UNITED STATES v. CORNEJO

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Docket Number

Nos. 77-3257, 77-3258 and 77-3259.

Attorney(S)

Arthur Ruthenbeck, Deputy Federal Defender, Fresno, Cal., for defendants-appellants. Anthony P. Capozzi, James E. White, Asst. U.S. Attys., Fresno, Cal., for plaintiff-appellee.

Judges

James Robert Browning
James Marshall Carter
J. Blaine Anderson

Acts

Crimes And Criminal Procedure — Robbery And Burglary — Crimes — Bank Robbery And Incidental Crimes

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Smart Summary

Factual and Procedural Background

The case arises from the armed robbery of the American National Bank in Bakersfield, California, on June 2, 1977. Following the robbery, police officers, acting on information from witnesses, went to apartment B-36 in the J-L-J apartment complex and obtained consent from the lessee, Mary Padilla, to search the apartment. The appellants—Cornejo, Estrada, and Reyes—were found in a rear bedroom and arrested. Various items, including money, weapons, and a purse, were seized during the search. Cornejo made incriminatory statements admitted at trial, and Reyes' purse was searched at the police station, revealing a mutilated money list from the bank. The appellants appealed their convictions, challenging the denial of their motion to suppress evidence and, in Estrada's case, the admission of Cornejo's post-arrest statements.

Legal Issues Presented

Whether the trial court erred in denying the appellants' motion to suppress evidence obtained from the search of the apartment given the circumstances of consent.
Whether the police had probable cause to arrest the appellants at the time of the search and seizure.
Whether the search and seizure of items, including Reyes' purse and its contents, were lawful.
Whether Cornejo's incriminatory statements should have been suppressed under the Fourth and Fifth Amendments.
Whether admission of Cornejo's statements violated Estrada's Sixth Amendment right to confrontation.

Arguments of the Parties

Appellants' Arguments

The trial court erred in finding that the police entered and searched the apartment with valid consent from Mary Padilla, arguing the consent was involuntary due to the presence of officers with guns drawn.
The police lacked probable cause to arrest the appellants.
The seizure of money, weapons, a purse, and a shirt exceeded the legitimate scope of a search incident to arrest.
The search of Reyes' purse without a warrant was unlawful under United States v. Chadwick.
Cornejo's incriminatory statements should have been suppressed as they violated Fourth and Fifth Amendment rights.
Admission of Cornejo's statements violated Estrada's Sixth Amendment confrontation rights because Cornejo did not testify and was unavailable for cross-examination.

Plaintiff-Appellee's Arguments

The police lawfully entered the apartment based on valid consent from Mary Padilla, which was not coerced.
Probable cause existed to arrest all three appellants based on the circumstances and descriptions matching the suspects.
The items seized were lawfully obtained either through valid consent searches or as items in plain view during a lawful search.
The search of Reyes' purse was lawful under existing circuit precedent as a search incident to arrest, and Chadwick does not apply retroactively.
Cornejo's statements were voluntary, not elicited by interrogation, and thus not subject to suppression under the Fifth Amendment.
Any error in admitting Cornejo's statements against Estrada was harmless beyond a reasonable doubt given the strong identification evidence and corroborating facts.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Lemon, 550 F.2d 467 (9th Cir. 1977)	Credibility determinations of consent to search	Supported the district court's credibility finding favoring police testimony regarding consent.
United States v. Page, 302 F.2d 81 (9th Cir. 1962) (en banc)	Consent to search and its voluntariness	Reinforced that consent was not coerced under the facts as found by the district court.
United States v. Matlock, 415 U.S. 164 (1974)	Consent to search by third party with common authority	Validated Mrs. Padilla's authority to consent to the apartment search.
United States v. Novick, 450 F.2d 1111 (9th Cir. 1971)	Consent to search and scope of search	Supported the legitimacy of the search pursuant to Padilla's consent.
Coolidge v. New Hampshire, 403 U.S. 443 (1971)	Plain view doctrine for seizure of evidence	Justified seizure of items found in plain view during lawful consent search.
United States v. Jackson, 576 F.2d 749 (8th Cir. 1978)	Warrant requirement for search of seized containers	Distinguished the legality of searching purse contents versus purse seizure.
United States v. Chadwick, 433 U.S. 1 (1977)	Fourth Amendment warrant requirement for searching seized containers	Not applied retroactively; thus, search of Reyes' purse contents was lawful under prior circuit law.
United States v. Stewart, 591 F.2d 63 (9th Cir. 1979)	Retroactivity of Chadwick decision	Confirmed Chadwick does not apply retroactively, supporting the search's legality.
United States v. Basurto, 497 F.2d 781 (9th Cir. 1974)	Search incident to arrest of property in possession of arrestee	Supported search of purse contents as lawful under circuit precedent.
United States v. Mehciz, 437 F.2d 145 (9th Cir. 1971)	Legitimacy of post-arrest searches similar to this case	Upheld validity of searches nearly identical to the present case.
United States v. Evalt, 382 F.2d 424 (9th Cir. 1967); 359 F.2d 534 (9th Cir. 1966)	Post-arrest search legality	Supported the lawfulness of the searches in the current case.
United States v. Edwards, 415 U.S. 800 (1974)	Search incident to lawful arrest	Confirmed validity of search of property associated with arrestee.
United States v. Robinson, 414 U.S. 218 (1973)	Scope of search incident to arrest	Supported lawful search of items in possession of arrestee.
Pavao v. Cardwell, 583 F.2d 1075 (9th Cir. 1978)	Voluntariness of volunteered statements	Supported admission of Cornejo's volunteered incriminatory statements.
United States v. Velarde, 528 F.2d 387 (9th Cir. 1975)	Voluntariness of statements without Miranda warnings	Supported admission of statements made voluntarily without interrogation.
United States v. Rouse, 452 F.2d 311 (5th Cir. 1971)	Volunteered statements and Fifth Amendment	Supported admission of volunteered statements not elicited by interrogation.
Bruton v. United States, 391 U.S. 123 (1968)	Confrontation Clause and admission of co-defendant statements	Addressed Estrada's claim regarding admission of Cornejo's statements implicating him.
Chapman v. California, 386 U.S. 18 (1967)	Harmless error standard	Applied to find any Bruton error harmless beyond a reasonable doubt.
Harrington v. California, 395 U.S. 250 (1969)	Harmless error doctrine	Supported harmless error finding on confrontation claim.

