WILLIAM E. CALDWELL
ALASKA LEGAL SERVICES CORP.
1648 Cushman St., Suite 300
Fairbanks, Alaska 99701
(907) 452-5181
FAx 456-6359
ROBERT K. HICKERSON
ALASKA LEGAL SERVICES CORP.
1016 West Sixth Ave., Suite 200
Anchorage, Alaska 99501
(907) 276-6282
FAx 279-7417
Attorneys for Plaintiff
N THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
xxxxxxxxxxxxxx,
Plaintiff,
vs. No. N97-00') Civil (JWS)
xxxxxxxxxxxx, et al.,
PLAINTIFF'S OPPOSITION TO
Defendants. MOTION FOR SUMMARY
JUDGMENT
Whether plaintiff freely and voluntarily consented by
implication to the searches of his freezers and the seizure of his food, or whether
defendants xxxxx and xxxxxxx could reasonably have believed that he did, are questions
that turn on issues of material fact as to which the sworn depositions of the parties
create genuine disputes. Defendants' motion for summary judgment accordingly must be
denied. In support of his opposition, plaintiff submits the depositions of xxxxx and
xxxxxxx as Attachments I and 2 hereto, and relies as well on his own deposition
(Defendants' Exhibit 1) and the other exhibits submitted by defendants.
THE FACTS VIEWED FAVORABLY TO PLAINTIFF
From the conflicting testimony of the parties and other evidence before the
Court, a reasonable jury could find the following by a preponderance of the evidence:
Sometime in the latter half of August 1996, defendant Mark xxxxx, the Senior Resident Agent in charge of the Fairbanks office of the U.S. Fish and Wildlife Service's Division of Law Enforcement, received an anonymous letter bearing a Kobuk postmark, the unknown writer claimed to have learned from another unidentified source that plaintiff Elmer Ward, a lifelong Inupiat resident of the upper Kobuk River region and a resident of the Native Village of Kobuk, had gone marine mammal hunting in the Kotzebue area and had taken two walruses. xxxxx Dep. at 20; xxxxxxx Dep. Ex. I at 5; xxxxxxx Dep. at 2526, 27-30, 96-98. Although xxxxx suspected who the letter-writer might be, he made no effort to contact him or her (then or later), nor did either xxxxx or xxxxxxx otherwise try to verify the validity of the double-hearsay, anonymous allegations, to determine if they were legitimate or merely the product of a grudge(see xxxxxxx Dep. at 116), prior to violating plaintiffs privacy. xxxxx Dep. at 30-31. This unverified information did not supply probable cause for the issuance of a warrant. xxxxxxx Dep. at 29.
Until this time, there had never in the 25-year history of the Marine Mammal Protection Act been an investigation, much less a prosecution, of an Alaska Native for the crime of hunting marine mammals too far from home, even though the operative language of the Act's Native exemption-allowing any Alaska Native "who resides in Alaska and who dwells on the coast." 16 U.S.C. § 1371(b), to continue hunting marine mammals-had remained essentially constant. xxxxx Dep. at 22-23,25, 59. Beyond the bare language of the Act, the Fish and Wildlife Service had no official interpretation either whether one had to reside in some degree of proximity to the coast or, if so, how
close. Id. at 23-25, 48, 52-58; xxxxxxx Dep. at 135-36. Defendant xxxxx nonetheless construed the exemption as being strictly limited to "coastal dwelling Natives," which to him meant "[I]Ivlng either on or in close proximity to the coast." xxxxx Dep. at 24. While xxxxx recognized that, even under his ad hoc interpretation, the required closeness to the coast "could vary considerably from village to village," he deemed it obvious beyond peradventure that a resident of Kobuk lived too far from the coast to qualify. Id. at 24-25.
