U.S. v. Rith, 97-4138

• Decision Date: 19 January 1999
• Docket Number: No. 97-4138,97-4138
• Citation: 164 F.3d 1323
• Parties: 1999 CJ C.A.R. 1296 UNITED STATES of America, Plaintiff-Appellee, v. Mesa RITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1323

164 F.3d 1323

1999 CJ C.A.R. 1296

UNITED STATES of America, Plaintiff-Appellee, v. Mesa RITH, Defendant-Appellant.

No. 97-4138.

United States Court of Appeals, Tenth Circuit.

Jan. 19, 1999.

L. Ronald Jorgensen, Sandy, UT, 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, UT, 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 26 U.S.C. § 5861(d). Rith challenges his conviction on the following grounds: (1) he revoked the consent his parents had given to search the house and, even if valid, their consent did not extend to his bedroom; (2) all incriminating statements should have been suppressed because they were involuntary, he was in custody for purposes of Miranda, and some statements constituted "fruit of the poisonous tree"; (3) his Sixth Amendment right of confrontation was violated by the admission of a certificate showing nonregistration in the National Firearms Registration and Transfer Record; (4) the evidence was insufficient to support a conviction; and (5) the trial judge erred by instructing the jury that they not be "governed by sympathy, prejudice, or public opinion." This court exercises jurisdiction under 28 U.S.C. § 1291 and affirms the judgment of the district court.

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 ("Rith"), carry guns into their home and conceal one in the garbage can outside the home. Fearful of guns and afraid that their son was involved in a gang, the Riths requested that Officer Roe check the home and ascertain if the guns were stolen. Officer Roe requested that Detective Terry Chen join him because Detective Chen had experience as a gang task force officer. Upon Detective Chen's arrival, Sam Rith again gave permission to the officers to search his home for the guns. Fearing confrontation with his son, Sam Rith declined to accompany the officers during the search. Instead, he gave the officers a house key so that no damage would be done to the house in the event they were not otherwise allowed entry. During his discussion with the officers, Sam Rith told the officers that Mesa Rith was eighteen years of age and was not paying rent.

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 house 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 permission to be there, and asked Rith where the guns were hidden. Rith told the officers that he only had one gun and that it was in his bedroom, downstairs, under the mattress. Officer Roe, Detective Chen, and a Midvale officer searched the bedroom and found a loaded sawed-off shotgun underneath Rith's mattress. They also found in Rith's open closet a shotgun round, a BB gun, and a checkbook for an account in someone else's name.

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 and 3/4 inches, each 4 and 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.

II. Consent to Search the Rith Home

Rith argues that the evidence seized by the police during the search should have been suppressed for two reasons: (1) Rith revoked his parents' consent 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, 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. 415 U.S. 164, 172 n. 7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Applying Matlock, this court has stated that "[i]f common authority is established, the person whose property is searched is unjustified in claiming an expectation of privacy in the property because that person cannot reasonably believe that the joint user will not, under certain circumstances, allow a search in her own right." McAlpine, 919 F.2d at 1463 (emphasis added).

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, 94 S.Ct. 988 (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.

Id. at 171, 94 S.Ct. 988. This unequivocal holding is unencumbered by the Court's earlier reference to the "absent, nonconsenting person." Furthermore, Matlock is uniformly interpreted as allowing a person with shared authority to grant effective consent to search the common premises despite the objections of the subject of the search. See, e.g., United States v. Morning, 64 F.3d 531, 534-36 (9th Cir.1995); Lenz v. Winburn, 51 F.3d 1540, 1548 (11th Cir.1995); United States v. Donlin, 982 F.2d 31, 33 (1st Cir.1992); United States v. Bradley, 869 F.2d 417, 419 (8th Cir.1989); J.L. Foti Constr. Co. v. Donovan, 786 F.2d 714, 716-17 (6th Cir.1986); United States v. Bethea, 598 F.2d 331, 335 (4th Cir.1979).

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, 94 S.Ct. 988 (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 burden to establish by a preponderance of the evidence that Rith's parents had authority to consent to the search of Rith's bedroom. See Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); McAlpine, 919 F.2d at 1463. In order to have authority to grant effective consent, Matlock requires "mutual use of the property by persons generally having joint access or control for most purposes." 415 U.S. at 172 n. 7, 94 S.Ct. 988.

Rith urges this court to use the D.C. Circuit's interpretation of Matlock. ¹ In United States v. Whitfield, the D.C. Circuit required proof both of mutual use and joint access in order for the third party to have authority to consent to a search. 939 F.2d 1071, 1074 (D.C.Cir.1991). Applying this test to the facts, the Whitfield court held that the police had sufficient basis to believe that a mother generally had joint access to her twenty-nine year...