Petition for Writ of Certiorari — Von Marschner v. United States

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1988

GERT VON MARSCHNER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERT VON MARSCHNER

In Propria Persona

1818 South Flower Street

Los Angeles, CA 90015

(213) 747-7002

Bowne of Los Angeles, Ine, Law Printers (213) 742-6600.

QUESTIONS PRESENTED FOR REVIEW

1. Was the lower court in conflict

with the established law of the issue

when upholding a determination that

the warrantless within protected

curtilage was not offensive to the

constitution based upon facts and

circumstances? 1

2. Did the lower court depart

from the established totality of the

circumstances and objective standard

in practice when finding that Von

Marschner would have felt free to

terminate his encounter with police

and was not lured or coerced into

exiting his dwelling?

3. Did the lower court fail to

weigh the totality of circumstances

as demanded by established law and

to hold the government to the burden

of proof concerning consent to search?

TABLE OF CONTENTS

Page

Table Of Author ite Iu

Opinion or The Court Ti. -~csaeesesee 2

Statement Of Grounds On Which

The Jurisdiction Of This Court

Is Dh hob eee see eee eee 4

Constitutional Provision Which

The Case In volvo 6

Statement ofr The ...e ee eee eee eee 7

I.

THE LOWER COURT IS II CONFLICT

WITH THE ESTABLISHED LAW OF

THE ISSUE WHEN oUPHOLDING A

DETERMINATION THAT THE WARRANTLESS

ARREST WITHIN THE PROTECTED

CURTILAGE WAS HOT OFFENSIVE TO

THE CONSTITUTION CASED UPON THE

FACTS AND CIRCUMSTANCES. .. ( 11

II.

THE LOWER COURT DEPARTED Ron

THE ESTABLISHED TOTALITY OF THE

CIRCUMSTANCES AND OBJECTIVE

STANDARD IN PRACTICE WHEN FINDING

VON MARSCHNER WOULD HAVE FELT

FREE TO LEAVE TO TERMINATE Is

ENCOUNTER WITH POLICE AND WAS

NOT LURED OR COERCED INTO EXITING.... 14

III.

THE BURDEN OF PROOF WHEN

CONSIDERING THE ISSUE OF CONSENT

„„ oCierd ting as +s 18

IV.

ꝗ)§— „ 21

Tt OF CO (APPENDIX)

Page

JUDGMENT AND PROBATION/COMMITMENT

ORDER, United States District

Court for the Central District

of California,

DOCKET 10. CR 86-0643-2-HLH........-- 1

JUDGMENT AND PROBATION/COMMITMENT

ORDER, United States District

Court for the Central District

of California,

DOCKET 10. CR 86-0643(A)-HLH......... 4

NOTICE OF APPEAL, United States

District Court for the Central

District of California. e*eneneeeeeweneeee 7

MEMORANDUM OPINION, United States

Court of Appeals for the Ninth

| eee ee eee eee eee eee eee eee e 4

ORDER, Denial of Petition for

Rehearing and Rejection of

Suggestion for Rehearing En

Banc, United States Court of

Appeals for the Ninth Circuit........ 27

AFFIRMATION ORDER, United States

Court of Appeals for the Ninth

yk errr TTTrTrrrrrefperrerfefrfe+ee. 29

DECLARATION OF SERVICE BY MAIL... 31

TABLE OF AUTHORITIES

Cases:

Edwards v. Arizona, 451 U.S. 447

3% ae

Erie v. Tompkins, 304 U.S. 64

38285

% » A ˙¹ A 3 5 2

Florida v. Royer, 460 U.S. 491

%% . ³˙¹] 1

Hormel v. Helvering, 312 U.S.

552 “ ˙R̃ . ]» T

INS v. Delgado, 466 U.S. 216

/// ͤ Ä... ˙»: 4

Oliver v. United States, 466 U.S.

170 ' ß 2 2 „ „„

Schneckloth v. Bus tauente,

412 9.8. 218 D cone sé ee ee

Sibron v. New York, 392 U.S.

40 / ⅛—Uiuül!. ² ³ Dew ae

United States v. Dunn, 480 U. 8.

* L 94 L. Ed. 2d 326 „„ (A PPPePrer

United States v. Edmonson,

791 F2d 1512 (11th Cir. 1986)....

United States v. Mendenhall,

466 U.S. 544 ccc

IAA „ — — 720 a —A—Eᷣ - eR ae 2 2

United States v. Morgan,

743 F2d 1166 (6th Cir. 1984)

United States v. Palmer,

603 F2d 1286 (Sth Cir. 1978)

Statutes:

Title 21, 9.8. 8., § 841(4)(2)...

