UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MESA RITH, Defendant-Appellant.
No. 97-4138
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
JAN 19 1999
PUBLISH
L. Ronald Jorgensen, Sandy, Utah, for Appellant.
Leshia M. Lee-Dixon, Assistant United States Attorney, (David J. Schwendiman, United States Attorney, with her on the brief), United States Attorney‘s Office, Salt Lake City, Utah, for Appellee.
Before BRORBY, McKAY, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
A jury found Mesa Rith guilty of unlawful possession of an unregistered sawed-off shotgun in violation of
I. Background
Officer Mikkel Roe of the West Valley Police Department was dispatched to a residence in West Valley City, Utah. Officer Roe was informed en route that Sam Rith and his wife were concerned about firearms they had seen their son carry into their home. The address to which Officer Roe was dispatched was the residence of friends of the Riths, a few blocks away from the Rith family home. Sam Rith told Officer Roe that he and his wife had seen their son, Mesa Rith
When the officers arrived at the Rith home, they encountered Rith on the porch talking to two Midvale, Utah police officers who were conducting an unrelated investigation. Detective Chen indicated Rith‘s father had informed them that Rith had brought guns into the housе and that they were there to search for the guns. Rith told the officers that they could not search the house and he asked them for a search warrant. When Officer Chen showed Rith the house key Rith said, “Okay, come in.”
Detective Chen spoke with Rith in the kitchen, told him again that they knew he had brought illegal guns into the house, repeated that they had
Detective Chen returned to the kitchen and confronted Rith with the shotgun. Rith stated that he knew it was illegal to possess a sawed-off shotgun and that the guns were probably stolen by the person who had given them to him. Officer Roe, who had gone outside and found a rifle in the garbage can, returned to the kitchen and read Rith his Miranda rights. After Officer Roe confirmed that Rith understood his rights, Rith repeated that he knew it was illegal to possess a sawed-off shotgun and that the guns were probably stolen. The officers then arrested Rith for possession of stolen property and illegal weapons.
Testimony received during trial indicated that the barrel of the sawed-off shotgun measured 13 and 3/4 inches and its overall length was 21 3/4 inches, each 4 1/4 inches less than the lawful length. Evidence also showed that no firearm was registered to Mesa Rith in the National Firearms Registry and Transfer Records.
Rith argues that the evidence seized by the police during the search should have been suppressed for two reasons: (1) Rith revoked his parents’ сonsent to search the home; and (2) the evidence failed to show that Rith‘s parents had authority to consent to a search of his bedroom.
The trial court‘s findings of fact are accepted by this court unless clearly erroneous, with the evidence viewed in the light most favorable to the government. See United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir. 1990). Issues of law, such as whether consent was valid under the Fourth Amendment, are reviewed de novo. See United States v. Flores, 48 F.3d 467, 468 (10th Cir. 1995).
A. Rith‘s Parents’ Consent Was Not Revocable
Generally, consent to a search given by someone with authority cannot be revoked by a co-occupant‘s denial of consent, even if that denial is clear and contemporaneous with the search. In United States v. Matlock, 415 U.S. 164, 172 n.7 (1974), the Supreme Court held that mutual use of property carries with it the risk that just one of the occupants might permit a search of the common areas. Applying Matlock, this court has stated that “[i]f common authority is
Rith argues that his claim to privacy is stronger because he, not his parents, was present at the time he refused to consent to the immediately ensuing search. According to Rith, consent by a third party to search is valid “only where the defendant [is] physically or constructively absent.” To support this claim, Rith refers the court to a sentence in Matlock which states that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” Matlock, 415 U.S. at 170 (emphasis added). The language and structure of the Matlock opinion refute such an interpretation. The language to which Rith refers is embedded in a discussion of cases in which the Court addressed issues previously undecided. Concluding its discussion of these cases, the Court stated its holding:
These cases at least make clear that when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.
Under Matlock and its interpretive progeny, Rith had no expectation of privacy that negated his parents’ consent to a search of their home. To hold otherwise would undermine the gravamen of Matlock: “any of the co-habitants has the right to permit the inspection in his own right and . . . the others have assumed the risk that one of their number might permit the common area to be searched.” Matlock, 415 U.S. at 171 n.7 (emphasis added).
