Lead Opinion
Opinion for the Court filed by Circuit Judge GRIFFITH.
Dissenting opinion filed by Circuit Judge HENDERSON.
Appellant Davon Peyton challenges the district court’s ruling that evidence the police gathered from his apartment during two warrantless searches could be used against him at trial. For the reasons set forth below, we reverse in part, vacate in part, and remand the case to the district court.
I
Peyton and his 85-year-old great-great-grandmother, Martha Mae Hicks, shared a small, one-bedroom apartment in a complex at 401 K St. NW, Washington, D.C. Both were named as residents on the lease. Hicks used the bedroom, and Pey-ton kept his bed and belongings in the living room. On June 21, 2009, police officers arrested Peyton in the parking lot outside the apartment complex for possession of crack cocaine. Five days later, the police obtained and executed a search warrant for the apartment. The search yielded no evidence against Peyton, but resulted in the arrest of several people who were in the apartment at the time with drugs and drug paraphernalia.
Shortly thereafter, the police received a tip that Peyton was using the apartment to deal drugs. Four officers, including one who had participated in the earlier warrant search, returned to the apartment on July 14, this time without a warrant. The officers knew Peyton had recently been arrested yet again (the record is not clear why) and would not be there. They hoped that Hicks would consent to the search. When the police knocked on the door, Pey-ton’s girlfriend, Tyra Harvey, answered. They asked to speak with Hicks, and Harvey told them that she was in the bedroom. While two officers waited just inside the entryway, two others entered the bedroom through its open door only a few steps away and found Hicks sitting on the bed.
The officers told Hicks that they believed there might be drugs in the apartment and wanted her permission to conduct a search. They presented Hicks with a consent form, which she signed, that stated she was freely agreeing to let the police search the entire apartment. The search began in the living room. According to one of the officers, as they came near Peyton’s bed, Hicks told them that that part of the living room was “the area where [Peyton] keeps his personal property.” Def.’s Ex. 6, Aff. ¶ 7, United States v. Peyton, Crim. No. 10-15 (D.D.C. July 22, 2010) (search warrant affidavit). One of the officers saw a closed shoebox next to Peyton’s bed and picked it up. When he opened the shoebox, he smelled marijuana.
Relying on the evidence found in the shoebox during the July search, a grand jury issued an indictment against Peyton on January 12, 2010, for possession with intent to distribute 50 grams or more of crack cocaine and a detectable amount of marijuana. On January 20, four police officers returned to the apartment with an arrest warrant in hand. Peyton answered the door and was immediately handcuffed. A protective sweep of the apartment found Hicks in the bedroom and Harvey and an unidentified male in the living room. Smelling a strong odor of marijuana, the officers asked Hicks for permission to conduct a full search of the apartment. She agreed and signed a consent form. Present throughout the search, Peyton did not object. The officers found crack cocaine, marijuana, and a handgun in the kitchen cabinets.
Armed with this new evidence, on January 26, 2010, the grand jury issued a superseding indictment against Peyton that restated the original charges but also added three more: possession with intent to distribute crack cocaine, possession with intent to distribute marijuana, and possession of a firearm in furtherance of a drug trafficking offense.
In the district court, Peyton moved to suppress all of the evidence discovered during the warrantless searches in July 2009 and January 2010. Hicks testified for Peyton at the hearing on his motion. The government put on one police officer to testify about the July search and another to address the January search. Hicks and the officer gave slightly different accounts of the scope of the search Hicks authorized in July. Although Hicks did not dispute that she freely signed the form, her memory was that the police had asked to search only the living room. The officer remembered that Hicks had agreed to their search of the entire apartment. Hicks and the other officer gave consistent accounts of the scope of the January search. They both remembered that Hicks had read and signed the consent form, and neither said that Hicks had limited the search’s scope.
Peyton challenged both searches on the ground that “Ms. Hicks did not have common authority over the area to be searched.” Transcript of Motions Hearing at 95, United States v. Peyton, Crim. No. 10-15 (D.D.C. July 22, 2010) (7/22/2010 Hr’g Tr.). The district court rejected this argument, concluding, as to the July search, that Hicks had authority to consent to the search of the entire apartment and that she voluntarily agreed to a search of the living room but not the kitchen. Accordingly, the district court ruled all the evidence seized admissible except for that found in the kitchen. As to the January search, the district court found that Hicks’s consent was voluntary and covered the entire apartment. All the evidence found in January was held admissible.
In the wake of the district court’s decision, Peyton pled guilty to possession with intent to distribute a detectable amount of cocaine base (a lesser included offense of the charge based on the crack found in the shoebox) and the weapons charge, but he reserved the right to appeal the denial of his motion to suppress. Peyton and the government agreed to a sentence of 84 months, and the district court accepted the deal.