D

Title 26, U.S. C., § 7203

Constitutional Provisions:

Fourth Amendment......ee-.

eccee 16

—

IN THE

SUPREME COURT OF THE UNITED STATES

GERT VON MARSCHNER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner Gert Von Marschner,

in propria persona, does respectfully

pray that a writ of certiorari issue

to review the judgment of the United

States Court of Appeals for the Ninth

Circuit.

OPINION OF THE COURT BELOW

Gert Von Marschner appealed his

criminal conviction pro se, following

entry of a conditional plea to violation

of Titie 21. United States Code,

§§ 846, 841(d)(2). Von Marschner raised

two principle issues in his direct

appeal: (1) that the warrantless arrest

at his residence was invalid; and,

(2) that his consent to the search

of his house was involuntary.

The Court of Appeals found that

the district court did not err in

concluding that Von Marschner was not

lured or coerced out of his house,

and that he was arrested after he

stepped outside; further, that there

were insufficient facts in the record

to determine whether Von Marschner's

house patio was curtilage, and that

the Court need not address this issue

raised for the first time on appeal.

Hence, the Court of Appeals affirmed

as to the issue of the warrantless

arrest.

As to the issue of consent to

to search, it was found the district

court was not clearly erroneous in

determining that Von Marschner did

freely and voluntarily consent to that

search.

In summary, the Court of Appeals

found that the district court properly

denied Von Marschner's motion to

suppress and affirmed the judgment.

Unite tates v. Gert Von Ma er,

Case Wo. 86-5334 (9th Cir. 1988).

STATEMENT OF GROUNDS ON WHICH THE

JURISDICTION OF THIS COURT IS INVOKED

Petitioner Gert Von Marschner

was adjudged guilty and convicted in

the United States District Court for

the Central District of California

on December 8, 1986, in Docket Nos.

CR86-0643-2-HLH and CR86-0643(A)-HLH,

of violating 21 USC 846 and 26 USC

7203, respectively. Appendix at 1 &

4. Von Marschner was sentenced to one

(1) year imprisonment, three (3) years

probation, and special assessment fees

of $75.00, cumulative. Id. Von Marschner

filed a timely Notice of Appeal.

Appendix at 7. On June 16, 1988, the

United States Court of Appeals for

the Ninth Circuit filed their Memorandum

affirming conviction and sentence.

Appendix at 9. An Order was issued

by the Ninth Circuit denying Von

Marshcner's petition for rehearing

and rejecting his suggestion for

rehearing en banc, on August 30, 1988.

Appendix at 27. The Ninth Circuit did

affirm the judgment of the District

Court, such Order filed on September

13, 1988. Appendix at 29.

Title 28, United States Code,

Section 1254, does confer on this Court

jurisdiction to review the judgment

of the United States Court of Appeals

for the Ninth Circuit in United States

of America v. Gert Von Marschner, Case

No. 86-5334.

CONSTITUTIONAL PROVISION

WHICH THE CASE INVOLVES

The right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated

and no Warrant shall issue, but upon

probable cause, supported by Oath or

affirmation particularly describing

the place to be searched, and the person

or things to be seized.

U.S. Constitution, Amendment IV.

STATEMENT OF THE CASE

In March, 1986, police commenced

an investigation into the illegal sale

of piperidine, a PCP precursor, after

having received an informer's tip that

co-defendant Earl Hunter had sold

several gailons of the chemical.

Undercover agents began negotiating

with Hunter for the purchase of the

illegal piperidine. On four separate

occasions between March and May, 1986,

undercover agents purchased multi-gallon

quantities of piperidine from Hunter.

On July 1, 1986, a purchase and

delivery of piperidine vas arranged

between Hunter and undercover agents.

A search warrant was issued for Hunter's

home, and Anodizing Industries, Inc.,

a company owned by Von Marschner.

Prior to the delivery of the piperidine,

Von Marschner was purportedly observed

.

— —

meeting with Hunter and transfering

cans from Von Marschner's car _ to

Hunter's vehicle. Von Marschner and

Hunter departed in opposite directions.

Hunter was arrested following delivery

of the piperidine to undercover agents.

Von Marschner was followed to his home.