B. Rith‘s Parents Had Authority to Consent to a Search of Rith‘s Bedroom
That Rith‘s parents were authorized to grant effective consent to the search of their home does not fully resolve Rith‘s challenge. It is the government‘s
The Tenth Circuit applied Matlock in McAlpine. See 919 F.2d at 1463. The issue was whether a woman held against her will in the defendant‘s residence for two months possessed the authority to consent to a search of his residence. The court essentially restated Matlock‘s test: “the government bears the burden of proving by a preponderance of the evidence that the consenter had mutual use of the property searched by virtue of her joint access to it, or control for most purposes over it.” Id. at 1463. Applying this test, the court found that the captive woman had authority to consent because she slept in the back room where the guns were found and she had personal possessions throughout the trailer. See id. at 1464; see also United States v. Iribe, 11 F.3d 1553, 1556 (10th Cir. 1993) (employing same standard as McAlpine and finding that by virtue of being a co-resident, the third party had joint access to the house).
Unlike the fact-intensive inquiry of mutual use, control for most purposes of property is a normative inquiry dependent upon whether the relationship between the defendant and the third party is the type which creates a presumption of control for most purposes over the property by the third party.3 If a relationship creates such a presumption of control and is unrebutted, the third party has authority to consent to a search of the property.
Relationships which give rise to a presumption of control of property include parent-child relationships and husband-wife relationships. See, e.g., United States v. Ladell, 127 F.3d 622, 624 (7th Cir. 1997) (“A third-party consent is also easier to sustain if the relationship between the parties—parent to child here, spouse to spouse in others—is especially close.“); United States v. DiPrima, 472 F.2d 550, 551 (1st Cir. 1973) (“[E]ven if a minor child, living in the bosom of a family, may think of a room as ‘his,’ the overall dominance will be in his parents.“). In contrast, a simple co-tenant relationship does not create a
Two caveats are important. First, in determining whether a particular relationship raises a prеsumption of control for most purposes, McAlpine
In this case, there are insufficient factual findings that Rith‘s parents had joint access to his bedroom to support a conclusion of their authority to consent to a search of the room. There are no findings that Rith‘s parents visited with him
The government has, however, shown that Rith lived with his parents and was not paying rent. Although Rith was eighteen years old, these facts raise a presumption of control for most purposes by Rith‘s parents over the entire home and thus they could have accessed Rith‘s room without his consent. There is no evidence to rebut this presumption: no lock on Rith‘s bedroom door; no agreement with Rith‘s parents that they not enter his room without his consent; no payment of rent. Because the presumption of control is unrebutted, Rith‘s parents had authority to consent to the search of Rith‘s bedroom.5
III. Suppression of Incriminating Statements
Rith argues that the statements he made both before and after being read his Miranda v. Arizona rights should have been suppressed. 384 U.S. 436 (1966). Because the statements that Rith made after being confronted with the sawed-off
Upon their entry into the Rith home, the officers requested that Rith‘s brothers wait in the living room. They asked Rith to sit at the kitchen table because Detective Chen wanted to speak with him. Detective Chen stated to Rith that he “knew that [Rith] had brought some illegal guns into the house” and he repeated that the police had permission from Rith‘s parents to search the house for the guns. Officer Chen then asked Rith where the guns were located. Rith stated that he had “only one gun” and that it was in his bedroom under the mattress. He proceeded to tell the police which bedroom was his.
The officers returned to the kitchen and confronted Rith with the sawed-off shotgun. Prior to receiving his Miranda warning, Rith responded affirmatively to Detective Chen‘s question whether he knew that the possession of an illegal
The district court concluded that the totality of the circumstances established Rith was not in custody until after he had been confronted with the shotgun. See United States v. Rith, 954 F. Supp. 1511, 1517-18 (D. Utah 1997). The district court affirmed the magistrate judge‘s recommendation that the incriminating statements made after Rith was confronted with the shotgun but before he was Mirandized should be suppressed. See id. at 1518. The district court then ruled that the statements Rith made after being Mirandized were voluntary and therefore admissible. See id. at 1518.