Still, adhering to agency policy in a matter such as this, xxxxx sought approval to pursue an official investigation of plaintiff from defendant John D. Gavitt., the Assistant Regional Director for law enforcement in Alaska. xxxxx Dep. at 25-27. Apparently without giving the matter sufficient thought (see xxxxxxx Dep. Exs. 4 and 5)--and without checking with other divisions of the Service (such as the Subsistence Division and Marine Mammals Management) which had on-the-ground experiences relevant to the dwelling-on-the-coast concept (xxxxx Dep. at 23-25; xxxxxxx Dep. Ex. 3 at 2; xxxxxxx Dep. at I 34, 139, 144-45) (1) --Gavitt gave xxxxx the green light.
On 27 August 1996, therefore, xxxxx and defendant C.W. "Corky" xxxxxxx, a special agent under xxxxx's command, flew to Kobuk, landed in a slough near the village airstrip, and walked the short distance into the small village. Although not in uniform, both agents were armed; xxxxx's sidearm was in plain view, and xxxxxxx' weapon likely was noticeable. xxxxx Dep. at 36-37. After ascertaining the location of plaintiff's home and leaning that plaintiff was up-river checking his fish net, the agents walked to the
beach by the river, about I 00 feet from plaintiffs house, to await his return. Id. at 34; xxxxxxx Dep. at 38-39; Ward Dep. at 17-18.
When plaintiff shortly thereafter returned in his boat, he was met by one of the agents (apparently xxxxxxx), who identified himself to plaintiff as a special agent, showed
plaintiff his badge, and began interrogating plaintiff about the reported walrus hunt.
Ward Dep. at 11, 54. (2) (When the other agent, apparently xxxxx, (3)
joined plaintiff and the first agent a short time later at plaintiff s house, xxxxx also showed plaintiff his badge and credentials. xxxxx Dep. at 39.) The agents did not advise plaintiff of his right not to
talk to them. Ward Dep. at 72. (4) When plaintiff
admitted that he and his hunting party had taken two walruses on a hunting trip led by his
brother-in-law, xxxxxxx informed him that he had violated the law. Id. at 11. (5)
Having thus intimidated plaintiff with the accusation that he had committed a crime, xxxxxxx told plaintiff that he needed to search his freezers for walrus heads or meat as "evidence," leaving plaintiff with the impression that he had no choice in the matter.Id. at 11, 17, 57-58, 72-73; xxxxxxx Dep. at 47. See also Ward Dep. at 34 ("I just do what
they told me to do"). (6) Neither xxxxxxx nor xxxxx at any time advised plaintiff that he had a right to refuse their search-and-seizure directives. Id. at 72-73. (7) Believing that he was required to submit to the demands of lawful authority (id.), a false impression defendants deliberately intended by their actions and words to convey, plaintiff went to find his wife to determine which of the family's three freezers contained the rendered walrus blubber. The agents waited next to plaintiff's house, where a small crowd gathered. Id. at 11-12, 44-45, 48-50. Plaintiff returned and indicated that the walrus product was located in the outside freezer, located against the house next to the entryway on
a raised platform that an extension of the house protected by an extension of the roof. See Defendants' Exhibits 2 and 4. To an assertion by plaintiff's son that the agents needed a search warrant, the agents responded, without explanation, that they did not need one. Ward Dep. at 12,26. (8)
Still acting under the compulsion of what he perceived as the agents' representation of lawful authority, plaintiff got up on the platform next to the freezer and began unloading sheefish in search of the five-gallon bucket of rendered walrus blubber. Agent xxxxx joined him in unloading the freezer and placed the sheefish on the ground, while Agent xxxxxxx observed (and perhaps assisted). Ward Dep. at 12, 24-26, 28-3 11 xxxxxxx Dep. at 22, 56-59; xxxxx Dep. at 43-44. When plaintiff uncovered the bucket at the bottom of the freezer, xxxxx directed him to open it, which he did, and then xxxxx reached into the bucket and, using a knife or similar instrument, pried a small piece of the frozen walrus product loose and seized it for evidence. Ward Dep. at 29-31. xxxxx recalls that plaintiff "was concerned that we were going to take all the bucket, and I told him no, that was not the case, we just wanted one small piece for evidence." xxxxx Dep. at 44. (xxxxx, of course, contends that plaintiff voluntarily handed him the small piece of walrus product out of the bucket. Id.) The agents then wanted to check plaintiff's other two freezers inside the entryway (which were visible from outside. see Defendants' Exhibits 3 and 4) and, doing "what they told me to do," plaintiff went inside. opened up those freezers, and the agents looked in them. Ward Dep. at 33-36.
