512 F.2d 496 (5th Cir. 1975), 74-2118, Moffett v. Wainwright

Docket Nº:74-2118.
Citation:512 F.2d 496
Party Name:Kenneth B. MOFFETT, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellee.
Case Date:April 30, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 496

512 F.2d 496 (5th Cir. 1975)

Kenneth B. MOFFETT, Petitioner-Appellant,


Louie L. WAINWRIGHT, Director, Division of Corrections,


No. 74-2118.

United States Court of Appeals, Fifth Circuit

April 30, 1975

Rehearing Denied June 10, 1975.

Page 497

Robert J. Buonauro, Orlando, Fla., William A. Patterson (Court appointed), St. Petersburg, Fla., for petitioner-appellant.

Guy E. LaBalme, Asst. Atty. Gen., Palm Beach, Fla., William I. Munsey, Jr., Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TUTTLE, COLEMAN and SIMPSON, Circuit Judges.

TUTTLE, Circuit Judge:

Kenneth Moffett was convicted by a jury in state court in 1964 for armed robbery and aggravated assault. He was sentenced to a life term. After unsuccessfully purusing his direct appeal, he brought a petition for federal habeas corpus relief, 28 U.S.C. § 2254. The federal district court denied the petition, and Moffett appeals.


The Public Loan Company office in Orlando, Florida was robbed on February 21, 1964. Ten days later, on March 3, the defendant, Kenneth Moffett, was arrested in Jacksonville, Florida on a charge of vagrancy. The arresting officer was one C. L. Cody, a detective sergeant in the Duval County Sheriff's office. Moffett was booked and placed in the Duval County Jail; bond was set at $50,000. The defendant was not brought before a magistrate for three days; when he was arraigned, bond was reduced to $25.

Shortly after he booked Moffett into the Duval County Jail, Sgt. Cody joined by one Sgt. Suber, sought out Mildred (Mickey) Thompson, known to them to be a friend of Moffett. They found her at the Green Derby Restaurant where she was working, and asked her about Moffett's apartment at 1812 Riviera Parkway; Sgt. Cody testified she told him that it was Kenny's apartment, but she agreed to accompany him to the apartment. When they arrived at the

Page 498

apartment, Mickey opened the door. Sgt. Cody testified that he found within the residence two other young girls, Velveline Addison and Judy Allen Frazier. He testified they identified themselves to him as occupants of the premises, and he then requested their permission to search the apartment. 1 After hearing from Sgt. Cody that Kenny was believed to have participated in certain crimes, and that they were suspected of also being involved in those crimes, the girls agreed to permit the officers to search the apartment.

Sgt. Cody testified at Moffett's trial that he had no independent knowledge as to who had rented the apartment, or who was paying the rent; he testified that he had no information as to how long the three girls had been living at that address, other than because "they had all their clothes in the house" he therefore "figured they had been there long enough to move in."

in the course of his search of the apartment, Sgt. Cody discovered a pair of gloves and a gun later identified as having been used by the robber of the Loan Company office, as well as money bags taken during the robbery. These items were introduced at his trial over defendant's objection.

On March 4, after Moffett had spent the night in the Duval County Jail, Cody and Suber confronted him with the items they had found in his apartment; Moffett testified that at first he refused to admit his involvement in the Loan Company robbery, but that after he was told that the police were investigating the three girls found in his apartment and several other girls of his acquaintance, he agreed to cooperate. He then made the confession which was admitted in trial against him.

From the time he was arrested until he confessed Moffett was not permitted to make a phone call, despite the undisputed fact that he requested several times to use the phone, nor was he given any warnings concerning his rights to remain silent and to consult an attorney. Moffett testified that he asked both Cody and Suber to call an attorney, but had been denied that request; Sgt. Cody and Sgt. Suber testified that they had no memory of such a request. 2 Moffett testified that the superintendent of the jail told him that he wasn't to use the telephone, or receive any visitors; the next morning, when he was taken to the sheriff's office for questioning, he testified he again requested permission to call a lawyer, but he was told he would have the right to use the telephone only after his questioning was completed. He testified he was also told that he could not consult a lawyer. He testified that before he was informed his various friends were under investigation, he had told the police that he did not wish to make a statement.

The federal district court found that the vagrancy arrest was a sham charge,

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and that Sgt. Cody lacked probable cause to make it. The state does not challenge this finding that the arrest was illegal. Sgt. Cody testified that he arrested Moffett because "he had no visible means of support. He wasn't employed at the time," but that "we had reason to believe that the defendant had been engaged in criminal activity in Duval County, through confidential sources-that was the primary reason." (Emphasis added.)

In his habeas petition Moffett challenged both the constitutionality of the search of his apartment, and the use of his confession against him. The habeas trial court found that the search had been conducted following proper consent by co-inhabitants of the apartment, that their consent had not been coerced, and that despite the fact Moffett had been illegally arrested on a sham charge, his subsequent confession was wholly voluntary, and properly introduced against him. We reverse.


The only evidence in the record as to the authority of the three girls to consent to the warrantless search of Moffett's apartment is the testimony of Sgt. Cody, the officer who arrested Moffett and who then searched his apartment. He testified:

"Kenny related to me he paid the rent on the apartment; and, however, the white females that were present at the time of the search they stated it was their home, or their dwelling."

He acknowledged on cross-examination that he had no knowledge of the girls' authority or their rights to the premises, save for what they had told him. He had no knowledge as to how long they had been in the apartment or who had rented the apartment; Sgt. Cody admitted he lacked any first-hand information as to the authority of the three girls to consent to a warrantless search of Moffett's apartment. None of the girls testified at trial. "(C)onsent to a search is not to be lightly inferred, but should be shown by clear and convincing evidence." Phelper v. Decker, 401 F.2d 232, 236 (5th Cir. 1968). In our view, the state failed to prove that the warrantless search of Moffett's apartment had been consented to by third parties with sufficient rights to the premises.

The rule in this Circuit is that "where two persons have equal rights to the use or occupation of the premises, either may give consent to a search, and the evidence thus disclosed may be used against either." United States v. Hughes, 441 F.2d 12, 17 (5th Cir. 1971); United States v. Thompson, 421 F.2d 373, 375 (5th Cir. 1970); Gurleski v. United States, 405 F.2d 253, 262 (5th Cir. 1968). Nothing in the record in this case establishes that the three girls upon whom Sgt. Cody relied to consent to his search had such "equal rights" to Moffett's apartment as to justify the warrantless search.

The habeas trial court believed that the evidence that Sgt. Cody observed some women's clothing in the apartment proved that the girls were co-inhabitants with rights to the apartment equal to Moffett's. We must disagree. There was no evidence as to what clothing was observed, where it was observed, or to whom it belonged. We do not believe the state can sustain its burden of justifying its warrantless search solely on the basis that some female clothing was observed in Moffett's apartment-and that is the only direct evidence as to the three girls' authority to consent to...

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