IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES, )
)
Plaintiff-Appellee, ) CA No. 98-10405
)
) D. Ct. No. CR 98-00005-VRW
v. ) [N.D. Cal.]
)
XXX, SR., )
)
Defendant-Appellant. )
)
)
BRIEF OF APPELLANT
BARRY J. PORTMAN
Federal Public Defender
STEVEN G. KALAR
Assistant Federal Public Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
Counsel for Defendant-Appellant XXX
TABLE OF CONTENTS
I. STATEMENT OF JURISDICTION 1
A. JURISDICTION OF THE DISTRICT COURT 1
B. JURISDICTION IN THE COURT OF APPEALS 1
C. THE NOTICE OF APPEAL WAS TIMELY FILED 1
II. STATEMENT OF ISSUE PRESENTED FOR REVIEW 2
III. STATEMENT OF THE CASE 2
A. BAIL STATUS 2
B. PROCEDURAL AND FACTUAL HISTORY 2
IV. SUMMARY OF ARGUMENT 7
V. STANDARD OF REVIEW 8
VI. ARGUMENT 9
A. THE SEARCH OF XXX' HOME WAS WITHOUT PROBABLE CAUSE FOR ARREST, AND WITHOUT A
SEARCH OR ARREST WARRANT 9
B. THE DISTRICT COURT CLEARLY ERRED BY FINDING A VOLUNTARY CONSENT TO A SEARCH, WHEN
MR. XXX WAS COERCED BY THE THREAT TO "FREEZE" HIS HOME AND ITS OCCUPANTS 10
1. The district court failed to examine the voluntariness of consent under a totality of all the circumstances 11
2. The officers could lawfully secure the home while awaiting a warrant, but could not unreasonably detain its
inhabitants 14
VII. CONCLUSION 20
VIII. STATEMENT OF RELATED CASES 21
IX. RULE 32(e) CERTIFICATION 21
TABLE OF AUTHORITIES
CASES
United States Supreme Court
Minnesota v. Carter,
No. 97-1147, 1998 WL 823045 (Dec. 1, 1998) 9
Schneckloth v. Bustamonte,
412 U.S. 218 (1973) 10, 11
United States v. Johnson,
457 U.S. 537 (1982) 20
Wong Sun v. United States,
371 U.S. 471 (1963) 19
Ninth Circuit Court of Appeals
Los Angeles Police Protective League v. Gates,
907 F.2d 879 (9th Cir. 1990) 9
United States v. Agosto,
502 F.2d 612 (9th Cir. 1974) 14
United States v. Albrektsen,
151 F.3d 951 (9th Cir. 1998) 8, 9, 19
United States v. Chan-Jimenez,
125 F.3d 1324 (9th Cir. 1997) 10, 11, 12, 13
United States v. Johnson,
626 F.2d 753 (9th Cir. 1980) 19
United States v. Kim,
25 F.3d 1426 (9th Cir. 1994) 12
United States v. Ocheltree,
622 F.2d 992 (9th Cir. 1980) 15, 16, 19
United States v. Salvador,
740 F.2d 752 (9th Cir. 1984) 10, 16, 17
United States v. Welch,
4 F.3d 761 (9th Cir. 1993) 11
United States v. Whiteworth,
856 F.2d 1268 (9th Cir. 1988) 13
STATUTES AND RULES
United States Code
18 U.S.C. § 471 1, 6
18 U.S.C. § 472 1, 6
18 U.S.C. § 3231 1
28 U.S.C. § 1291 1
28 U.S.C. § 1294 1
Federal Rules of Appellate Procedure
Fed. R. App. P. 4(b) 1
Federal Rules of Criminal Procedure
Fed. R. Crim. P. 11(a)(2) 7
I. STATEMENT OF JURISDICTION
A. JURISDICTION OF THE DISTRICT COURT
This is an appeal from a conviction, after a conditional plea of guilty, of manufacture of counterfeit obligations, in violation of 18 U.S.C. § 471, and possession of counterfeit obligations, in violation of 18 U.S.C. § 472. ER 303 at CR 48, 49. (1) Jurisdiction in the district court was conferred by the provisions of 18 U.S.C. § 3231.
