himself to defendant and asked to talk with defendant in his room. The officer testified that defendant said “that that was all right and asked me to accompany him to his room. * * * I asked him then if I could look around. He stated that I could * * The court held that, despite this direct verbal evidence of acquiescence, there was no real voluntary consent.2

The acquiescence of a defendant to the suggestion of a narcotics agent, “Let’s go up to your room and talk” was held to fall short of an understanding and intentional waiver of a constitutional right. United States v. Como, 2 Cir., 1965, 340 F.2d 891.

*52In “entry to talk” cases where consent was found to have been given, the findings rested on, apparently, direct and unambiguous verbal invitations. In Davis v. United States, 9 Cir., 1964, 327 F.2d 301, where entry was held lawful, the officer had sought admission “at high noon” and had been specifically invited in by an eight year old girl, whose authority to say “come in” was found “not unusual, or unexpected or unauthorized”. In Reed v. Rhay, 9 Cir., 1963, 323 F.2d 498, 500 n. 2, the officers asked defendant if they could go into his house and talk with him “and he invited them in”.

In the cases involving request to search without pre-existing arrest, there is substantial authority declaring that requisite consent was lacking even though the defendant has said “All right”, “Come in”, or words to that effect. Catalanotte v. United States, 6 Cir., 1953, 208 F.2d 264; United States v. Marra, W.D.N.Y., 1930, 40 F.2d 271; United States v. Evans, D.D.C., 1961, 194 F.Supp. 90; United States v. Slusser, S.D.Ohio, 1921, 270 F. 818; United States v. Marquette, N.D.Cal., 1920, 271 F. 120.

Cases in this category (request to search without pre-existing arrest) where consent was held to have been given are those where it was clearly given, where the fact of consent was assumed, or where the holding today might be successfully challenged. In Rees v. Peyton, 4 Cir., 1965, 341 F.2d 859, one co-owner of the premises signed a written consent and the other orally approved entry by the police. In three cases the court assumed consent had been given without describing the factual situation. Carson v. United States, 5 Cir., 1964, 332 F.2d 784, cert. denied, 379 U.S. 835, 85 S.Ct. 69, 13 L.Ed.2d 43; Simmons v. Bomar, supra; Chapman v. United States, 9 Cir., 1965, 346 F.2d 383. And in Gatterdam v. United States, 6 Cir., 1925, 5 F.2d 673, cited by the majority, the court construed as consent the following language: “If I do not consent, you will go and get a search warrant, and you might as well search now.” That such a holding would be followed in that circuit 41 years later is doubtful in view of Catalanotte v. United States, supra.

As for searches made after arrest, several cases bear witness to the caution exercised by courts in construing even words of positive permission as true consent. United States v. Smith, supra; Channell v. United States, 9 Cir., 1960, 285 F.2d 217; Judd v. United States, supra; United States v. Gregory, S.D. N.Y., 1962, 204 F.Supp. 884. In Burnside v. State of Nebraska, 8 Cir., 1965, 346 F.2d 88, consent was clearly proven by the urgent request of defendant that police visit his home because of his concern over his wife’s suicidal tendencies.

In Lee v. United States, supra, officers visited defendant’s apartment. There were differences in testimony about whether the door was open, but the officers did not use force. The court said, “In any event, although they did not use force, they carried with them such compulsion of authority that the subsequent search cannot be said to have been with the acquiescence of Lee.” 232 F.2d 355. This is the only case (other than Johnson v. United States, supra) involving attempted proof of consent other than through words, oral or written, that has come to my attention.

In short, I can only regard the holding of the court in this case — that, after an officer knocks, identifies himself, and announces his purpose, “the act of unlocking and opening the door, without more, is a consent to talk, and that the walking back into the room is an implied invitation to conduct the talking inside”' — as going beyond all of the cases which have come to my attention.

