U.S. v. Sumlin

• Decision Date: 14 December 1977
• Docket Number: No. 77-5076,77-5076
• Parties: , 2 Fed. R. Evid. Serv. 849 UNITED STATES of America, Plaintiff-Appellee, v. Carl Will SUMLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 684

567 F.2d 684

49 A.L.R.Fed. 503, 2 Fed. R. Evid. Serv. 849

UNITED STATES of America, Plaintiff-Appellee, v. Carl Will SUMLIN, Defendant-Appellant.

No. 77-5076.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 11, 1977.

Decided Dec. 14, 1977.

H. Wallace Parker, Bloomfield Hills, Mich. (Court-appointed), for defendant-appellant.

Carl Will Sumlin, pro se.

Philip M. Van Dam, U. S. Atty., Christopher Andreoff, Detroit, Mich., for plaintiff-appellee.

Before CELEBREZZE and PECK, Circuit Judges, and WALINSKI, ^* District Judge.

CELEBREZZE, Circuit Judge.

Appellant, Carl Will Sumlin, was found guilty by a jury of armed bank robbery, in violation of 18 U.S.C. § 2113(a)(d). He raises two principal issues on appeal. First, can a search and seizure pass constitutional muster when an otherwise valid third-person consent to the search was preceded by a refusal to such consent by the defendant? Second, was use at trial of Appellant's incriminating statements precluded because he allegedly received ineffective assistance of counsel? For reasons stated below, we affirm.

On the afternoon of September 22, 1975, a branch of the Manufacturer's National Bank of Detroit was robbed by a lone gunman. The robber approached the branch manager, displayed his handgun and demanded $50,000. Unaware of the robber's mission, a teller delivered a written telephone message to the manager at this time. The robber handled this note and left it on the manager's desk, enabling the FBI to later glean from it a latent fingerprint. The manager asked another employee to obtain the money demanded and approximately $23,000 in ten and twenty dollar bills bound in Manufacturer's National Bank wrappers was delivered to the gunman, who put it into a paper bag. The robber escaped without further incident.

The FBI shortly thereafter procured a warrant for Appellant's arrest. On October 21, 1975, the National Crime Information Center matched the warrant with a traffic offense record of Appellant's from Dallas, Texas, and notified the Dallas office of the FBI. On October 23, five FBI agents went to Appellant's local address, which was a multi-unit apartment complex, and observed a male and female standing next to a parked car which matched a description of Appellant's car. The male matched a description of Appellant and the female matched a description of Appellant's companion on the day of his traffic arrest. Four of the agents walked toward Appellant's apartment. Two agents followed the female as she walked around one side of the building. Two other agents approached the front door of the apartment and entered through a partially open door. ¹ They met Appellant and, after properly identifying themselves, placed him under arrest and handcuffed him. Appellant was given Miranda warnings which he acknowledged understanding although he refused to sign a written waiver form.

According to the agents, at this point they tried to ascertain who leased the apartment for purposes of seeking consent for a full search. Appellant indicated that the apartment was not leased by him, but by his female companion, Edith Alexander, so no further questions were asked of him. The two agents who had followed Alexander then entered the apartment with her, and she stated that she was the lessee. This was subsequently confirmed by discovery of a lease in her name and signed by her. ² The agents then procured Alexander's voluntary consent to search the apartment as evidenced by a signed consent form.

According to Appellant, after he was arrested he was asked for permission to search the apartment. Only after he refused, he contends, did the agents seek and procure Alexander's consent. Appellant acknowledges, however, that he did not urge Alexander to withhold consent. He even admits that he told her that her consent need not be withheld since he had nothing to hide.

In any event, a search occurred after obtaining Alexander's consent. The agents seized a .38 caliber handgun, ³ a rental receipt for a safe deposit box in Alexander's name in a Dallas bank, a key to that safe deposit box ⁴ and the apartment lease. Alexander also consented orally to a search of the safe deposit box. That search took place the next day, at which time a written consent form was signed, and yielded two packages of twenty dollar bills in wrappers bearing the name of the Manufacturer's National Bank of Detroit and stamped with a date a few days prior to the robbery.

Appellant was transported to the Dallas county jail and counsel was appointed for him. The FBI contacted counsel and arranged to interview Appellant. An FBI agent, Appellant and his counsel met in a room at the jail. The agent informed Appellant of his rights and Appellant, with the consent of counsel, consented to the questioning and signed a written waiver form. ⁵ Appellant then proceeded to make several incriminating statements.