Von Marschner's arrest took place

at approximately 9:30 p.m., at his

home. Von Marschner had prepared to

sit at his table for supper when law

enforcement officials rang his door

bell and commenced loud knocking upon

his door. Upon opening his door he

was confronted with approximately six

agents, one directly in front of hin,

one at either side, while the others

were standing in the dark. Von Marschner

was asked to identify himself, and the

DEA agents identified themselves as

such. Von Marschner was asked to step

outside his home, whereupon, he was

formally arrest, handcuffed, advised

of his constitutional rights, and was

detained on his patio while agents

entered his dwelling. Von Marschner

did invoke his right to counsel upon

his formal arrest and many times there

after. Von Marschner was questioned

as to whether he would provide consent

to search after he had invoke his right

to counsel. Von Marschner vas not

informed that he had the right to refuse

consent. No attempt was made by law

enforcement officials to obtain a search

warrant for Von Marschner's home.

The district court ruled at the

suppression hearing that statements

made by Von Marschner which he did

not initiate would be suppressed under

Edwards v. Arizona, 451 U.S. 447 (1981).

This court also ruled that the execution

of the search warrant for Anodizing

Industries, Inc., had been overbroad,

and consequently suppressed and ordered

returned approximately 985 of the 1000

documents which had been seized.

THE LOWER COURT IS IN CONFLICT WITH

THE ESTABLISHED LAW OF THE ISSUE

WHEN UPHOLDING A DETERMINATION THAT

THE WARRANTLESS ARREST WITHIN

PROTECTED CURTILAGE WAS NOT

OFFENSIVE TO THE CONSTITUTION

BASED UPON FACTS AND CIRCUMSTANCES

Curtilage is a factor that should

receive consideration in the de novo

review of a denial of a motion to

suppress. The concept of curtilage

does play a part in interpreting the

reach of the Fourth Amendment. United

States v. Dunn, 480 U.S. -- , 94 L. Ed. 2d

326, 334 (1987). See also, Oliver v.

United States, 466 U.S. 170, 180 (1984).

In Dunn, the Court provided a

four factor questioning method whereby

an analysis might be undertaken for

a determination as to whether the area

in question is so intimately tied to

the home as to be place under the

"umbrella" protection of the Fourth

Amendment. Dunn, supra, 94 L.Ed.2d

at 334-335. Von Marschner did provide

the Court with a detailed analysis

in support of his claim that the area

in which the police intruded was in

fact protected curtilage. Appellent

Von Marschner's Opening Brief at 16-

18.

The ‘lower court dismissed Von

Marschner's protected curtilage clain

as being raised for the first time

on appeal, Memorandum Opinion, at 6-

7, stating that there were insufficient

facts in the record to determine

whether the patio was curtilage. Id.

Von Marschner's claim, of such

fundamental constitutional nature,

would have commanded review by the

lower court to prevent a siscarriage

of justice and to preserve the integrity

of the judicial system. Hormel .

Helvering, 312 U.S. 552, 356-557 (1960);

Erie v. Tompkins, 304 U.S. 64 (1938).

With appropriate means available

to the lower court, see Federal Rule

of Appellate Procedure 10(e), and in

conformity with established law, remand

should have been necessitated for the

protected curtilage not to be offense

to the Fourth Amendment's proscriptions.

THE LOWER COURT DEPARTED FROM THE

ESTABLISHED TOTALITY OF THE

CIRCUMSTANCES AND OBJECTIVE STANDARD

IN PRACTICE WHEN FINDING THAT

VON MARSCHNER WOULD HAVE FELT FREE

TO TERMINATE HIS ENCOUNTER WITH POLICE

AND WAS NOT LURED OR COERCED

INTO EXITING HIS DWELLING

In United States T. Mendenhall,

466 U.S. 544, 554 (1980), the Court

developed a test to determine when

a police-citizen encounter is to be

found sufficiently coercive to de

considered a seizure. Under Mendenhall,

a seizure occurs when, under the

totality of the circumstances, a reason-

able person would have believed he

was not free to leave an encounter

with police. See also, FLorida v. Royer,

460 U.S. 491 (1983); INS v. Delgado,

466 U.S. 216 (1984). This rule requires

a factual review, based on an objective

standard, of police conduct and the

surrounding circumstances for evidence

that the police restricted the suspect's

freedom, or otherwise acted in coercive

a manner. Also, Sibron v. New York,

392 U.S. 40, 67 (1968).

It was established during lower

court proceedings that Von Marschner

was within his home preparing for supper

when police announced themselves at

his front door with lound knocking

and ringing of his door bell. There

were no exterior lights beckoning

strangers or the public to his door,

that his door was secluded from the

public view, and that the method of

announcement at the late hour after

sunset was a pronouncement of urgency.

It was also established that upon

opening his door, Von Marschner was

confront with six-seven persons who

identified themselves as agents of

the Drug Enforcement Administration,

demanded Von Marschner identify himself

and exit from him home.