APPLICATION OF THE LAW
Contrary to defendants' argument, the searches involved here invaded the
sanctity of plaintiff's home and accordingly are subject to stringent Fourth Amendment
condemnation. The suggestion that the freezer located on the outside of plaintiff' s house
enjoys less in the way of a reasonable expectation of privacy than the interior of the house is not well taken. The outside freezer not only is within the curtilage of plaintiff s house; it is a physical part of the house itself. Manifestly, plaintiff "reasonably may expect that the area in question should be treated as the home itself " United States v. Dunn, 480 U.S. 294, 300 (1987). It is beyond denial that a freezer attached to a man's house, where the family's vital food supplies are stored, is an area which "harbors the intimate activity associated with the "sanctity of a man's home and the privacies of life......""" Id., quoting Oliver v. United States, 466 U.S. 170, 180 (1984), in turn quoting Boyd v. United States, 116 U.S. 616, 630 (1886). See also, e.g., Berger v. Hanlon, 129 F.3d 505, 512-23 (9th Cir. 1997) (reasonable expectation of privacy in shed and other outbuildings on a ranch which were close to the house and guarded by a dog), cert. denied, 67 U.S.L.W. 3299 (2 Nov. 1998); United States v. Mullin,329 F.2d 295, 298 (4th Cir. 1964) (holding that a "smokehouse was a domestic building constituting an integral part of group of structures making up the farm home"). Plaintiff's outside freezer, and perforce the freezers inside the entryway, are "so intimately tied to the home itself that [they] should be placed under the home's 'umbrella' of Fourth Amendment protection." Dunn, 480 U.S. at 301. (9)
Consequently, plaintiff was protected by the full force of the Fourth Amendment.
"Nowhere is the protective force of the fourth amendment more powerful than it is when the sanctity of the home is involved. The sanctity of a person's home, perhaps our last real retreat in this technological age, lies at the very core of the rights which animate the amendment. Therefore, we have been adamant in our demand that absent exigent circumstances a warrant will be required before a person's home is invaded by the authorities."
United States v. Albrektsen, 151 F.3d 951, 953 (9th Cir. 1998), quoting Los Angeles Protective League v. Gates, 907 F.2d 879, 884 (9th Cir. 1990). "Therefore, warrantless searches and seizures in the home are 'presumptively unreasonable.'" United States v.Kyllo, 140 F.3d 1249, 1253 (9th Cir. 1998), quoting Payton v. New York, 445 U.S. 573, 590 (1980).
Defendants do not here rely on the presence of any exigent circumstances, nor could they. Instead, they contend that by his conduct and silence, albeit by implication, plaintiff consented to the search and seizure. Such a defense "is theoretically valid because in somewhat limited circumstances we will find an implied consent to entry" Albrektsen, 151 F.3d at 955.
However, the theory does not fit the facts of this case. The argument that it does depends on little more than an amphilogism centered on the word "consent." A person who must submit or be forced might be said to have consented when he submits, but not in ordinary legal parlance.
Id.
It has long been settled that officers relying on consent to justify a search bear "the burden of proving that the consent was. in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U. S. 543, 548-49 (1968). Whether or not free and voluntary consent has been given, "or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances," Schneckloth v. Bustamonte. 412 U.S. 218, 227 (1973), and "the government bears the heavy burden of demonstrating that the consent was freely and voluntarily given." United States v. Chan-Jimenez, 125 F.3d 1324, 1327 (9th Cir. 1997).
