B. Consent to Search.
The Government also contends that this warrantless search of the airplane was permissible since the pilot of the aircraft, Mr. Piazza consented to the search of the airplane. The testimony of Agent Malloy, discussed above, shows that after the defendants and Mr. Piazza had been placed under arrest and had been advised of their constitutional rights, the question was asked of the three occupants of the plane as to who had control of the airplane and who was in charge of it. At that time Mr. Piazza informed the DEA agents that he was the pilot of the aircraft and when asked if he had any objection to a search being made of the aircraft, he stated that he did not. Mr. Piazza was then asked if he was willing to sign a consent-to-search form. He stated that he was and then signed the form. Agent Malloy testified further that the defendants Tallon and Phifer were present when the question was asked as to who had control of the airplane, and who was in charge of it. Moreover, Agent Malloy testified that the defendants Tallon and Phifer made no statements regarding who had control of the airplane nor did either of them protest the pilot's right to sign the consent-to-search form, although they were within two feet of the pilot, Mr. Piazza, when these discussions regarding the search of the airplane took place and when Mr. Piazza executed the consent-to-search form. Defendant Phifer testified at the suppression hearing for the limited purpose of establishing that he had a proprietary interest in the airplane. Phifer testified that he had leased the airplane from its owner for $3,200.00 for the purpose of flying from California to Philadelphia and that he had full and complete control of the airplane and that he could instruct the pilot where he wanted to go and where he wanted to land. Phifer denied that he was present when Mr. Piazza executed the consent-to-search form. Phifer testified that the DEA agents entered the room where they were being held, asked who the pilot was, Mr. Piazza responded, and then the agents took Mr. Piazza aside. Phifer testified that he was not informed that the airplane was to be searched, although he assumed that it would be, and that he made no protest or claim that he leased the airplane and that it was under his control. At the time of trial, Mr. Piazza, the pilot, testified that the airplane had been rented to defendant Phifer and that as the pilot he took his orders from defendant Phifer, provided the orders were within the scope of Federal Aviation Safety Regulations.
The Government contends that the search of the airplane was a permissible consensual search not requiring a search warrant. The issue now before us is whether the evidence presented by the Government with respect to the consent by Mr. Piazza, the pilot, to the search of the airplane was legally sufficient to render the seized materials admissible in evidence at the defendants' trial.
It is well settled under the Fourth Amendment that a search conducted without a warrant issued upon probable cause is " per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 51, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970). It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). When consent is the alleged justification for a search, the burden is on the Government to demonstrate that it was "freely and voluntarily given" and not simply "acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 549, 88 S. Ct. 1788, 1792, 20 L. Ed. 2d 797 (1968). Where a person is under arrest or in custody and consent to search is sought by police, the rule has emerged in this Circuit, United States v. Menke, 468 F.2d 20 (3d Cir. 1972); United States ex rel. Harris v. Hendricks, 423 F.2d 1096 (3d Cir. 1970); Government of Virgin Islands v. Berne, 412 F.2d 1055 (3d Cir. 1969), as well as others, see e.g., United States v. Legato, 480 F.2d 408 (5th Cir. 1973); United States v. Cox, 464 F.2d 937 (6th Cir. 1972); United States v. Noa, 443 F.2d 144 (9th Cir. 1971) that absent proof of actual coercion or intimidation such consent constitutes a valid waiver of Fourth Amendment rights if prior to the search, Miranda warnings are given.
Moreover, these cases are clear that the validity of this waiver is not affected by a failure to include in the Miranda warnings a specific reference that consent could be withheld.
With these principles before us, we turn to the facts and circumstances surrounding the apprehension of the occupants of the airplane and the pilot's agreement to have the airplane searched. The occupants of the airplane, after they had been placed under arrest, were informed of the charges against them, were given their Miranda warnings, and were asked who controlled the airplane and who was in charge of it. Mr. Piazza responded that he was the pilot of the airplane and that he had no objection to the airplane being searched. The airplane was then unlocked by Mr. Piazza and it was searched. The defendant make no claim, nor is there any evidence of any intimidation, physical or psychological abuse, threats or coercion tending to show that Mr. Piazza's agreement to have the airplane searched was not freely and voluntarily given. Moreover, there is nothing in the record to show that the DEA agents used any tactics that would augment the degree of coercion that is inherent in any arrest. In light of all the surrounding facts and circumstances, we are convinced that Mr. Piazza's consent was voluntary.
Our inquiry does not end here, however, for the defendants contend that Mr. Piazza had no authority to consent to the search of the airplane or its contents. Thus, the validity of the search in question insofar as the Government seeks to justify it on the basis of a third party's, i. e., Mr. Piazza's consent, turns on the right of the third party in this case to consent to the search of the airplane.
The right of a third party to consent to a search of jointly controlled premises has been judicially recognized in circumstances involving varied relationships between the consenting party and the party against whom evidence is discovered: spouses, Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); McCravy v. Moore, 476 F.2d 281 (6th Cir. 1973); cohabitants, United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); mistresses and lovers, United States v. Airdo, 380 F.2d 103 (7th Cir. 1967); hosts and temporary house guests, Pasterchik v. United States, 400 F.2d 696 (9th Cir. 1968); trespasser and owner, Government of Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir. 1974); roommates, Wright v. United States, 389 F.2d 996 (8th Cir. 1968); automobile bailors and bailees, Anderson v. United States, 399 F.2d 753 (10th Cir. 1968); parents and children, United States v. Stone, 401 F.2d 32 (7th Cir. 1968); business partners, United States v. Sferas, 210 F.2d 69 (7th Cir. 1954); and employee and employer, United States v. Murphy, 506 F.2d 529 (9th Cir. 1974); United States v. Sells, 496 F.2d 912 (7th Cir. 1974); United States v. Grigsby, 367 F. Supp. 900 (E.D.Ky.1973). In its most recent pronouncement regarding the consent of a third-party to a search, the Supreme Court said that when the Government seeks to justify a warrantless search by showing voluntary consent, it may do so by showing that "permission to search was obtained from a third party who possessed common authority over and other sufficient relationship to the premises or effect sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242 (1974). Citing Matlock and Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969), our Third Circuit in Government of Virgin Islands v. Gereau, supra, at 926, has stated:
An owner or user of property can consent to search of that property, fruits of which may be admitted against another person, only if the relationship of each person to the property demonstrates that the non-consenting user assumed the risk that such consent might be given.