Von Marschner could not, in the

light of late night distinguish whether

those officers standing farther away

from him had guns drawn or not.

This late night intrusion could

not have lead a reasonable person to

believe that he was free to terminate

his encounter with police and retreat

into his dwelling. See, United States

vw. Palmer, 603 F2d 1286, 1288 (8th

Cir. 1978)(A seizure may be obtained

by a sufficient show of authority);

United States X. Morgan, 743 F2d 1158,

1166 (6th Cir. 1984), cert. denied,

-- U.S. — , 105 S.Ct. 2126, 85 L.Ed.2d

490 (1985); United States v. Edmonson,

791 F2d 1512 (11th Cir. 1986).

The lower court, while stating

that a determination under an objective

standard was required, in practice

did fail to apply that standard in

context of the circmstances in relation

to the "reasonable" thinking of a man

in Los Angeles' 1984 enviorment.

r N 2

78

*

III.

THE LOWER COURT FAILED TO WEIGH THE

THE TOTALITY OF CIRCUMSTANCES AS

DEMANDED BY ESTABLISHED LAW AND

TO HOLD THE GOVERNMENT TO THE BURDEN

OF PROOF WHEN CONSIDERING THE ISSUE

OF CON. TO CH

In Schneckloth Vv. Bustamente,

412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d

854 (1973), the Court ruled that whether

consent to search was in fact to be

found "voluntary", or was the product

of duress or coercion, implied or

express, is a question of fact to be

determined from the totality of the

circumstances. Id., 412 U.S. at 227.

The prosecution has the burden to prove

a vaild consent. Id., 412 U.S. at 222.

Von Marschner did establish in

the lower courts that: (1) there was

in fact a display of massed police

authority; (2) von Marschner could

not tell whether police officers were

in fact armed as many were confined

to the shadows of his yard; (3) law

enforcement officer had already entered

his home prior to the request for

consent; (4) Von Marschner was isolated

from family or other persons and was

restrained by handevffs; (5) even

though Von Marschner had request counsel

and had invoke his Miranda rights,

he was denied counsel and questioned

as to consent; (6) Von Marschner feared

for his family and his property and

was unable while restrained and isolated

to defend either; (7) Von Marschner

was not informed that he had the right

to refuse consent to search of his

home; and, (8) the late night intrusion

on to his property deprived Von

Marschner of passer-bys or other traffic

which might have seen his situation

and provided witness.

C110 ³˙¹iͥxũ˙wÄY

The lower court did fail to hold

the prosecution to the burden of proof

of consent and made their determination

without offer of proof that consent

was made in such manner as to over

come the afore described circumstances.

CONCLUSION

Petitioner Gert Von Marschner,

in propria persona, would pray that

this Court issue a writ of certiorari

to review the judgment of the United

States Court of Appeals for the Ninth

Circuit, based upon the established

record of this case, the established

law, and the aforegoing.

,Respectfully submitted,

NG We

‘Gert Von Marschner

1818 8. Flower Street

fos Angeles, CA 90015

JUDGMENT AND PROBATION/COMMITMENT ORDER

UNITED STATES DISTRICT COURT

FOR THE

CENTRAL DISTRICT OF CALIFORNIA

DOCKET NO. CR86-0643-2-HLH

DEFENDANT: GERT VON MARSCHNER

COUNSEL

In the presence of the attorney

for the government the defendant

appeared on this date, December §8,

1986, with counsel Michael Nasatir,

retnd.

PLEA

Guilty.

FINDING AND JUDGMENT

Defendant has been convicted as

charged of the offense(s) of conspiracy

to possess piperidine in violation

of 21 USC 846 as charged in count one

of the indictment. (AS PART OF CR86-

SENTENCE OR PROBATION ORDER

The court asked whether defendant

had anything to say why judgment should

not be pronounced. Because no sufficient

cause to the contrary was shown, or

appeared to the court, the court

adjudged the defendant guilty as charged

and convicted and ordered that: The

defendant is committed to the custody

of the Attorney General or his

authorized representative for

imprisonment for a period of one (1)

year. Further, defendant is ordered

to pay a special assessment fee of

$50.00 to the U.S. Treasury, c/o U.S.

Attorney, 312 N. Spring St., Rm. 1347

(Claims & Judgments), Los Angeles,

Ca 90012, pursuant to 18 USC 3013(a).

Defendant to voluntarily surrender

to the designated institution or the

U.S. Marshal by noon, on January 5,

1987. Upon surrender, bond is to be

exonerated.

