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Docket Number

No. 26484.

Attorney(S)

John S. Edmunds, Chief Deputy Public Defender (argued), Brook Hart, Public Defender, Honolulu, Hawaii, for appellant. Harold M. Fong, Asst. U.S. Atty. (argued), Joseph M. Gedan, Asst. U.S. Atty., Robert K. Fukuda, U.S. Atty., Honolulu, Hawaii, for appellee.

Judges

James Marshall Carter

Acts

Crimes And Criminal Procedure — Postal Service — Crimes — Theft Or Receipt Of Stolen Mail Matter GenErally

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Smart Summary

Case Summary: United States v. Lambert David Noa, No. 26484 (9th Cir. May 25, 1971)

Factual and Procedural Background

The appellant, Lambert David Noa, a mail clerk at Queen's Hospital in Honolulu, was called to his superior's office on February 27, 1970, where two Federal Postal Inspectors introduced themselves, said they were investigating losses of mail, and asked to question him. Prior to questioning, Inspector Townley gave oral Miranda warnings that included: the right to remain silent; that statements could be used in court; the right to talk to a lawyer before questioning and to have him present during questioning; and that an attorney would be appointed if the defendant could not afford one. The warnings were also provided in writing. After indicating willingness to answer questions, Noa answered questions that led the inspector to suspect him. Townley then asked for permission to search Noa's vehicle; Townley did not expressly advise Noa that he could refuse consent or insist on a warrant. Noa consented, and the search produced letters and currency believed to have been stolen. Back in the supervisor's office, Noa was again given the same warnings and then admitted taking letters; the confession was reduced to writing and signed.

Noa was indicted on six counts of mail theft. He moved to suppress his confession and the evidence seized from his car; the trial court denied the motion. The evidence was introduced at trial, and Noa was convicted on all counts. He appealed, raising two principal challenges related to the sufficiency of warnings given before interrogation and before the vehicle search.

Legal Issues Presented

Whether the Miranda warnings given to appellant were constitutionally adequate, specifically whether they sufficiently informed him of the right to consult with an appointed attorney prior to questioning.
Whether appellant's consent to a warrantless search of his vehicle was voluntary and valid despite the absence of an explicit warning that he could refuse consent or insist upon a search warrant.

Arguments of the Parties

Appellant's Arguments

Appellant contended that the Miranda warning was inadequate because it did not explicitly inform him that he had a right to consult with an appointed attorney prior to any questioning.
Appellant contended that his consent to the warrantless search of his vehicle was not voluntary because he was not told he had the right to refuse consent or to insist on a search warrant.