We have jurisdiction over Peyton’s appeal under 28 U.S.C. § 1291. We review the district court’s legal rulings de novo
II
As to the July 2009 search, we agree with Peyton that Hicks could not lawfully permit the police to search his closed shoebox. Concluding the search was unlawful on this ground, we need not take up Pey-ton’s other arguments that Harvey lacked authority to let the police enter in the first place and that Hicks did not voluntarily agree to the search.
A
The government contends that Peyton has waived his argument about the shoebox because he did not raise it at the suppression hearing.
An argument to suppress evidence not made before trial is waived, which means that absent good reason for not raising the argument at the district court, the appellant cannot ask us to consider the matter. Fed.R.Crim.P. 12(b)(3), (e); cf. United States v. Weathers,
The government acknowledges that Peyton disputed Hicks’s authority to allow a search of the living room, but contends that his failure to raise the “separate issue” of Hicks’s authority over the shoebox means he waived that point. Appellee’s Br. 30. Our dissenting colleague agrees, see Dissenting Op. at 561 n. 5, but we think this is too stingy a reading of what Peyton argued. At the suppression hearing, his counsel maintained that “for both searches Ms. Hicks did not have common authority over the area to be searched and therefore her consent was invalid.” 7/22/2010 Hr’g Tr. 95. When asked to elaborate, his counsel explained “that that area that was searched or that the officers requested permission to search was Da-von’s — the Defendant’s area of where he slept and kept his belongings, and it’s more than that. It’s — that’s his home as well.” Id. Peyton’s argument was not only about the living room in its entirety. It was also about the portion of the living room that Peyton claimed and Hicks acknowledged was uniquely his. The district court recognized that Peyton’s argument raised the issue of “whether [Hicks] had authority to consent to the search of the area where the Defendant’s belongings were located.” Transcript of Motions Hearing at 11, United States v. Peyton, Crim. No. 10-15 (D.D.C. July 27, 2010) (emphasis added). Peyton did not need to emphasize that the evidence was inside the shoebox; that fact was obvious and undisputed.
In the end, Peyton presses the same legal theory on appeal that he raised below: Hicks lacked authority to allow the search of the place the evidence was found. The cases where we have found waiver of arguments under Rule 12, by contrast, involved defendants raising wholly new claims or switching legal theories on appeal. See, e.g., United States v. Hewlett,
B
“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States,
mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
Matlock,
The fact that a person has common authority over a house, an apartment, or a particular room, does not mean that she can authorize a search of anything and everything within that area. As we held in Donovan v. A.A. Beiro Construction Co., “While authority to consent to search of a common area extends to most objects in plain view, it does not automatically extend to the interiors of every enclosed space within the area.”
At first, this limitation on the scope of common authority might seem to put the police in a bind. Must an officer, having determined that a person has common authority over an apartment, separately confirm her authority over every closed container in the apartment before relying on her consent to conduct a search? No, for in many instances the person’s common authority over the larger area (say, the living room) will make it reasonable for the police to believe that she shares use of its closed containers (say, the drawers of the television stand). She will have apparent authority over those spaces. This is the same point we made in Donovan, where we explained how to identify the types of containers over which common authority appears to extend: “The rule has to be one of reason that assesses the critical circumstances indicating the presence or absence of a discrete expectation of privacy with respect to the particular object: whether it is secured, whether it is commonly used for preserving privacy, etc.”
The district court’s conclusion that Hicks had common authority over the living room generally does not answer the critical question here: Did she have authority over the shoebox?
Standing alone, these circumstances might suggest that the shoebox was not a private space and that it was reasonable for the police to believe that Hicks’s authority over the living room also encompassed the shoebox. But these were not the only circumstances the police were aware of. They knew that Hicks and Pey-ton both lived in the small apartment, and they were thus on notice that some spaces in the apartment might be used exclusively by Peyton. Indeed, the officer who opened the shoebox had been inside the
Our decision in United States v. Whitfield,
[T]he government’s burden to establish that a third party had authority to consent to a search ... cannot be met if agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry. If the agents do not learn enough, if the circumstances make it unclear whether the property about to be searched is subject to “mutual use” by the person giving consent, “then warrantless entry is unlawful without further inquiry.”