By: ls/ — L. Huff

„8. District Judge

Date: December 9, 1986

JUDGMENT AND PROBATION/COMMITMENT ORDER

UNITED STATES DISTRICT COURT

FOR THE

CENTRAL DISTRICT OF CALIFORNIA

DOCKET NO. CR86-0643(A)-HLH

DEFENDANT: GERT VON MARSCHNER

COUNSEL

In the presence of the attorney

for the government the defendant

appeared on this date, December 38,

1986, with counsel Michael Nasatir,

retnd.

PLEA

Guilty.

FINDING AND JUDGMENT

Defendant has been convicted as

charged of the offense(s) of failure

to supply information in violation

of 26 USC 7203 as charged in the one

count information. (IN ADDITION TO

CR86-0643-2-HLH).

SENTENCE OR PROBATION ORDER

The court asked whether defendant

had anything to say why judgment should

not be pronounced. Because no sufficient

cause to the contrary was shown, the

court adjudged the defendant guilty

as charged and convicted and ordered

that: Imposition of the sentence is

suspended and defendant is place on

three (3) years probation with

supervision to commence upon defendant's

release from custody in criminal action

CR86-0643-2-HLH, upon the following

terms and conditions:

1. That defendant comply with the

rules and regulations of the

probation office and General Order

225.

Defendant is further ordered to pay

a special assessment fee of $25 to

the U.S. Treasury, c/o U.S. Attorney,

312 N. Spring St., Room 1347 (Claims

& Judgmnets), Los Angeles, Ca 90012

pursuant to 18 USC 3013(a).

By: — Harry L. ——

„8. District Judge

Filed: December 1, 1986

UNITED STATES DISTRICT COURT

FOR THE

CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CR 86-0643-HLH-2

UNITED STATES OF AMERICA,

Plaintiff,

vs.

GERT VON MARSCHNER,

Defendant.

NOTICE OF APPEAL

Notice is hereby given that

defendant Gert Von Marschner appeals

to the Court of Appeals for the Ninth

Circuit from the judgment and conviction

entered in the above captioned criminal

on December 8, 1986.

/s/ Gert Von Marschner -

Filed: December 8, 1986

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 86-5334

UNITED STATES OF AMERICA

Plaintiff-Appellee,

vs.

GERT VON MARSCHHER,

Defendant-Appellant

MEMORANDUM

On Appeal from the United States

District court for the Central

District of California

Harry L. Hupp, District Judge, ,,

Presiding, Submitted May 13, 1988

Before: Barnes, Kilkenny, and Goodwin,

Circuit Judges.

Gert Von Marschner appeals pro

se his conviction, following a condition-

al guilty plea, for conspiracy to possess

piperdine in violation of 21 1.8. 0.

§§ 846, 841(d)(2). von Marschner

challenges the district court's denial

of him motion to suppress evidence seized

in a post-arrest search of his house.

He contends that the warrantless arrest

at his residence was invalid; he further

2

This disposition is not appropriate

for publication and may not be cited

to or by the courts of this Circuit

except as provided by Ninth Circuit

Rule 36-3 *

* *

The panel unanimously finds this case

suitable for disposition without oral

argument. Fed.R.App. 34(a), Ninth Circuit

'Piperdine is used to make the controlled

substance phencyclidine (PCP). See United

States _v. Wilson, 781 F2d 1438 (9th

Fe 1 0

„ Y ORR . r RL NL Re Oe, ee yee ED ccc

8 3 c : 2 7 he rate ts, 3 1 FFS

contends that his consent to the search

of his house vas involuntary. We affirn.

In March, 1986, the Drug Enforcement

Administration (DEA) began an investi-

gation into the illegal sale of

piperidine by appellant Gert Von

Marschner and co-defendant Earl Hunter.

On July 1, 1986, the police arrested

co-defendant Hunter after they observed

Hunter receive piperidine from Von

Marschner and then deliver it to an

undercover agent. After his arrest,

Hunter admitted illegally selling

piperidine; he stated that he obtained

the piperidine from Von Marschner and

then shared the profits from the sale

with him.

After the police observed Von

Marschner deliver the piperidine to

Hunter, they followed Von Marschner

to his residence. DEA Agent Barkett

and six other officers proceeded to

the front door of Von Marschner's house.

After Von Marschner opened the door,

Agent Brakett identified himself and

asked Von Marschner to identify himself

and to step outside. After Von Marschner

stepped outside, he was placed under

arrest and advised of his constitutional

rights; Von Marschner invoked his right

to have an attorney present. Agent

Barkett then asked Von Marschner for

consent to search the house. Von

Marschner consented orally and in writing

to a search of his house and auto-

mobiles.

