United States v. William Michael Faruolo and Anthony Bernardez

506 F.2d 490, 1974 U.S. App. LEXIS 6303

• Court: Court of Appeals for the Second Circuit
• Decided: October 29, 1974
• Docket: 1126 and 1227, Dockets 74-1350 and 74-1802
• Status: Published

Opinions

MULLIGAN, Circuit Judge:

These are appeals taken by Anthony Bernárdez and William Faruolo from judgments of conviction entered on March 8, 1974 in the United States District Court for the Eastern District of New York, following the acceptance, on November 12, 1973, by District Judge Edward R. Neaher, of their pleas of guilty to the second count of a two-count indictment. Count one charged the appellants and six others ¹ with receiving and possessing goods stolen from interstate commerce, 18 U.S.C. §§ 2 & 659, and count two charged the same defendants with conspiracy to receive and possess the same stolen goods, 18 U.S.C. § 371. Bernárdez and Faruolo. were sentenced to probationary terms of three years and five years respectively, with Bernárdez’ terms to commence upon his release from state prison.

Appellants’ sole contention on these appeals is that the district court erred in denying, after a hearing, their motion to suppress contraband which was seized without a warrant from Faruolo’s home.² We agree with the district court that Faruolo voluntarily consented to the search and therefore affirm.

I

On August 10, 1972, Special Agent John Egan of the FBI received a report that a truckload of women’s dresses and wearing apparel, which was being transported by Interstate Dress Carriers, Inc., had been hijacked earlier in the day. During the subsequent investigation, the truck driver provided a description of the hijackers, as well as of the cargo, a portion of which had been packed in special hangerpack cartons bearing the printed name “Hangerpack.” Information from reliable informants indicated that defendant John Pastore, a known hijacker, was involved in the theft and further led to the surveillance of the Staten Island residence of Richard Marco, Sr.

At approximately 11:13 on the morning of August 14, 1972, Egan observed a U-Haul rental truck pull away from the front of the Marco residence. The truck had a lock on the back and was followed by a green Cadillac with New Jersey license plates. After losing sight of the vehicles for a short time, Egan located them parked in the vicinity of the Staten Island home of appellant William Faruolo, where the truck was being unloaded by Faruolo, his son and several of the other named defendants. Its contents, which included some “Hangerpack” containers, were being carried from the truck into Faruolo’s house through a side door.

At about 12:45 p. m., the unloading operation completed, Egan followed three of the defendants to the Country Club Diner on Staten Island where they met with John Pastore. Defendant Richard Marco, Jr. and Pastore left the meeting together and the two were observed to drive to 45 Vera Street, Staten Island. There, Marco picked up a second U-Haul which he drove to Faruolo’s home, where it was unloaded by several of the defendants. Special Agent William Edwards, who had joined Egan in the investigation, saw them taking large brown “Hangerpack” cartons, as well as hanging garments in plastic bags, from the truck into the Faruolo house.

At approximately 3:30 or 4:00 p. m., when it appeared that they were finished and that some of the defendants were about to leave, Edwards, accompanied by a number of other agents, moved in to make the arrests. Edwards, with his gun drawn, proceeded to the back yard of the Faruolo home where he found Faruolo standing alone near a blue panel truck. Through the truck window, he could see that it was fully packed with hanging garments and on the ground beside the truck were folded “Hanger-pack” cartons. After placing Faruolo under arrest, Edwards advised him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), except that he omitted to advise him that he had the right to have counsel appointed if he could not afford an attorney. Faruolo just placed his head in his hands, evidencing a state of disbelief. Edwards did not search him for weapons or place handcuffs on him at that time but he did keep his gun drawn for several minutes until he thought that the situation was under control. He requested that Faruolo be seated at a picnic table and they waited for other agents. Faruolo made no statements during this time other than giving his name, admitting ownership of the house and identifying his seventeen-year old son, who stepped out into the yard for a brief period. Edwards did not speak to the young man but he did suggest to Faruolo that he should direct him to return to the house, which was occupied by Faruolo’s wife, among others.

When Egan and Agent Thomas Armstrong arrived, at most, no more than five minutes after Faruolo’s arrest, Edwards holstered his gun and informed Egan that the individual under arrest was Faruolo, that it was his house and that he had been given his Miranda rights. Egan then advised Faruolo that he was an FBI agent investigating a hijacking and asked him for permission to search his house. Faruolo was informed that he did not have to permit the search if he did not want to and that the house would not be searched without his consent. Egan, however, did point out that if Faruolo did not consent, a search warrant would be applied for and further conveyed his belief that one would be issued. He also stated that a warrant, because of the late hour, probably could not be obtained until the following morning, and that, consequently, the FBI would have to keep his house under surveillance to prevent the removal of its contents. Faruolo then, after quietly thinking a minute or two, signed a consent to search form which Egan had previously read to him and which Faruolo had said he understood.³

