United States v. Edward Martin Rothman

RENFREW, District Judge

(dissenting) :

While starting from the same basic premises as the majority, I am unable to join its conclusion that appellant did not voluntarily consent to the search of his baggage. Voluntariness is a question to be determined by consideration of all the circumstances of each specific case. The government bears the initial burden of proof, but once a motion to suppress has been denied, an appellate court must view the evidence in a light most favorable to the government. The “clearly erroneous” rule does apply upon review of the trial court’s findings of fact.

The majority holds that the court below clearly erred in finding voluntary consent and that instead it is “compelled to hold that the consent was not voluntary because it was systematically psychologically coerced ” Majority opinion, supra, p. 1265. Nowhere in its opinion, however, does the majority state what standard of persuasion should have been applied by the trial court. Generally, consent to a search without a warrant must be shown by “clear and positive” evidence. Sherrick v. Eyman, 389 F.2d 648, 651 (9 Cir. 1968), cert. denied, 393 U.S. 874, 89 S.Ct. 167, 21 L.Ed.2d 144 (1968); State of Montana v. Tomich, 332 F.2d 987, 989 (9 Cir. 1964). That vague standard may mean a preponderance of the evidence or evidence establishing consent beyond a reasonable doubt.1

A brief review of the evidence easts great doubt on the possibility that the majority accepts the preponderance test. Evidence tending to support involuntariness includes the holding of appellant in incommunicado custody for approximately two hours, the deputy’s response to appellant’s inquiry about the possible punishment for assaulting a federal officer, the interrogation of him by the F. B.I. agents, handcuffing appellant, the deputy’s remark that a search warrant could and probably would be obtained, and the deputy’s final suggestion that, if appellant wanted the bags opened, then he should open them himself. Evidence tending to support a finding of voluntariness includes the Miranda2 warning, appellant’s initial refusal to permit a search, his testimony that he knew that he had a right to refuse, his suggestions that the deputy open the bags, and the deputy’s response that he would not open them as long as appellant refused to open them.

With this evidence on both sides of the question, the decision below undoubtedly was based on the trial court’s assessment of the psychological susceptibility of appellant to subtle coercion or suggestion. The majority criticizes the trial court’s reliance on appellant’s initial refusal to permit a search, but that factor bears significantly on the question of appellant’s psychology. This question, involving to a great extent an analysis by the trier of fact of the demeanor of the witness, is best left to the trier of fact. Indeed, the “clearly erroneous” rule is based upon that principle. See United States v. Page, 302 F.2d 81, 84 (9 Cir. 1962). If the preponderance of the evidence rule is the appropriate standard of proof in this case, then reversal is completely unwarranted. The *1268combination of taking the facts in a light most favorable to the government, i.e., stressing the facts supporting vol-untariness, and applying the clearly erroneous rule is too great a barrier to overcome for reversal.

This conclusion leads me to believe that either the reasonable doubt standard has been adopted by the majority or its holding is one of law and not of facts. If the former, the use of a reasonable doubt standard is itself an important question which the Coürt should consider in depth before adopting. Here it is adopted by implication — if it has been adopted — and an anomaly has been created. The Constitution does not require the use of the reasonable doubt standard in determining the voluntariness of confessions. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). This Circuit, based upon Lego v. Twomey, has adopted the preponderance standard for judging the voluntariness of a confession in federal cases. United States v. Cluchette, 465 F.2d 749, 754 (9 Cir. 1972).3 This view should apply a fortiori, one would think, to searches.

But even if the reasonable doubt standard is appropriate here, I am not convinced that the lower court’s ruling is clearly erroneous. ' The reasonable doubt would have to arise from consideration of appellant’s psychology, a factor which does not leap forth from the printed page of the record.4

The unpersuasiveness of the majority’s assessment of the facts supports an inference that the majority is actually deciding on the basis of a new principle of law.5 That principle appears to be: No person can voluntarily consent to a search while in custody if the authorities have a reasonable opportunity to obtain a search warrant. Perhaps the majority would allow that in some instances consent to a warrantless search could be legally voluntary, but its ruling in this case, with its undramatic facts, indicates that instances of voluntariness would be rare exceptions, thus creating the anomalous situation in which a defendant in custody could confess to the commission of a crime but not consent to the search of his belongings.6 By making this question one of law, the majority opinion would, of course, conflict with Schneckloth v. Bustamonte, 412 U.S. 218, 224, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), which admonishes against the use of mechanical rules in determining voluntariness.

*1269I share the majority’s concern that authorities not be permitted to use subtly coercive tactics within the always oppressive psychological atmosphere of police custody to obtain consent for a search. I differ with the majority on the judicial means for deterring such tactics and preserving individual rights. The only trustworthy device is the finding of facts by a trial judge. The majority, either by, in effect, substituting an appellate court as the main fact-finder, or by announcing a new prophylactic rule of law, has failed to consider all aspects of the consent issue. It ignores other social interests in allowing the use of evidence discovered by a search to which an accused in fact consented voluntarily, as shown by a preponderance of the evidence: the interest in using the best evidence of guilt or innocence and the interest in viewing individuals as free agents capable of knowingly and voluntarily waiving their constitutional rights.

For these reasons, I respectfully dissent.

. A decision much relied upon by the majority, Schneckloth v. Bustamonte, 412 U.S. 218, 223-227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), refers to cases involving the question of voluntariness of a confession to aid in determining the relevant considerations for deciding the voluntariness of consent to a search. The issue of the appropriate standard of persuasion in that area is whether the preponderance or reasonable doubt standard should be used. See Lego v. Twomey, 404 U.S. 477, 478-479, 479, n. 1, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). It is now settled in this Circuit at least that the preponderance test applies in judging the voluntariness of a confession in a federal case. United States v. Cluchette, 465 F.2d 749, 754 (9 Cir. 1972).

. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

. The holding of Lego v. Twomey is that state courts are not constitutionally required to use the reasonable doubt test, but in a footnote the Supreme Court expressed a broader view: “It is no more persuasive to impose the stricter standard of proof as an exercise of supervisory power than as a constitutional rule.” 404 U.S. at 488, n. 16, 92 S.Ct. at 626.

. “We sometimes tend to forget that the testimony of a witness, presented to us in a cold record, may make an impression -upon us directly contrary to that which we would have received had we seen and jieard that witness. It ought not to be assumed that United States District Judges are any less determined to preserve constitutional rights than we are.” United States v. Page, 302 F.2d 81, 84 (9 Cir. 1962).

. The following key language of the majority opinion strongly suggests a legal principle: “Moreover, this is not a ease in which a consent search was necessary or proper. If probable cause for a search was available, the officers had ample time to get' a warrant. * * * [citation omitted] There was no risk that evidence would be lost or destroyed or that Rothman would flee. In short, there was no justification for the coercive official tactics which produced this consent.” Majority opinion, supra, p. 1265.

. The majority quotes often from Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). That case, however, does not support the majority’s decision in that the Supreme Court approached the facts with a much greater willingness to find voluntary consent. Though the respondent in Bustamonte was not in custody, there was no evidence that he knew that he could refuse to allow a search. The majority here, in contrast, seems to begin with a presumption of involuntariness. Perhaps, as the majority says, Bustamonte cuts both ways, but it does not justify the majority’s swath.