United States v. Richard Lawrence Wellins

The United States appeals, pursuant to 18 U.S.C. § 3731 , from an order suppressing evidence which was obtained through a “consent” search, and statements made by the defendant following that search.

At approximately 7:30 a. m. on Saturday, May 19, 1979, four agents of the Drug Enforcement Administration (DEA) were admitted to the hotel suite of Appellee, Richard Wellins, in Los Angeles, California. As they entered the sitting room three of the agents immediately conducted a “protective sweep” of the other rooms in the suite. The “protective sweep” produced a small quantity of marijuana which induced one of the agents to arrest Wellins. At that time Wellins was advised of his Miranda rights. The DEA agents then detained Wellins in the suite while they attempted to obtain a search warrant. While detained, Wellins was permitted to speak on the telephone with a person who was co-registered with him in the suite. At approximately 8:30 a. m. Wellins, pursuant to his request, was permitted to call his attorney in Miami, Florida, who advised him to remain silent. Immediately thereafter, Wellins consented to the search of the suite, and signed a “consent form” to that effect at 8:44 a.…

dissenting:

In my view, the district court properly considered the relevant factors in deciding that the consent was not sufficiently attenuated from the illegal police conduct for fourth amendment purposes. See Dunaway v. New York, 442 U.S. 200, 216-18 , 99 S.Ct. 2248, 2258-59 , 60 L.Ed.2d 824 (1979); United States v. Perez-Esparza, 609 F.2d 1284, 1288-89 (9th Cir. 1979). I see no reason to disturb the district court’s determination, or to require a new consideration of the evidence. I would therefore affirm.

654 F.2d 550 UNITED STATES of America, Plaintiff-Appellant, v. Richard Lawrence WELLINS, Defendant-Appellee. No. C.A. 80-1194. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 9, 1981. Decided August 24, 1981. James P. Walsh, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellant. Victor Sherman, Los Angeles, Cal., argued for defendant-appellee; Victor Sherman, Nasatir, Sherman & Hirsch, Los Angeles, Cal., Alan I. Karten, Miami, Fla., on brief. Appeal from the United States District Court for the Central District of California. Before TRASK and SCHROEDER, Circuit Judges, and CARROLL, * District Judge. CARROLL, District Judge. The United States appeals, pursuant to 18 U.S.C. § 3731 , from an order suppressing evidence which was obtained through a "consent" search, and statements made by the defendant following that search. At approximately 7:30 a. m. on Saturday, May 19, 1979, four agents of the Drug Enforcement Administration (DEA) were admitted to the hotel suite of Appellee, Richard Wellins, in Los Angeles, California. As they entered the sitting room three of the agents immediately conducted a "protective sweep" of the other rooms in the…