U.S. v. Shelton
| Decision Date | 08 July 2003 |
| Docket Number | No. 02-60326.,02-60326. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Doug SHELTON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles Wiley Spillers, Alfred E. Moreton, III (argued), Asst. U.S. Attys., Oxford, MS, for Plaintiff-Appellee.
John Wesley Hall (argued), Little Rock, AR, Michael S. Fawer, Covington, LA, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Mississippi.
Before JONES, WIENER, and DeMOSS, Circuit Judges.
Defendant-Appellant Jimmy Doug Shelton ("Shelton") appeals the district court's denial of his motion to suppress evidence that his estranged wife, Cheryl Shelton ("Cheryl"), removed from his house and gave to law enforcement officials. On the basis of our close review of the record and our analysis of relevant authority, we hold that Shelton's Fourth Amendment rights were not violated by admission of evidence obtained for the government by Cheryl as a paid informant. Therefore, we affirm.
After six years of marriage, Cheryl abruptly left the home that she shared with Shelton. She moved out because of an extra-marital affair that Shelton was allegedly having with his secretary. When she left, Cheryl took some of her clothes and other possessions with her, but she left behind many other personal belongings, including, among other things, clothes, jewelry, photographs, and furniture. With Shelton's knowledge and assent, she also kept her house key and her personal security access code for the house alarm system. Although Cheryl never moved back into the house, she and Shelton were not legally separated during the period in question and neither party filed for divorce.
A few days after she moved out, Cheryl — together with her daughter, Camile Prather ("Camile") — returned to the former marital residence so that Cheryl could retrieve some more of her belongings. Camile videotaped boxes of bingo cards while she was in the house. At about the same time, Cheryl's sister, Debbie Wheeler ("Debbie") who had been cooperating with a government investigation of Shelton since the previous month, informed Cheryl of the on-going investigation of Shelton's bingo operations and encouraged her to speak with the government. Cheryl agreed and met with an IRS agent and an Assistant U.S. Attorney a week after she had vacated her marital home.
At that meeting, Cheryl volunteered to help the government with its criminal investigation of Shelton, testifying later that she "wanted to do the right thing" and that she "didn't want to get in trouble."1 The agents orally assured Cheryl that if she would assist in the investigation, she would not be prosecuted for her role in the alleged conspiracy and indicated that she would be compensated financially in some way.
Cheryl informed the government agents that there were items in Shelton's home that might further their investigation, including bingo cards in an upstairs bedroom and a notebook with records of the alleged skimming operation on top of a grandfather clock in the front hallway of the house. The government agents advised Cheryl of their interest in the notebook and any other items that she could obtain relative to the skimming operation, and Cheryl subsequently gave the government the videotape that Camile had made during their first visit to Shelton's residence together. After that initial visit, Cheryl returned to Shelton's house many more times, both on her own accord and at the specific direction of the government. She did so to obtain particular items of evidence for the benefit of the government's investigation, as well as to pick up her mail and personal belongings. She continued making visits to the house over a period of at least four months.
After Shelton was charged, he filed a motion to suppress, challenging nine specific visits to his house by Cheryl and the items she had taken.2 In recommending that the district court grant the motion to suppress, the magistrate judge acknowledged that Shelton had made no attempt to limit Cheryl's access to the home, and noted that the items that Cheryl had taken from the home after she moved out were located in areas to which she had free access. Emphasizing that Cheryl maintained no ownership interest in the home, however, the magistrate judge concluded that Cheryl's permission from Shelton to enter the home, although not limited spacially, was limited functionally to picking up her mail and personal belongings. This, concluded the magistrate judge, limited the purpose of her authorized access. Although she was entitled to retrieve personal items, ruled the magistrate judge, Cheryl's principal purpose in entering the home was not to pick up her mail and personal items, but to collect evidence against her husband at the direction of the government. Consequently, reasoned the magistrate judge, her activities exceeded the limited purpose for which she was allowed into the home by Shelton, and thus constituted unlawful searches.
Despite the recommendation of the magistrate judge, the district court denied Shelton's motion to suppress.3 The court found that Shelton had neither attempted to limit Cheryl's access to the home nor attempted to exclude Cheryl in any way from access to the evidence that she obtained and turned over to the government.4 The court held that Cheryl had actual common authority to permit a search by agents of the government and to deal directly with the contents of the house.5
After the court denied his motion to suppress, Shelton agreed to plead guilty to one count of the superseding indictment, viz., filing a false tax return for his bingo operation. As part of the agreement, Shelton consented to the forfeiture of the bingo building and $303,718.73, subject to pending forfeiture actions, but reserved the right to appeal the denial of his motion to suppress evidence and, if successful, to withdraw his guilty plea. Shelton was sentenced to nine months imprisonment, one year of supervised release, and a fine of $20,000. He timely filed a notice of appeal.
When hearing an appeal from a district court's ruling on a motion to suppress we review that court's factual findings for clear error and its ultimate conclusion about the constitutionality of the law enforcement conduct de novo.6 We consider the evidence in the light most favorable to the prevailing party, here the government.7
Valid consent to a search is a well-established exception to the normal requirement that law enforcement officers must have a warrant grounded in probable cause before conducting a search.8 In United States v. Matlock, the Supreme Court extended to third parties the ability to grant this consent when those third parties "possess[] common authority over or other sufficient relationship to the premises or effects sought to be inspected."9 "Common authority," the Court explained
is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent ... rests rather on mutual 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.10
Based on this definition and even a cursory glance at the facts, we have no doubt that if government agents had searched Shelton's home with Cheryl's consent while she was still living there, their search would have been lawful: She unquestionably would have had the authority — "common authority" with Shelton — to permit a search encompassing such common areas as the front hallway, where the skimming notebook lay on top of the grandfather clock, and an upstairs bedroom, where the illegal bingo cards were stashed. The same would have held true for anything that she might have removed from the house and turned over to the government. This is so because, even though Cheryl never had an ownership interest in the house, she was Shelton's wife and had shared its occupancy with him for at least six years.11 Shelton left the bingo operation's materials in common areas of the house, demonstrated no intention to conceal those items from Cheryl, and, in fact, continually solicited her active participation in the skimming operation. All of these factors would have given Cheryl "joint access or control for most purposes," as long as she resided in the house with Shelton as husband and wife.
The only difference between this hypothetical example and the actual facts of the instant case is that Cheryl had moved out of the marital residence one week before she agreed to assist the government in its investigation. Thus, the precise issue presented here is whether Cheryl maintained the same (or sufficient) common authority to consent to this search, beginning a mere week after she had vacated the house and continuing for the next four months, during which time she took evidence from Shelton's house and gave it to the government. Although she did not literally usher government agents into the house so that they could conduct their own search, Cheryl effectively allowed them to search the premises by acting as their agent in collecting and delivering items of evidence for them during that period and at their express direction and control.
Shelton argues on appeal (as he did in the district court) that by using Cheryl as a paid informant for the purpose of conducting warrantless searches of his home, the government violated his Fourth Amendment rights. He insists that Cheryl lacked common authority under Matlock and Rodriguez. Even though with his knowledge and acquiescence, Cheryl continued to possess a key and security...
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