United States v. Glen William Ziemer

291 F.2d 100, 1961 U.S. App. LEXIS 4227

• Court: Court of Appeals for the Seventh Circuit
• Decided: June 13, 1961
• Docket: 13230_1
• Status: Published

Opinions

SCHNACKENBERG, Circuit Judge.

Following a trial without a jury, the district court adjudged the defendant, Glen William Ziemer, guilty on three counts of an indictment charging counterfeiting operations in violation of 18 U.S.C.A. § 474, and sentenced him to four years imprisonment for each violation, to be served concurrently. Appealing therefrom, he relies on the failure of the court to grant his motion to suppress evidence. The court held a hearing on the motion. We state the salient parts of the evidence.

A former roommate of defendant reported in April of 1956 that a suit had been stolen. On March 3, 1960, Milwaukee police officers Franklin and Marx were ordered to talk to defendant about the theft of the suit and certain bed clothing. The officers testified that they entered the building in which defendant’s rooms were located and were then directed to his door. In response to their knock, defendant, while partially clad, opened the door. The officers identified themselves, and defendant said he was Ziemer. He then put on his trousers in the doorway and talked about the stolen suit of clothes. Defendant became very nervous. When the officers asked if they could come into the room, he answered “I would rather not.” Defendant asked why the officers seemed so interested in coming into the room, to which they replied they had asked for permission to look for the clothing, and that, if he had no knowledge of it, he would have nothing to hide. Thereupon defendant said “you may enter my room and you may look.” He thereupon moved to one side of the door from the center where he had been standing. The door was open as far as the furniture in the room would permit.

Defendant testified that, when the officers asked, “You seem awfully interested in keeping us out; what have you got in there?”, he said “Well, you can see what’s here; there’s a bed, television set and a dresser, and that’s all there is in here.” Then one of the officers said “You really don’t mind if we come in, do you ?” and defendant said “I certainly do mind.” According to defendant, the officers came in and he “had to back up and * * * they were in the room”. Defendant opened the door to an adjoining room to turn off a red photographic bulb burning there and the officers followed him.

Officer Franklin’s testimony, covering events occurring after defendant said the officers could look for the clothing mentioned in the theft complaint, we set forth:

“Officer Marx proceeded first; I followed. In Mr. Ziemer’s presence we moved to the closet which is a large walk-in type, and Officer Marx proceeded first in the closet. Mr. Ziemer followed Mr. — Officer Marx and I followed Mr. Ziemer, so Mr. Ziemer was between us. Officer Marx and I observed a pair of trousers which was lying on a book which covered a pan. Officer Marx picked up the pair of trousers and, in doing so, the book fell to the floor. In looking into the pan, about that far under the solution (indicating) there was what appeared to be a negative of a ten-dollar bill. Officer Marx moved to the doorway and into the bedroom proper. Lying on the floor was a flashlight. He picked this flashlight up, stepped back into the closet, shown its beam onto the tray, and at that time we did identify it as a negative of a ten-dollar bill and placed Mr. Ziemer under arrest.”

After he was placed under arrest, Ziemer was asked if he had any more negatives or counterfeiting equipment in the room and he said, “Yes. I’ll show you.” He walked from the closet to the bed from under which he pulled a suitcase, opened it and showed the officers partially completed notes and some copper engraved plates. Pictures were taken of the equipment seized from Ziemer, and of the bed, two presses, a camera, a whirler, various chemicals, copper plates and counterfeit United States currency notes, as well as a belt worn by Ziemer, containing two places of concealment where he had $300 of legitimate money.

Defendant also testified that he requested Betty Koepsel to testify that she overheard him tell the detectives that they couldn’t come into his room. However, she testified that Ziemer came to her apartment and requested her to testify that she overheard Ziemer tell the detectives that they couldn’t come into his room, and that she told him she couldn’t so testify because she didn’t see or hear anything, whereupon Ziemer told her that “it wouldn’t matter because nobody could prove that you weren’t telling the truth”.

Defendant testified that in 1941 he was convicted of a felony, possession of counterfeit material.

