U.S. v. Selberg

• Decision Date: 30 September 1980
• Docket Number: No. 80-1255,80-1255
• Citation: 630 F.2d 1292
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: UNITED STATES of America, Appellee, v. Barlo Vernon SELBERG, Appellant.

Page 1292

630 F.2d 1292

UNITED STATES of America, Appellee, v. Barlo Vernon SELBERG, Appellant.

No. 80-1255.

United States Court of Appeals,

Eighth Circuit.

Submitted June 13, 1980.

Decided Sept. 30, 1980.

Brian C. Southwell, Minneapolis, Minn., for appellant.

Joseph T. Walbran, Asst. U. S. Atty., Dist. of Minnesota, Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, STEPHENSON, Circuit Judge, and HANSON, ^* Senior District Judge.

LAY, Chief Judge.

Barlo V. Selberg was convicted of possession of an unregistered sawed-off rifle in violation of 26 U.S.C. §§ 5861(d) and 5871 and was placed on probation for three years under the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5026. The sole issue raised by Selberg on appeal is whether the weapon was seized by federal authorities as the result of an illegal search. The district court, accepting a magistrate's finding that the search was valid, emphasized that the search was based upon lawful consent as well as the proper exercise of the officer's public duties. We disagree; we reverse and remand with directions to suppress the evidence seized and grant a new trial.

Selberg lived in a mobile home in a trailer park in Blaine, Minnesota. Thefts and vandalism had occurred in the trailer park on several occasions. Selberg requested that his neighbor, James Lynch, watch Selberg's home for suspicious activity. Lynch claimed Selberg told him to call the police if necessary, although Selberg assumed Lynch would handle any problems that arose himself. Selberg offered Lynch a key to his house but Lynch declined it.

On Friday, October 19, 1979, Lynch saw Selberg drive away from his home with Selberg's home's front door open. An aluminum storm door was closed. The following morning the door was still open. The Lynchs had not observed any suspicious activity, but they were away much of Friday evening. There were no signs of vandalism or destruction. Lynch discussed the problem with his wife, and knocked on Selberg's door and received no response. The Lynchs agreed they should not close the door, for fear they would disturb fingerprints or be blamed themselves for any missing items. Mrs. Lynch then called the trailer park manager, who said she should call the police. She called the Blaine Police Department, and Officer Ham arrived at around 1:00 P.M.

Mrs. Lynch told the officer that Selberg had asked them to watch his trailer. She told him her husband had seen Selberg drive away the day before and that the door remained open; that no one responded to her husband's knocks; and that the possibility of burglary concerned them. She testified she did not believe she or her husband had permission to enter and that she did not give Ham permission to enter, but asked him to check out the mobile home. Ham was aware of thefts and vandalism in the area.

Ham then went to Selberg's home. After knocking several times and identifying himself, he opened the storm door and entered. He did not have a warrant. He was then able to see the living room and kitchen areas, where nothing was disturbed. A television set was still there, and there was a handgun on the floor. Ham then knocked on a closed door adjacent to the living room and identified himself. When there was no answer he opened the door and entered. He then found the weapon in question on the floor of a bedroom.

Ham then called his corporal, who told him to call Officer Russell Hanson of the Anoka County Major Crimes Unit. Hanson came to Selberg's home, entered without a warrant, and inspected the gun. Hanson called the FBI, and was referred to the Bureau of Alcohol, Tobacco & Firearms (ATF). ATF agent Paul Zamzow arrived, entered without a warrant, and inspected the gun. He then obtained a warrant and took the gun to the ATF vault. Ham remained at the scene throughout these events.

Selberg moved to suppress the evidence seized in this search. Magistrate McPartlin found exigent circumstances justified a warrantless entry and denied the motion. The district court accepted the Magistrate's conclusion, but emphasized there was also sufficient evidence to show Selberg had given the Lynchs sufficient authority to give Officer Ham consent to enter the home.

"It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, --- U.S. ----, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980) (footnote omitted). The government has the burden of justifying the warrantless entry under one of the recognized exceptions. These include consent to the search, search incident to a lawful arrest, and the emergency or hot pursuit exception. United States v. Heisman, 503 F.2d 1284, 1287 (8th Cir. 1974).

