U.S. v. Marshall

• Decision Date: 29 October 2003
• Docket Number: No. 03-1189.,03-1189.
• Citation: 348 F.3d 281
• Parties: UNITED STATES of America, Appellee, v. John T. MARSHALL, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 281

348 F.3d 281

UNITED STATES of America, Appellee, v. John T. MARSHALL, Defendant, Appellant.

No. 03-1189.

United States Court of Appeals, First Circuit.

Heard September 4, 2003.

Decided October 29, 2003.

Thomas P. Colantuono, United States Attorney, with whom Helen White Fitzgibbon and Donald Feith, Assistant United States Attorneys, were on brief for appellee.

William T. Boyle was on brief for defendant, appellant.

Before BOUDIN, Circuit Judge, SILER,^* Senior Circuit Judge, and LYNCH, Circuit Judge.

SILER, Senior Circuit Judge.

Defendant-Appellant John T. Marshall appeals the district court's denial of his motion to suppress child pornography seized at his residence. For the reasons that follow, the judgment of the district court is affirmed.

I. BACKGROUND

On February 5, 2002, Police Officer Christopher Hutchins responded to a call from Ms. Geis, owner of the residence at 7 Dixon Avenue in Newfields, New Hampshire. When Officer Hutchins arrived, Geis informed him that she rented the two upstairs bedrooms of her home to John Marshall and Kathleen Jones. She informed Officer Hutchins that Marshall had been arrested on burglary charges and was concerned that he might have stored stolen property on the premises.

Geis asked Officer Hutchins to search the upstairs apartment to look for stolen items, but he told her that he could not search the apartment without a warrant because Marshall and Jones had a right to their privacy. At Geis's request, however, Officer Hutchins walked to the top of the stairs leading to the apartment and observed that one of the doors was ajar. Through the opening in the door, he saw a black bag with a camera sticking out of it. He took one step into the room and saw that the camera was a Sony, which was consistent with the camera stolen from a nearby home. At that point, Officer Hutchins asked a fellow police officer to secure the premises while he went to the police station to prepare an affidavit in support of an application for a search warrant.

Jones arrived at the apartment while Officer Stevens was securing the residence. She asked to enter her apartment to gather some personal effects so that she could tend to her sick child who was staying at his father's home. Officer Stevens told Jones that she would not be allowed to enter her apartment because a search warrant was being sought as part of a police investigation into several area burglaries. Jones confessed that she knew that Marshall had been involved with the stolen property, but stated that she had no involvement in any burglaries and indicated that she wanted to cooperate with the police. Although Officer Stevens did not have a blank copy of a consent form with him, Jones stated that she would grant permission for a search of her apartment.

Soon thereafter, Officer Lamontagne arrived at the scene with a consent to search form, whereupon he advised Jones that she could leave the premises if she wanted, but told her that "it would be in her best interest to stay, that she could stop the consent search at any time, and that she should observe what was going on." Officer Stevens then read the consent to search form in its entirety to Jones. Jones signed the consent form, which gave the police permission to "take from my premises any property, any letters, papers, material to any other property or things which they desire as evidence for criminal prosecution in the case or cases under investigation." Officers Stevens and Lamontagne reiterated that she could stop the search at any time.

Upon his return to the residence, Officer Hutchins asked Jones if she voluntarily gave her consent to search the premises, without being threatened or coerced. She replied yes. Officer Hutchins then had Jones add his name to the consent to search form and advised her that she could revoke her consent at any time. Although Officer Hutchins again urged her to remain on the premises, Jones left.

The officers proceeded with the search and recovered stolen social security cards, $3,400 in cash, United States Savings Bonds, two video cameras, and several videotapes. Officer Stevens viewed the videotapes using the VCR and television in the apartment. One of the videotapes depicted a naked female child exiting the shower, modeling various outfits, and wrestling with the defendant. The videotape also showed a man using the same child's hand to masturbate an adult male and contained scenes of the child being digitally penetrated by a man believed to be Marshall.