Faruolo was subsequently left in the custody of Special Agent Charles Stead-man, while Egan and Edwards proceeded with the search. Faruolo and Steadman went into the house where Steadman correctly and fully advised Faruolo of his Miranda rights. Faruolo consented to an interview, during which he admitted that he knew the merchandise was stolen, but he then indicated that he would like to speak to an attorney before answering any more questions and the interrogation terminated.⁴

II

Appellants’⁵ principal argument on appeal is that the facts established at the suppression hearing failed to show by clear and convincing evidence that Faruolo’s consent was freely and voluntarily given. Specifically, it is urged that Faruolo reluctantly signed the consent form because he feared that the agents would arrest his seventeen-year old son whom they had observed unloading the contraband and also because of Egan’s representation that he could get a search warrant.

We adhere to the view reaffirmed in United States v. Mapp, 476 F.2d 67, 78 (2d Cir. 1973) that we must look to the “totality of the circumstances” in determining whether a consent to a search is voluntary or not. Looking at all the circumstances, we conclude that the Government here satisfied its burden of establishing that Faruolo’s consent was freely and voluntarily given. After an evidentiary hearing in which agents Egan, Edwards and Steadman as well as the appellant Faruolo testified, the district court found that:

Egan did not state that Faruolo’s wife or son would be prevented from leaving the house [if a warrant could not be obtained until the following morning]. Nor did he, or any other agent, threaten that either wife or son would or could be arrested.

Record at 376. These findings were consistent with the testimony of the agents and the only evidence to the contrary was Faruolo’s testimony which Judge Neaher said he disbelieved. Id. The issue was one of credibility which the district court, who saw and heard the witnesses, resolved in favor of the agents. United States v. Fernandez, 456 F.2d 638, 640 (2d Cir. 1972).

The argument is reduced therefore to the proposition that Egan’s statement that he would apply for a warrant, which conveyed the impression that one would be obtained, constituted a coercive factor negating consent. In comparable cases this and other courts⁶ have held to the contrary. Here the defendant had been given partial Miranda, warnings, he was told that he did not have to consent to the search (in United States v. Mapp, supra, 476 F.2d at 77, we held that failure even to advise the person of the right to withhold consent is not fatal but only one factor to be held in the balance) and he consented after being made aware of the fact that a warrant would be obtained. The district court found that Egan’s advice was well grounded. There was no deceit or trickery.⁷ The court below found that there was not only a sufficient basis for his communicated belief but that in fact there were grounds for the issuance of a search warrant. This is not at all open to serious question. The house and the defendants had been under surveillance. Faruolo was apprehended practically in flagrante delicto in his own back yard unloading the stolen goods⁸ which he later admitted, after full Miranda warnings, he knew had been stolen.

In United States v. Bracer, 342 F.2d 522 (2d Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 427, 15 L.Ed.2d 359 (1965), the defendant was arrested while in possession of drugs but he did not consent to a search of his residence until he was advised that a warrant would be obtained. Judge Smith’s opinion, in which he noted that a finding of voluntariness by a district court should not be lightly overturned by an appellate court, emphasized that “the consent was with knowledge that the agents could and would obtain a warrant.” Id. at 525. More recently, this Court affirmed “upon the well considered opinion” of the district court, United States v. Kohn, 495 F.2d 763 (1974) (per curiam), the denial of a motion to suppress the fruits of a consent search, 365 F.Supp. 1031 (E.D.N.Y.1973). There, approximately ten minutes after observing the delivery of a suitcase of hashish to the defendant’s apartment, agents entered the apartment and placed the defendant under arrest. Upon being asked where the bag was located, the defendant inquired whether the agents had a warrant. They advised that they had a “right” to get one and because of the hour they would “secure” the premises until morning. At that point, the defendant consented to a search of the apartment. Like Bracer, Kohn implicitly rejects any suggestion that the agents were employing any impermissibly coercive tactic: “Kohn knew of his right to require a search warrant. He specifically asked whether the agents had a warrant and seemed to fully understand the subsequent conversation about the agents getting one.” 365 F.Supp. at 1034.

In our view, in light of these cases, the well founded advice of a law enforcement agent that, absent a consent to search, a warrrant can be obtained does not constitute coercion. There is an admission by the officer that he has no right to proceed unless the defendant consents. There was in fact, here, a fair and sensible appraisal of the realities facing the defendant Faruolo. No person, even the most innocent, will welcome with glee and enthusiasm the search of his home by law enforcement agents. However, in view of all the circumstances⁹ which we have detailed, we are persuaded that after realizing the facts, including that he had the right not to consent, Faruolo decided freely and voluntarily to consent to the search.

The argument that Miranda warnings are a prerequisite to an effective consent to search is not at all persuasive. The contrary was implicit in United States v. Mapp, supra, 476 F.2d at 76-79, where no Miranda warnings were given, and explicit in United States v. Kohn, supra, 365 F.Supp. at 1034. There is no possible violation of fifth amendment rights since the consent to search is not “evidence of a testimonial or communicative nature.” Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966).

