Hays, Mansfield and Mulligan, Circuit Judges. Mulligan, Circuit Judge (concurring). Mansfield, Circuit Judge (dissenting).
The Government appeals, pursuant to 18 U.S.C. § 3731 (1970), from an order of the United States District Court for the Eastern District of New York, granting defendants' motion to suppress evidence.
We accept the District Court's findings of facts. On the morning of February 2, 1971, detectives of the New York Joint Task Force on Narcotics received a tip "that defendant Mitchell Rothberg would receive a large shipment of hashish that day and sell or distribute it immediately to customers, one of whom would be defendant Gary Brittman." Surveillance of the defendants' activities throughout the day culminated in the arrest of Brittman and one Steven Rosenthal, whose case was severed, while they were driving away from Rothberg's parents' home in separate cars; several suitcases full of hashish were seized from their cars. At about 8 P.M., Rothberg and defendant Wilson were arrested at Rothberg's parents' home in Queens. At the Rothberg house the detectives also seized a suitcase of hashish in the kitchen, and more hashish, opium, and certain papers in the basement. Except for what was found in the basement, the district court denied the motion to suppress the drugs and the statements later taken from the defendants.
Since the evidence seized in the basement was in "plain view" of anyone there, the issue on this appeal is whether the detectives had any legal justification for going to the basement, Coolidge v. New Hampshire, 403 U.S. 443, 465-466, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), especially in light of the strictures on searches incident to arrest, Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).
The testimony at the hearing conflicted. A Detective Holden testified that as the officers and the defendants were preparing to leave the house, or between 15 and 45 minutes after entering, "Mr. Rothberg and Mr. Wilson requested they get their jackets because it was cold outside . . .. [In response to a question from the officer] they said the jackets were in the basement." A Special Agent Byrne testified that shortly after entering the house, he asked Wilson for his jacket and for the keys to a Ford Transit that he had been driving, and that Wilson responded that his jacket was in the basement. A Detective Ryan thought, though he was unsure, that the defendants' request for their coats precipitated the trip to the basement. A Detective Canavan, placing the time either shortly before departure or shortly after arrival, said that Special Agent Byrne asked Wilson for his identification and the keys to the Transit, and Wilson replied, "They are in my jacket downstairs." Canavan also said that he himself asked Wilson where his jacket was, and that after falsely stating that it was in a bedroom, Wilson said that it was in the basement. The defendants denied saying anything that would have indicated that jackets, identification, or keys were in the basement. Wilson claimed that while he was still pretending that his jacket was in the bedroom, officers appeared with his wallet, which had been downstairs. Rothberg denied asking for his jacket, or stating that it was downstairs.
The trial court's analysis of this evidence was as follows:
"Before the officers went into the basement, they had arrested the defendants and taken them into custody. From the testimony of Canavan and Byrne, those two, together with Wilson, were the first to arrive in the basement. The only excuse for the descent into the basement by these officers was to find the keys to the Ford Transit and the identification papers of Wilson. It was not at the request of either Wilson or Rothberg that the officers proceeded to the lower level. They therefore had no consent or legal basis to do so. Holden testified that he went downstairs because both defendants requested their jackets. But this, as far as Wilson is concerned, is in direct conflict with the testimony of Canavan, Byrne, and Wilson himself. Moreover, while Holden was seen in the basement, the other officers do not remember seeing Rothberg in the basement at the same time. The court believes that while Officer Holden was a reliable and honest witness, he was mistaken as to the time and circumstances under which the defendants requested their jackets. The burden of establishing the legality of the basement search was upon the Government, and in view of the significantly conflicting police testimony, the court finds that the Government has failed to meet that burden."
Contrary to the district judge, we think that the testimony credited by him leads to the conclusion that the defendants consented to the search of the basement. The judge did not believe the defendants' denials; rather he ruled solely on the basis of the "conflicting police testimony" (emphasis added). We do not find these conflicts as "significant" as did the district judge. The police testimony establishes that the officers went to the basement in response to indications by the defendants that their jackets, identification, and keys would be found there. The conflict between Holden's testimony, which related the defendants' request for their jackets, and that of the rest of the officers, which revealed Wilson's responses when asked for his keys and identification, can be explained in part by the fact that Holden did indeed arrive in the basement separately from the other officers, and under different circumstances. In other words, his version of the events is not clearly inconsistent with that of the other witnesses. The police testimony reveals a situation similar to that in United States v. Gaines, 441 F.2d 1122 (2d Cir.), vacated and remanded on other grounds, 404 U.S. 878, 92 S. Ct. 223, 30 L. Ed. 2d 159 (1971). There is no evidence here of coercion or other circumstances that would render the consent invalid. United States v. Gorman, 355 F.2d 151 (2d Cir. 1965), cert. denied, 384 U.S. 1024, 86 S. Ct. 1962, 16 L. Ed. 2d 1027 (1966); United States v. Como, 340 F.2d 891 (2d Cir. 1965); United States v. Smith, 308 F.2d 657 (2d Cir. 1962), cert. denied, 372 U.S. 906, 83 S. Ct. 717, 9 L. Ed. 2d 716 (1963); United States v. Dornblut, 261 F.2d 949 (2d Cir. 1958), cert. denied, 360 U.S. 912, 79 S. Ct. 1298, 3 L. Ed. 2d 1262 (1959). As this court said in United States ex rel. Lundergan v. McMann, 417 F.2d 519 (2d Cir. 1969), "the mere fact that a suspect is under arrest does not negate the possibility of a voluntary consent. Neither does the suspect's knowledge that the search will almost certainly demonstrate his guilt." Id. at 521. Since the only issue is the voluntariness of the consent, the parties' arguments as to the propriety of the officers' request for keys, identification, or jackets, seem to us irrelevant.
The order of the district court granting appellees' motion to suppress is reversed.
MULLIGAN, Circuit Judge (concurring):
I concur in the opinion of Judge Hays who determined that there was a consent to the search of the basement. However, I believe that there is an additional justification for the seizure of the material in the basement irrespective of consent. As this court has held in United States v. Titus, 445 F.2d 577 (2d Cir.), cert. denied, 404 U.S. 957, 92 S. Ct. 323, 30 L. Ed. 2d 274 (1971) officers may seize anything in plain view "while they were where they had a right to be." United States v. Titus, supra, 445 F.2d at 579. In my view, the officers were rightfully in the basement. They had observed the Ford Transit which was driven by Wilson pull up to the Rothberg residence; packages were seen being removed from the vehicle to the house; they observed Wilson drive the van away and park it in a parking lot where it could have been stolen, its contents pilfered or where a confederate of Wilson might have driven it off. Before entering the Rothberg residence the police further knew that two other vehicles which had been observed there that day, had been seized and searched and both were found to have contained hashish. The trial court credited the testimony of Officer Canavan and Defendant Wilson that the agents asked for the keys to the Ford Transit; that Wilson first told them that the keys were in his jacket in the bedroom and then admitted that the jacket was in the basement. Hence the agents had a legitimate, reasonable ground for going into the basement. They were not conducting a general or exploratory search, they were not rummaging; they had an extraneous valid reason for being present and when they got into the basement the contraband material was in plain view. In view of all of the circumstances the interest of the police in the keys to the Ford Transit was valid; they were where they had a right to be.
MANSFIELD, Circuit Judge (dissenting):
I dissent for the reason that in my view the majority substitutes its findings of fact for those of the district court, even though the latter are supported by substantial evidence, are not clearly erroneous, and are based upon the trial judge's personal observation of the witnesses and his appraisal of their credibility. Even if, on the cold transcript of 1,809 pages, we ...