B. JURISDICTION IN THE COURT OF APPEALS
Jurisdiction in this Court is conferred by the provisions of 28 U.S.C. §§ 1291 and 1294.
C. THE NOTICE OF APPEAL WAS TIMELY FILED
The district court entered its final judgment and commitment on September 9, 1998. ER 304, CR 60. Appellant filed his notice of appeal on September 16, 1998. ER 305. The notice of appeal was therefore timely. Fed. R. App. P. 4(b).
II. STATEMENT OF ISSUE PRESENTED FOR REVIEW
Did the district court err when it denied Appellant's motion to suppress evidence and statements arising from a search of his home, when police officers threatened to "freeze" the home and permit no occupants to leave or anyone to enter if he did not consent to the search?
III. STATEMENT OF THE CASE
A. BAIL STATUS
Appellant is currently in the custody of the California Department of Corrections at San Quentin prison, serving a sentence of three years imposed by the Napa County Superior Court on March 18, 1998. ER 71:12-20. On completion of his state sentence Appellant will begin serving the sentence of twenty-two months imprisonment imposed in this case.
B. PROCEDURAL AND FACTUAL HISTORY
On December 30, 1997 , Napa County Police Officers Jerich and Potter responded to a call from the Lamplighter bar, in Napa, California. ER 22:17-19; 41:11-13. The call was from bartender Sharon Rasmussen who reported that someone had tried to use a counterfeit twenty dollar bill. ER 41:16-17.
At the bar, Rasmussen told the officers that, at between twenty and quarter till 2:00 a.m., Mr. XXX had ordered a five dollar shot and a beer and paid with a twenty-dollar bill. ER 28:23-25; 58:24-25; 59:2-6. When Ms. Rasmussen examined the bill, the ink came off on her fingers. ER 59:8-10. Mr. XXX first told her that the bill was real, then offered to write a check, and next went across the street to an ATM, returned, and explained that he could not get any cash. ER 59:15-25, 60:1.
Ms. Rasmussen suggested that Mr. XXX fill out an "IOU." ER 60:4. Mr. XXX gave her his license, and she wrote down, "$5," his name, and his license number while he watched. ER 60:4-16. Ms. Rasmussen showed the IOU to the police officers, who wrote down XXX' name and vehicle license number. ER 60:1-5. (2)
The police officers drove to XXX' residence, met him outside of his home, and began a conversation on the walkway in front of the house. ER 38:7-13; 18:10-21. It was about 2:00 in the morning, and both of the officers were armed and wearing uniforms. ER 29:14-16; 25:7-10; 26:11-18. Sergeant Potter considered XXX a felony suspect. ER 28:4-6.
The officers questioned Mr. XXX, and he explained that he had received the twenty as change from a grocery store and did not know that it was counterfeit. ER 19:3-8. The officers then asked if they could search Mr. XXX' home. ER 19:6-8.
When the officers asked to search his home, Mr. XXX' eight-year-old son, Michael, was sleeping in the back bedroom of the home. ER 45:2-9. Also in the home was XXX' seventy-nine year old landlady, La-Verne "Betty" Ward. ER 20:20-25.
According to Sgt. Potter, when Mr. XXX was asked to consent to a search of his home, he in turn asked "What would happen if I said 'no?'" ER 19:14; 39:19. Sgt. Potter responded, "[W]e would try to get a warrant and that we would freeze the house, and during that time nobody would be free to come or go." ER 19:15-17.
Sgt. Potter testified that, had Mr. XXX refused to consent to a search, the officers would have attempted to get a warrant at 2:00 in the morning. ER 30:12-14. (3)
Officer Jerich testified that, had the officers waited to get a daytime search warrant, it was likely that they would not have had the warrant until at least 9:00 or 9:30 the following morning. ER 50:19-22.
