decided as amended february 2 1979.: January 16, 1979.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Crim. No. 78-0030
Before Aldisert and Adams, Circuit Judges, and Coolahan, District Judge.*fn*
When citizens are confronted with authority exercised by law enforcement agents, they frequently are unable to protect fully their rights and interests. Few Americans are trained in the intricacies of the law; many are unaware of the limitations placed on the power of our government and its officers by the Constitution and statutes. Because of this lack of knowledge there is a gap between the promise of liberty pronounced in our nation's laws and the actual day-to-day contact between citizens and officials charged with the enforcement of those laws. This is not to suggest that those entrusted with this authority often abuse their power, or take unfair advantage of the powerless. Rather, they operate with knowledge of the law while those with whom they deal do not. In recent years, a balance has been struck by the courts in an effort to guarantee that constitutional rights will not be rendered meaningless for those who are themselves unable to assert them. Thus, in certain contexts it has been thought necessary to require the government to inform the citizen of the extent of his legal rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In other contexts it is enough if a court is satisfied that the citizen's actions were voluntary, and that his will was not overborne by the presence, prestige, and power of an official. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1972).
We are presented in this case with an appellant who complains that his consent to a search of his premises was not voluntary, and that evidence secured as a result of that search should therefore have been excluded. Inasmuch as voluntariness in matters of this nature is a question of fact, and because we conclude that the district court did not resolve the issue of the voluntariness of appellant's consent, we shall remand for a finding on this question.
In August 1977, agents of the Bureau of Alcohol, Tobacco and Firearms received information that William James Scott possessed an illegal firearm. This information had been provided by Willie Davis, Scott's probation officer. Scott was on parole after having been placed on Pennsylvania's Accelerated Rehabilitation Disposition Program as the result of an unrelated earlier offense, the theft of three dollars. Agent Michael Wallington consulted the National Firearms Register and Transfer Record and verified that no firearm was registered in Scott's name. Wallington and another agent, Omer Kaylor, thereupon traveled to Scott's home, without first securing either a search or arrest warrant. Scott recalled that the agents stated: "Let us in and then we'll talk, or we'll go and get a paper and come back and we'll get you." At that point, Scott allowed the agents into his house after they had identified themselves, but before they had stated their business.
Once inside, the agents informed appellant that his parole officer had told them that Scott had an illegal weapon, and asked to see it. Scott apparently admitted that he had a weapon, but denied it was illegal. He was, he later testified, under the impression that Pennsylvania law forbade the shortening, or "sawing off," only of a semiautomatic, automatic or shotgun, and that there was no ban against cutting a .22 caliber rifle. Scott took the agents to his bedroom and showed them the weapon on which he was working.
There is conflicting testimony regarding what happened next. The agents recalled giving Scott his Miranda warnings, but Scott denied this. He testified that they left his home after asking him to come down to their office and give a full statement later, assuring him that if he did so there "probably wouldn't be any waves." Thereafter, Scott went to the federal courthouse and gave a complete written statement. At that time he was clearly informed of his fifth amendment rights, which he waived by signing a printed warning and waiver form. Scott testified that he was again advised that he probably would hear nothing further about the gun.
Whatever Scott may have been told by the agents, the case went to trial and Scott moved to suppress his statements, both oral and written. The district court denied the motion, saying:
It appears that the defendant was not in custody at the time, and there is a question here. It appears that the agents testify he was given his Miranda warnings, but I'm not sure that they had to be given at that particular time; and he was given the Miranda warnings later on down at the office where he came voluntarily. At no time did he ask for an attorney.
So we will deny the motion. However, I think under 18 U.S.C. § 3501, we will have to submit the voluntariness of this to the jury.
The case was submitted to the jury, and Scott was found guilty of both illegal possession and illegal manufacture of a firearm. 26 U.S.C. §§ ...