Apart from the authorities, there are two other difficulties I find in the court’s opinion. Both difficulties are presented by the court’s efforts to distinguish Johnson v. United States, supra. The opinion seems to take two approaches. In its first discussion of Johnson, it characterizes the case as “a classic case in which the police should have proceeded by warrant”. If Johnson were to apply only *53when there is time and basis for obtaining a warrant, clearer manifestation of consent to entry would be required when officers had probable cause than when they did not have it. Under such guidelines, officers would be sorely tempted to suppress their independent evidence and claim entry only for the purpose of talking with a suspect.

The court’s opinion also seeks to limit Johnson to cases “where the officer’s real objective is search and seizure”. In such cases, my brethren agree that “the householder’s consent should not only be clearly voluntary, but also specifically directed toward search and not merely toward entry”. The corollary of this proposition is that if the officer’s “real” objective is merely to enter to talk, somewhat less unequivocal and clear consent suffices to waive one’s constitutional right. This, it seems to me, is an unacceptable and unworkable doctrine. In effect it establishes a bifocal view of Fourth Amendment rights.

Such a view, it seems to me, is unworkable because, to borrow my brethren’s word, it would require the courts to be “clairvoyant” in assessing the motives of the officer. It is unacceptable because, under the court’s view of the law, an officer, announcing his purpose as “to talk”, could gain entry into a house, apartment, or room on the basis of equivocal or ambiguous conduct prompted in large part by the instinct to submit to authority. Once inside, after preliminary conversation, any officer worth his salt would put the inevitable question, “Do you mind if I look around?” With not only the camel’s nose but the camel himself in the tent, any real freedom of choice would be an illusion. The caveat of the majority that courts should be “skeptical” of purported consent under such circumstances is a frail substitute for the threshold requirement of unequivocal, specific, and intelligently given consent.

In short, I look upon a categorization of consent linked to avowed purposes of entry as an erosion of the Fourth Amendment. It does not read, “The right of the people to be secure in their * * * houses * * * against unreasonable searches except for the entry of officers who wish merely to talk.”

The very legitimate question remains: what is the police officer to do in such a situation as Officer Rideout faced? Where actions are ambiguous, I suggest that at least a verbal request to enter should be made. A knock on the door and a police identification are all too easily translated into “Open in the name of the law”. A request to enter might very well not change the result in most cases. But it is a signal that there is still a choice to be made and rights to be respected.3 This would not seem too *54much of a burden to impose on the police and would at least insure the presence of some unequivocal evidence of consent.

So, while the court concludes that, after a policeman knocks, identifies himself, and states his purpose, the “act of unlocking and opening the door, without more, is a consent to talk, and * * * the walking back into the room is an implied invitation to conduct the talking inside”, I would have us hold on the facts of this case that there was not enough clear evidence of “an affirmative response”, unequivocal, intelligently given, and free of duress, to make the entry lawful.

. Cf. Johnson v. Zerbst, 1937, 304 U.S. 458, 464, 58 S.Ct. 1019, Í023, 82 L.Ed. 1461, “It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. !¡S * * ”

. In this case, as in others, it is perhaps arguable that the purpose of entry was not simply to talk but to “look around” and search. This very observation underscores the difficulty of making the required specificity of consent depend on the purpose of the requesting officer. Any officer gaining access to a room or home of a suspect must also expect to use his eyes.

. My suggestion does not go so far as to include a statement that the householder has the right not to consent. It merely sets the stage for a clear response to a specific request to enter on premises. That at least a specific request to enter should be made where voluntary consent is sought to be drawn from ambiguous actions seems to follow a fortiori from the language of the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (6/13/66), where the Court, in spelling out the rationale for a warning to an in-custody suspect of his right to remain silent, said: “For those unaware of the privilege, the warning is needed simply to make them aware of it —the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere.” In this case, the pressures were those created by the appearance of the officer at the doorway, as Albert testified. The analysis is equally applicable.

In so citing Miranda, I do so with full recognition that the Court was speaking of another constitutional right in an opinion which is not retrospective. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, (6/20/66).

But, since, in my view, this court is articulating clearly a new rule covering non-verbal acts in response to a knock on the door and an officer’s announced purpose to talk, I deem Miranda’s reasoning relevant in corroborating the traditional requirements of specificity and clarity in waiving the Fourth Amendment right.