Sgt. Potter told Mr. XXX that no one would be allowed to go in or out of the house while the house was frozen and the officers attempted to get the warrant. ER 40:4-7; 50:1-5; 278:14-17. His statement admitted no exception for the occupants of the house. (4)
XXX thought about his situation for several seconds, ER 278:17-18, then said, "okay," and led the officers towards the residence. ER 40:10-12.
Once in the house, Sgt. Potter found paper with partial copies of currency on them. ER 45:16-18. After the officers confronted XXX with the paper, he admitted to making counterfeit currency. ER 74:4-9; 268:11-13. (5) XXX admitted to throwing two counterfeit bills away in front of the Lamplighter, and to trying to pass a third bill at bar. ER 74:4-9; 268:20-26.
While waiting for an evidence technician to arrive at the house, Sgt. Potter found a small fanny pack containing methamphetamine. ER 279:10-15. XXX was then formally arrested. ER 269:3-4. While taking XXX to the police station, Officer Jerich stopped and recovered a crumpled $100 bill in front of the Lamplighter bar. ER 269:11-14. Another officer later recovered additional counterfeit currency near the ATM machine across from the bar. 279:16-20.
XXX was finally Mirandized at the police station and after further questioning admitted that he had more counterfeit bills in an envelope in a back shed at his residence. ER 269:22-26. Sgt. Potter and another officer retrieved those counterfeit bills. ER 279:21-26, 230:1-2.
Mr. XXX was charged in federal court with one count of manufacturing counterfeit obligations, in violation of 18 U.S.C. § 471, and one count of possession of counterfeit obligations, in violation of 18 U.S.C. § 472. He moved to suppress the statements and fruits of the search of his residence. The district court held an evidentiary hearing on April 15, 1998, and denied Mr. XXX' motion to suppress. ER 97:9-14.
XXX pleaded guilty to both counts charged pursuant to F.R. Crim. Pro. 11(a)(2), preserving the right to appeal the district court's denial of his motion to suppress. ER 303, CR 40, 48, 49. The district court sentenced XXX to twenty-two months consecutive to his three-year state sentence, three years of supervised release, and a $200 special assessment. ER 292-93.
IV. SUMMARY OF ARGUMENT
XXX was coerced into consenting to a search of his home by the officers' threat to "freeze" the house and permit no occupant to leave or anyone to enter until they secured a search warrant.
The Napa police officers had neither a search nor arrest warrant before entering XXX' home, and instead relied on his consent as a basis for a nighttime entry into a private residence. Because the officers lacked warrants, the government bore the heavy burden of demonstrating that this consent was freely and voluntarily given.
The government failed to shoulder this burden. Proper application of five factors previously articulated by this Court suggest that XXX' consent was not free or voluntary. The analysis cannot, however, end upon review of these non-exclusive factors. Instead, the Court must look to the totality of all of the circumstances surrounding the consent: the late hour, the officers' eagerness to search the house, the paucity of facts to support a nighttime search warrant and the infrequency of such warrants in this small rural town. Most importantly, the Court must look at the threat of unreasonable detention of the house's occupants, including the defendant's young son, posed by the officers' promise to "freeze" the home while they sought a warrant.
Because the district court failed to weigh all of these circumstances, it clearly erred in finding Mr. XXX' consent voluntary. This Court should accordingly reverse the conviction.
V. STANDARD OF REVIEW
This Court reviews the district court's determination that consent for a search was voluntary for clear error. United States v. Albrektsen, 151 F.3d 951, 953 (9th Cir. 1998).
VI. ARGUMENT
A. THE SEARCH OF XXX' HOME WAS WITHOUT PROBABLE CAUSE FOR ARREST, AND WITHOUT A
SEARCH OR ARREST WARRANT
When the Napa police officers entered and searched Mr. XXX' residence at 2:00 a.m., they intruded upon the realm most jealously protected by the Fourth Amendment: a citizen's home, at night. This Court has emphasized the "powerful" protective force of the Fourth Amendment in this context:
Nowhere is the protective force of the fourth amendment more powerful than it is when the sanctity of the home is
involved. The sanctity of a person's home, perhaps our last real retreat in this technological age, lies at the very core of the
rights which animate the amendment. Therefore, we have been adamant in our demand that absent exigent circumstances
a warrant will be required before a person's home is invaded by the authorities.