Id. at 1075 (quoting Rodriguez,
Some circuits have not followed Whitfield’s logic that ambiguity is enough to defeat apparent authority in cases involving closed containers in shared spaces. See Taylor,
Nor is our conclusion that Hicks lacked authority undermined by United States v. Harrison,
Our dissenting colleague argues that under Matlock, Peyton assumed the risk of this search. See Dissenting Op. at 562-63. We take a narrower view of the risk he assumed. To be sure, Peyton assumed the risk that Hicks would permit outsiders (including the police) into the room where he slept, and he thereby also assumed the risk that those outsiders would see any of his possessions left in plain view. Thus, had Peyton left a handgun lying atop his bed, we would not require its suppression. But it does not follow that Peyton also assumed the risk of Hicks’s permitting outsiders to rummage through his closed containers to discover items not in plain view. The dissent suggests that, under Donovan, it is enough that the shoebox itself was in plain view. See Dissenting Op. at 562-63. We think that misreads the key sentence of Donovan — quoted in full above, at 562-63 — which distinguishes between “objects in plain view” and “the interiors of ... enclosed space[s].” Donovan,
The dissent also contends we have put cotenants like Hicks, who want the police to remove any contraband in a shared dwelling, in an untenable position. See Dissenting Op. at 562-63. We respectfully disagree. It cannot be that a cotenant’s desire that the police remove
Finally, there is nothing in the Supreme Court’s recent decision in Fernandez v. California, — U.S.-,
Ill
As to the January 2010 search, Peyton asserts that the drugs and gun seized from the kitchen should have been suppressed because they are “fruit of the poisonous tree” of the July searches of the kitchen and shoebox. Under this venerable doctrine, evidence that would likely not have been found but for a Fourth Amendment violation must usually be suppressed. See generally United States v. Holmes,
Peyton’s better argument is that the evidence seized in January is tainted by the illegal search of the shoebox in
If, on remand, the district court concludes there is a causal connection, it will likely need to address whether Hicks’s consent to the January search was “an act prior to discovery of the challenged evidence sufficient ‘to purge the primary taint’ and break the causal chain between the illegal government conduct and the evidence’s ultimate discovery.” Holmes,
IV
Federal Rule of Criminal Procedure 11 permits a defendant who has entered a conditional guilty plea to withdraw that plea if he “prevails on appeal.” Fed.R.Crim.P. 11(a)(2). Our decision to suppress the evidence in the shoebox undermines the first two charges in the superseding indictment, possession with intent to distribute crack cocaine and marijuana, respectively. The former was one of the two charges to which Peyton pled guilty. As such, we think there is a high “probability that the excluded evidence would have had a material effect on [Peyton’s] decision to plead, guilty” and therefore conclude that he is entitled to withdraw his plea. United States v. Leake,
So ordered.
Notes
. The fact that the district court thought it was sufficient to address only the room as a whole does not mean Peyton’s argument below must have concerned only the room as a whole. See supra at 551-52; cf. Block,
. It is this principle that makes Whitfield so important, not its factual similarity to this case. Cf. Dissenting Op. at 559-60.
. Unlike our dissenting colleague, we consider this an important fact that makes the case for apparent authority much weaker than if the shoebox had been, say, sitting by itself in the middle of the room.
Dissenting Opinion
dissenting:
I disagree with the majority’s conclusion that Davon Peyton’s great-grandmother Martha Mae Hicks lacked authority to consent to the July 14, 2009 search of the shoebox found lying on the living room floor of the apartment she and Peyton shared.
I believe the district court correctly concluded that Hicks’s consent to search the apartment, including the living room, was valid because “she possessed common authority over the entire apartment.” Transcript of Motions Hearing 100, United States v. Peyton, Crim. No. 10-15 (D.D.C. July 22, 2010) (7/22/2010 Hr’g Tr.) (citing United States v. Matlock,
As the majority correctly recites, the officers searching the apartment “knew that Hicks and Peyton both lived in the small apartment” — this is precisely the circumstance that gave each of them shared authority over the common areas — and, in light of Peyton’s age and relationship to Hicks, that the police “were thus on notice that some spaces in the apartment might be used exclusively by Peyton.” Id. at 553 (emphases added); cf. United States v. Whitfield,
Where the majority strays, however, is in its assertion that Hicks made a “clear statement that there was an area of the [living] room that was not hers.” Maj. Op. at 554. The sole evidence the majority offers of the “clear statement” that Hicks had ceded authority over some amorphous “area of the room” is the recital in a later search warrant affidavit signed by one of the searching officers that the officer “went to a bed in the apartment’s living room”
Nor is the precedent the majority cites convincing. In United States v. Whitfield,
The situation here more closely resembles United States v. Harrison,
Mrs. Harrison had full “common authority” to the storage area in the basement. That area was unlocked and open, and contained personal items that belonged to both appellant and his wife. The boxes were not sealed or taped and were closed only by “criss-crossed” flaps. Moreover, the record provides no indication that the boxes were marked in any way indicating appellant’s ownership. Nor is there anything in the record to indicate that appellant ever asserted that the boxes were exclusively in his control or even that they were his personal effects.
