United States v. Richard Scott McLernon Kido Yaqui, Sherri Louise Farrell, Miguel Angel Carranza, and Marco Antonio Valdez-Cota

WELLFORD, Circuit J.,

concurring in part and dissenting in part.

I concur with the majority in their disposition of the following issues:

I. Valdez’s pre-arrest statements.

II. Sufficiency of evidence to support Valdez’s conviction and absence of entrapment.

III. Travel Act convictions.

IV. Multiple conspiracy instruction.

V. Indirect entrapment.

VI. Entrapment.

VII. Expert testimony.

VIII. Restriction of appellant’s cross-examination.

IX. Exclusion of taped conversations.

XI. The departure of witness Gonzales.

XII. Failure to disclose jury lists.

I disagree with the majority’s handling of the issues of the voluntariness instruction and the plain view seizures. Accordingly, I dissent as to those two issues.

As for the voluntariness instruction, Carranza’s principal contention at trial was that he never made the incriminating statements. He did testify that agent Palma shook his chair and made certain thinly veiled threats of abuse or torture. In spite of these alleged threats, however, Carranza emphatically denied making the incriminating statements. Further, Carranza first raised the allegations of threats in his direct-examination during the final week of trial. No such claims were made in Carranza’s pretrial motion to suppress his statements. Nor was such assertion made at the pre-trial suppression hearing, at which agents Palma and Stuart testified and were available for cross-examination.

I conclude that voluntariness in this case was not a material nor a genuine issue. Credibility was the real issue and it was satisfactorily submitted to the jury. As in the case of United States v. Lewis, 565 F.2d 1248, 1253 (2d Cir.1977) 1 , cert. denied, 435 U.S. 973 , 98 S.Ct. 1618 , 56 L.Ed.2d 66 (1978):

Defense counsel’s obvious strategy at trial was ... to imply that the admission was not made at all, and counsel so argued to the jury. There was little, if any, evidence from which a jury could infer that the statement was involuntary. We have held that in these circumstances section 3501(a) ... does not require that the jury be specifically charged on voluntariness.

See also United States v. Goss, 484 F.2d 434, 437-38 (6th Cir.1973) (voluntariness instruction not required where question is not in issue), United States v. Dye, 508 F.2d 1226, 1232 (6th Cir.1974), cert. denied, 420 U.S. 974 , 95 S.Ct. 1395 , 43 L.Ed.2d 653 (1975) (voluntariness instruction unnecessary where issue not raised before the jury), United States v. Groce, 682 F.2d 1359 (11th Cir.1982) (voluntariness not pursued by defense — failure to instruct not plain error), United States v. Mahar, 645 F.2d 780 (9th Cir.1981) (no substantial jury evidence on voluntariness of confession— instruction not necessary), United States v. Stevens, 445 F.2d 304 (6th Cir.), cert. denied, 404 U.S. 945 , 92 S.Ct. 298 , 30 L.Ed.2d 260 (1971) (no substantial voluntariness issue raised — no need for instruction). The trial judge, therefore, did not err in respect to his instructions as to the statements made by Carranza.

I must also dissent from the majority’s opinion that the seizure by DEA agents of a calendar and note pad in plain view in the hotel room shared by two appellants was a constitutional violation. As noted by Judge Jones:

“the [trial] court found that after his arrest McLernon led DEA agents Powell and Kurew back to the hotel room where he and Farrell were staying. Farrell ‘consented to the agents’ entry into the room’ (App. 65a). While in the room, agent Powell observed on the bed a calendar with airplane tickets and other papers and on the telephone stand a note *1128 pad with the number ‘126’ written on top.”

Co-defendant Valdez’s room at the same hotel was # 126, a fact known by the agents. Appellants concede that two prongs of a test set out in Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971) for the plain view exception in cases of a warrantless search are met in this case. 2 I would find also in this case that the probable incriminating nature of the pad and the calendar was apparent at the time to these experienced officers, and they had “probable cause” to seize those items. It was not necessary, as indicated by the majority, for the officers then to have probable cause to arrest Farrell. The four judge plurality in Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983) clearly indicated that use of the expression “immediately apparent,” in Coolidge, supra, did not mean that the officers “must be possessed of near certainty as to the seizable nature of the items” involved. 103 S.Ct. 1542 . Use of the phrase, “immediately apparent” was observed to be “very likely an unhappy choice of words since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the ‘plain view’ doctrine.” 103 S.Ct. at 1542 . See Colorado v. Bannister, 449 U.S. 1, 3-4 , 101 S.Ct. 42, 43-44 , 66 L.Ed.2d 1 (1980); Payton v. New York, 445 U.S. 573 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980), and United States v. Ross, 456 U.S. 798 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982).