United States v. Albrektsen, 151 F.3d 951, 953 (9th Cir. 1998) (quoting Los Angeles Police Protective League v. Gates, 907 F.2d 879, 884 (9th Cir. 1990)). As recently stated by the Supreme Court, "it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people. Security of the home must be guarded by the law in a world where privacy is diminished by enhanced surveillance and sophisticated communication systems." Minnesota v. Carter, No. 97-1147, 1998 WL 823045, at *9 (Dec. 1, 1998) (Kennedy, J. concurring).
It is undisputed that the two officers that searched Mr. XXX' home did so without an arrest or search warrant. The officers lacked probable cause for either type of warrant, armed with no more than a counterfeit twenty, XXX' plausible denials, and his willingness to agree to an IOU at the Lamplighter bar. Even if the officers did have more compelling evidence at hand, "[t]he existence of probable cause alone will not support a warrantless entry into a dwelling." United States v. Salvador, 740 F.2d 752, 758 (9th Cir. 1984).
Faced with either abandoning an investigation of someone they considered a felony suspect or applying for their first search warrant of any kind in two years, the officers instead forged a third course: they forced XXX' consent by threatening to "freeze" his home and his family while they tried to get a warrant.
B. THE DISTRICT COURT CLEARLY ERRED BY FINDING A VOLUNTARY CONSENT TO A SEARCH,
WHEN MR. XXX WAS COERCED BY THE THREAT TO "FREEZE" HIS HOME AND ITS OCCUPANTS
It is well-established that there is no constitutional prohibition to a search conducted pursuant to a valid consent. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). In relying on this exception to the warrant requirement, however, the government "bears the heavy burden of demonstrating that the consent was freely and voluntarily given." United States v. Chan-Jimenez, 125 F.3d 1324, 1327 (9th Cir. 1997) (citing Schneckloth, 412 U.S. at 222). In the present case, the government failed to meet its burden of demonstrating that XXX' consent to search his home was free or voluntary.
1. The district court failed to examine the voluntariness of consent under a totality of all the circumstances
Whether consent was voluntary or coerced can only be ascertained "by analyzing all of the circumstances of an individual consent." Schneckloth, 412 US at 233; see also Chan-Jimenez, 125 F.3d at 1327 ("Whether consent to search was voluntarily given or not is to be determined from the totality of all the circumstances.") (internal quotations and citation omitted). This Court has articulated a non-exhaustive list of factors to consider in evaluating consent:
Among the factors that tend to show a lack of voluntariness are: (1) the person was in custody; (2) the officer had his
weapon drawn; (3) the officer failed to administer Miranda warnings; (4) the officer did not inform the person of his right
to refuse to consent; and (5) the person was told that a search warrant could be obtained.
Chan-Jimenez, 125 F.3d at 1327 (citing United States v. Welch, 4 F.3d 761, 763 (9th Cir. 1993)) (emphasis added).
Application of these factors suggest that XXX' did not freely and voluntary consent to search of his home. The district court erred by misapplication of these factors, and by failing to also weigh circumstances beyond this non-exclusive list.
The first two factors considered by the district court were whether XXX was in custody, and if the officers had their weapons drawn. Mr. XXX was not handcuffed when the officers asked to search his home and there was no testimony that the officers drew their weapons. XXX was, however, confronted by two armed and uniformed officers at 2:00 in the morning. ER 29:14-16, 25:7-10; 26:11-18. One of these officers, Officer Jerich, is a large man. ER 44:20-21. Officer Jerich's partner, Sgt. Potter, considered XXX a "felony suspect." ER 28:4-10. Therefore, although the situation was not custodial and weapons were not drawn, the circumstances of the confrontation were more coercive than a typical daytime, street encounter with law enforcement.