On July 22, 1986, Von Marschner

and co-defendant Hunter were indicted

for conspiracy to possess piperidine

and possession of piperidine. Von

Marschner moved to suppress the evidence

seized by the agents during the search

of his residence; he contended that

the evidence was obtained as a result

of an unlawful arrest and search. The

district court denied his suppression

motion, and Von Marschner entered a

conditional guilty plea to one count

of conspiracy to possess piperdine.

He was sentenced to one year in custody.

Von Marschner timely appeals.

I. Validity Of Warrantless Arrest

Von Marschner principally contends

that the district court erred in finding

that his warrantless arrest was vaild.

Specifically, he asserts that he was

lured outside of his residence by police

force, and was thus constructively

arrested inside his house.

This court reviews the district

court's denial of a motion to suppress

de novo. United States _ v. Andrade, 784

F2d 1431, 1433 (9th Cir. 1986). The

Fourth Amendment prohibition against

the unreasonable seizure of an individual

requires arrests to be based on probable

cause. See United States v. Watson,

423 U.S. 411, 418-424 (1976). Where

there is probable cause, an agent can

make a warrantless arrest of a felony

suspect in a public place. United States

v. Santana, 427 U.S. 38, 40-42 (1976)

(defendant standing in the open doorway

of her house); United States v. Driver,

776 F2d 807, 809 (9th Cir. 1985).

However, in the absence of exigent

circumstances, authority to make a

warrantless arrest ends at the threshold

of a private dwelling, and police cannot

make a warrantless conconsenual entry

into a suspect's residence to make a

felony arrest. Payton v. New York, 445

U.S. 573, 590 (1980).

Von Marschner essentially concedes

that these officers had probable cause

2

to arrest hin, and that he was placed

under arrest after he stepped outside

his house onto his front patio.

2 the district court found that the

officers who went to Jon Marschner s

residence had probable cause to arrest

him. This finding is supported by the

evidence. There is probable cause for

a warrantless arrest if, under the

totality of the facts and circumstances

known to the arresting officer, a prudent

person would have concluded ‘that there

was a fair probability that the suspect

had committed the crime. United States

Ve W 749 F2d 1329, 1 9th

Cir. 1984). Here, the police commenced

a four-month investigation into the

manufacturing and sale of piperidine.

While undercover ents conducted sur-

veillance of Earl Hunter, they observed

Von Marschner deliver piperidine to

Hunter, who later delivered the piperi-

dine to undercover agents. Thereafter,

probable cause existed to arrest Von

Marschner for conspiracy to possess

and possession of piperdine.

3 At the hearing on the motion to

suppress, Von Marschner first testified

that he did not recall whether he was

told that he was under arrest as he

stood in the open doorway or after he

stepped outside his residence into the

front patio. He the testified that the

agents did not enter his house before

However, Von Narschner asserts

that the warrantless arrest was invalid

because the officers used coércion to

lure him outside of his residence, and

thus he was constructively arrested

when he was standing inside of his house.

A warrantless arrest of a defendant

as he stands outside of his private

home violates the Fourth Amendment if

the defendant emerged in response to

coercive police conduct; in such cases

the police are deemed to have construc-

(3) he was arrested, and that he was

placed under arrest and handcuffed after

he stepped outside. Even if Von Marschner

was arrested as he stood in the open

doorway of his home, the warrantless

arrest would still be valid. See United

States v. Santana, 427 U.S. 38, 42 (1976)

(the police, with probable cause, can

make a warrantles arrest of a suspect

standing in the doorway of a private

dwelling because one standing in the

doorway exposed to public view is in

a public place); see also United States

v. Whitten, 706 Fed 1000, 1015 (9th

Cir. 1983)(although a suspect inside

his hotel room, a warrantless arrest

at the doorway of a hotel room was

valid), cert. denied, 465 U.S. 110

(1984). 5

tively entered a dwelling and arrested

the defendant inside of his house. See

United States v. Al-Azzway, 784 F2d

890, 892-93 (9th Cir. 1985), cert.

denied, 476 U.S. 1144 (1986). In Al-

Azzay, police officers completely

surrounded the defendant's house trailer

with their guns drawn and ordered hin

through a bullhorn to leave the trailer

and drop to his knees; he was placed

under arrest outside of the trailer.

Id. at 893. This court concluded that

under such circumstances the defendant

could hav e reasonably believed that

he was not free to leave and thus was

under arrest when he was inside the

trailer surrounded by armed officers.