"That burden is heaviest when consent would be
inferred to enter and search a home." United States v. Shaibu, 920 F.2d
1423, 1426 (9h Cir. 1990) The burden, regardless of context, also is "heavier where
consent is not explicit," United States v. Impink, 728 F.2d 1228, 1232 (9th
Cir. 1984), because "[t]he existence of consent to a search is not lightly to be
inferred." United States v. Patacchia, 602 F.2d 218, 219 (9th Cir. 1979). (10)
Although the critical facts here are in significant dispute, defendants' proclaimed
belief that plaintiff had given his free and voluntary consent is grounded entirely on inferences they now seek to draw from "a combination of silence and compliance." xxxxxxx Dep. at 137. On the facts of this record, however, it is clear that a properly instructed jury reasonably could conclude that no such inference is warranted, that the alleged implied consent of plaintiff was in reality the product of "implied coercion" by defendants. Amos v. United States, 255 U.S. 313,317(1921). Silence and compliance simply do not suffice to establish free and voluntary consent. Even in the non-home context, "[a] person's obedience to a show of authority is by itself insufficient to establish voluntary consent." Chan-Jimenez, 125 F.3d at I328. And silence in such circumstances actually points to the absence of voluntary consent. Id. ("Chan-Jimenez's failure to respond verbally to the officer's request supports the conclusion that he did not consent to a search of his vehicle").
This case is not materially distinguishable from Shaibu, in which the Ninth Circuit held that "[j]udicial concern to protect the sanctity of the home is so elevated that free and voluntary consent cannot be found by a showing of mere acquiescence to a claim of lawful authority." 92O F.2d at 1426. Applying, "the standard in this Circuit, that '[c]oercion is implicit in situations where consent is obtained under color of the badge," id. at 1427, quoting, United States v. Page, 302 F.2d 81, 84 (9th Cir. 1962), the court ruled that "the government may not show consent to enter from the defendants failure to object to the entry." 920 F.2d at 1427. To hold otherwise, said the court, would impermissibly
shift the burden from the government--to show "unequivocal and specific" consent--to the defendant, who would have to prove unequivocal and specific objection to a police entry, or be found to have given implied consent.
Id.
So it would be here. Viewing the circumstances in the light of plaintiff s perspective, and taking into account his cultural and language-barrier disadvantages in the confrontation with two college-educated federal agents, (11) a jury could easily conclude that his "silence and compliance" were likely more the result of his "submission to authority than implied or voluntary consent." Shaibu, 920 F.2d at 1427. This conclusion is powerfully reinforced by the agents' response to the challenge by plaintiff's son to their authority to proceed without a warrant, they simply asserted that they didn't need one, without explanation, confirming plaintiff's impression that he was required to do as he was requested. (Had the agents truly believed that plaintiff had freely and voluntarily consented to the search of his freezers, they undoubtedly would have said so at this time.) These circumstances, coupled with the agents' failure to let plaintiff know that he had the right to refuse, make this a classic case of implied coercion, not implied consent. And that has been expressly decreed unlawful under the Fourth Amendment at least for more than three-quarters of a century.
It is not just the prowling through plaintiffs freezers "that constitutes the essence of the offence, but it is the invasion of his indefeasible right of personal security." Boyd, 116 U.S. at 630. As in Albrektsen, 151 F.3d at 955, this case should serve to demonstrate why the courts'
patrol of the boundary between the sanctity of the home and
officers of the law must be sempiternal. The laudable desire to
detect and stamp out crime continually threatens to undermine the
equally laudable protections of the Fourth Amendment.
That must not happen.
Defendants' additional argument that plaintiff's Fourth Amendment claim should be dismissed in any event on the basis of qualified immunity also is without merit. As shown above, the law governing voluntary consent was clearly established. The only issue is the intensely factual one of whether plaintiff gave free and voluntary consent or whether defendants' implicitly coerced his compliance with their desires. The issue is riddled with genuine factual disputes that cannot be resolved on summary judgement.