The third factor applied by the court, lack of Miranda warnings, supports Appellant's argument that the consent was not voluntary. The officers failed to Mirandize XXX before asking him if they could search the house and confronting him in the back bedroom. ER 46:13-16. In Chan-Jimenez, this Court relied on an officer's failure to Mirandize a suspect as one factor demonstrating that a suspect did not voluntarily consent to search of his truck. Chan-Jimenez, 125 F.3d at 1327. Miranda warnings are admittedly not mandatory until the suspect is in custody. See United States v. Kim, 25 F.3d 1426, 1432 (9th Cir. 1994). Such warnings help to demonstrate, however, that a suspect was on notice of his legal rights when he consented to a search, and that his consent was free and voluntary. See, e.g., United States v. Whiteworth, 856 F.2d 1268, 1279 (9th Cir. 1988) (finding consent voluntary when, among other factors, suspect receivedMiranda warnings).
A similar reasoning underlies the fourth factor suggesting lack of voluntariness: an officer's failure to inform the person of his right to refuse to consent. Neither Sgt. Potter nor Officer Jerich informed XXX that he had the right not to consent to the search of his home. As with Miranda warnings, a consent admonition--though not required--helps to reassure the reviewing court that a suspect's consent was knowing and voluntary. This Court has considered the absence of a consent admonition a factor demonstrating lack of voluntariness. See Chan-Jimenez, 125 F.3d at 1327; compare Whiteworth, 856 F.2d at 1279 (finding consent voluntary when, among other factors, suspect read and signed a written consent authorization).
According to the officers' testimony, the fifth factor--that the person was told that the search warrant could be obtained--did not occur. The officers instead testified that they told XXX that they would try to get a warrant.
The district court prematurely ended its consent analysis on the fifth of these five factors, rather than analyze the totality of circumstances surrounding the search. ER 92-96. In doing so the court ignored the central drama of the evening's events; the officers' threat to freeze Mr. XXX' home and its occupants. By failing to properly credit the impact of the officers' threat on Mr. XXX' consent, the court clearly erred.
2. The officers could lawfully secure the home while awaiting a warrant, but could not unreasonably detain its inhabitants
This Court has considered a number of situations where property or dwellings have been secured while officers sought warrants. In these cases the Court has tolerated reasonable limitations on the use of property while law enforcement officers sought warrants, but has proven unwilling to permit "freezing" property when doing so would result in the unreasonable detention of people.
In one of its earlier cases on this issue, this Court upheld a search when the officer stated to the defendant that "unless he gave his consent . . . the officers would seek or obtain a search warrant and pending that time . . . the premises would remain secure." United States v. Agosto, 502 F.2d 612, 613 (9th Cir. 1974). The premise to be secured in Agosto was a garage in which the officers believed was a large amount of marijuana. Id. at 613. The Court held that "the statement of the officer that he would obtain a search warrant if consent were not given and in the meantime would secure the garage premises is . . . not conclusive [of involuntariness] as a matter of law." Id. at 614.
While Agosto permitted the seizure of property pending a warrant, nothing in that opinion suggested that anyone would be detained as the result of the seizure. This important distinction was emphasized by this Court in United States v. Ocheltree, 622 F.2d 992 (9th Cir. 1980).
In Ocheltree, this Court limited Agosto to situations which did not create the threat of unreasonable detention. The appellant in Ocheltree had raised the suspicions of Drug Enforcement Administration agents at an airport. Id. Upon request, the appellant agreed to accompany an agent to his office, and there answered several questions. Id. The agent then asked to search appellant's briefcase, advised him that he was under no obligation to permit the search, but stated that if the appellant refused to consent to the search the agent would get a search warrant. Id. at 993. Appellant consented to the search, which revealed narcotics paraphernalia and record books that supported a later search warrant. Id.
The appellant in Ocheltree conceded that the initial stop was based on reasonable suspicion. Id. at 994. The issue instead was whether the consent to a search of the briefcase was voluntary. Id. The Court concluded that it was not:
[T]he consent to search the briefcase (as distinguished from the consent to go to the agent's office) was not voluntary.
