United States v. Herman Patayan Soriano

Opinion by Judge CLIFTON; Dissent by Judge BERZON.

OPINION

Herman Patayan Soriano appeals his convictions for possession of stolen mail and receipt of a stolen United States Treasury check, and also the sentence that resulted. Soriano challenges his convictions on the ground that the district court erred in denying his motion to suppress evidence found during a search of a motel room where he and his girlfriend resided. Soriano’s girlfriend signed a consent form allowing the warrantless search. The issue on appeal is whether the district court clearly erred in finding that her consent was voluntary, notwithstanding a threat made to her by one of the police officers on the scene that her children could be taken away if she did not sign the form. If the conviction stands, Soriano challenges the sentence he was given on the ground that the district court erred in calculating the appropriate loss amount for sentencing purposes. We reject both challenges and affirm.

I. BACKGROUND

On December 7, 2000, officers from the Los Angeles Police Department (“LAPD”) were contacted by a bank regarding a possibly altered check that had been presented to a teller. Based on a description of the…

dissenting.

Faced with conflicting representations by two law enforcement officers, Hiroe Mukai did the only thing that a reasonable parent could have done under the circumstances: She consented to a search for fear that the representation of one of the two officers that her young children would be taken from her if she did not consent would prove correct. The trial court recognized that when signing the consent form Mukai did “have [ ] in mind to some extent” her fear that her children would be taken from her if she refused to accede to the officers’ demand. Yet, the trial court concluded that Mukai’s consent was voluntary. In so concluding, the trial court committed clear error. As the majority errs in’deciding otherwise, I respectfully dissent.

I.

A partial recounting of the disturbing facts of this case is necessary for a full understanding of my reasons for dissenting:

Mukai’s primary response from the outset was to express concern about her two children, who remained in the motel room. As Manente testified, “the only concerns ... she had were for her children, what was going to happen with her children.” Mukai repeated these concerns when Officer Callas arrived, as he…

346 F.3d 963 UNITED STATES of America, Plaintiff-Appellee, v. Herman Patayan SORIANO, Defendant-Appellant. No. 01-50461. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 16, 2003. Filed October 15, 2003. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Jeffrey H. Rutherford, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant. Adam D. Kamenstein, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Central District of California; Lourdes G. Baird, District Judge, Presiding, D.C. No. CR-00-01262-LGB-1. Before TASHIMA, BERZON, and CLIFTON, Circuit Judges. Opinion by Judge CLIFTON; Dissent by Judge BERZON. OPINION CLIFTON, Circuit Judge. 1 Herman Patayan Soriano appeals his convictions for possession of stolen mail and receipt of a stolen United States Treasury check, and also the sentence that resulted. Soriano challenges his convictions on the ground that the district court erred in denying his motion to suppress evidence found during a search of a motel room where he and his girlfriend resided. Soriano's girlfriend signed a consent form allowing the…