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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 488 U.S. 1011

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0494%3A1. Public record. Not legal advice.