When the agent informed appellant that if consent was not forthcoming he would attempt to secure a search warrant, there
was a clear implication that appellant would be retained in custody until the warrant was obtained. The only reasonable
construction appellant could place on the agent's statement was that appellant would not be permitted to frustrate the
agent's attempts by boarding his plane and thus placing himself beyond reach of the very warrant which the agent sought
to obtain.
Id. Agosto, explained the Court, did not mandate a different result. In Agosto, unlike Ocheltree, there was no "threat that unreasonable detention, amounting to arrest, would result if consent were denied." Id.
The analysis of the "totality of the circumstances" by the Court in Ocheltreerealistically acknowledged that collateral detention consequences can be triggered by securing property pending a warrant. This same realistic approach was employed by the Court in United States v. Salvador, 740 F.2d 752 (9th Cir. 1984).
The officers in Salvador initially entered a residence without a warrant, arrested several suspects, and conducted a protective walk-through. Id. at 757. While the officers secured the house for the evening until they could obtain a search warrant the next morning, Harvey Salvador and his wife returned home. Id. Mr. and Mrs. Salvador were relatives of the arrested suspects, and were the lessees and residents of the house. Id. An agent explained to Mr. Salvador that "the officers would continue to secure the house that evening, in which case they would be put up in a motel for the night or they could consent to a search that evening." Id. Mr. Salvador was informed of his right not to consent, and signed a consent form authorizing the search. Id.
This Court upheld the search in light of the circumstances surrounding the consent:
We are satisfied that Harvey Salvador consented to the search of his residence freely and voluntarily. . . . He was
presented with the option of either an immediate consent search or one conducted pursuant to a warrant if it could be
obtained in the morning. Harvey Salvador and his wife, Laquentha, were not in custody and were not subjected to
oppressive conditions.
Id. (footnote omitted).
Unlike Mr. Salvador in Salvador, Mr. XXX was not given an explanation that he had the right not to consent, nor was he given a consent form to sign before the officers entered his home. Unlike Mr. Salvador, Mr. XXX was not offered a motel where he, Ms. Ward, and his eight-year old son could spend the night while the police sought a warrant. ER 33:14-16; 50:9-12. Accordingly, unlike the consent secured in Salvador, Mr. XXX' consent to search was neither free nor voluntary.
Full consideration of the totality of all the circumstances surrounding Mr. XXX' consent reveals that it was the product not of cooperation, but of coercion. Armed, uniformed policemen approached Mr. XXX' house in two marked patrol cars. ER 38:7-13; 25:7-10, 26:11-18. They confronted XXX at 2:00 in the morning on the walkway in front of his house. ER 29:14-16; 18:10-21. Despite Mr. XXX' plausible explanation for the counterfeit twenty dollar bill, the officers asked to search his home. ER 19:1-8. The officers testified that, in response, Mr. XXX asked a reasonable question: "What would happen if I said, 'no?'" ER 19:14; 39:19.
Sgt. Potter considered Mr. XXX a felony suspect, and wanted to search the home. ER 28:4-10. The officers knew that it was very rare to apply for a nighttime search warrant in Napa, and had not applied for any type of search warrant in the past two years. ER 31-32, 48-49. The only fact that the officers had to support an application for a nighttime warrant was the single counterfeit twenty dollar bill. ER 30-31, 49. The officers knew that undermining their warrant application would be the behavior of Mr. XXX consistent with innocence: his repeated denials of knowledge that the bill was counterfeit, his plausible explanation for the origins of the bill, and his willingness to provide his name and license number on an IOU at the Lamplighter bar. ER 30-31, 49.
Faced with this dilemma, Sgt. Potter forced consent. The Sergeant warned that, if Mr. XXX did not consent to a search, the officers "would try to get a warrant and that we would freeze the house, and during that time nobody would be free to come or go." ER 19:15-17.