In Miranda v. Arizona, the Supreme Court stated that “[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. 436, 444 (1966). In a subsequent case, the Court clarified that a determination of whether an individual was in custody must be made on the totality of the circumstances, and the ultimate inquiry “is simply whether there [was] a ‘formal arrest or restraint on freedom of movement’ of the
This court agrees with the district court‘s conclusion that under the totality of the circumstances, Rith was not in police custody until the point at which he was confronted with the illegal shotgun. Rith was questioned while at home and the officers had authority to bе there, despite Rith‘s desires to the contrary. See Erving L., 147 F.3d at 1247 (noting that suspects are less likely to be found to have been in custody for Miranda purposes if they were interviewed in their own homes). The district court found that the officers did not draw their weapons, handcuff Rith, or otherwise impose physical restraint upon him. See Rith, 954 F. Supp. at 1517. The officers’ questions were not harassing nor especially prolonged. Granted, there were five officers in the home at the time of the questioning; Rith was asked to sit at the kitchen table because Detective Chen had some questions to ask; and he was not told that he did not have to answer the questions. None of these factors, alone or aggregated, however, overcomes our conclusion that a reasonable person in Rith‘s position would have felt free to leave. The officers’ presence, conduct, and questioning did not risе to the level
Rith next argues that his post-Miranda incriminating statements were involuntary because of their proximity to his pre-Miranda, albeit suppressed, incriminating statements. In particular, Rith points to this court‘s decision in United States v. Perdue, in which, he argues, this court held that incriminating statements made after the defendant was given his Miranda rights were involuntary because of the proximity of those statements to incriminating statements made before he was given his Miranda rights. 8 F.3d 1455 (10th Cir. 1993).
Perdue, however, is inapposite because of the Supreme Court‘s decision in Oregon v. Elstad. 470 U.S. 298 (1985). In Elstad, the Court held that “[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” Id. at 313. The Court also noted with approval that “[o]f the courts that have considered whether a properly warned confession must be suppressed because it was preceded by an unwarned but clearly voluntary admission, the majority have . . . recognized that [the] requirement of a break in the stream of events is inapposite.” Id. at 310 (citations omitted).
The question of voluntariness is reviewed de novo, crediting the district court‘s findings of fact unless clearly erroneous. See United States v. Glover, 104 F.3d 1570, 1580 (10th Cir. 1997). Whether a defendant‘s incriminating statements were made voluntarily must be assessed from the totality of the circumstances, looking both at the characteristics of the defendant and the details of the interrogation. See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). The essence of voluntariness is whether the government obtained the statements by physical or psychological coercion such that the defendant‘s will was overborne. See Miller v. Fenton, 474 U.S. 104, 116 (1985). Five factors are considered: “(1) the age, intelligence, and education of the defendant; (2) the length of [any] detention; (3) the length and nature of the questioning; (4) whether the defendant was advised of [his or] her constitutional rights; and (5)
At no point during the search was Rith threatened with or subjected to physical punishment by the officers, the questioning lasted no longer than forty-five minutes, and Rith was in the comfortable surroundings of his home. The record contains no evidence to suggest that Rith was susceptible to coercion because of his age, intelligence, or education. In fact, as the district court noted, Rith displayed his fortitude by demanding that the officers show him a search warrant before they could enter the house. See Rith, 954 F. Supp. at 1518. That Rith was not advised of his constitutional right is not at all dispositive and is but one faсtor to consider among others. The totality of the circumstances leads to the conclusion that all of Rith‘s incriminating statements were voluntary.6
Because we conclude that all of Rith‘s statements were voluntary, Elstad compels the conclusion that the administration of Miranda warnings prior to Rith‘s second set of incriminating statements met the requirements of the Constitution. Rith‘s fruit of the poisonous tree argument fails and the incriminating statements were properly admitted.
Rith objected to the admission of this document [hereinafter “ATF certificate“] as hearsay and violative of the Confrontation Clause of the United States Constitution. The trial judge overruled his objection and received the certificate into evidence under
Because Rith raises a constitutional claim, review of the trial court‘s admission of the ATF certificate is de novo. See Bennett v. National Transp. Safety Bd., 66 F.3d 1130, 1136 (10th Cir. 1995). The trial court‘s finding of
A. Inability to Cross-Examine the Declarant
The Sixth Amendment provides that “the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
Additionally, there is no evidence in the record that the defendant did not have the opportunity employ his Sixth Amendment right of Compulsory Process10 to subpoena Mr. Marshall. In deciding that there is little benefit in imposing an unavailability rule for out-of-court statements not made in the course of a prior judiciаl proceeding, the Court stated that “[m]any declarants will be subpoenaed by the prosecution or defense, regardless of any Confrontation Clause requirement, while the Compulsory Process Clause and evidentiary rules permitting a defendant to treat witnesses as hostile will aid defendants in obtaining a declarant‘s live testimony.” White, 502 U.S. at 355; see also United States v. Inadi, 475 U.S. 387, 397-400 (1986) (holding that unavailability of co-conspirator need not be proved when “the defendant himself can call and cross-examine such declarants“).
