United States v. Larson

978 F.3d 1021
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 21, 1992
DocketNo. 92-2263
StatusPublished

This text of 978 F.3d 1021 (United States v. Larson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Larson, 978 F.3d 1021 (8th Cir. 1992).

Opinion

FAGG, Circuit Judge.

The Government charged John Joseph Larson with six counts of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1) (1988), one count of possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1) (1988), and one count of using a firearm in relation to a drug trafficking crime, see 18 U.S.C. § 924(c)(1) (1988). Before his trial, Larson filed a motion to suppress evidence found during a consensual search of his mother’s apartment. The district court denied Larson’s motion. The evidence was admitted at Larson’s trial, and a jury convicted Larson of all charges against him. The district court gave Larson a sentence of twenty-four months on the drug and felon-in-possession charges and a consecutive sentence of five years for using a firearm in relation to a drug trafficking crime.

Larson appealed, and we remanded for resentencing in light of United States v. Edwards, 946 F.2d 1347 (8th Cir.1991) (holding state’s restoration of civil rights controls felon status for defendant charged with violation of 18 U.S.C. § 922(g)). On remand, the district court found Arizona law had automatically restored Larson’s civil rights, including the right to possess firearms. The district court nullified Larson’s convictions for possession of a firearm by a felon and gave Larson an eighteen-month sentence on the drug charge and a consecutive sentence of five years for using a firearm in relation to a drug trafficking crime. Larson appeals his convictions and sentences. We affirm.

First, Larson contends the district court should have granted his motion to suppress because his mother did not give valid consent to the search of her apartment. We disagree. To justify a consensual search, the Government has the burden to prove the consent given was voluntary. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). The voluntariness of consent is a question of fact that depends on the totality of • the circumstances. Sckneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973). Consent is voluntary if it is “the product of an essentially free and unconstrained choice by its maker,” id. at 225, 93 S.Ct. at 2046-47, rather than “the product of duress or coercion, express or implied,” id. at 227, 93 S.Ct. at 2047. Thus, consent is involuntary when “under all the circumstances it ... appear[s] that the consent was ... granted only in submission to a claim of lawful authority.” Id. at 233, 93 S.Ct. at 2051; see Bumper, 391 U.S. at 548, 88 S.Ct. at 1791 (consent was involuntary when given only after officials conducting a search falsely asserted they possessed a warrant); United States v. Alberts, 721 F.2d 636, 640 (8th Cir.1983) (same).

Larson asserts his mother’s consent was invalid because she merely acquiesced to authority. The district court found, howev[1024]*1024er, the officers who conducted the search never claimed they had a search warrant. When the officers asked for permission to search, Mrs..Larson stated, “You will probably get a search warrant anyway.” The officers agreed that they probably would. Mrs. Larson then read and signed a consent form.

When a person consents to a search after officers state they will attempt to obtain a warrant if the person does not consent, the consent is not necessarily coerced. E.g., United States v. Duran, 957 F.2d 499, 502-03 (7th Cir.1992); United States v. Twomey, 884 F.2d 46, 50-51 (1st Cir.1989), cert. denied, 496 U.S. 908, 110 S.Ct. 2592, 110 L.Ed.2d 273 (1990); United States v. Tutino, 883 F.2d 1125, 1137 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990), and cert. denied, 493 U.S. 1082, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990); United States v. Talkington, 843 F.2d 1041, 1049 (7th Cir.1988); United States v. Sebetich, 776 F.2d 412, 424-25 (3d Cir.1985), cert. denied, 484 U.S. 1017, 108 S.Ct. 725, 98 L.Ed.2d 673 (1988); United States v. Culp, 472 F.2d 459, 461 n. 1 (8th Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2161, 36 L.Ed.2d 692 (1973). Instead, an officer’s threat to obtain a search warrant is a factor to be considered when examining the totality of the circumstances surrounding consent. Talkington, 843 F.2d at 1049; Sebetich, 776 F.2d at 424. We reject Larson’s argument that the totality of the circumstances analysis does not apply when the facts show acquiescence to authority.

Although Mrs. Larson signed the consent form after the police confirmed her statement that they would probably seek a warrant, the totality of the circumstances indicate Mrs. Larson’s consent was voluntary rather than coerced. See United States v. Chaidez, 906 F.2d 377, 381 (8th Cir.1990) (listing specific factors to consider when examining totality of circumstances). The district court found Mrs. Larson did not hesitate when giving police her consent. She was fifty-seven years old and appeared calm and articulate. Police did not threaten, physically intimidate, or punish her in any way. Mrs. Larson relied on no promises or misrepresentations by police other than what she already believed the police would do if she refused. Mrs. Larson was not in custody, under arrest, or in unfamiliar surroundings when she gave consent. Finally, she cooperated with the police during the search. After considering these factors, the district court found Larson’s mother voluntarily consented to the search. Having reviewed the record, we conclude the district court’s findings are not clearly erroneous.

Second, Larson contends he is entitled to a new trial because the spillover effect from the government’s proof on the felon-in-possession charges improperly influenced the jury on the other two charges. See United States v. Townsley, 843 F.2d 1070, 1081 (8th Cir.1988), cert. dismissed, — U.S. at —, 111 S.Ct. 1406, 113 L.Ed.2d 461 (1991). Evidence proving the felon-in-possession charges included evidence of Larson’s possession of weapons and evidence of his 1977 armed robbery conviction for which he was released in January 1980.

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

Related

Bumper v. North Carolina
391 U.S. 543 (Supreme Court, 1968)
Schneckloth v. Bustamonte
412 U.S. 218 (Supreme Court, 1973)
The United States of America v. David George Culp
472 F.2d 459 (Eighth Circuit, 1973)
United States v. Lavonne Alberts
721 F.2d 636 (Eighth Circuit, 1983)
United States v. Raymond Leroy Talkington
843 F.2d 1041 (Seventh Circuit, 1988)
United States v. Frank Dennis Felix
867 F.2d 1068 (Eighth Circuit, 1989)
United States v. Stephen C. Twomey
884 F.2d 46 (First Circuit, 1989)
United States v. Craig Young-Bey
893 F.2d 178 (Eighth Circuit, 1990)
United States v. Michael Shoulberg
895 F.2d 882 (Second Circuit, 1990)
United States v. Curtis Drummond
903 F.2d 1171 (Eighth Circuit, 1990)
United States v. Derrick Lance Blackman
904 F.2d 1250 (Eighth Circuit, 1990)
United States v. Patrick Harm Keene
915 F.2d 1164 (Eighth Circuit, 1990)
United States v. Joe Darryl Edwards
946 F.2d 1347 (Eighth Circuit, 1991)
United States v. Cesar Duran
957 F.2d 499 (Seventh Circuit, 1992)
United States v. Debra Noland
960 F.2d 1384 (Eighth Circuit, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
978 F.3d 1021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-larson-ca8-1992.