E.g., Berger v. Hanlon. supra, 129 F.3d at 510-14; Penilla v. City of Huntington Park, 115 F.3d 707, 710-11 (9th Cir. 1997); Freeman v. City of Santa Ana, 68 F.3d 1180,1185-86 (9th Cir. 1995). When the issue of qualified immunitv turns on controverted facts, which precludes summary judgment, it must be decided by trial. See Johnson v. Jones,515 U.S. 304 (1996).
CONCLUSION
For the foregoing reasons. the motion for summary judgment should be denied.
DATED- 14 December 1998 Respectfully submitted,
ALASKA LEGAL SERVICES CORPORATION
WILLIAM E. CALDWELL
Attorneys for Plaintiff
C:\wwwfpd\civil.wpd
1. The Refuge Mana(,rer of the Selawlk National Wildlife Refuge in Northwest Alaska "was verv surprised" to learn of xxxxx's interpretation, "since people in this region have traditionally been highly mobile in their exploitation of food resources." xxxxxxx Dep, Ex. -'I at 1, xxxxxxx Dep. at 1
2. Accord, xxxxxxx Dep. at 20, 40-42.
3. There is some confusion in the record as to which one of the agents (both of whom are white) was involved at any particular time or actlvltv. See, e.g., Ward Dep. at 69-70; xxxxx Dep. at 49-50. Both xxxxx and xxxxxxx are tall (6' 4''), but xxxxxxx is somewhat heavier than xxxxx. xxxxx Dep. at 20-21. For convenience hereafter, we use the name of the agent whose deposition testimony seems to indicate that he was the one involved at a certain time or in a certain event.
4. Accord, xxxxxxx Dep. at 48: xxxxx Dep. at 40, 50.
5. Plaintiff and his witnesses are clear in their recollection that the agents insisted that it was illegal for anv Alaska Native who resided more than 50 miles from the coast to hunt marine mammals. Ward Dep. at I 15, 7. (This is supported by the 23 September 1998 depositions of Murphy Custer, Alan Ward, and Billy Bernhardt, which have not been transcribed.) The agents, however, deny or don't recall that they adopted anv precise definition, as distinguished from their ad hoc we-know-it-when-we-see-it interpretation. xxxxx Dep. at 41-42; xxxxxxx Dep. at 43-44.
6. Although xxxxxxx and xxxxx now claim that plaintiff implicitly consented to their search-and seizure requests, their own descriptions of the events contradict that rosy picture. For example, both xxxxxxx and xxxxx recall that plaintiff and his wife both were concerned that the agents would confiscate their entire supply of walrus blubber, or more (xxxxx Dep. at 44; xxxxxxx Dep. at 66-68)--hardly the reaction of people who have given voluntary consent to a search and seizure. See also, e.g., xxxxxxx Dep. at 22 ("Mark or I said, 'We need to take that for evidence"'); id. at 47 (xxxxxxx asked plaintiff ... Where's the meat?"')- id. at 66 ("I told him that, that we were going to seize this just as a sample of walrus that, you know, we believe was taken illegally").
7. Accord, xxxxxxx Dep. at 48; xxxxx Dep. at 50-51. xxxxxxx claimed later in his deposition that "95 percent of the time or so" he explains to suspects, "nonchalantly," that they don't have to consent to a search, but he doesn't recall whether he did so in this case. xxxxxxx Dep. at 165-66. (xxxxxxx had earlier testified without qualification, however, that he did not advise plaintiff that he didn't have to consent to the search if he didn't want to. Id. at 48.) xxxxx, by contrast, testified that he never advises people of their right to refuse consent to searches of their homes and freezers. xxxxx Dep. at 50-51.
