United States v. Clara B. Penn, A/K/A Clara B. Alexander

647 F.2d 876
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 28, 1980
Docket77-3918
StatusPublished
Cited by87 cases

This text of 647 F.2d 876 (United States v. Clara B. Penn, A/K/A Clara B. Alexander) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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. Clara B. Penn, A/K/A Clara B. Alexander, 647 F.2d 876 (9th Cir. 1980).

Opinions

CHOY, Circuit Judge:

The district court suppressed a jar of heroin taken from the defendant’s backyard, and the government appealed under 18 U.S.C. § 3731.1 After a panel of this court had concluded that reversal was necessary, the panel suggested that the court consider the question en banc. The panel decision has been withdrawn, and the following opinion reflects the view of the majority of the court en banc.

I. Statement of the Case

Two years of Seattle police investigation led officers to believe that Clara Penn was distributing heroin from her residence. Evidence sufficient to justify a search warrant indicated that some of the Penn children were buying items used in the packaging and distribution of narcotics and that, when a delivery was to be made to a customer, one of the children was sent to retrieve drugs from a cache believed to be in the backyard.

A state magistrate issued a search warrant which described the premises to be searched as the residential premises, including the yard. The police surrounded the house, entered, and seated in the living room the approximately 10 persons found on the premises. Clara Penn’s children, [879]*879ranging in age from 5 to 22, were among them. They, along with the rest of the group, were uncooperative and combative.2 In taunting the police they revealed their awareness of drug-related activities.3

Officers conducting the search found a quantity of cocaine in the Penn home. After a half hour of looking they had found no heroin. At that point, Reggie, the youngest of Clara Penn’s children (age 5), asked to go to the bathroom. A police officer took him. While in the bathroom with the child the policeman asked Reggie (as an “afterthought,” according to the officer’s testimony) if Reggie knew where the little balloons (of heroin) were hidden. Reggie nodded in the affirmative to the officer’s question, indicating that he knew where the heroin could be found.

While the officer had good reason to believe that Clara Penn’s children were assisting her in her drug operations and that some of them might know where the heroin was located, there is no evidence that Reggie specifically was known to be a participant in his mother’s drug dealings.

Because of a commotion outside the bathroom door, the officer did not pursue his conversation with Reggie. But 10 minutes later, when the commotion had ended, the officer spoke with Reggie again, this time in the kitchen. The officer asked Reggie if Reggie would take him out to where the heroin was located. Reggie answered yes, then hesitated. The officer then offered to give Reggie five dollars if Reggie would show him the location of the cache. The boy thereupon walked out to the backyard and pointed to some soft sod. Under the sod the police discovered a glass jar containing 132.9 grams of heroin. Police later found in the yard, but without Reggie’s assistance, a second jar containing 14.6 grams of heroin. (Because of the hostility of Reggie’s brothers, the officer was unable to give Reggie the five dollars.)

After a state prosecution was terminated following a successful suppression motion,4 the federal government prosecuted Clara Penn under 21 U.S.C. § 841(a)(1) for possession of controlled substances with intent to distribute them. The prosecution sought to introduce the state-suppressed evidence taken from the yard. On motion by the defense, the district court suppressed the jar of heroin that had been found with Reggie’s help,5 on the ground that the police conduct violated the due process clause of the Fifth Amendment. According to the court’s memorandum:

The bribery of a child of tender age by a policeman in order to obtain evidence to be used against a parent represents police conduct which is shocking to the conscience and is, in the opinion of this Court, so violative of the decencies of civilized conduct to be a deprivation of due process. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952).

[880]*880II. Constitutional Grounds

A. Due Process

Courts should tread gingerly when faced with arguments that the “fundamental fairness” component of the Fifth Amendment’s Due Process Clause requires the suppression of evidence. Only the most serious cases, which truly shock the conscience as well as the mind, call for invocation of the Constitution itself rather than of our prudential powers. The Constitution was designed to define the boundaries and framework of civilized and orderly government; it is not to be used to convert into a command a judge’s every notion of what is morally best. But when the truly outrageous case, “shocking to the universal sense of justice,” is before us, it is our duty to uphold the Constitution and invoke the Due Process Clause of the Fifth or Fourteenth Amendment. Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 (1942), overruled on other grounds, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

The district court below relied on Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (forcible insertion and use of stomach pump), to suppress the evidence, on the ground that the police tactic used to obtain the evidence shocked the conscience. It was technically incorrect to rely on Rochin ; we have strictly limited the Rochin line of precedent to cases of physical assault on a suspect’s person. See Rivas v. United States, 368 F.2d 703, 710 (9th Cir. 1966), cert. denied, 386 U.S. 945, 87 S.Ct. 980, 17 L.Ed.2d 875 (1967). Nonetheless, the Rochin line represents only a subset of the broader category of due process violations by police in the course of investigations, see United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973), and Penn’s case conceivably could fall within the broader category.

We hold, however, that it does not, although we disapprove of the police tactic used here. Due process arguments are to be “tested by an appraisal of the totality of facts in a given case.” Betts v. Brady, 316 U.S. at 462, 62 S.Ct. at 1256. Under the facts of this case, the tactic did not violate the Fifth Amendment; under the facts of another, it might. See id.

Penn’s case is based on a combination of factors that, considered individually, are universally agreed not to violate due process. Reggie (1) was bribed to give information; (2) was a very young child; and (3) was a close relative of Clara Penn — indeed, her son. But the police may pay informants to give information; very young children may aid criminal investigations; and sons may inform or testify against mothers.

Moreover, we think that there is general agreement that the combination of any two of these factors would not violate due process.

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Cite This Page — Counsel Stack

Bluebook (online)
647 F.2d 876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-clara-b-penn-aka-clara-b-alexander-ca9-1980.