Some circuits, including the Tenth Circuit, have followed the Court‘s cue and held that there is no violation of the Confrontation Clause when the defendant neglected to exercise rights that would have enabled the him to confront the witnesses against him. See, e.g., United States v. Jackson, 88 F.3d 845, 847 n.2 (10th Cir. 1996) (noting that the excited utterance admitted into evidence did not violate the defendant‘s Sixth Amendment right of confrontation in part because the dеfendant could have called the declarant as a witness and cross-examined him) (citing Inadi, 475 U.S. at 397-98 & n.8); Reardon v. Manson, 806 F.2d 39, 42 (2d Cir. 1986) (“[I]t has become settled that, at least in those borderline cases where the likely utility of producing the witness is remote, the Sixth Amendment‘s guarantee of an opportunity for effective cross-examination is satisfied where the defendant himself had the opportunity to call the declarant as a witness.“). But see Simmons v. United States, 440 F.2d 890, 891 (7th Cir. 1971) (holding that it is the government‘s burden to produce the declarant when the opportunity to cross-examine the declarant is essential to the defendant‘s right of confrontation).
Because the admission of the ATF certificate does not implicate the Sixth Amendment‘s limited requirement of availability, and because the defendant could have called Mr. Marshall as a witness, Rith‘s Sixth Amendment right of confrontation was not denied by the failure of the government to call Mr. Marshall as a witnеss.
The second basis of Rith‘s Sixth Amendment challenge is that his right to confront his accusers was violated because the ATF certificate, admitted under
Rith contends that the NFRTR is not endowed with particularized guarantees of trustworthiness. Upon his objection to the admissibility of the ATF certificate, he submitted to the trial judge a set of discovery documents obtained from the government on March 22, 1996.11 These documents include statements made by Tom Busey, then chief of the National Firearms Act Branch of the Bureau of Alcohol, Tobacco, and Firearms during an October 18, 1995 training session for Bureau of Alcohol, Tobacco, and Firearms (“ATF“) inspectors and other investigative employees. Busey described the process by which ATF specialists search the NFRTR database for registration of Title II weapons. To
In Idaho v. Wright the Supreme Court stated that “‘particularized guarantees of trustworthiness’ must be shown from the totality of the circumstances.” 497 U.S. 805, 819 (1990). Though “courts have considerable leeway in their consideration of appropriate factors,” the relevant circumstances are those “that surround the making of the statement and that render the declarant particularly worthy of belief,” such that “the test of cross-examination would be of marginal utility.” Id. at 819-22.
The following factors are appropriate to test the trustworthiness of
The record establishes that thе NFRTR database has sufficient guarantees of trustworthiness to satisfy the Sixth Amendment. According to Mr. Busey‘s statements, a quality review team was instituted in 1994 and succeeded in reducing the critical-error rate to below three percent.13 Additionally, the ATF
Furthermore, the accuracy of the registration check is buttressed by a second level review by a branch chief.
In addition to the reliability of the NFRTR, there is little to be gained from cross-examining Mr. Marshall. If the essence of cross-examination is that the declarant‘s memory, perception, bias, and narration will be tested, there is little likely benefit from cross-examination of an inspector who was hired for his skills and ability to perform the job of inspecting the NFRTR database and who does not personally know the defendant or any of his associates. See Minner, 30 F.3d at 1315 (discussing value of cross-examining police chemist in cocaine possession prosecution). Furthermore, Mr. Marshall undoubtedly conducts hundreds of registration searches in a year. It is unlikely that he would have any recollection of the Rith search and, consequently, he would be able to testify only as to his general search method. See id. (holding that unavailability need not be proved when chemist would likely not recall individual test and could testify only as to
The cases that Rith cites to support his claim are inapposite because the defendants were able to argue that the evidence was deficient as it applied to them. In United States v. Robinson the files upon which the testimony was basеd were incomplete, resulting in a casual or partial search. 544 F.2d 110, 114-15 (2d Cir. 1976). In United States v. Yakobov the defendant‘s name was drastically misspelled on the ATF certificate, undermining any claim of “diligence” in the search. 712 F.2d 20, 24 (2d Cir. 1983). In both cases the courts’ conclusions are unremarkable: evidence of a deficiency specific to the defendant in the search method or database may constitute sufficient evidence of unreliability. See, e.g., id. (holding that “‘if, in a particular instance, the circumstances indicate a lack of trustworthiness, the evidence should be excluded‘“) (quoting Robinson, 544 F.2d at 110) (emphasis added). Here Rith alleges no defect in the NFRTR database search as it pertained to him. General claims of unreliability, particularly those that rely upon outdated information, are not sufficient to raise a constitutional deficiency. See also United States v. Regner, 677 F.2d 754, 758-59 (9th Cir. 1982) (holding defendant‘s claim that “possible motives” by a foreign government to lie were not cognizable absent some evidence of actual bias toward the defendant).
