U.S. v. Rith, 96-CR-36 W.
Decision Date | 04 February 1997 |
Docket Number | No. 96-CR-36 W.,96-CR-36 W. |
Citation | 954 F.Supp. 1511 |
Parties | UNITED STATES of America, Plaintiff, v. Mesa RITH, Defendant. |
Court | U.S. District Court — District of Utah |
Leisha M. Lee-Dixon, Assistant United States Attorney, Salt Lake City, UT, for Plaintiff.
Ronald Jorgensen, Sandy, UT, for Defendant.
This matter is before the court pursuant to the government's objections to the magistrate judge's November 14, 1996 Report and Recommendation on Defendant's Omnibus Motion. The defendant, Mesa Rith, was indicted on February 21, 1996, and charged with unlawful possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. § 5861(d). On April 4, 1996, Defendant filed a motion asking the court to: (1) dismiss the indictment pursuant to the Speedy Trial Act, and Defendant's right to due process; (2) strike Defendant's alleged aliases from the indictment; (3) suppress evidence obtained from the search of Defendant's bedroom; and (4) suppress statements made by Defendant.
A hearing was conducted before Magistrate Judge Alba on April 29, 1996. Following the hearing and after consideration of supplemental memoranda submitted by both parties, the magistrate judge issued a Report and Recommendation finding: (1) that Defendant's motion to dismiss the indictment should be denied because there was no violation of the Speedy Trial Act, and Defendant failed to establish that the registration of the sawed-off shotgun was a legal impossibility; (2) that Defendant's motion to strike the alleged aliases should be granted because there is no clear and distinct link between the aliases included in the indictment and the crime charged; (3) that Defendant's motion to suppress the sawed-off shotgun found during a warrantless search of Defendant's bedroom should be granted because the search violated Defendant's Fourth Amendment rights; and (4) that certain statements made by Defendant should be suppressed because they were the result of an illegal search, and because they were made either involuntarily or before Miranda warnings were rendered.
On November 22, 1996, the government objected to the magistrate's findings regarding the suppression of evidence and statements. A hearing was conducted before this court on December 30, 1996. The United States was represented by Leshia M. Lee-Dixon. The defendant, Mesa Rith, was present and represented by L. Ronald Jorgensen.
This court, now having made a de novo review of all matters objected to and, in fact, having reviewed the entire record before it, finds that the magistrate's Report and Recommendation would improperly suppress evidence and statements which were lawfully obtained. Accordingly, this court affirms and adopts the magistrate judge's Report and Recommendation in part, as to issues regarding the Speedy Trial Act, due process, and aliases; however, the court rejects the magistrate judge's Report and Recommendation as to the issues relating to suppression of evidence and statements.
The following summary of facts is gathered from the transcript of the hearing on Defendant's Omnibus Motion held before the magistrate judge on April 29, 1996.
On November 20, 1995, at approximately 3:15 p.m., the West Valley Police Department dispatched Officer Mikkel Roe to a residence in West Valley City. Dispatch informed Officer Roe that some parents were concerned regarding guns which had been brought into their home by their son. The parents suspected that the guns were stolen and asked that the serial numbers be read and checked.
Officer Roe proceeded to the designated address (apparently the home of friends of Defendant's parents) where he was met by Defendant's father and stepmother. Defendant's father told Officer Roe that he and his wife had seen Defendant bring guns into their house. Defendant's father stated that he did not allow guns in their home. He also said that he had seen Defendant conceal one of the guns in a garbage can. He asked that the police go to his home and determine if these guns were stolen. Defendant's father told the police that he had suspected for a few weeks that his son was a gang member. Defendant's father did not want to accompany the police to his home because he was concerned that his son would become angry at the situation.
Officer Roe called dispatch and asked that Detective Chen, the gang task force officer for the West Valley Police Department, be sent to the scene. Detective Chen arrived and Defendant's father again gave his permission for the police to go into his home to find the guns. Detective Chen asked Defendant's father if he could have a key in case the door was locked or in case there was no one home, or if Defendant refused to let the police in. Defendant's father gave Detective Chen a key to the house. Defendant's father also told the officers that Defendant was eighteen years-old and that Defendant was not paying any rent.
Detective Chen and Officer Roe, now joined by Officer Johnson of the West Valley Police Department, proceeded to the Rith residence a few blocks away. When they arrived, Defendant was on the front porch talking with two Midvale detectives who were coincidentally investigating a Midvale homicide.
Detective Chen asked Defendant if the officers could go inside the home to speak with him. Defendant responded that he did not want the officers to come inside the house. Defendant asked for a search warrant. Detective Chen then informed Defendant that the police had permission to enter from Defendant's parents as well as the keys to the house. Defendant did not resist the officers' entry further.
The officers entered the house and found Defendant's two younger brothers downstairs. The officers brought them to the upstairs front living room where they watched TV. Defendant was asked to sit down at the kitchen table because Detective Chen wanted to speak with him. At that point, Detective Chen told Defendant that they "knew that he had brought some guns into the house, and again stated that [they] had permission to search the house for those guns and requested that [Defendant] tell [them] where the guns were." Transcript, at 18 (testimony of Officer Roe). Defendant said Id. Defendant explained to the police which bedroom the gun was in.
Detective Chen, Officer Roe, and one of the Midvale detectives went downstairs and found a loaded twelve-gauge sawed-off shotgun underneath the mattress in Defendant's bedroom. They also found a BB gun inside an open closet. Additionally, the officers found a .22 caliber rifle outside in the garbage can. Both the shotgun and the .22 matched the description of the weapons Defendant's father had given to the police when he asked them to do the search. The police also found a checkbook in Defendant's bedroom which turned out to be stolen. Defendant admitted that he knew the guns and checkbook were stolen and that he had obtained them from a person named Poken.
Officer Roe advised Defendant of his Miranda rights. Defendant again stated where he got the guns and that he knew they were stolen. Defendant was arrested, handcuffed, and charged with possession of stolen property and illegal weapons. The officers were in the house for approximately forty-five minutes to one hour.
Defendant argues that the search violated his rights under the Fourth Amendment to the United States Constitution. He claims that his parents did not have authority to consent to the search which encompassed his bedroom, and that any earlier permission which may have been given by the parents was expressly revoked by Defendant's later refusal to consent to the search. Defendant also asks the court to suppress any statements he made involuntarily or prior to being advised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The Fourth Amendment to the United States Constitution protects citizens against unreasonable searches by law enforcement officers. A warrantless search is per se unreasonable unless it falls within one of the courts' carefully defined exceptions. One of these exceptions exists when "permission to search [is] obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). Common authority may be either actual or apparent. Illinois v. Rodriguez, 497 U.S. 177, 185-89, 110 S.Ct. 2793, 2799-2802, 111 L.Ed.2d 148 (1990). The burden of proof is on the government to show by a preponderance of the evidence that the consenter had the authority to authorize the search. United States v. Iribe, 11 F.3d 1553, 1556 (10th Cir.1993).
The authority of a third person to consent to a search "stems from a practical understanding of the way in which the parties to a given relationship have access to and share certain property." United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir. 1990). Where such common authority exists, "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." Id. This proposition is grounded in the reasoning that a joint occupant assumes the risk that another may give consent for police to search, even over the former's objections. United States v. Garcia, 861 F.Supp. 996, (D.Kan.1994), aff'd, 69 F.3d 549 (10th Cir.1995). "[T]he relevant analysis in third-party consent cases focuses on the relationship between the consenter and the property searched, not the relationship between the consenter and the...
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