Fritts

MEMORANDUM *

Appellant Michael Fritts appeals his judgment of conviction after entering a guilty plea to bank robbery, in violation of 18 U.S.C. § 2113 (a). Fritts argues that the district court erred in (1) denying his motion to suppress his statements on the grounds of pre-arraignment delay under 18 U.S.C. § 3501 (c); (2) denying his motion to suppress his statements on the grounds of involuntariness; (3) finding that he voluntarily consented to a search of his apartment; (4) finding that the FBI agents did not violate the knock-notice rule of 18 U.S.C. § 3109 in executing the federal arrest warrant; and (5) applying a two-level specific offense characteristic upward adjustment under U.S.S.G. § 2B3.1(b)(2)(F) for a “threat of death” during the commission of a robbery. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

1. The district court properly denied Fritts’s motion to suppress his statements on the grounds of pre-arraignment delay. Rule 5(a) of the Federal Rules of Criminal Procedure requires that an arrested defendant be brought before a judicial officer “without unnecessary delay.” 18 U.S.C. § 3501 (c), in turn, creates a six hour “safe harbor” for…

concurring in part and dissenting in part.

I concur in sections one, two, four and five. I respectfully dissent from section three, involving the consent to search. The memorandum disposition focuses on one fact in support of the finding of voluntariness: that Fritts signed a 'written waiver. This holding neglects other facts that strongly suggest coercion: At the time Fritts gave his “consent,” he was in custody, in handcuffs, in the back of an officer’s unmarked vehicle; he had not been read his Miranda rights; and he had just suffered through a disorienting, early morning arrest at the hands of six to eight agents with guns drawn. Fritts’ ordeal was not materially different from other “consent” searches which have been deemed involuntary in this circuit. See, e.g., United States v. Reid, 226 F.3d 1020 (9th Cir.2000); United States v. Al-Azzawy, 784 F.2d 890, 895 (9th Cir.1985) (affirming the district court’s ruling of involuntariness when defendant was ordered from his trailer, ordered to his knees at gunpoint, frisked, searched, and then asked for consent).

Reid , a case which was recently decided, is particularly instructive. In Reid , we reversed as clearly erroneous the…