Unpublished Disposition, 849 F.2d 1477 (9th Cir. 1986)

MEMORANDUM^** 

Gert Von Marschner appeals pro se his conviction, following a conditional guilty plea, for conspiracy to possess piperidine¹  in violation of 21 U.S.C. §§ 846, 841(d) (2). Von Marschner challenges the district court's denial of his 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 contends that his consent to the search of his house was involuntary. We affirm.

In March, 1986, the Drug Enforcement Administration (DEA) began an investigation 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 Barkett 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 automobiles.

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 piperidine. 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 valid. 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 F.2d 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, 418-24 (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 F.2d 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 nonconsensual 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 to arrest him,²  and that he was placed under arrest after he stepped outside of his house onto his front patio.³  However, Von Marschner asserts that the warrantless arrest was invalid because the officers used coercion 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 constructively entered the dwelling and arrested the defendant inside of his house. See United States v. Al-Azzawy, 784 F.2d 890, 892-93 (9th Cir. 1985), cert. denied, 476 U.S. 1144 (1986). In Al-Azzawy, police officers completely surrounded the defendant's house trailer with their guns drawn and ordered him 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 have 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 F.2d 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 F.2d at 755. The question is whether under all of 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 v. Patterson, 648 F.2d 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 reasonable person to conclude that he was not free to leave, and that he was coerced from his home by this show of force. Von Marschner emphasizes that the officers knocked loudly and forcefully 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-Azzawy and Johnson. Here, the police did not surround Von Marschner's residence or confront 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 circumstances, Von Marschner could not have reasonably believed that he was arrested inside his home. Cf. Al-Azzawy, 784 F.2d 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.⁴  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 patio is curtilage. This court need not address an issue raised for the first time on appeal. Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir. 1986), cert. denied, --- U.S. ----, 107 S. Ct. 2183 (1987); Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir. 1985).⁵ 

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 F.2d 728, 740 (9th Cir. 1985). A warrantless search conducted pursuant to a suspect's valid consent is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). The suspect's consent must be voluntary; it 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 F.2d at 740. Voluntary consent is a factual 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, intelligence and knowledge of the law. See United States v. Mendenhall, 446 U.S. 544, 558 (1980); Watson, 423 U.S. at 424-25. The fact that the suspect was in custody does not necessarily negate voluntariness. Alfonso, 759 F.2d 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 authorizing 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 F.2d 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 intelligent 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 determinative. See Watson, 423 U.S. at 424-25; Schneckloth, 412 U.S. at 232-33.

Moreover, Von Marschner's alleged subjective 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 would reasonably have feared for his personal safety and the destruction of his property. See United States v. Castrillon, 716 F.2d 1279, 1283 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 motion to suppress and the judgment is AFFIRMED.