Court's Reasoning and Analysis

The court first addressed the voluntariness of the consent to search the apartment. Despite conflicting testimony about the presence of officers with guns drawn, the district court's credibility determination favoring police was not clearly erroneous. The consent was found to be voluntary and valid under established Ninth Circuit precedent.

The court found probable cause existed to arrest all three appellants based on the description of suspects, the proximity of the apartment to the robbery, and the presence of individuals matching the descriptions inside the apartment.

The seizure of items was lawful because the search was conducted pursuant to valid consent from the lessee, and items found in plain view during the search were properly seized. The search of Reyes' purse was lawful under circuit precedent existing before United States v. Chadwick, which was not applied retroactively.

Regarding Cornejo's incriminatory statements, the court concluded they were voluntary and not subject to suppression under the Fourth or Fifth Amendments. The statements were not the product of interrogation, thus Miranda warnings were not required. The court found no derivative Fourth Amendment violation since the initial entry and arrest were lawful.

Estrada's claim that admission of Cornejo's statements violated his Sixth Amendment confrontation rights was considered. The court acknowledged the potential error but held it was harmless beyond a reasonable doubt given the strong evidence against Estrada, including eyewitness identifications and physical evidence linking him to the robbery.

Holding and Implications

The court affirmed the convictions of appellants Cornejo, Estrada, and Reyes.

The direct effect of this decision is the upholding of the trial court's rulings on the validity of the consent search, the probable cause for arrest, the admissibility of seized evidence, and the admission of incriminatory statements. The court did not establish new precedent but applied existing legal standards and principles to affirm the convictions.

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UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. JOE JOHN CORNEJO, TONY EDWARD ESTRADA, MAGDALENA REYES, DEFENDANTS-APPELLANTS.

PER CURIAM:

Appellants were convicted of armed bank robbery ( 18 U.S.C. § 2113(a), (d)). All appellants claim the trial court erred in denying their motion to suppress. Appellant Estrada also challenges the admission of post-arrest statements of appellant Cornejo.

The American National Bank in Bakersfield, California, was robbed on June 2, 1977. Shortly after the robbery several police officers proceeded to apartment B-36 of the nearby J-L-J apartment complex in search of the suspects on the basis of information furnished by several persons including two witnesses to the robbery. The lessee of the apartment, Mary Padilla, answered the door, admitted the officers, and consented to a search of the entire apartment. Appellants were found in a rear bedroom and arrested. Certain items were seized that were later admitted at the trial. Appellant Cornejo made several statements which were also admitted at trial. After appellant Reyes arrived at the police station, her purse, seized at the time of the arrest, was searched and a mutilated money list from the bank was discovered.

Appellants claim the district court erred in finding that the police entered and searched the apartment pursuant to Mary Padilla's consent. The testimony as to the circumstances surrounding the consent was contradictory. The district court resolved the conflict in favor of the police. The court's credibility determination was not clearly erroneous. See United States v. Lemon, 550 F.2d 467, 471-72 (9th Cir. 1977); United States v. Page, 302 F.2d 81, 84-86 (9th Cir. 1962) (en banc). Assuming the facts to be as the police described them, the circumstances were not so inherently coercive as to render the consent involuntary. Appellants rely upon the testimony of one of the police officers that when Mrs. Padilla opened the door, she was confronted by several officers with their guns drawn. However, two other officers testified that the weapons were not drawn when permission to enter and search was initially requested, but only after the search began.