The opinion does not contain a detailed account of the appellee's separate legal arguments beyond the government's position implicit in defending the validity of the warnings and the consent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Miranda v. Arizona, 384 U.S. 436 (1966)	Custodial interrogation requires warning of the right to presence of an attorney and appointment of counsel if indigent, prior to questioning.	Serves as the baseline standard against which the adequacy of the warnings given to appellant was measured.
Keegan v. United States (9th Cir. 1967), 385 F.2d 260	Holds warnings that did not explicitly inform defendant of right to consult appointed counsel prior to questioning were nevertheless adequate under Miranda.	Cited to support the proposition that explicit wording is not required and that the warnings given here were adequate.
Craft v. United States (9th Cir. 1968), 403 F.2d 360	Similar Ninth Circuit authority on adequacy of warnings that do not use precise language about consulting appointed counsel.	Relied upon to show Ninth Circuit precedent permits the warnings given to be considered adequate.
Camacho v. United States (9th Cir. 1969), 407 F.2d 39	Language form is not dispositive; substance of warning controls.	Quoted for the proposition "substance controls form" and applied to uphold the warnings given to appellant.
Sweeney v. United States (9th Cir. 1969), 408 F.2d 121	Related Ninth Circuit authority affirming adequacy of similar warnings.	Used as further support that the warning in this case conveyed the substance of the right to consult appointed counsel prior to and during questioning.
Groshart v. United States (9th Cir. 1968), 392 F.2d 172	Example of a case where a defendant was not informed of the right to presence of an attorney during questioning.	Distinguished from the present case; court noted this is not such a case.
Smith v. Rhay (9th Cir. 1969), 419 F.2d 160	Another case involving failure to inform a defendant of the right to attorney presence during questioning.	Distinguished; court pointed out the present case is not one where the defendant was not informed of right to counsel's presence.
United States v. Garcia (9th Cir. 1970), 431 F.2d 134	Example where offer of appointed counsel was associated with a future time in court (distinguished as inadequate).	Distinguished from the present case because Garcia involved advising about counsel at a future time rather than prior to questioning.
Coyote v. United States (10th Cir. 1967), 380 F.2d 305	Authority from the Tenth Circuit addressing similar Miranda-related adequacy questions.	Cited to show other circuits reached results consistent with the Ninth Circuit's approach on warning adequacy.
United States v. Vanterpool (2d Cir. 1968), 394 F.2d 697	Second Circuit authority on related Miranda issues.	Included among out-of-circuit decisions consistent with this Court's ruling on warnings.
United States v. Anderson (2d Cir. 1968), 394 F.2d 743	Second Circuit precedent on similar issues.	Grouped with decisions supporting the court's view on warnings' adequacy.
United States v. Sanchez (2d Cir. 1970), 422 F.2d 1198	Second Circuit authority addressing related questions.	Referenced as consistent out-of-circuit authority.
United States v. Kee Ming Hsu (2d Cir. 1970), 424 F.2d 1286	Second Circuit decision on related Miranda issues.	Included among appellate decisions reaching compatible conclusions.
United States v. Lamia (2d Cir. 1970), 429 F.2d 373	Second Circuit authority addressing similar legal questions (cert. denied noted in opinion).	Cited with other second-circuit decisions as consistent support.
Lathers v. United States (5th Cir. 1968), 396 F.2d 524	Held warning associated the appointment of counsel with a future time in court; distinguished as inadequate.	Appellant relied on Lathers, but the court distinguished it as involving warnings tied to a future time, unlike the present case.
Gilpin v. United States (5th Cir. 1969), 415 F.2d 638	Approved a warning identical to the one given to appellant in this case.	Used to show the Fifth Circuit's treatment distinguishes Lathers and supports the type of warning given here.
Gorman v. United States (1st Cir. 1967), 380 F.2d 158	Holds that, after adequate Miranda warnings, specific Fourth Amendment warnings are not necessary to validate consent to a search.	Cited in support of the court's holding that specific warnings about the right to refuse a warrantless search are unnecessary where Miranda warnings were given.
Government of Virgin Islands v. Berne (3d Cir. 1969), 412 F.2d 1055	Third Circuit held that Miranda warnings sufficiently protect voluntariness of consent to search without additional Fourth Amendment warnings.	Cited as authority supporting the court's view that specific Fourth Amendment warnings were not required.
United States v. Goosbey (6th Cir. 1970), 419 F.2d 818	Sixth Circuit authority on consent to search after Miranda warnings.	Relied upon as a further example of appellate authority consistent with this Court's holding regarding consent.
United States v. Nikrasch (7th Cir. 1966), 367 F.2d 740	Appellant relied on it to argue that consent without specific Fourth Amendment warnings was invalid.	Court characterized Nikrasch as of "dubious propriety" (as noted by Seventh Circuit later) and distinguished it because apparently no Miranda warnings were given there.
Perkins v. Henderson (5th Cir. 1969), 418 F.2d 441	Addressed voluntariness of consent where advice on Fourth Amendment rights was absent; treated that absence as a factor in validity of consent.	Distinguished because Perkins apparently involved no Miranda warnings and treated absence of Fourth Amendment advice as only a factor rather than dispositive.
United States v. Blalock (E.D. Pa. 1966), 255 F. Supp. 268	District court ruling cited by appellant holding consent defective without Fourth Amendment warnings.	Noted but described as not adopted by the Third Circuit in the later Berne decision.
United States v. Moderacki (D. Del. 1968), 280 F. Supp. 633	District court ruling cited by appellant on consent validity in absence of Fourth Amendment warnings.	Noted but characterized as not controlling; Third Circuit's later Berne decision did not adopt such district court rulings.
Byrd v. Lane (7th Cir. 1968), 398 F.2d 750	Seventh Circuit decision criticizing the statement in Nikrasch as of "dubious propriety."	Cited to undermine reliance on Nikrasch and to support the view that Nikrasch is weak authority for appellant's contention.
Rosenthal v. Henderson (6th Cir. 1968), 389 F.2d 514	Discussed the relevance of absence of Fourth Amendment advice as a factor bearing on voluntariness.	Referenced when discussing Perkins and the role of omission of Fourth Amendment advice in determining consent validity.

Court's Reasoning and Analysis

The court analyzed each of appellant's challenges in turn.

First, addressing the adequacy of the Miranda warnings, the court began with Miranda's rule that a person in custody must be warned of the right to have an attorney present and that one will be appointed if the person cannot afford one prior to questioning. The court observed that the warnings given to appellant expressly informed him of the right to remain silent, that statements could be used in court, the right to talk to and have an attorney present during questioning, and that an appointed attorney would be provided if he could not afford one. The warnings were provided both orally and in writing.