The "nobody" that would be detained by freezing the house included Ms. Ward--XXX' friend and elderly landlady--and his eight-year-old son. Like the defendant in Ocheltree, and unlike the defendant in Agosto, Mr. XXX faced the real "threat that unreasonable detention, amounting to arrest, would result if consent were denied." Ocheltree, 622 F.2d at 994. This threat was made all the more powerful by the vulnerability of those to be detained: an elderly woman and a young child, at 2:00 in the morning.
Coerced consent is no substitute for a valid search warrant. This Court has explained that "[a] person who must submit or be forced might be said to have consented when he submits, but not in ordinary legal parlance." Albrektsen, 151 F.3d at 955. In light of all the circumstances at play in the early morning hours of December 30, Mr. XXX submitted, but did not consent, to a search of his home. Because the search was unlawful, evidence seized and statements derived from the search cannot be admitted as proof against XXX. See Wong Sun v. United States, 371 U.S. 471, 485 (1963) ("[V]erbal evidence which derives so immediately from an unlawful and an unauthorized arrest . . . is no less the fruit of official illegality than the more common tangible fruits of unwarranted intrusion."); see also United States v. Johnson, 626 F.2d 753, 758-59 (9th Cir. 1980) (holding that a statement made to the police ten minutes after the officer illegally entered defendant's home related to the illegality and should be suppressed), affirmed on other grounds, 457 U.S. 537 (1982).
Because the district court failed to fully consider the totality of all of the circumstances, it clearly erred in finding that XXX' consent was free and voluntary. Mr. XXX' consent was coerced, and the search that ensued a violation of the Fourth Amendment. This Court should accordingly reverse the conviction. VII. CONCLUSION
For the foregoing reasons, Appellant XXX respectfully requests that this Court reverse his conviction.
.
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
STEVEN G. KALAR
Assistant Federal Public Defender
VIII. STATEMENT OF RELATED CASES
Counsel for Appellant is unaware of any related cases pending before this Court which raise the same question at issue in the instant appeal.
IX. RULE 32(e) CERTIFICATION
Pursuant to the requirements of Circuit Rule 32(e), counsel hereby certifies that this brief used a proportionally spaced
typeface of 14 points, and contains 4,916 words.
STEVEN G. KALAR
Assistant Federal Public Defender
CERTIFICATE OF SERVICE
The undersigned hereby certifies under penalty of perjury that on this date two copies of the foregoing BRIEF OF APPELLANT were deposited in the U.S. Mail, with proper postage affixed, addressed to LAURIE K. GRAY, Office of the United States Attorney, 450 Golden Gate Ave., 11th Floor, San Francisco, CA 94102.
Executed on this 18th day of December, 1998 in San Francisco, California.
________________________
Robyn Banducci
1. Citations to the Appellant's Excerpts of Record are abbreviated "ER." References to the district court record are abbreviated "CR" and will be preceded by an ER citation.
2. The officers failed to take the IOU into evidence, and did not mention it in their later police reports. ER 61:16-24; 23:23; 24.
3. To support their application for a nighttime warrant, the officers had a single counterfeit bill, Mr. XXX' denials that he knew the bill was counterfeit, and an IOU for which Mr. XXX had willingly provided his name and license number. ER 30-31, 49. The officers admitted that it was very rare to apply for a nighttime search warrants in Napa, that there had been very few nighttime warrants in Napa since 1987, and that the officers had not applied for any type of search warrant--day or night--in the previous two years. ER 31-32, 48-49.
4. The officers did not tell XXX that, while the house was frozen, he would have been permitted to enter the house with an escort, ER 32:14-18, Ms. Ward would be free to leave the house, ER 32:24-25, 33:1, or that Mr. XXX' eight-year-old son could leave the house, ER 33:8-13. The officers made no offer of a motel or alternate shelter for Mr. XXX, Ms. Ward, and Michael while the house was frozen. ER 33:14-16; 50: 9-12.
5. Mr. XXX was not been Mirandized at any time while he was at his residence. ER 46:13-16.