For the foregoing reasons, the admission of the ATF certificate into evidence did not constitute a violation of Rith‘s Sixth Amendment right of confrontation.
V. Sufficiency of the Evidence
Rith argues the evidence was insufficient to support a conviction because the government failed to prove Rith‘s knowledge that the shotgun barrel was less than eighteen inches in length. A challenge to the sufficiency of the evidence is reviewed de novo, and this court evaluates “the sufficiency of the evidence by
Rith testified that he did not know the length of his shotgun, though he handled it several times. But he also testified to knowing that the gun was a sawed-off shotgun, and that he knew the shotgun was much shorter than the rifle. Rebecca Bobich, the ATF agent who measured Rith‘s shotgun, testified that the length of the barrel was 13 and 3/4 inches, 4 and 1/4 inches shorter than the legal length. Additionally, Rith stated that he knew it was illegal to have a sawed-off shotgun.
From the evidence presented, the jury could have reasonably concluded that Rith knew the shotgun was under the legal length. Not only was Rith‘s shotgun observably shorter than the legal length, Rith testified to knowing thаt the shotgun was sawed off and that it was considerably shorter than the rifle. See United States v. Mains, 33 F.3d 1222, 1229 (10th Cir. 1994) (holding that intent requirement was met because defendant handled gun, knew it was sawed off, and
VI. Jury Instructions
Finally, Rith argues that his case should be remanded because the trial judge erred in instructing the jury that they are not “to be governed by sympathy, prejudice, or public opinion.” Rith argues that this instruction “misled the jury into believing that they must convict, regardless of mercy or leniency.”
The propriety of a jury instruction to which an objection was made at trial is reviewed de novo. The conviction will not be disturbed, however, аbsent a “‘substantial doubt that the jury was fairly guided.‘” United States v. Smith, 13 F.3d 1421, 1424 (10th Cir. 1994) (quoting United States v. Mullins, 4 F.3d 898, 900 (10th Cir. 1993)).
To the extent the defendant‘s appeal seeks to permit jury nullification, the law is clear: a criminal defendant is not entitled to have the jury instructed that it can, despite finding the defendant guilty beyond a reasonable doubt, disregard the law. See United States v. Grismore, 546 F.2d 844, 849 (10th Cir. 1976). The jury‘s role is to apply the law to the facts of the case. The trial judgе instructed the jury appropriately.
VII. Conclusion
The judgment of the district court is accordingly AFFIRMED in all respects.
Notes
Unlike the Second and D.C. circuits, the Fourth Circuit requires proof that the third party has common authority over, general access to, or mutual use of the premises under circumstances that make it reasonable to believe that the third party has the right to permit a search. See United States v. Block, 590 F.2d 535, 539-40 (4th Cir. 1978). The Block court held that a mother had both the actual authority and a reasonable appearance of authority to consent to a search of the bedroom of her twenty-three year old son flowing from the “normal free access thаt heads of household commonly exercise in respect of the rooms of family member occupants.” See id. at 541. The court held, however, the mother did not have the authority to consent to the search of her son‘s footlocker, albeit in his bedroom, because there is a greater expectation of privacy in a locked container. See id.
Rith relies upon United States v. Salinas-Cano in support of his effort to have the Tenth Circuit adopt the Whitfield test. 959 F.2d 861 (10th Cir. 1992). Salinas-Cano stated that Matlock requires “both shared use and joint access or control of a container in order to support third party consent.” See id. at 864. We construe this language and Salinas-Cano generally to be consistent with McAlpine‘s interpretation of Matlock in the disjunctive.
The ATF certificate meets the requirements of the