Id. See also United States v. Johnson,

626 F2d 753, 755-56 (9th Cir. 1980) (from

a review of the circumstances, this

court found that the defendant could

have reasonably believed that he was

not free to terminate the encounter

with police and that an arrest had

occurred when he stood inside the doorway

of his house and was confronted by police

agents with their guns drawn), aff'd,

457 U.S. 537 (1982).

The determination of whether an

arrest has occurred depends upon an

objective evaluation of what an innocent

person would have thought of the

situation. See Johnson, 626 F2d at 755.

The question is whether under all the

circumstances, including the extent

that the suspect's freedom of movement

was curtailed and the degree and type

of force used, a reasonable person would

conclude that he was under arrest. See

United States X. Patterson, 648 F2d

625, 632 (9th Cir. 1981).

Here, Von Marschner claims that

when he was inside his house, he was

confronted by a show of official

authority that would have led a reason-

able person to conclude that he was

not free to leave, and that he was

coerced from his house by this show

of force. Von Marschner emphasizes that

the officers knocked loudly and force-

fully at his door, and that when he

opened the door, he found the agents

"had amassed in force upon his doorway

and were spilling over into the shadows,

questioning him as to his identity."

These circumstances, however, are

quite distinct from those in Al-Azzway

and Johnson. Here, the police did not

surround Von Marschner's residence or

confont him with weapons drawn, nor

did they order him to emerge from his

home. Rather, the agents knocked on

Von Marschner's door, identified

themselves, and invited Von Marschner

to step outside. Under these circun-

stances, Von Marschuer could not

have reasonably believed that he was

arrested inside his home. Cf. Al-Azzway,

784 F2d at 892-93. The district court

did not err in finding that Von Marschner

was not lured or coerced out of his

house, and that he was arrested after

he stepped outside.

Von marschner next asserts that

the law enforcement agents violated

his Fourth Amendment rights when they

entered his front patio to make a

warrantless arrest; he contends’ that

the patio is constitutionally protected

curtilage.* Von Marschner did not raise

this claim at the district court level,

and thus there are insufficient facts

in the record to determine whether the

4 Curtilage is defined as "the land

immediately surrounding and associated

with the 1 . Oliver X. United

States, 4 U.S O, 9 1 gee

D United States . — U.S.

ae 9 107 BoCte . HIS Tiga?) (Listing

factors to be considered in determining

the extent of the curtilage).

patio is curtilage. This court need

not address an issue raised for the

first time on appeal. Romain v. Shear,

799 F2d 1416, 1419 (9th Cir. 1986),

cert. denied, U.S. » 107 §.Ct.

2183 (1987); Bolker v. Commissioner,

760 F2d 1039, 1942 (9th Cir. 1985).°

5 Von Marschner also contends that

the government should have made a good

faith effort to obtain an arrest warrant

because they had probable cause to arrest

him several hours, if not several months,

prior to the arrest outside of his

residence. Von Marschner's reliance

on United States v. Alvarez, 810 F2d

879 (9th Cir. 1987), is misplaced. That

case involved a warrantless arrest in

a non-public place without exigent cir-

cumstances. This court held that even

if the government could show the exignet

circumstances that "time was of the

essence," the government's burden was

to demonstrated that a telephone warrant

could not have been obtained in time

under the procedure authorized by Fed.

R. Crim. P. 41(c)(2). Id. at 882-83.

Here, the agents did not need a warrant

nor exigent circumstances because they

arrested Von Marschner outside his

house with house with probable cause.

See Santana, 427 U.S. at 42.

II. Voluntary Consent To Search

Von Marschner contends that the

district court erred in finding that

he voluntarily consented to the search

of his house. Specifically, he asserts

that his alleged oral and written consent

was invalid because it resulted from

the agents' coercion and threats of

force, and because he was not advised

of his right to refuse consent.

This court reviews the district

court's finding that a defendant's

consent to a search was voluntary for

clear error. United States v. ALfonso,

759 F2d 728, 740 (9th Cir. 1985). A

warrantless search conducted pursuant

to a suspect's valid consent is constitu-

tionally permissible. Schneckloth .

Bustamonte, 412 U.S. 218, 222 (1973).

The suspect's consent must be voluntary;

itt cannot be coerced by implied threat

or covert force. Id. at 228.

The government bears the burden

of demonstrating that the defendant's

consent was voluntary. Alfonso, 759

F2d at 740. Voluntary consent is a fact-

ual question determined by examining

the totality of the circumstances. Id.

The court may consider such factors |

as whether the agents threatened the

suspect or made any show of force, and

the suspect's age, education, intelli-

gence and knowledge of law. See United

States T. Mendenhall, 446 U.S. 344,

558 (1980); Watson, 423 U.S. at 424-

25. The-fact that the suspect was in

custody does not necessarily negate

_voluntarines. Alfonso, 759 F2d at 741.