8. Accord, xxxxxxx Dep. at 136; xxxxx Dep. at 51. xxxxxxx recalls that someone asked, "Don't you need a warrant?", to which xxxxxxx answered "No," without explanation. The failure to offer an explanation undercuts xxxxxxx' claim that he believed he had consent from plaintiff to conduct the search. For if plaintiff had truly consented, the natural response to the question about needing a warrant would be something like, "No, because Elmer has agreed to let us look in his freezers and take some evidence." The bare "No" answer, in contrast. is nothing more than a raw claim of lawful authority to conduct the search and seizure-which is exactly how plaintiff took it. Agent xxxxxxx got closer to accuracy when he testified that he inferred plaintiff's consent from "a combination of silence and compliance." xxxxxxx Dep. at l37 (emphasis added.)
9. And, of course, regardless of their location, "[a] person has an expectation of privacy in his or her private, closed containers." United States v. Fultz, 146 F.3d 1 102, 1105 (9th Cir. 1998).
10. These settled principles undoubtedly account for defendant xxxxxxx' representation that 95% of the time he at least "nonchalantly" informs suspects of their night to refuse consent to a search. See note 7, supra. And they explain also why it is not uncommon for law enforcement officers to give such advice, and even go the further step of asking the suspect to sign a consent-to-search form. See, e.g., Florida v. Jimeno, 500 U.S. 248 (1991) (officer told suspect he believed he was carrying narcotics in his car, asked permission to search the car, and explained to suspect that he did not have to consent to a search); United States v. Mejia, 953 F.2d 461 (9th Cir. 199 ) (officers had suspects sign consent-to-search forms), cert. denied, 112 S. Ct. 1983) (I992).
On the other hand, defendant xxxxx's sweeping contention that "I never heard of any law enforcement agency telling people that they don't have to do something," (outside of the custodial context or similar circumstances), xxxxx Dep. at 50, while probably an accurate reflection of his usual practice (and certainly of what happened in this case), surely must be incorrect as a general matter. And for good reason. Although agents are not constitutionally required to advise a suspect who is not in custody of her night to refuse consent to a search, whether or not such advice has been given has always been one of the factors to be considered in the "careful scrutiny of all the surrounding circumstance" necessary to determining the consent issue. Schneckloth, 412 U.S. at 226. This is because the Fourth Amendment "require[s] that a consent not be coerced, by explicit or implicit means, by implied threat or covert force" (id. at 228); that "account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents" (id. at 229); and "[t]hat the traditional definition of voluntariness we accept today has always taken into account evidence of minimal schooling , low intelligence, and the lack of any effective warnings to a person of his rights; and the voluntariness of any statement taken under those conditions has been carefully scrutinized to determine whether it was in fact voluntarily given." Id. at 248. By ensuring that a suspect is aware of her right to refuse consent to a search request, officers of the law enhance the likelihood that their warrantless searches (disfavored by the law generally, and presumptively illegal with respect to the home) will be found lawful. But defendant xxxxx's practice, if widely followed. would greatly diminish the effectiveness of law enforcement in those presumptively rare, yet apparently routine, cases (by rendering acquired evidence inadmissible)-to say nothing of the Fourth Amendment "'values reflecting the concern of our society for the right of each individual to be let alone,"' values that are to be accorded "'undiluted respect."' Id. at 241@, quoting Tehan v.United States ex rel. Shott, 82 U. S, 406, 416 (1966).
11. Plaintiff is a subsistence hunter in a remote, isolated village. He speaks English only as a second language. Ward Dep. at 59 ("See, I'm not good at talking English like you guys. I always get mixed up.") These are part of the total circumstances that must be carefully scrutinized under the Schneckloth definition of "voluntary." See, e.g., note 10, supra, United States v. Rodriguez, 525 f.2d 1313, 1316 (10th Cir. 1975) ("The fact that Rodriguez understood little English, compiled with these various commands from persons in apparent authority does not in our view mean that he 'voluntarily' consented to the search of his suitcase").