Appeal from a judgment
of conviction for receiving, concealing, and facilitating transportation and
concealment of illegally imported narcotic drugs, 21 U.S.C. §§ 173, 174, after
a trial by jury before Thomas F. Croake, J., in the United States District
Court for the Southern District of New York. The Court of Appeals, Kaufman,
Circuit Judge, held that defendant, a special employee of narcotics bureau,
could not be held to have voluntarily consented to seizure of heroin which he
turned over to agent whom he was attempting to induce to permit making of telephone
call to establish his status as special employee, where agent persisted in
treating disclosure of possession of any narcotics as precondition to telephone
call.
Judgment of conviction
reversed and indictment dismissed.
892
1. Arrest 63(4)
Searches and Seizures 3(1)
Search, seizure and
arrest cannot be retroactively justified by what is uncovered.
2. Searches and Seizures 7(27)
Consent to search is not to be lightly inferred.
3. Searches and Seizures 7(28)
Accused's voluntary consent to search must be
proved by clear and positive evidence.
4. Searches and Seizures 7(28)
Consent is not voluntary if product of duress or
coercion, actual or implicit.
5. Searches and Seizures 7(28)
To be voluntary, consent to search must be
unequivocal, specific and intelligently given.
6. Searches and Seizures 7(28)
A special employee of
narcotics bureau could not be held to have voluntarily consented to seizure of
heroin which he turned over to agent whom he was attempting to induce to permit
to make telephone call to establish his status as special employee, where agent
persisted in treating disclosure of possession of any narcotics as precondition
to telephone call.
7. Searches and Seizures 7(28)
There could be no
intelligent waiver of right to object to seizure where officers camouflaged
their purpose for investigating defendant's personal criminal liability.
Narcotic Drugs Import and Export Act, § 2(b, d, f), 21 U.S.C.A. §§ 173, 174.
8. Searches and Seizures 7(28)
Narcotics bureau agent
who persisted in treating defendant's disclosure of possession of any narcotics
as precondition to telephone call which he desired to be made to establish his
status as a "special employee" had duty to inform him that he would
be arrested if drugs were found.
Nanette Dembitz, The
Legal Aid Society, New York City (Anthony F. Marra, New York City, on the
brief), for defendant‑appellant.
Martin R. Gold, Asst.
U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., for Southern
District of New York, John S. Martin, Jr., Asst. U. S. Atty., on the brief),
for appellee.
Before SMITH, KAUFMAN
and ANDERSON, Circuit Judges.
KAUFMAN, Circuit
Judge:
This appeal turns on
whether the District Court was justified in denying defendant Como's pretrial
motion, under Rule 41(e) (1) of the Federal Rules of Criminal Procedure, to
suppress evidence seized during an allegedly illegal search. Como was convicted,
after a jury trial, for violating 21 U.S.C. §§ 173, 174, by receiving,
concealing, and facilitating the transportation and concealment of illegally
imported heroin. The statutory mandatory minimum five‑year sentence was
imposed. Having concluded that the trial court erred in not suppressing the
narcotics, which formed the sole basis of the charge, we reverse the judgment,
of conviction and order dismissal of the indictment.
The testimony and
exhibits presented at both the hearing on the motion and the subsequent trial
developed these facts relating to the search and seizure and Como's arrest on
September 14. 1961. At the time of the events before us Como was working as a
"special employee" of the Federal Bureau of Narcotics with agents
Dolce and Gohde, in efforts to make a case against one Cangiano, a suspected
narcotics seller. Simultaneously, though quite independently, two other Bureau
agents–Schrier and Benjamin–were investigating the same suspect. Having
received information that the unidentified occupant of Room 412 of the Hotel
Elton, on Fast 26th Street in Manhattan, had been purchasing heroin from
Cangiano, Agents Schrier and Benjamin went to the hotel, purportedly to
identify the buyer and enlist his cooperation in the Cangiano case.
893
When Como entered the
hotel lobby and asked the desk clerk for the key to Room 412, Schrier and
Benjamin identified themselves and said they wished to speak with him. Como
replied that he was a special employee and asked to make a confirmatory
telephone call. But Schrier, indicating the desk clerk might eavesdrop,
suggested, "Let's go up to your room and talk." Como acquiesced,
although according to the agents' contemporaneous reports he "became very
frightened." Nevertheless, the appellant pressed his efforts to eliminate
the apparent confusion. Once inside his room he insisted that Agents Dolce and
Gohde be called to "straighten this out." Schrier responded,
"Before I make any phone calls, have you got any narcotics in the
room?" Como's initial rejoinder was in the negative, coupled with a
further plea that Dolce and Gohde be called. But, appellant's entreaties were
of no avail. Schrier persisted in treating Como's disclosure of possession of
any narcotics as a pre‑condition to the telephone call. Como eventually
yielded to these terms and reluctantly turned over six packages of heroin.
Instead of placing the call, the agents immediately arrested him and thoroughly
searched his room, uncovering various paraphernalia of the narcotics trade.
At the trial, Como
claimed that he had received the drugs from Cangiano but insisted he was acting
with the full knowledge and sanction of Agents Dolce and Gohde. The jury,
however, must have rejected this defense, apparently on the basis of the
testimony of Dolce and Gohde. Although these agents admitted that Como had been
working on the Cangiano case, and was in fact released after his arrest to
continue this work, they contended that he was never authorized to buy or hold
narcotics.
I.