Here, after Von Marschner stepped

outside of his house and was placed

under arrest, he was handcuffed and

read his Miranda rights. While Von

Marschner sat on a bench in his patio,

agents entered the house to look for

other suspects and to speak to his wife.

Ten to fifteen minutes after Von

Marschner was arrested, Agent Barkett

asked him to consent to a search of

his house. Von Marschner orally consented

but asked the agents not to tear up

his house. Von Marschner then executed

a written consent to search form author-

izing the agents to search his residence.

Examining the totality of the

circumstances, the district court's

finding that Von Marschner freely and

voluntarily consented to the search

is not clearly erroneous. As the district

court emphasized, the arresting officers

did not threaten Von Marschner nor

display any weapons. Cf. United States

v. Perez, 644 F2d 1299, 1303 (9th Cir.

1981)(defendant's consent not freely

and voluntarily given when he was

approached with weapons drawn). Von

Marschner is an intelligent businessman.

—

Also, as the district court noted, the

fact that Von Marschner invoked his

right to an attorney indicates that

he was capable of making his own intelli-

gent decisions.

Von Marschner emphasizes that Agent

Barkett did not advise him of his right

to refuse consent to the search of his

house. However, although knowledge of

the right to refuse consent is one factor

to be considered, the failure to advise

is not determinetive. See Watson, 423

U.S. at 424-25; Schneckloth, 412 U.S.

at 232-33.

Moreover, Von Marschner's alleged

subjectie fear for his family's safety

is insufficient to prove that the agents

coerced his consent. Although the court

should consider, as one factor, an

individual's subjective fear of police

brutality, the crucial issue is whether

a person in the defendant's position

sas i

would reasonably have feared for his

personal safety and the destruction

of his property. See United States v.

Castrillon, 716 F2d 1279, 1282 n. 1 (9th

Cir. 1983). Von Marschner may have

subjectively feared the police. However,

the agents did not threaten or force

him to consent to the search. Thus,

under these circumstances, a reasonable

person in Von marschner's position would

not have feared for his safety and the

destruction of his property. See id.

The district court properly denied

Von Marschner's notion to suppress and

the judgment is AFFIRMED.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT |

HO. 86-5334

UNITED STZ TES OF AMERICA,

Plaintiff-Appellee,

vs.

GERT VON MARSCHNER,

Defendant-Appellant.

ORDER

Before: GCODWIN, BARNES and KILKENNY,

Circuit Judges

The panel has voted to deny

appellant's petition for rehearing.

— a enema

Judge Goodwin has voted to reject the

suggestion for rehearing en banc and

Judges Barnes and Kilkenny so recommend.

The full court has been advised

of the suggestion for rehearing en banc

and no active judge has requested a

vote on whether to rehear the matter

en banc. (Fed. R. App. P. 35).

The petition for rehearing is denied

and the suggestion for rehearing en

banc is rejected.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Ho. 86-5334

UNITED STATES OF AMERICA,

Plaintiff-Appellee

vs.

GERT VON MARSCHNER,

Defendant-Appellant.

APPEAL from the United States

District Court for the Central District

of California.

THIS CAUSE came on to be heard

on the Transcript of the Record from

the United States District Court for

the Central District of California

and was duly submitted.

ON CONSIDERATION WHEREOF, It is

now here ordered and adjudged by this

COurt, that the judgment of the said

District Court in this Cause be, and

hereby is AFFIRMED.

Lodged Sept 12 1988

Filed Sept 13, 1988

PROOF OF SERVICE BY MAIL

I am a citizen of the United States and a resident of the

City and County of Los Angeles; I am over the age of

eighteen years and not a party to the within action; my

business address is: 1706 Maple Avenue, Los Angeles,

California.

On November 10, 1988, I served the within Petition for

Writ of Certiorari in re: “Gert Von Marschner vs. United

States of America” in the United States Supreme Court,

October Term 1988;

thereof enclosed in a sealed envelope with postage fully

prepaid, in the United States post office mail box at Los

Angeles, California, addressed as follows:

Mr. Charies Fried

Solicitor General

United States Department of Justice

Washington, D.C. 20530

Robert C. Bonner

United States Attorney

1400 U.S. Courthouse

312 N. Spring Street

Los Angeles, CA 90012

All Parties required to be served have been served.

I certify under penalty of perjury, that the foregoing is

true and correct.

Executed on November 10, 1988, at Los Angeles,

1

CE CE MEDINA