Affirmed.

1 . The other defendants were John Pastore, Richard Marco, Jr., Frank Felumero, Vincent DiModica, Lester Sellitti and Joseph Bruns.

2 . Following the district court’s decision on the motion, counsel for the defendants and the Assistant United States Attorney stipulated that the defendants would plead guilty to the conspiracy count, on condition that the suppression issue be preserved for appeal. The agreement further provided that the defendants could withdraw their guilty pleas should this Court reverse and that the Government would agree to the dismissal of the substantive count if this Court affirmed. Judge Neaher accepted the stipulation. This procedure of pleading guilty while preserving an issue for appeal has previously been approved by this Court. United States v. Rothberg, 480 F.2d 534, cert. denied, 414 U.S. 856, 94 S.Ct. 159, 38 L.Ed.2d 106 (1973); United States v. Doyle, 348 F.2d 715 (1965); cf. United States v. Selby, 476 F.2d 965 (1973).

3 . The district court found that “after being advised of rights to counsel and of his right to refuse permission for a search, Faruolo made no objection, asked no questions or in any other way indicated lack of understanding of his situation, or opposition to a search.” Record at 377.

4 . Judge Neaher denied a motion to suppress these admissions in a memorandum opinion filed on November 14, 1973. The court found Faruolo’s statements admissible irrespective of the validity of his prior consent to the search.

5 . The Government did not challenge Bernárdez’ standing below on this appeal and, in view of our disposition here and of the fact that Faruolo clearly does have standing to contest the search, we do not consider the issue. United States v. Cangiano, 491 F.2d 906, 912 (2d Cir. 1974).

6 . In United States v. Culp, 472 F.2d 459, 461 n. 1 (8th Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 161, 36 L.Ed.2d 692 (1973), the court pointed out that “[m]any cases imply where law enforcement officers indicate only that they will attempt to obtain or are getting a warrant that such a statement cannot serve to vitiate an otherwise consensual search.” (emphasis in original). For example, in United States v. Savage, 459 F.2d 60, 61 (1972) (per curiam), cert. denied, 415 U.S. 949, 94 S.Ct. 1470, 39 L.Ed.2d 564 (1974), the Fifth Circuit held that “[t]he consent was not rendered involuntary by reason of the fact that before signing the form the defendant asked the police officer if the officer could get a search warrant and the officer replied ‘Yes, we probably can.’ The officer’s statement was in response to defendant’s inquiry, and it was not a misrepresentation of the facts.”

7 . Our opinions in United States v. Jordan, 399 F.2d 610, cert. denied, 393 U.S. 1005, 89 S.Ct. 496, 21 L.Ed.2d 469 (1968) and United States v. Curiale, 414 F.2d 744, cert. denied, 396 U.S. 959, 90 S.Ct. 433, 24 L.Ed.2d 424 (1969), upon which appellants rely, do not suggest that the consent given here was involuntary. In Jordan, we did not even consider whether a law enforcement officer’s statement regarding the availability of a warrant was coercive in nature since it was not made until after the defendant had consented to the search and therefore it could not have influenced his decision. The Curíale case involved a consent search where there was no probable cause basis for the issuance of a warrant and the agents were apparently aware of that fact. Tims, when the defendant remarked, “If I don’t sign this, you are going to get a search warrant,” an agent responded, “I don't want you to sign it on that basis.” Although we expressed some reservation about what the result would have been had the agent allowed the defendant to base his consent upon the mistaken belief that a warrant could be obtained, we upheld the consent as voluntary since the defendant was aware of his right to resist and the agent had not misled him.

8 . The district court stated that the conclusion that a warrant could be obtained was “based in large part, but not exclusively, on the information supplied by the two informants, the fact that Pastore had been personally arrested by Agent Egan on prior hijacking charges, as well as the amount of corroborative evidence independently obtained in the course of surveillance, and in particular, the eyewitnessing of movements of cartons and presence of garments, at [Faruolo’s home].” Record at 385-86.

9 . The district court pointed out that “there is no claim or evidence, that at any time other than the gun incident, that Faruolo was physically coerced, restrained or threatened.” Record at 377. With respect to the drawn gun the district court found that it “had no lasting effect.” Id. at 387. The court further found that “at no time prior to giving consent to the search, were any statements made by tlie agents which threatened or could have been viewed as threatening to Faruolo’s wife or son,” id. at 377, and that he “had no cause to be in apprehension for his own safety or that of his family,” id. at 378. Moreover, “[t]he Court [did] not believe that Faruolo was ‘scared,’ and [found] him to have been no more anxious than any other person placed under arrest while in the act of cornmitting what was charged to be criminal activities.” Id. “Faruolo, at the time of his arrest, evidenced a state of mind or [sic] disbelief or shame, rather than fear.” Id. at 377.