U.S. v. Whitfield, 90-3282

• Decision Date: 09 August 1991
• Docket Number: No. 90-3282,90-3282
• Citation: 291 App. D.C. 243,939 F.2d 1071
• Parties: UNITED STATES of America v. Maurice WHITFIELD, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1071

939 F.2d 1071

291 U.S.App.D.C. 243

UNITED STATES of America v. Maurice WHITFIELD, Jr., Appellant.

No. 90-3282.

United States Court of Appeals District of Columbia Circuit.

Argued May 13, 1991.

Decided Aug. 9, 1991.

Joseph Petrosinelli, who entered an appearance as Student Counsel pursuant to Rule 19 of the General Rules of the Court, with whom Stephen H. Goldblatt was on the brief, for appellant.

Jennifer M. Anderson, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Eileen C. Mayer, Asst. U.S. Attys., were on the brief, for appellee. Thomas J. Tourish, Jr. and James B. Gunther, Jr., Asst. U.S. Attys., also entered appearances for appellee.

Before EDWARDS, BUCKLEY and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

A jury convicted Maurice Whitfield, Jr. of stealing $43,000 from a Brinks, Inc., storage facility in the District of Columbia, in violation of 18 U.S.C. Sec. 659. The evidence left no doubt about his guilt. On appeal, Whitfield argues that the district court should have excluded the cash recovered during a warrantless search of his room to which his mother had consented.

At the time of his crime Whitfield was 29 years old. For several weeks he had been working as a janitor for a company that cleaned the Brinks facility. On May 24, 1990, Brinks discovered a bag of cash missing from its vault room. The bag contained $40,000 in twenty dollar bills and $3,000 in tens; the bills were in stacks of 100, wrapped with Federal Reserve bank straps. A videotape from a surveillance camera revealed that at approximately 9:00 p.m. the previous evening Whitfield entered the vault room without being escorted by another employee, as company policy required. He crossed the room twice and, on the second trip, bent down briefly over the cart from which the bag was later discovered missing. Whitfield then left the room, signing out at 9:10 p.m. For the next two days, Whitfield did not show up for work. On the second day of his absence, May 25, the Brinks security manager called the FBI and swore out a criminal complaint against him. Two special agents responded. They interviewed several employees, watched the videotape, and obtained Whitfield's address from the maintenance company. Without seeking an arrest or search warrant, the two agents then drove to the address.

The agents were met at the door by Farrie Whitfield, who identified herself as the defendant's mother. The agents explained that Maurice was suspected of stealing money from the Brinks facility. Mrs. Whitfield told the agents her son was not home and that she did not know when he would return. At that point, the agent-in-charge decided to conduct an immediate search of the defendant's bedroom in view of the likelihood that any stolen cash would be removed if the agents left. Although the agent could have stationed his colleague at the premises while he left to obtain a warrant, he testified that "I didn't want to go back and get a warrant if I could possibly do it on a consent."

To that end, the agents asked Mrs. Whitfield whether the house was hers. She said it was and that she lived there with the defendant, her other son Willie, and her daughter. When the agents asked if the defendant paid "rent," Mrs. Whitfield responded--according to the agents' testimony--with a sarcastic facial expression and the statement that he had no money. Mrs. Whitfield gave a different account: she testified that she told the agents her son paid her when he was working and had recently given her $100. In the past, she said, he had paid her as much as $500 per month, depending on his salary. The district court found that "the testimony of the agents and the mother establishes that defendant had something in the nature of a landlord-tenant relationship with his mother." United States v. Whitfield, 747 F.Supp. 807, 809 (D.D.C.1990). The court added, however, that the agent-in-charge "could, and did, reasonably infer that the defendant was not paying rent currently and he apparently gave no thought to the possibility that it was defendant's practice to do so when he could afford it." Id. at 812.