Id. Like the boxes in Harrison, the shoebox here was found in plain sight, unsealed and unmarked, within a shared common area. Nothing about the box itself suggested it was private, much less exclusive to Peyton. Nor does the record indicate that Hicks’s “common authority” over the
One fact the majority completely ignores is to me critical to a common sense review of the challenged search. According to the record, the 85-year-old Hicks, shaking her head, told the officers: “This is my house and if Davon has anything illegal in here I want you to take it.” Def.’s Ex. 6 ¶ 6, supra, p. 4. When a law abiding citizen, especially an elderly one, asks the police to remove contraband from her home, what would my colleagues have the police do? Wait until the undesirables who inevitably show up where drugs are kept do her some harm? Or until Peyton himself, high on cocaine, sets fire to the apartment? The notion that a citizen cannot rid her home of contraband by asking the police to do so and, in aid thereof, helping the officers in their search by indicating a likely location — but instead must be told: “Sorry, Ma’am, we can’t do that without your establishing that you have use and control of every inch of the living room.” — is on its face senseless. It also flies in the face of Fourth Amendment jurisprudence as most
In Fernandez, the Supreme Court affirmed the rule that “consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search.” Id. at 1183. Following this rule, the Court upheld the search of an apartment to which resident Roxanne Rojas consented approximately one hour after co-resident Walter Fernandez expressly refused the police entry to search, whereupon he was arrested on suspicion of domestic assault and taken to the police station for booking. The Court narrowly construed the exception to the co-resident consent rule carved out in Georgia v. Randolph, which prohibits a search if a second coresident objects thereto — “accepting] Randolph on its own terms” to “unequivocally require! ] the presence of the objecting occupant.” Id. at 1134-35. “Putting the exception the Court adopted in Randolph to one side,” the Court instructed, “the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search.” Id. at 1137. “Any other rule would trample on the rights of the occupant.” Id. In particular, the Court advised, “an occupant may want the police to conduct a thorough search so that any dangerous contraband can be found and removed,” noting that in Fernandez “the search resulted in the discovery and removal of a sawed-off shotgun to which Rojas’ 4-year-old son had access.” Id. at 1137. In this case, Hicks consented to the police search of the living room for the express purpose of removing contraband from her apartment — a reasonable request the majority would have the police — and this court — ignore. Her guidance to the police, as I note below, did not affect the scope of her authority to consent to the search.
It is true, as the Majority observes, that the mere “desire” to remove contraband “cannot ... create! ] ... common authority that does not otherwise exist.” Maj. Op. at 555-56. The majority does not dispute, however, that Hicks had authority, as the district court found, to consent to a search of the common living room, see supra p. 552, which authority “extends to most objects in plain view” — including the seized shoebox. Donovan v. A.A. Beiro Constr. Co.,
The majority and I have together written almost 30 pages — not only to decide this case but also to guide a constituency made up in large part of police officers, trial judges and the bar. My colleagues rely on the common sense language of Whitfield that an officer “faced with an ambiguous situation ” must make further inquiry before concluding that “the property about to be searched is subject to ‘mutual use’ by the person giving consent.” Maj. Op. at 554 (quoting
. In district court, Hicks was referred to as Peyton’s "grandmother” or great-grandmother, although he now characterizes her as his great-great-grandmother. See Br. for Appellant at 4 n.2.
. I thus see no need to address Peyton’s argument that the January 2010 search was unlawful as tainted by the July 14, 2009 search. See Majority Opinion (Maj. Op.) at 556-57. I would also affirm the district court’s other holdings regarding the July 14, 2009 search because Peyton's girlfriend Tyra Harvey, as a guest, had authority to open the apartment door to the police and the district court did not clearly err in finding Hicks’s consent to the apartment search was voluntary. See 4 Wayne R. LaFave, Search and Seizure § 8.5(e) (5th ed.2012) (authority of guest to open door to police); United States v. Wilson,
. Although the search warrant affidavit refers to a "bed,” the officer who testified at the evidentiary hearing "d[id not] recall if there was a bed or couch” but "believe[d] there was a couch that was there.” 7/22/2010 Hr’g Tr. 42. The government referred to it below as a "daybed.” Gov’t’s Opp'n to Def.’s Mot. to Suppress Tangible Evidence 1, Transcript of Motions Hearing at 8, United States v. Peyton, Crim. No. 10-15 (D.D.C. July 27, 2010) (7/27/2010 Hr’g Tr.).
. Indeed, the majority makes Hicks’s guiding the officers to the area of the living room where Peyton slept and "kept his stuff” tantamount to a declaration that she surrendered her use thereof.
. Even were Peyton’s room-within-a-room theory persuasive, I would find it forfeited because he failed to articulate it to the district court. See United States v. Vinton,
. In Fernandez, the Court rejected the petitioner's argument that his objection to the search should remain effective until withdrawn in part because such a rule “would create the very sort of practical complications that Randolph sought to avoid,” noting that Randolph "adopt[ed] a ‘formalisftic]’ rule, but it did so in the interests of ‘simple clarity’ and administrability.”
. As already noted, supra pp. 550-51, there was no ambiguity surrounding Hicks’s authority to consent.