Marshall was later indicted on charges of production of child pornography, in violation of 18 U.S.C. §§ 2251(a) and (d) and 2256, and possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). He subsequently filed a motion to suppress the videotape, arguing that Geis lacked authority to consent to the search of the stairwell and that Jones's consent was coerced. Marshall further argued that the officers exceeded the scope of the search when they viewed the videotapes.

Following an evidentiary hearing, the district court denied the motion to suppress. It concluded that Geis had the authority to consent to the search of the stairwell leading to Marshall's apartment because it was a common area. It also found that Jones knowingly and voluntarily consented to the search of the upstairs bedrooms. Additionally, it determined that the officers acted reasonably by viewing the tapes and, therefore, did not exceed the scope of the consent. Marshall entered a conditional plea of guilty to one count of production of child pornography and was sentenced to a term of seventeen years.

II. ANALYSIS

This court reviews a district court's legal conclusions involved in denying a motion to suppress the evidence de novo, and its findings of fact for clear error. United States v. Ngai Man Lee, 317 F.3d 26, 29-30 (1st Cir.2003). The district court's credibility findings should be accorded deference and overturned only if this court has a definite and firm conviction that a mistake has been committed. United States v. Nee, 261 F.3d 79, 84 (1st Cir.2001).

A. Consent to Search the Stairway

Marshall challenges the district court's determination that Geis had the authority to consent to Officer Hutchins's search of the stairway leading to the rooms he and Jones rented. He argues that Geis lacked authority to give Hutchins permission to enter the stairwell and, as a consequence, the videotapes obtained from the search should be suppressed as fruit of the poisonous tree. See generally Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

In ruling on the motion to suppress, the district court found that the stairway and landing were common areas of the home and concluded that any one of its residents, Geis included, could have consented to a search of those areas. See United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ("[C]onsent of one who possesses common authority over the premises or effects is valid against the absent, non-consenting person with whom that authority is shared."); United States v. Hyson, 721 F.2d 856, 859 n. 7 (1st Cir.1983) (holding that consent based on common authority "rests [] on mutual use of the property by persons generally having joint access or control for most purposes"). In support of its ruling, the district court cited the following: (1) Geis told Officer Hutchins that she rented the two upstairs bedrooms to Kathleen Jones and John Marshall; (2) Geis did not specifically tell Officer Hutchins that she considered the stairway to be her tenants' space; (3) Geis never completely removed her personal property from the rented rooms; and (4) Geis had gone upstairs on occasions to get something she needed.

Marshall nevertheless argues that the district court erred in finding the stairwell to be a common area, given Geis's testimony that she considered the hallway up to the second floor to be her tenants' personal space. The district court considered this testimony, but credited the testimony of the officers over the testimony of Geis. Marshall fails to address the district court's credibility findings and, therefore, they should not be disturbed. See Nee, 261 F.3d at 84 (holding that credibility findings should not be disturbed unless "after reviewing all of the evidence, [the court] [has] a definite and firm conviction that a mistake has been committed").

Even if Geis did not have actual authority to authorize the search, the evidence need not be suppressed because Officer Hutchins had a reasonable basis for believing that Geis had common authority over the stairway. In Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), the Supreme Court held that the Fourth Amendment is not violated when an officer enters without a warrant because he reasonably, though erroneously, believed that the person who consented to his entry is authorized to do so. Id. at 186, 110 S.Ct. 2793. An officer's reliance on a person's apparent authority must be judged against an objective standard: whether a person of reasonable caution with the facts available to him or her would believe the consenting party had authority over the premises. Id. at 186, 110 S.Ct. 2793.

At the time of the search, Geis told Officer Hutchins that she rented the two upstairs bedrooms to Marshall and Jones. She did not inform him that she considered the stairway and landing part of Marshall's rented space. When Geis asked Officer Hutchins to search the upstairs bedrooms, he told her that he could not conduct a search without a warrant because Marshall and Jones had an expectation of privacy; nevertheless, Geis then asked him to search the stairwell. Because Officer Hutchins had just explained the limitation on his ability to conduct a search, he could reasonably assume that Geis would not have thereafter asked him to search Marshall's private space. Thus, Geis's request for him to walk up the staircase, under these...