The government challenges appellants' standing to raise the Fourth Amendment issues. We assume standing for the purpose of this appeal.

Appellants contend the seizures were invalid because the police did not have probable cause to arrest. A bank had been robbed 38 to 40 minutes earlier; two of the suspects were male Mexican-Americans, one of whom had orange-colored hair combed straight back. A woman had been identified as driving the getaway car. The car had been located at the apartment complex. After arriving at the complex, the police learned that a person fitting the description of one of the suspects had been seen in the vicinity of apartment B-36 earlier in the day. In the consensual search of the apartment, the police found the suspect with the orange-colored hair in the bedroom with two other persons, one of whom was a woman, and the other a male Mexican-American. Clearly, probable cause existed to arrest all three.

Appellants argue that the seizure of money, weapons, a purse, and a shirt in the bedroom in which they were arrested exceeded the legitimate scope of a search incident to an arrest. However, Mrs. Padilla could legitimately consent to the officers' entry and search, see United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); United States v. Novick, 450 F.2d 1111, 1112 (9th Cir. 1971), and the weapons were discovered incident to a search of a dresser conducted pursuant to Mrs. Padilla's consent. The remaining items, including appellant Reyes' purse, were also legitimately seized since they were discovered in plain view during the course of the lawful consent search. See Coolidge v. New Hampshire, 403 U.S. 443, 465-71, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Cf. United States v. Hare, 589 F.2d 1291, 1293-96 (6th Cir. 1979); United States v. Ledbetter, 432 F.2d 1223, 1225 (10th Cir. 1970).

Appellant Reyes contends the police should have obtained a warrant before searching her purse. The lawfulness of the seizure of the purse does not justify the search of its contents; although the purse itself was in plain view, its contents were not ( see United States v. Jackson, 576 F.2d 749, 752-53 (8th Cir. 1978)); and the search of the purse without a warrant may have been illegal under United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

Chadwick, however, was decided after the search occurred, and this court has held Chadwick is not to be applied retroactively. See United States v. Stewart, 591 F.2d 63, 65 (9th Cir. 1979). See also United States v. Berry, 571 F.2d 2 (7th Cir. 1978); United States v. Reda, 563 F.2d 510 (2d Cir. 1977); United States v. Montgomery, 558 F.2d 311, (5th Cir. 1977). Under the law in this circuit prior to Chadwick, the search of appellant Reyes' purse was lawful as a search of property immediately associated with and in the possession of the arrestee. See United States v. Basurto, 497 F.2d 781, 792 (9th Cir. 1974); United States v. Mehciz, 437 F.2d 145, 146-47 (9th Cir. 1971); United States v. Evalt, 382 F.2d 424, 427 (9th Cir. 1967). In Mehciz and Evalt, see also United States v. Evalt, 359 F.2d 534 (9th Cir. 1966), we sustained seizures and post-arrest searches nearly identical to the one at issue here. See also United States v. Edwards, 415 U.S. 800, 803, 805-06, 94 S.Ct. 1234, 39 L.Ed.2d 771; United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

While still in the apartment but under arrest, appellant Cornejo made incriminatory statements he claims should have been suppressed. The statements were not excludable as derivative violations of appellant Cornejo's Fourth Amendment rights since the police lawfully entered the apartment and had probable cause to arrest. Nor is suppression required by the Fifth Amendment. Although appellant Cornejo was not informed of his right to remain silent, the statements were not made in response to police interrogation but were volunteered. See Pavao v. Cardwell, 583 F.2d 1075, 1077 (9th Cir. 1978); United States v. Velarde, 528 F.2d 387 (9th Cir. 1975); United States v. Rouse, 452 F.2d 311, 313 n. 2 (5th Cir. 1971).

Some of the appellant Cornejo's statements also implicated other appellants. Thus appellant Cornejo said: " We threw the bags away. We put our money in our pockets. We didn't want the people [who lived in the apartment] to know what was going on." These statements were admitted with an instruction that they were to be considered only against appellant Cornejo. Notwithstanding the cautionary instruction, appellant Estrada claims admission of the statements violated his Sixth Amendment right to confrontation because appellant Cornejo did not testify and was not available for cross-examination. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The error, if any, was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Three bank employees identified appellant Estrada positively and without hesitation as one of the robbers. Appellant Estrada arrived at the Padilla apartment with the two other appellants several days before the robbery. He and the other two appellants left the apartment together earlier in the afternoon of June 2 and upon their return went directly to the bedroom where they were arrested some 30 minutes later. A bag containing bait money and a shirt which all of the witnesses identified as having been worn by appellant Estrada during the robbery were found in the bedroom in which appellant Estrada was arrested.

Affirmed.