[1‑5] Here the seizure was
not made pursuant to a search warrant. Nor can it be justified as incidental to
a valid arrest. Therefore, the reasonableness of the search or seizure and the
propriety of the subsequent arrest depends entirely upon whether Como
voluntarily consented, for it is an elementary maxim that a search, seizure or
arrest cannot be retroactively justified by what is uncovered. We recognize,
however, that
consent to a search is not to be lightly inferred. United States v.
Viale, 312 F.2d 595, 601 (2 Cir.1963). The guidelines are clear: "an accused's
voluntary consent must be proven by clear and positive evidence. A consent is
not a voluntary one if it is the product of duress or coercion, actual or
implicit.Moreover, to be voluntary, a consent must have been
unequivocal, specific, and intelligently given." United States
v. Smith, 308 F.2d 657, 663 (2 Cir.1962), cert. denied, 372 U.S. 906, 83 S.Ct.
717, 9 L.Ed.2d 716 (1963); see also Channel v. United States, 285 F.2d 217, 219
(9 Cir.1960).
The Government's proof
falls short of these exacting standards. On the contrary, the circumstances
indicate that Como's consent was the product of deceit
and coercion rather than an understanding and intentional waiver of a
constitutional right. In arriving at this conclusion we recognize the
difficulties which the Supreme Court and lower courts have encountered in
attempting to define the permissible bounds of searches and seizures.
Therefore, in few branches of the law is a precise case by case analysis and
meticulous comparison of precedential authority so essential.
In Smith, supra, this
Court found a voluntary consent because the defendant, after she had been
properly arrested and legally searched, agreed to show the federal agents where
she kept the remainder of her narcotics supply. But Smith, upon which the
trial judge relied in denying the motion to suppress, is clearly
distinguishable from this case. Here, the agents gained access to Como's room
on the pretense of wanting to talk to him; their supposed aim of winning his
cooperation in connection with an-
894
other investigation
was belied by their persistent demands, once in the room, for an answer to
their question as to whether he possessed any drugs. Cf. Pekar v. United
States, 315 F.2d 319, 325 (5 Cir.1963); United States v. Ong Goon Sing, 149
F.Supp. 267 (S.D.N.Y. 1957). And, in marked contrast to Smith, but for Como's
disclosure of the six packages of heroin, no arrest could legally have been
made at the time.
[6] We believe that Como's
"consent" to the seizure was coerced and induced by the agents
preying on his anxiety to call Dolce and Gohde and inducing his belief that the
call would be placed and all would be well once the narcotics were turned over.
Cf. Haynes v. State of Washington, 373 U.S. 503 83 S.Ct. 1336, 10 L.Ed.2d 513
(1963). Since Como's cooperation was predicated on his presumption–deceptively
fostered by the agents–that the telephone call would be made before he was
arrested, his consent was no consent at all. In deed, the beguilement may have
had more serious effects for, at least from Como's vantage point, the promise
to telephone the agents as soon as he disclosed possession implied agreement with
appellant's reasonable assumption that the answers of Dolce or Gohde would
confirm that he was a "special employee" engaged in the Cangiano
investigation and thus would lift the threat of arrest. That the sequence of
these events is critical becomes manifest if we assume the agents had made the
call before requiring Como to disclose his possession of drugs. Then Dolce and
Gohde, if their testimony at the trial was accurate, would have said that Como
had no authority to hold narcotics and the appellant at that moment could,
quite properly, have asked the officers to leave without permitting any search
of his room.
[7, 8] In addition, there was no intelligent
waiver because Schrier and Benjamin camouflaged their purpose of investigating
Como's personal criminal liability. We find no merit in the Government's
contention, rooted in our decision in United States v. Sclafani, 265 F.2d 408
(2 Cir.), cert. denied, 360 U.S. 918, 79 S.Ct. 1436, 3 L.Ed.2d 1534 (1959),
that there was no duty to inform Como that he would be arrested if drugs were
found. We view Sclafani as a narrow holding that consent to the continuation of
an Internal Revenue Service investigation was not procured by stealth or deceit
simply because the agents failed to disclose that their probe had expanded from
civil to criminal purposes.1 Here,
indeed, the agents seem to have disobeyed Sclafani's command to avoid
"obscur[ing] the warning inherent in their request for permission to
search," 265 F.2d at 415, by inducing the tacit understanding that they
would make the call that Como repeatedly said would exculpate him.
Although the line
between an accused's voluntary consent and his involuntary submission to police
authority is often difficult to draw, we are persuaded that on the record
before us there has not been a sufficient showing of true consent, free from
chicanery or compulsion. To hold otherwise in these circumstances would, as the
late Justice Jackson once eloquently remarked, "obliterate one of the most fundamental
distinctions between our form of government, where officers are under the law,
and the police‑state where they are the law." Johnson v.
United States, 333 U.S. 10, 17, 68 S.Ct. 367, 370, 92 L. Ed. 436 (1948). The
civilized standards of fundamental fairness developed over the years in this
area must be zealously guarded by the trial and appellate court,
1. Sclafani s limited scope is suggested by
the Court's rationale: "A 'routine' tax investigation openly commenced as
such is devoid of stealth or deceit because the ordinary taxpayer surely knows
that there is inherent in it a warning that the government's agents will pursue
evidence of misreporting without regard to the shadowy line between avoidance
and evasion, mistake and wilful omission." 2015 F:2d at 414‑415.