Appeal from a judgment convicting appellant of two counts of robbery in violation of 18 U.S.C. § 2113(a) and (d) and of conspiracy to rob a bank in violation of 18 U.S.C. § 371, after trial before a jury and Jack B. Weinstein, Judge, United States District Court for the Eastern District of New York. Appellant contends that the admission of hearsay testimony concerning the "getaway" car and its license plate number, the failure to suppress evidence seized at appellant's apartment, and the introduction at trial of that evidence and testimony in regard thereto constituted prejudicial error, that pre-trial identification procedures employed by the Federal Bureau of Investigation were so highly suggestive and the legal representation of appellant at the trial was so inadequate as to deprive appellant of his right to due process of law. Affirmed.
Mansfield and Van Graafeiland, Circuit Judges, and Carter, District Judge.*fn* Mansfield, Circuit Judge:
On May 27, 1976, there was an armed robbery of the Chemical Bank at 23-98 Bell Boulevard, Queens, New York by two masked men. While one of the men held a shotgun to the assistant bank manager, the other came into the tellers' area, and took almost $23,000 in cash from the tellers' drawers. The two then left the bank. Rosario Frisina, the branch manager, and Barbara Balzarini, a teller, were in the tellers' area. Appellant was indicted and convicted for the crime. He appeals on the grounds that errors at a pre-trial suppression hearing and errors at trial warrant reversal.
On June 2, 1976, at separate interviews, F.B.I. agent David Carman showed Frisina, Balzarini and Louis Castabile, another bank employee, a group of eight photographs of white males, one of which was that of the appellant. Each selected appellant's photograph as that of one of the bank robbers.
Shortly thereafter, on June 2, appellant was apprehended, and on the same day, F.B.I. agents picked up Maria Medico, appellant's wife. They went with her to her apartment, searched the apartment and took from it unused cartridges, spent cartridges dug out of the furniture and walls of the apartment, and a pair of red pants riddled with bullet holes.
On June 24, 1976, Judge Weinstein held a pre-trial suppression hearing to determine whether the procedures employed by agent Carman in displaying the photographs to Frisina, Balzarini and Castabile were unduly suggestive and whether the Medico apartment had been entered and searched with Mrs. Medico's consent. He found no basis for invalidating the photographic display to the bank employees, nor for suppressing the evidence seized at the apartment. We agree with the trial court.
The photographic display issue can be disposed of summarily. Agent Carman testified that he showed the bank employees eight photographs at separate interviews, but did not indicate that one of the photographs was that of one of the bank robbers. He asked each employee to look at the photographs to determine whether they recognized anyone as being the individual who participated in the robbery. The photographs were handed to each employee in a group. They went through them and picked out Medico's photograph. The procedure followed was clearly proper. Simmons v. United States, 390 U.S. 377, 383-384, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968); see also Kirby v. Illinois, 406 U.S. 682, 691, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972).
We also agree with Judge Weinstein that the prosecution met its burden of proving that Mrs. Medico had "freely and voluntarily given" her consent to the F.B.I. agents to enter and search her apartment. Bumper v. North Carolina, 391 U.S. 543, 548, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968). A search pursuant to a valid consent is constitutionally permissible, Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973), and the totality of all the circumstances, id. at 227, leaves no doubt that consent was freely given. Mrs. Medico testified that the F.B.I. agents were neither threatening nor menacing in eliciting her consent (Tr. 46, 51),*fn1 and that she had read the consent form before signing it (Tr. 48). Appellant argues that Mrs. Medico was never informed that she had a constitutional right to refuse the F.B.I. agents permission to enter and search her apartment, but "knowledge of a right to refuse is not a prerequisite to a voluntary consent," ibid., although it is one of the factors to be considered, ibid. No argument is made that Mrs. Medico was unauthorized to permit a search of the apartment she and appellant shared.
Appellant contends that the totality of the circumstances
"reveals strong evidence of implicit psychological coercion upon Mrs. Medico. Under the power of drugs, with an hysterical daughter, her husband just arrested by the F.B.I., cut off from consulting with her friend, . . . with perhaps as many as ten agents in her apartment, with threats being made about the fact that 'we don't want to take a mother from her child,' it was not surprising that Maria Medico would have succumbed. . . ."
Brief of Defendant-Appellant at 28. In determining whether acquiescence was voluntary, "account must be taken of . . . the possibly vulnerable subjective state of the person who consents." Schneckloth v. Bustamonte, supra, 412 U.S. at 229. Mrs. Medico was undoubtedly psychologically vulnerable*fn2 when she agreed to the search, but the record discloses no evidence that the F.B.I. agents took advantage of this weakness by the use of subtle or overt pressure to secure her cooperation. A large number of agents in her apartment could have proved unsettling, but, as already noted, Mrs. Medico testified that they were neither threatening nor menacing.
We also find it difficult to read the statement made by one of the agents that "we don't want to take a mother from her child" as an implied threat as appellant urges us to do, in light of the fact that it was immediately preceded by the statement, "we are not here to arrest any woman with a child" (Tr. 48). Nor did Mrs. Medico indicate that she thought the agent meant the challenged statement as a threat.*fn3
Mrs. Medico also testified that on the day in question she had used "pot, cocaine, heroin, methadone" (Tr. 50). The suggestion that drugs impaired her faculties and therefore made her incapable of voluntarily consenting is controverted by her clear recollection of the incidents that took place and her description of her own thought processes. Moreover, this testimony is frankly incredible. It's reliability is made more questionable because it differs somewhat from her earlier testimony:
"Q. Were you using drugs at this time, Mrs. Medico?
Q. What sort of drugs were you on?
A. Well, on the program, methadone. I started using - I was smoking - heroin - ...