The court rejected appellant's contention that the warnings were inadequate because they did not explicitly state that he had a right to consult with an appointed attorney prior to any questioning. The court relied on Ninth Circuit precedent holding that warnings need not use precise language and that substance controls form. The court concluded that, because the offer of appointed counsel immediately followed the reference to the right to consult with an attorney before and during questioning, the warnings conveyed the substance of the right to consult with appointed counsel prior to and during questioning.

The court further distinguished this case from authorities where the right to counsel was associated with a future time in court (e.g., Lathers, United States v. Garcia) or where the defendant was not informed of the right to have counsel present during questioning (e.g., Groshart, Smith v. Rhay). The court also noted out-of-circuit decisions that reached results consistent with its ruling.

Second, on the voluntariness of appellant's consent to the vehicle search, the court reasoned that because appellant had received adequate Miranda warnings, there was no need to give him additional, specific warnings about Fourth Amendment rights (i.e., his right to refuse consent or insist on a warrant) to validate his consent. The court cited appellate decisions (Gorman, Berne, Goosbey) holding that specific Fourth Amendment warnings are not necessary where Miranda warnings have been given and the consent is otherwise voluntary.

The court considered the cases cited by appellant that purportedly required explicit Fourth Amendment warnings (e.g., Nikrasch, Perkins, Blalock, Moderacki) but found them distinguishable or of questionable authority. In particular, the court noted that Nikrasch and Perkins apparently involved no Miranda warnings, that Perkins treated lack of advice on Fourth Amendment rights as one factor among others, and that district court rulings relied upon by appellant were not adopted by later controlling circuit authority (for example, the Third Circuit's Berne decision).

On both issues, the court concluded the warnings and consent were legally sufficient under the governing precedents and analysis set out above.

Holding and Implications

Holding: The Ninth Circuit affirmed the judgment of the district court. The court's core ruling is summarized as: The judgment is affirmed.

Implications:

Direct effect on the parties: The denial of appellant's suppression motion was upheld; the confession and evidence seized from appellant's vehicle were admissible, and appellant's convictions for theft of mailed matter were affirmed.
On legal principles: The court reaffirmed Ninth Circuit authority that Miranda warnings need not use precise or niceties of language so long as the substance conveys the right to consult with appointed counsel prior to and during questioning. The court also reaffirmed the principle, supported by other circuits, that where adequate Miranda warnings have been given, separate, specific warnings of Fourth Amendment rights (such as an express warning of the right to refuse consent or insist upon a search warrant) are not required to validate voluntary consent to a search.
The opinion did not announce or claim to create a novel rule of constitutional law; it applied existing Ninth Circuit and other appellate precedent to uphold the trial court's rulings.

Show full summary ...

UNITED STATES of America, Plaintiff-Appellee, v. Lambert Da

JAMES M. CARTER, Circuit Judge.

Appellant appeals his convictions of theft of mailed matter, in violation of 18 U.S.C. § 1708, on the ground that (1) no adequate Miranda warning of the right to appointed counsel prior to questioning was given to him before his confession to Federal Postal Authorities and (2) no warning of the right to refuse to permit a warrantless search was given to him prior to his consent to a search of his vehicle. We affirm.

The parties agree on the underlying facts. On February 27, 1970, appellant, who worked as a mail clerk at Queen's Hospital in Honolulu, was called into the office of his superior, where two Federal Postal Inspectors, Townley and Hargrove, introduced themselves, stated that they were investigating reports of losses of mail, and advised appellant that they wished to question him. Prior to questioning appellant, Inspector Townley gave him the following warnings:

"You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you cannot afford a lawyer, one will be appointed for you if you wish. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer."

These warnings were also presented to appellant in written form. After reading them, appellant signified that he was willing to answer questions at that time and answered various questions of Inspector Townley, leading Townley to suspect appellant of the offenses under investigation. Townley then asked appellant if he would permit a search of his vehicle, which was parked outside on hospital grounds. At no time prior to the search of appellant's vehicle did Inspector Townley expressly advise appellant that he had a right to refuse to consent to the search or that he had a right to insist upon a search warrant.

Appellant agreed to the proposed search, during which the inspectors found certain letters and currency that they believed were stolen from the Queen's mail room. Appellant was then taken back to his supervisor's office and given the same warnings that he had been previously given, after which he admitted taking various letters from the mail room, Inspector Townley reduced this confession to writing, and appellant signed it.

After his indictment for six counts of mail theft, appellant moved to suppress his confession and the evidence seized from his car. The trial court denied the motion, and the disputed evidence was introduced at appellant's trial, where he was convicted on all counts.

Appellant contends that the warning that he was given several times by Inspector Townley was inadequate under Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), which held that a person subjected to custodial interrogation "must be warned prior to any questioning * * * that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Appellant argues that the warning that he was given was inadequate because it failed to explicitly inform him that he had a right to consult with an appointed attorney prior to any questioning. We disagree.

