United States v. Clement Kolodziej

706 F.2d 590, 1983 U.S. App. LEXIS 27009
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 6, 1983
Docket82-1076
StatusPublished
Cited by66 cases

This text of 706 F.2d 590 (United States v. Clement Kolodziej) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. Clement Kolodziej, 706 F.2d 590, 1983 U.S. App. LEXIS 27009 (5th Cir. 1983).

Opinion

*592 WISDOM, Circuit Judge:

This is an appeal by the United States from two orders of the district court granting motions to suppress. The questions we review on appeal are (1) whether the trial court erred when it ruled that telephone conversations placed between the defendant and a co-defendant were taped without the latter’s voluntary consent, and (2) whether the record supports the court’s conclusion that evidence seized from the defendant’s home was taken in violation of his constitutional rights. We reverse as to the first question, affirm as to the second question, and remand the case.

I.

After first obtaining a search warrant, on January 14, 1981, agents of the Drug Enforcement Administration and the Texas Department of Public Safety Narcotic Service entered the residence of Loren and Jody Caddell in Amarillo, Texas. They discovered Jody Caddell weighing and packaging one-and-one half pounds of cocaine. She was then pregnant, and alone with her two-year-old child. At roughly the same time, her husband was arrested at his place of business. The parties disagree about what happened after the officers arrived at the Caddell residence. Jody Caddell testified at the suppression hearing that it was her impression that the agents threatened to arrest her and to turn her child over to the welfare authorities unless she agreed to cooperate. The government maintains, however, that the arresting officers advised her that the standard procedure in such cases called for placing her child with the Department of Human Resources until a family member could come and get the child. The agents decided, however, not to take her into custody because of her physical condition, and after Loren Caddell had been returned to his home, that evening both Caddells agreed to cooperate with the agents. The cooperation first took the form of oral and written statements in which they identified the defendant, Clement J. Kolodziej, as their drug supplier. Later that night, the Caddells were asked to and agreed to place several telephone calls to the defendant to prompt him to make incriminating statements.

As a result of the Caddells’ cooperation, Kolodziej was indicted and a warrant for his arrest was issued. He was arrested on February 17, 1981, inside the front doorway of his home in San Marcos, Texas. He offered no resistance and was unarmed. Following the arrest, the officers conducted a cursory safety check of the house and found an open film cannister containing marijuana on the kitchen counter approximately 15 to 20 feet from where Kolodziej was arrested. The agents asserted that the safety check was necessary for their protection because they had earlier learned from an informant, Donnie Mitchell, that the defendant was known to carry a gun and occasionally worked with a partner named “Barney”. Based upon the marijuana discovered during the check and the information obtained from the Caddells and Mitchell, the officers obtained a search warrant. During the investigation of Kolodziej’s home, automobile, and truck, the agents found fifteen to twenty pounds of marijuana, a .357 magnum pistol, a quantity of quaaludes, and $61,000 in cash.

Kolodziej was charged with possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a) and 846. He was also charged, together with Loren and Jody Caddell, with conspiracy to possess- cocaine and marijuana with intent to distribute. The district court conducted a pretrial suppression hearing and found that although Loren Caddell had voluntarily consented to the tape recordings, Jody Caddell’s cooperation was “coerced and induced by the threat to take her children from her.” Concluding that the voluntariness mandated by 18 U.S.C. § 2511(2)(c) was not present, the court suppressed the conversations between the defendant and Jody Caddell. The district court also found that the search warrant was not supported by probable cause, and suppressed all evidence discovered during the investigation of Kolodziej’s home. We first examine the propriety of the district court’s conclusion that Jody Caddell *593 did not voluntarily consent to make the monitored telephone calls.

II.

Title 18 U.S.C. § 2515 mandates the suppression of all evidence gathered in contravention of section 2511, which makes it illegal to intercept any wire or oral communication. 1 Section 2511(2)(c) sets forth an exception, which provides that:

It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

The consent exception to 18 U.S.C. § 2511 is no new subject to federal courts. We have held that for a party’s consent to be valid under § 2511(2)(c), it must be voluntary and uncoerced. United States v. Juarez, 5 Cir.1978, 573 F.2d 267, 278, cert. denied, 1978, 439 U.S. 915, 99 S.Ct. 289, 58 L.Ed.2d 262; United States v. Osser, 3 Cir. 1973, 483 F.2d 727, 730, cert. denied, 1973, 414 U.S. 1028, 94 S.Ct. 457, 38 L.Ed.2d 321. The burden of proving voluntariness is on the government. United States v. Napier, 5 Cir.1971, 451 F.2d 552, 553. This burden can usually be met by showing that the informant placed the telephone call knowing that it would be monitored. United States v. Glickman, 9 Cir.1979, 604 F.2d 625, 633-34, cert. denied, 1980, 444 U.S. 1080, 100 S.Ct. 1032, 62 L.Ed.2d 764; United States v. Bonanno, 2 Cir.1973, 487 F.2d 654, 658. When, however, there is an allegation of coercion, the government must show that there has been no undue pressure, threats, or improper inducements. See United States v. Kirk, 8 Cir.1976, 534 F.2d 1262, 1273, cert denied, 1977, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091; United States v. Juarez, 573 F.2d at 278. Raised expectations and hopes for leniency do not amount to coercion or improper inducement. United States v. Llinas, 5 Cir.1979, 603 F.2d 506

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Bluebook (online)
706 F.2d 590, 1983 U.S. App. LEXIS 27009, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-clement-kolodziej-ca5-1983.