One of the agents also asked Mrs. Whitfield whether the defendant's room was open or locked. She said it was open. The agent testified that his purpose in asking this question was to determine whether Mrs. Whitfield had "free access" to her son's room. He construed her answer to mean that she did, although she did not use those exact words. Whether the agents asked Mrs. Whitfield anything else is unclear. The district court, in its opinion, mentioned only the agents' asking if the room was open or locked. 747 F.Supp. at 809. The transcript of the suppression hearing shows that on cross-examination one of the agents testified that Mrs. Whitfield "indicated" she had "free access to the whole residence, including that bedroom." He then said "My question was, does she have, on a normal basis, does she have free access to the room?"

At any rate, the agents then asked Mrs. Whitfield if they could search the defendant's room, and gave her a consent form to sign. Mrs. Whitfield said that she would consent to a search, but she refused to sign the form. Mrs. Whitfield then took the agents upstairs. The defendant's door was unlocked when the agents entered. Inside, they found bedroom furniture, a television set, and other items apparently belonging to the defendant. In the closet, in the pockets of four coats, the agents discovered eight stacks of $20 bills, wrapped in Federal Reserve straps, totalling $16,000. At this point Willie Whitfield arrived home and told his mother to ask the agents to leave. She did so and the agents departed. Maurice Whitfield turned himself in three days later. When informed of his rights, he requested a lawyer. The agents nevertheless proceeded to question him about the remaining $27,000. (His subsequent confession was therefore not admitted at trial.) Whitfield said the rest of the money was at his mother's house and he agreed to return there with the agents to retrieve it. When they arrived, the agents told Mrs. Whitfield they wanted to search above a false ceiling in the basement. She signed a form consenting to the search, but the agents found nothing. So far as the record discloses, none of the missing cash was ever recovered.

Whitfield moved before trial to suppress the evidence obtained in the search of his bedroom, claiming that his mother did not have authority to consent. The district court thoroughly reviewed the precedents pertaining to a third party's ability to consent to a search, such as United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and Donovan v. A.A. Beiro Constr. Co., 746 F.2d 894 (D.C.Cir.1984), as well as cases dealing specifically with parental consent to the search of a child's room. See United States v. Block, 590 F.2d 535 (4th Cir.1978); United States v. Peterson, 524 F.2d 167 (4th Cir.1975), cert. denied, 424 U.S. 925, 96 S.Ct. 1136, 47 L.Ed.2d 334 (1976); United States v. DiPrima, 472 F.2d 550 (1st Cir.1973). The court also considered United States v. Lyons, 706 F.2d 321 (D.C.Cir.1983), which held that a defendant's reasonable expectation of privacy in the closet of his hotel room had been violated when the police searched a coat hanging in the closet after arresting the defendant for selling drugs. Id. at 329. (The court in Lyons ordered the suppression of a pistol the police had retrieved from the defendant's coat pocket. Id. at 335.) On the basis of this review, the district court concluded that Mrs. Whitfield did not have authority to consent to a search of her son's clothing, but denied the suppression motion on the ground that the agents reasonably believed that she did. For this the court cited Illinois v. Rodriguez, --- U.S. ----, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), which held that a search based on the consent of a third party is reasonable under the Fourth Amendment if the searching officer reasonably believes the third party has authority to consent, even if the facts developed later show that the third party did not have that authority. Id., 110 S.Ct. at at 2801.

Whitfield's first argument is that the district court misconstrued Rodriguez. The Supreme Court, Whitfield argues, held only that the Fourth Amendment does not invalidate warrantless searches based on a reasonable mistake of fact, as distinguished from a mistake of law. Whitfield's reading of Rodriguez is correct. The Court referred to the "recurring factual question" whether a third party has authority to consent to a search (110 S.Ct. at 2800) and held that the reasonableness of an officer's determination of the authority of a consenting party must be judged by "the facts available to the officer at the moment...." Id. at 2801 (emphasis added), quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968). Rodriguez thus applies to situations in which an officer would have had valid consent to search if the...