We have held that warnings that failed to explicitly inform defendants of the right to consult with appointed counsel prior to questioning were adequate under Miranda, although they were not under attack on this ground. Keegan v. United States (9 Cir. 1967) 385 F.2d 260, cert. denied 391 U.S. 967, 88 S.Ct. 2038, 20 L.Ed.2d 880 (1968); Craft v. United States (9 Cir. 1968) 403 F.2d 360; Camacho v. United States (9 Cir. 1969) 407 F.2d 39, cert. denied 396 U.S. 944, 90 S.Ct. 380, 24 L.Ed.2d 245 (1969). In the latter case, we said, "The precise words or nicety of language used in advising a suspect of his rights are not determinative; substance controls form." 407 F.2d at 42 n. 2. We hold that the language used in the warning given to appellant, in which the reference to the right to appointed counsel immediately followed the reference to the right to consult with an attorney before and during questioning, conveyed the substance of a warning of the right to consult with appointed counsel prior to and during questioning. See, Sweeney v. United States (9 Cir. 1969) 408 F.2d 121. This is not a case in which the defendant was not informed of his right to the presence of an attorney during questioning, Groshart v. United States (9 Cir. 1968) 392 F.2d 172, Smith v. Rhay (9 Cir. 1969) 419 F.2d 160, or in which the offer of an appointed attorney was associated with a future time in court, United States v. Garcia (9 Cir. 1970) 431 F.2d 134.

Other circuits that have passed on questions similar to the one before us have reached results consistent with our decision in this case. Coyote v. United States (10 Cir. 1967) 380 F.2d 305, cert. denied 389 U.S. 992, 88 S.Ct. 489, 19 L. Ed.2d 484 (1967); United States v. Vanterpool (2 Cir. 1968) 394 F.2d 697; United States v. Anderson (2 Cir. 1968) 394 F.2d 743; United States v. Sanchez (2 Cir. 1970) 422 F.2d 1198; United States v. Kee Ming Hsu (2 Cir. 1970) 424 F.2d 1286; United States v. Lamia (2 Cir. 1970) 429 F.2d 373, cert. denied 91 S.Ct. 150 (1970). Appellant relies on Lathers v. United States (5 Cir. 1968) 396 F.2d 524. That case was similar to United States v. Garcia, supra, because it involved a warning of the right to appointed counsel associated with a future time in court. The Fifth Circuit has indicated that it distinguishes, as we do, the type of warnings in Lathers and Garcia from the one given appellant by approving of a warning identical to the one in the case at bar. Gilpin v. United States (5 Cir. 1969) 415 F.2d 638.

II.

Appellant contends that his consent to the search of his vehicle was not voluntary because he was not advised of his right to insist upon a search warrant or of his right to refuse a warrantless search. We disagree and hold that, where, as here, a person consents to a search after receiving adequate Miranda warnings, specific warnings of Fourth Amendment rights are not necessary to validate the search. Gorman v. United States (1 Cir. 1967) 380 F.2d 158; Government of Virgin Islands v. Berne, (3 Cir. 1969) 412 F.2d 1055, cert. denied 396 U.S. 837, 90 S.Ct. 96, 24 L.Ed.2d 87 (1969); United States v. Goosbey (6 Cir. 1970) 419 F.2d 818.

Appellant relies upon United States v. Nikrasch (7 Cir. 1966) 367 F.2d 740; Perkins v. Henderson (5 Cir. 1969) 418 F.2d 441; United States v. Blalock (E.D.Pa. 1966) 255 F. Supp. 268; United States v. Moderacki (D.Del. 1968) 280 F. Supp. 633.

These cases are, at best, questionable authority for his contention. The Seventh Circuit, in Byrd v. Lane (7 Cir. 1968) 398 F.2d 750, 755, cert. denied 393 U.S. 1020, 89 S.Ct. 625, 21 L.Ed.2d 564 (1969) said that the statement in Nikrasch upon which appellant relies was of "dubious propriety." Nikrasch and Perkins are distinguishable from the case before us because in them, apparently, no Miranda warnings were given to the consenting defendants. Also, in Perkins the court appeared to view the absence of advice on Fourth Amendment rights as only a factor bearing on whether a consent to a search was valid. See, Rosenthal v. Henderson (6 Cir. 1968) 389 F.2d 514. Finally the rulings by district courts within the Third Circuit in Blalock and Moderaki were not adopted in the subsequent decision of the Third Circuit in Government of Virgin Islands v. Berne, supra.

The judgment is affirmed.

UNITED STATES v. NOA