There was probable cause for the DEA officers to seize this evidence within their sight and ken when they were admitted into the hotel room. As noted in Payton :

[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming there is probable cause to associate the property with criminal activity.

445 U.S. at 587 , 100 S.Ct. at 1380 .

The Supreme Court discussed the “particularized suspicion” of officers in Texas v. Brown:

Moreover, our observation in United States v. Cortez, 449 U.S. 411, 418 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621 (1981), regarding “particularized suspicion,” is equally applicable to the probable cause requirement:

“The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”

103 S.Ct. at 1543 .

There was certainly “particularized suspicion” on the part of the DEA officers at the time they entered the room which had been occupied by McLernon. The officers saw the objects in question without looking into drawers, clothing, or suitcases where privacy interests are apparent.

Even if one analyzes the facts of the search and seizure here under the minority concurrence rationale of Justice Stevens 3 in Texas v. Brown, the plain view exception applies. Justice Stevens observed, following the Coolidge plurality view:

An object may be considered to be “in plain view” if it can be seized without compromising any interest in privacy.

.. seizing the item must entail no significant additional invasion of privacy, and at the time of seizure the officer must have probable cause to connect the item with criminal behavior, (emphasis added).

103 S.Ct. at 1546 .

There was not, in my view, any significant additional invasion of privacy by the *1129 seizure of objects observed after a valid, consentual intrusion, where the discovery of these items was purely inadvertent and unplanned. The items seized were reasonably connected with criminal behavior (travel with drugs) and with another defendant, Valdez, already in custody on drug charges.

The Brown plurality did not hold, as intimidated by Judge Jones, that it must be immediately apparent to the police that the items they observe may be evidence of a crime. Rather, they observed that the opinion of another plurality in Coolidge was a “point of reference for further discussion of the issue” and of the meaning and proper construction of the expression, “immediately apparent.” 103 S.Ct. at 1540 . Indeed, some courts have indicated that Brown modified the Coolidge test. Discussing Brown , the Ninth Circuit recently wrote: “[T]he court reconsidered the Coolidge plurality’s ‘immediately apparent’ language and substituted a probable cause standard.” United States v. Issacs, 708 F.2d 1365, 1369 (9th Cir.1983) cert. denied, — U.S.-, 104 S.Ct. 165 , 78 L.Ed.2d 150 (1983). See also, United States v. Pajari, 715 F.2d 1378, 1384 (8th Cir.1983); United States v. McDonald, 723 F.2d 1288, 1295 (7th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 2360 , 80 L.Ed.2d 831 (1984); United States v. Reed, 726 F.2d 339, 343 (7th Cir.1984).

The DEA officers, in my view, did have “probable cause to connect” the note pad and the calendar items “with criminal behavior.” They did not have any occasion, in seizing these items, to rummage through private or personal effects such as containers, purses, or envelopes. The cocaine packet hidden inside the calendar was appropriately suppressed; I would hold, however, that the pad and calendar and notes thereon were properly seized under the rationale of Texas v. Brown, supra, as did the district court.

Accordingly, I would affirm the district court’s denial of the motion to suppress these items. If, upon remand, the district court finds that Carranza’s indictment should not be dismissed after the United States v. Valenzuela-Bernal, 458 U.S. 858 , 102 S.Ct. 3440 , 73 L.Ed.2d 1193 (1982) hearing, I would affirm his conviction. I would not grant McLernon and Farrell a new trial for the reasons indicated, but would affirm their convictions.

. This was the same court that had earlier decided United States v. Berry, 518 F.2d 342 (2d Cir.1975), a case relied upon by the majority.

. There was (1) a prior valid intrusion; and (2) an inadvertent discovery.

. Joined by Justices Brennan and Marshall.