A. Consent.

We find insufficient evidence to hold that Selberg gave consent for the warrantless entry. ¹ Although a third party may give consent, there must be proof the third party "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) (footnote omitted). The Supreme Court has defined "common authority" as:

(M)utual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Id. at n.7, 94 S.Ct. at 993 n.7. (emphasis added).

See, e. g., United States v. Finch, 557 F.2d 1234 (8th Cir.), cert. denied, 434 U.S. 927, 98 S.Ct. 409, 54 L.Ed.2d 285 (1977); United States v. Patterson, 554 F.2d 852 (8th Cir. 1977); United States v. Sor-Lokken, 557 F.2d 755 (10th Cir.), cert. denied, 434 U.S. 894, 98 S.Ct. 274, 54 L.Ed.2d 181 (1977).

In the present case, there exists no proof of common authority or control. The Lynchs were simply under instructions to watch Selberg's mobile home. They had no key, no access and admittedly did not believe they had permission to enter. ²

Nor can it be said that the Lynchs had either implied or actual agency to grant permission for the officer to enter. Cf. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Here the agency, if any, was limited to watching the property; it is indeed a "strained application" to say that such a general instruction provides a neighbor the power to authorize a police officer to make a warrantless entry and search the home. Cf. United States v. Heisman, 503 F.2d at 1287-89; United States v. Harris, 534 F.2d 95 (7th Cir. 1976).

The most reasonable description of the situation seems to be that the Lynchs could and did bring the situation to the attention of the police. Once the officer arrived he was then obliged to evaluate the circumstances and see if entry was justified on some basis other than consent since the owner was absent and no third party with requisite authority and control was present to grant consent.

B. Exigent Circumstances.

In applying the exigent circumstances doctrine, the burden is on the state to show the entry is within the exception, and an objective standard is used to evaluate the reasonableness of the officer's belief that exigent circumstances existed. Root v. Gauper, 438 F.2d 361, 364 (8th Cir. 1971). One exigent circumstance that may justify entry without a warrant is when the police "reasonably believe that a person within is in need of immediate aid." Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 2414, 57 L.Ed.2d 290 (1978). See also United States v. Nord, 586 F.2d 1288, 1290-91 (8th Cir. 1978) (assistance to intoxicated person); United States v. Miller, 589 F.2d 1117 (1st Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979) (abandoned boat; search justified in part by legitimate fear of drowning); Wayne v. United States, 318 F.2d 205 (D.C.Cir.), cert. denied, 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d 86 (1963) (report of unconscious woman). Cf. Root v. Gauper, 438 F.2d at 365 (injured man already removed, so no emergency justified entry). Other cases recognize that similar entries may be permissible to protect property on the premises. In all of these cases, however, there were facts suggesting an emergency threat to the property. E. g., Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (firemen entering to stop fire, investigate causes and protect evidence); United States v. Zurosky, 614 F.2d 779 (1st Cir. 1979), application for stay denied, --- U.S. ----, 100 S.Ct. 1596, 63 L.Ed.2d 784 (1980) (lights in a warehouse and suspicious activity by person inside); United States v. Moskow, 588 F.2d 882 (3d Cir. 1978) (neighbor reported noises next door and a missing padlock; officers noticed strong odor of gasoline); United States v. Estese, 479 F.2d 1273 (6th Cir. 1973) (police radio reported breaking and entering; defendant was not home, door was open and there was evidence it had been pried open; search under bed proper because burglar could be hiding there; seizure of sawed-off shotgun permitted). Implicit in these cases and in the rationale for all exigent circumstance cases is the principle that if there is no reasonable basis for concluding there was a threat to life or property, the entry and search are deemed improper. See Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (defendant removed from murder scene; warrant required before entry by investigators); United States v. Young, 553 F.2d 1132 (8th Cir.), cert. denied, 431 U.S. 959, 97 S.Ct. 2686, 53 L.Ed.2d 278 (1977) (initial entry proper but subsequent entry by evidence technicians improper); United States v. Goldenstein, 456 F.2d 1006 (8th Cir. 1972), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974) (when police were satisfied person not in room, further search improper); Root v. Gauper, ...