United States v. Richard Lawrence Wellins
654 F.2d 550, 1981 U.S. App. LEXIS 18289 (1981)
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Rule of Law:
A warrantless consent to search obtained following an illegal arrest can be deemed sufficiently attenuated from the illegality if, considering the totality of the circumstances, the consent was an act of free will, especially when the arrestee received Miranda warnings and consulted with an attorney.
Facts:
- On Saturday, May 19, 1979, around 7:30 a.m., four Drug Enforcement Administration (DEA) agents entered Richard Wellins' hotel suite in Los Angeles, California.
- As the agents entered, three of them immediately conducted a "protective sweep" of the other rooms in the suite.
- The "protective sweep" uncovered a small quantity of marijuana, which prompted one of the agents to arrest Wellins.
- Wellins was advised of his Miranda rights after his arrest.
- The DEA agents detained Wellins in the suite while they attempted to obtain a search warrant.
- Wellins was permitted to speak on the telephone with a person co-registered with him in the suite.
- At approximately 8:30 a.m., Wellins was allowed to call his attorney in Miami, Florida, who advised him to remain silent and not consent to anything.
- Immediately after speaking with his attorney and relaying the advice to the agents, Wellins signed a "consent form" to search the suite at 8:44 a.m., later stating to the district judge that he gave his consent "of my free will."
Procedural Posture:
- Drug Enforcement Administration (DEA) agents obtained evidence through a "consent" search of Richard Wellins' hotel suite and statements made by Wellins.
- Wellins filed a motion in the district court to suppress this evidence and his statements.
- The district court granted Wellins' motion to suppress, concluding that his "consent" could not be validly given due to insufficient attenuation from the illegal arrest and search, thereby suppressing both the evidence and his statements.
- The United States (appellant) appealed the district court's suppression order, pursuant to 18 U.S.C. § 3731, to the United States Court of Appeals for the Ninth Circuit (the court whose opinion is being briefed).
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Issue:
Does a defendant's consent to search, given after an illegal arrest and consultation with an attorney who advised against consent, sufficiently attenuate the taint of the unlawful arrest to render the search permissible under the Fourth Amendment?
Opinions:
Majority - CARROLL, District Judge.
Yes, a defendant's consent to search can sufficiently attenuate the taint of an unlawful arrest, even if advised by counsel against consent, when the totality of circumstances demonstrates the consent was a free act. The district court implicitly found that Wellins' consent was voluntarily given for Fifth Amendment purposes, which was not clearly erroneous. However, the district court applied an incorrect legal standard by effectively adopting a per se rule that consent cannot be validly given following an illegal arrest and search. The proper standard, as established in Brown v. Illinois and Schneckloth v. Bustamonte, requires a "careful sifting of the unique facts and circumstances of each case" considering the totality of circumstances. The Brown test factors include the temporal proximity of the arrest and consent, the presence of intervening circumstances, the purpose and flagrancy of official misconduct, and the giving of Miranda warnings. The trial court failed to give due weight to the critical intervening circumstance that Wellins consulted with his attorney, who advised him to remain silent, and his subsequent decision to consent despite that advice. Other relevant factors not fully considered included Wellins' age, experience (as a commercial pilot), intelligence, composure, his conversation with his hotel roommate, and his statement that he gave consent "of my free will." The court found that the police misconduct, while unlawful, was not as flagrant as in Brown v. Illinois, noting the absence of threats or intimidation. The district court's suppression order was based on a clearly erroneous finding and conclusion regarding attenuation. Therefore, the suppression order is reversed, and the case is remanded.
Dissenting - SCHROEDER, Circuit Judge,
No, the district court properly found that the consent was not sufficiently attenuated from the illegal police conduct. In my view, the district court correctly considered the relevant factors as outlined in Dunaway v. New York and United States v. Perez-Esparza when determining that the consent was not sufficiently attenuated for Fourth Amendment purposes. I see no reason to disturb the district court’s determination or to require a new consideration of the evidence. Therefore, I would affirm the district court's order suppressing the evidence.
Analysis:
This case clarifies the application of the Brown v. Illinois attenuation doctrine, emphasizing that no single factor is dispositive and a "totality of the circumstances" approach is mandatory, even after an illegal arrest. It highlights the significant weight given to an arrestee's consultation with an attorney as an intervening circumstance, suggesting that even advice against consent does not automatically invalidate a subsequent voluntary decision to consent. The ruling underscores the Ninth Circuit's willingness to find attenuation where a defendant, especially an intelligent and experienced one, makes a deliberate choice despite legal advice. This could lead to closer scrutiny of the "intervening circumstances" factor in future cases involving illegal arrests, particularly when an attorney is involved.