Appellant moved before trial, inter alia, to suppress all evidence seized as a result of the warrantless search of the apartment and to suppress all statements made during his Dallas county jail questioning. The District Court denied both motions after an evidentiary hearing. The Court reasoned that Alexander's consent to the search was voluntary and efficacious under United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). It further reasoned that the statements were voluntary. ⁶

At trial, the bank branch manager described the robbery and identified Appellant as the robber. He identified the gun seized from the Dallas apartment as resembling that used in the robbery. Another bank employee related obtaining the money from the vault, mostly in twenty dollar bills, all in Manufacturer's National Bank wrappers. She also made a tentative identification of Appellant as the robber. A third bank employee testified about delivering the note to the branch manager, which note was handled by the robber. She positively identified Appellant as the robber. A Dallas FBI agent related the incriminating statements made by Appellant at the Dallas county jail. Further FBI testimony described recovery of the money, in Manufacturer's wrappers, from the Dallas bank. An FBI fingerprint expert identified a latent fingerprint, ⁷ found on the note handled by the robber in the bank, as Appellant's.

Appellant has raised two principal issues on appeal. The first issue is whether his initial refusal to consent to the search of the apartment ⁸ precluded the FBI agents from obtaining consent from Alexander. He argues that his initial refusal to consent made further attempts at procuring consent constitutionally impermissible. We disagree.

It is well settled that a search conducted pursuant to voluntarily obtained consent comes within an exception to the general warrant requirement of the fourth amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). It is equally well settled that a third person, other than the defendant, can consent to a search of a defendant's premises or effects if that third person has common authority over the premises or effects. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Matlock did not depend on the defendant's absence for the defendant there had just been arrested in the front yard of the residence when the third person's consent to search was procured. United States v. Canada, 527 F.2d 1374, 1379 (9th Cir. 1975), cert. den. 429 U.S. 867, 97 S.Ct. 177, 50 L.Ed.2d 147 (1976). See Kirvelaitis v. Gray, 513 F.2d 213 (6th Cir.), cert. den, 423 U.S. 855, 96 S.Ct. 103, 46 L.Ed.2d 80 (1975). ⁹

Appellant attempts to distinguish Matlock, however, by virtue of the additional fact here that he initially refused to consent to the search. ¹⁰ We fail to perceive any constitutional significance in this additional fact. ¹¹ The holding of Matlock focused on whether or not the "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." 415 U.S. at 171, 94 S.Ct. at 993. The rationale behind this rule is that a joint occupant assumes the risk of his co-occupant exposing their common private areas to such a search. Id. at 171 n. 7, 94 S.Ct. 988. See United States v. Solimine, 536 F.2d 703, 707-08 (6th Cir.) vacated on other grounds 429 U.S. 990, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976), reaffirmed as modified 551 F.2d 124 (6th Cir. 1977); United States v. Canada, 527 F.2d at 1379; Kirvelaitis v. Gray, 513 F.2d at 215. There is no reasonable expectation of privacy to be protected under such circumstances. We cannot see how the additional fact of Appellant's initial refusal to consent in any way lessened the risk assumed that his co-occupant would consent. This additional fact does not increase a reasonable expectation of privacy.

We hold, therefore, that this cause is governed by Matlock despite the slight factual dissimilarity. The District Court found Alexander had the requisite common authority over the premises searched and found that her consent was voluntary. These findings have substantial support in the record ¹² and are not clearly erroneous. United States v. Cepulonis, 530 F.2d 238, 243 (1st Cir.), cert. den. 426 U.S. 908, 922, 96 S.Ct. 2231, 48 L.Ed.2d 834 (1976); United States v. Race, 529 F.2d 12, 14-15 (1st Cir. 1976). The search was constitutionally permissible and the District Court did not err in refusing to suppress its fruits.

The second principal issue Appellant raises is whether the District Court should have suppressed the statements he made to the FBI in the Dallas county jail because he allegedly made them as a result of ineffective assistance of counsel during his interrogation. He argues that his court-appointed counsel, with whom he had consulted only briefly, made only a pro forma appearance at the interrogation. This representation, particularly in allowing Appellant to make...