United States v. Herman Patayan Soriano

361 F.3d 494, 2003 U.S. App. LEXIS 27154, 2004 WL 439854
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 11, 2004
Docket01-50461
StatusPublished
Cited by142 cases

This text of 361 F.3d 494 (United States v. Herman Patayan Soriano) 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. Herman Patayan Soriano, 361 F.3d 494, 2003 U.S. App. LEXIS 27154, 2004 WL 439854 (9th Cir. 2004).

Opinions

Opinion by Judge CLIFTON; Dissent by Judge BERZON

ORDER

CLIFTON, Circuit Judge.

The opinion and the dissenting opinion filed October 15, 2003, and published at [497]*497346 F.3d 963 (9th Cir.2003), are amended as follows:

The opinion is amended by adding a new footnote 4, 346 F.3d at 975, at the end of the first sentence of the concluding paragraph: “For the foregoing reasons, we affirm the denial of Soriano’s motion to suppress, and thus affirm his conviction.4

We feel compelled to note, however, that we believe that the dissenting opinion, as amended, contains significant misstatements, particularly in its second paragraph, newly added to the dissent as part of the amendment. In broad terms, we do not believe we made the assumption or drew the conclusion attributed to us in that paragraph. More specifically, the dissent incorrectly asserts that there was “a finding that im-permissibly coercive statements [plural] occurred.” Infra at - (emphasis added). There was no such finding, and there is no basis for asserting that there was any more than a single statement identified by the district court as a source of concern, that being the statement by Officer Shanahan, which was immediately followed by corrective statements by Postal Inspector Callas. Nor was there a finding, as the dissent asserts, that Shanahan’s statement” did impact the decision to consent.” Id. (emphasis in original). The district court found that Mukai did have her concern for her children “in mind to some extent,” but that is not quite the same thing, and not a finding that Mu-kai’s consent resulted from Shanahan’s threat. The district court considered the entire context, including the statements made by the other officers correcting Shanahan’s statement and the fact that Mukai took time to think before giving consent.
Finally, there was no conclusion that “a consent can become voluntary simply because there was time to deliberate.” Id. (emphasis added). Mukai’s consent did not change from “involuntary” to “voluntary.” The district court found, based explicitly on “the totality of circumstances,” that Mukai’s consent was “free and voluntary.” That determination did not rest “simply” on the fact that there was time available for Mukai to think. It was based on the entire collection of facts, one of which was that Mukai actually took the time to deliberate and was not stampeded into consenting immediately following Shanahan’s improper statement.

The dissenting opinion is amended by replacing the first paragraph, 346 F.3d at 975, with:

Faced with conflicting representations by two law enforcement officers, Hiroe Mukai did the only thing that a reasonable parent could have done under the circumstances: She consented to a search for fear that the representation of one of the two officers that her young children would be taken from her if she did not consent would prove correct. The trial court recognized that when signing the consent form Mukai did “have [] in mind to some extent” her fear that her children would be taken from her if she refused to accede to the officers’ demand. Yet, the trial court concluded that Mukai’s consent was voluntary.
[498]*498In affirming the district court’s decision, the majority ratifies at least two unacknowledged legal errors: first, the assumption that where there is a finding that impermissibly coercive statements occurred and did impact the decision to consent, as here, the decision can nonetheless be voluntary even if the reliance on the coercive statements was reasonable; and second, the conclusion that a consent can become voluntary simply because there was time to deliberate concerning whether to rely on impermis-sibly coercive statements.
At the outset, I note that although the ultimate question whether Mukai’s consent was voluntary is a factual one, see Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the trial court’s errors, described above, involved the application of the legal standards for voluntariness of consent. See Culombe v. Connecticut, 367 U.S. 568, 603, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961) (explaining that the volun-tariness inquiry requires “the application ... of standards for judgment - informed by the larger legal conceptions ordinarily characterized as rules of law but which, also, comprehend both induction from, and anticipation of, factual circumstances”); see also Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041 (“In determining whether a defendant’s will was overborne in a particular case,” a court must “evaluate[] the legal significance of how the accused reacted.”) (citing Culombe, 367 U.S. at 603, 81 S.Ct. 1860).

Accordingly, I respectfully dissent.

Replace the fourth paragraph (the fourth paragraph on 346 F.3d at 977) with:

Second, the district court erred in concluding that a reasonable person would have determinatively credited Inspector Callas’ reassurances over Officer Shana-han’s threats. True, Callas indicated to Mukai that her arrest was unrelated to her decision regarding consent. Shana-han, however, the only officer in uniform, never recanted her threat and remained standing nearby, presumably within earshot, for the remainder of the conversation.

Replace the second and third full paragraphs (second and third full paragraphs on 346 F.3d at 978-79) with:

In determining otherwise, the district court and the majority posit a model of voluntary decisionmaking that cannot be reconciled with the values underlying the Fourth Amendment. That Mukai “seemed to carefully think the situation through before ultimately signing the consent form,” ante at-, or “was told that it was her decision and ... was thinking it over” for either five or ten minutes, as the district court found, has nothing to do. with the voluntariness issue. Mukai forcefully testified that the decision she finally made was the result of her fear that Shanahan’s prediction .concerning her children’s fate should she fail to consent could prove true. That she thought for a while before coming to that conclusion does not make her continuing fear unreasonable. Coercion need not result in a hasty, emotionally-based decision. Reasonable people can decide, based on cogitation rather than precipitous capitulation, that a possible future consequence is simply unacceptable. See Schneckloth, 412 U.S. at 224, 93 S.Ct. 2041 (“[Voluntariness] cannot be taken literally to mean a ‘knowing’ choice. Except where a person is unconscious or drugged or otherwise lacks capacity for conscious choice, all [decisions] ... are ‘voluntary’ in the sense of representing a choice of alternatives.”) (citation and. internal quotation marks [499]*499omitted). Where, as here, that threatened consequence was inaccurate — Mu-kai could not legally be arrested, of course, simply for refusing to consent, so her children could not be removed for that reason either — the consent was not voluntary, however well-considered.

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Bluebook (online)
361 F.3d 494, 2003 U.S. App. LEXIS 27154, 2004 WL 439854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-herman-patayan-soriano-ca9-2004.