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UNITED STATES v. IOVINE

January 10, 1978

UNITED STATES OF AMERICA, Plaintiff,
v.
DONATO IOVINE, Defendant



The opinion of the court was delivered by: NICKERSON

MEMORANDUM AND ORDER

 NICKERSON, District Judge

 Defendant has moved to suppress seventy-two cases of Dewars Scotch whiskey which were found by a Federal Bureau of Investigation ("FBI") agent in a blue Chevrolet step van owned by defendant and parked on the street in front of his residence. The sole question is whether defendant gave a valid "consent" to the FBI search of the step van.

 A hearing was held, and three FBI agents in addition to defendant testified. In substance the agents testified as follows. On September 13, 1977, Agent Patrick F. Colgan observed defendant driving in a white Ford camper from his residence at 22 Preston Court, Brooklyn, to Glenwood and Utica Avenues, Brooklyn, where he got out and gave the keys to the camper to one Louis Cinqueranna. At that point Colgan identified himself and asked to talk to the two men. Within seconds other agents appeared, and separate conversations with the two men were held on the street.

 Cinqueranna produced a registration for the camper and gave permission to search it, whereupon thirty cartons of untaxed cigarettes were found. On request defendant produced identification, and after some conversation was asked whether he would consent to a search of his residence. He replied that he did not own or lease the premises but his "common law" wife did, and that she would probably consent.

 Defendant was then driven to the residence. He was not under arrest and was not handcuffed. When defendant and the agents arrived defendant's wife became enraged at him for having involved her in something which occasioned the presence of FBI agents. Agent Milton E. Ahlerich calmed her down, told her that the FBI was investigating defendant in connection with some stolen liquor, and requested permission to search the premises. A written form of consent was prepared, and, after consulting with the defendant, she signed it.

 Thereafter defendant and two agents stepped into the rear yard of the premises and continued their conversation. Colgan, who had remained outside, approached them and asked defendant if he was the owner of the blue Chevrolet step van parked on the street in front of the residence.

 Defendant said the vehicle was his and asked Colgan if he wished to inspect it. Colgan then told defendant that he had a right to insist on a search warrant before a search was made, but defendant replied that this would not be needed. He thereupon reached into his pocket and obtained a set of keys which he offered to Colgan, who refused them and asked defendant to walk with him to the step van and open it. The two then walked over to the step van; defendant unlocked it; and Colgan observed seventy-two cases of Dewars scotch.

 Defendant claimed that two of his friends had used the vehicle the previous day and must have left the whiskey in it. He refused to divulge the friends' names, asserting that reprisals might be taken against him or his family. Soon, however, defendant admitted that he had received seventy-seven cases of whiskey and had delivered five that day, so that there should be seventy-two remaining in the step van. He was thereupon placed under arrest.

 The question is whether the search of the step van violated defendant's rights under the Fourth Amendment, which provides:

 
"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 Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

 The government seeks to justify the search on the basis of defendant's "consent", and says that it has the burden of proving that such "consent" was "voluntarily" given. Bumper v. State of North Carolina, 391 U.S. 543, 548, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968).

 As Mr. Justice Harlan once observed, the decisions of the Supreme Court with respect to the Fourth Amendment "are hardly notable for their predictability." Ker v. California, 374 U.S. 23, 45, 10 L. Ed. 2d 726, 83 S. Ct. 1623 (1963) (concurring opinion). Searches and seizures are indeed "an opaque area of the law," Powell, J., concurring in Schneckloth v. Bustamonte, 412 U.S. 218, 269, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973), perhaps because the Fourth Amendment prohibits only "unreasonable" searches and thus explicitly invites the balancing of conflicting but unspecified interests.

 Where "consent" to a search is claimed, the uncertainty in the decisions has been compounded because the terms upon which the debate has been carried forward have obscured rather than clarified the considerations at stake. The question has traditionally been framed as to whether the consent was "voluntary" or "coerced", as if these terms were mutually exclusive. Bumper v. State of North Carolina, supra, 391 U.S. at 548, 550. But as Mr. Justice Stewart recognized in Schneckloth v. Bustamonte, supra, at 224, at least where the defendant has his wits about him, a consent is almost always "voluntary" in the sense that it represents an exercise of the will to make a deliberate choice among alternatives. Indeed, a consent to a search made in apprehension even of the continuation of the infliction of bodily harm is in the fullest sense the result of a rational and "voluntary" choice. By the ...


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