United States v. Antonio Ochoa-Almanza

Tenth Circuit

United States v. Antonio Ochoa-Almanza

623 F.2d 676, 1980 U.S. App. LEXIS 16543

CourtCourt of Appeals for the Tenth Circuit

DecidedJune 18, 1980

Docket79-2210

StatusPublished

Cited by3 cases

This text of 623 F.2d 676 (United States v. Antonio Ochoa-Almanza) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Antonio Ochoa-Almanza, 623 F.2d 676, 1980 U.S. App. LEXIS 16543 (10th Cir. 1980).

Pincite

Opinions

McKAY, Circuit Judge.

This is an appeal from an order of the district court suppressing information obtained by a police officer who made a warrantless entry into a home for the purpose of searching for illegal aliens. The government claims on appeal that the officer had the consent of a six-year-old child to enter the premises. The officer testified that the child was playing in the yard when he approached and that she ran to the house, arriving at the screen door simultaneously with his arrival; that he knocked twice and that she said “come in.” The occupants of the house testified that they did not hear anyone knock, that they did not hear the little girl say anything at the door, that the little girl was not around when the officer entered the room and that the officer just “popped right in.” Record, vol. 2, at 17. The occupants also testified that the screen door could not be seen from where they were located in a nearby room. The officer admitted that he proceeded some distance from the door after entering the house before he discovered the information which was suppressed. The government presented no evidence as to the little girl’s capacity or scope of authority to waive fundamental Fourth Amendment rights for the occupants of the house.

The trial court in its order emphasized that it was applying the three-part test set out in United States v. Abbott, 546 F.2d 883, 885 (10th Cir. 1977), adopting a preponderance of evidence standard as mandated by United States v. Matlock, 415 U.S. 164, 177, 177 n. 14, 94 S.Ct. 988, 996, 39 L.Ed.2d 242 (1974). The court expressly noted that it was judging the evidence in light of the “totality of the circumstances” under Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2058-2059, 36 L.Ed.2d 854 (1973). Applying these standards, without deciding whether the little girl had authority to let the police officer enter the house, the court concluded that under the totality of the circumstances the government failed to prove that she gave consent to search the apartment. The trial court put emphasis on the fact that the officers went to the door with the intent to search. This case is thus unlike Davis v. United States, 327 F.2d 301 (9th Cir. 1964), where the court emphasized that the officers did not have any intent to search. The Davis court distinguished cases like this one

wherein the intent of the several officers at the time of their entry on to the premises without possessing a legal warrant for search or arrest, was actually either to arrest without warrant or search without warrant.

Id. at 304.

The government has the burden of proving that consent for a warrantless entry or search was freely, intelligently and knowingly given by one with the authority [678]*678and capacity, to give such consent. See United States v. Matlock, 415 U.S. at 171, 94 S.Ct. at 993; Schneckloth v. Bustamonte, 412 U.S. at 248-^49, 93 S.Ct. at 2058-2059; United States v. Abbott, 546 F.2d at 885. We believe the record justifies the court’s conclusion that the government failed to carry its burden of proving a valid waiver of this defendant’s right not to have his premises searched without a warrant.

AFFIRMED.

Free access — add to your briefcase to read the full text and ask questions with AI

McKAY, Circuit Judge.

This is an appeal from an order of the district court suppressing information obtained by a police officer who made a warrantless entry into a home for the purpose of searching for illegal aliens. The government claims on appeal that the officer had the consent of a six-year-old child to enter the premises. The officer testified that the child was playing in the yard when he approached and that she ran to the house, arriving at the screen door simultaneously with his arrival; that he knocked twice and that she said “come in.” The occupants of the house testified that they did not hear anyone knock, that they did not hear the little girl say anything at the door, that the little girl was not around when the officer entered the room and that the officer just “popped right in.” Record, vol. 2, at 17. The occupants also testified that the screen door could not be seen from where they were located in a nearby room. The officer admitted that he proceeded some distance from the door after entering the house before he discovered the information which was suppressed. The government presented no evidence as to the little girl’s capacity or scope of authority to waive fundamental Fourth Amendment rights for the occupants of the house.

The trial court in its order emphasized that it was applying the three-part test set out in United States v. Abbott, 546 F.2d 883, 885 (10th Cir. 1977), adopting a preponderance of evidence standard as mandated by United States v. Matlock, 415 U.S. 164, 177, 177 n. 14, 94 S.Ct. 988, 996, 39 L.Ed.2d 242 (1974). The court expressly noted that it was judging the evidence in light of the “totality of the circumstances” under Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2058-2059, 36 L.Ed.2d 854 (1973). Applying these standards, without deciding whether the little girl had authority to let the police officer enter the house, the court concluded that under the totality of the circumstances the government failed to prove that she gave consent to search the apartment. The trial court put emphasis on the fact that the officers went to the door with the intent to search. This case is thus unlike Davis v. United States, 327 F.2d 301 (9th Cir. 1964), where the court emphasized that the officers did not have any intent to search. The Davis court distinguished cases like this one

wherein the intent of the several officers at the time of their entry on to the premises without possessing a legal warrant for search or arrest, was actually either to arrest without warrant or search without warrant.

Id. at 304.

The government has the burden of proving that consent for a warrantless entry or search was freely, intelligently and knowingly given by one with the authority [678]*678and capacity, to give such consent. See United States v. Matlock, 415 U.S. at 171, 94 S.Ct. at 993; Schneckloth v. Bustamonte, 412 U.S. at 248-^49, 93 S.Ct. at 2058-2059; United States v. Abbott, 546 F.2d at 885. We believe the record justifies the court’s conclusion that the government failed to carry its burden of proving a valid waiver of this defendant’s right not to have his premises searched without a warrant.

AFFIRMED.

Cite This Page — Counsel Stack

Bluebook (online)

623 F.2d 676, 1980 U.S. App. LEXIS 16543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-antonio-ochoa-almanza-ca10-1980.

Opinions

Related

Cite This Page — Counsel Stack