After hearing the testimony of all witnesses for both the government and the defendant and having an opportunity to observe their demeanor, the district court made this finding:

“Believing the testimony of the police officers and disbelieving that of the defendant, the court finds that the defendant voluntarily and knowingly consented to the search for the clothing and that while the officers were there with permission for that purpose, they saw the counterfeiting material and thereafter placed defendant under arrest. Defendant’s motion for the return of seized property and suppression of evidence is hereby denied.”

In United States v. MacLeod, 7 Cir., 207 F.2d 853, at page 854, we said:

“* * * The District Court, after hearing testimony upon this disputed factual issue, made the findings above noted. In reality, the only question for our consideration is whether the record furnishes substantial support for such finding.”

Even without the testimony of the witness Betty Koepsel, we would not feel justified in setting aside the finding of the district court that the defendant voluntarily and knowingly consented to the search in question. However, the correctness of the court’s finding is emphasized by the dubious credibility of defendant’s testimony, revealed by both his effort to induce Betty Koepsel to commit perjury on his behalf and his admission of prior conviction of a felony, a well-established method of impeachment. United States v. Senior, 7 Cir., 274 F.2d 613, 616. We cannot say as a matter of law that the finding of the district court was erroneous. Davis v. United States, 328 U.S. 582, 593, 66 S.Ct. 1256, 90 L.Ed. 1453.

Such evidence as defendant relies on to prove the opposite conclusion was obviously not believed by the trial judge. As a reviewing court we have no right to weigh the evidence and determine which witnesses told the truth. The trial judge’s decision on a matter of fact, which was supported by evidence which he deemed credible, should not be set aside by this court even though from a reading of the entire record we might (although we do not) come to an opposite conclusion. As was said in Roberts v. United States, 5 Cir., 151 F.2d 664, 665:

“What we said in Hargrove v. United States, 5 Cir., 139 F.2d 1014, is appropriate here:

“ ‘We are not triers of fact. The law, in its wisdom, does not authorize this court to substitute the reactions as to the facts which it gains from a perusal of the cold, printed type for those of the lower court which saw and heard the witnesses, observed their demeanor on the stand, and thus was placed in far better position to know the true and false than this court ;***.' ”

In United States v. Arrington, 7 Cir., 215 F.2d 630, 634, we recognized that the protection afforded by the Fourth Amendment may be waived by consent, provided it is freely, voluntarily and understandingly given. However, in a majority opinion this court held that a reversal of defendant’s conviction was required. That action was based upon a factual situation dissimilar to that in the case at bar.¹

A defendant cannot claim that his constitutional rights were invaded where an entry and search of his premises was made with his consent and there is no evidence of coercion or mental force. Milyonico v. United States, 7 Cir., 53 F.2d 937.

The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable; that criterion in turn depends upon the facts and circumstances — the total atmosphere of the case. United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 94 L.Ed. 653.

We accept the district court’s finding that the defendant voluntarily and knowingly consented to the search of his premises and no error was committed in the denial of defendant’s motion for the return of seized property and suppression of evidence.

Accordingly, the judgment from which defendant appeals is affirmed.

Affirmed.

1 . In that case it appeared that about 4 A.M. January 5, 1953 (four or five hours prior to the time defendant was interviewed in the county jail by the postal inspectors), Delaney and other city officers, without defendant’s consent, entered his home without a warrant either for the arrest of defendant or for the search of his home. These officers, after looking around, took defendant into custody and to the county-jail where he was held without charge until the postal inspectors arrived.

Between 8 and 9 A.M. on the same day, while defendant was under arrest and in jail with no charge against him, a postal inspector testified that he told defendant he had information certain parcel post merchandise was in the defendant’s apartment and asked defendant if it was all right with him if he went to defendant’s apartment and looked for the stolen goods; that defendant said, “Yes”, that they could take anything in his apartment which they could identify as stolen property. Inspector Dilley testified to substantially the same conversation. Following this, the three officers, armed with guns and accompanied by defendant, went to his home, where his wife opened the door and permitted the officers to enter.

The postal inspectors testified that defendant, after they had entered his home, told them, “Go ahead, look around.” The officers proceeded to search the home, discovered and seized the alleged stolen property described in the indictment, the admission of which as evidence was sought to be suppressed.