United States v. Butler

• Decision Date: 24 July 1980
• Docket Number: No. H-Cr-80-5.,H-Cr-80-5.
• Citation: 495 F. Supp. 679
• Parties: UNITED STATES of America v. Lester Bernard BUTLER.
• Court: U.S. District Court — Eastern District of Arkansas

495 F. Supp. 679

UNITED STATES of America v. Lester Bernard BUTLER.

No. H-Cr-80-5.

United States District Court, E. D. Arkansas, E. D.

July 24, 1980.

Robert L. Neighbors, Asst. U. S. Atty., Little Rock, Ark., for plaintiff.

William R. Wilson, Little Rock, Ark., for defendant.

MEMORANDUM OPINION

ROY, District Judge.

The defendant, Lester Bernard Butler, filed a Motion To Suppress certain items taken from his home on June 2, 1980 and a custodial statement made by him to authorities on June 4, 1980. A hearing on the motions was held by this Court on July 23, 1980.

The Court finds that the Motion To Suppress should be granted for the following reasons:

With respect to the items seized on June 2, 1980, the evidence shows that on that date Brinkley Chief of Police Bethell, accompanied by FBI Agent Beaureguard, went to the home of the defendant where he lived with his parents and seven brothers and sisters. The officers obtained a written "Consent to Search" from Mr. Robert Butler, Sr., the defendant's father. They were directed to the defendant's room, which he shared with his brother, Robert Butler, Jr., whereupon a search was commenced.

Agent Beaureguard began looking through the chest-of-drawers and in the top drawer, (which bore a lock and hasp, but which apparently was not locked at that time), he discovered what appeared to him to be a torn up paper wrapper of a kind similar to that used to bind currency. A locked suitcase, identified by Mr. Butler, Sr. as belonging to the defendant, was then discovered. The testimony with regard to the eventual opening of the suitcase is in dispute: Mr. Butler stated that one of the officers took it from the closet, placed it on the bed, tried to open it but found it to be locked; that Chief Bethell tried to spring the lock with his pocket knife, and when this proved unsuccessful, he handed the knife to Mr. Butler and requested him to try to unlock it, which he did with success. According to Mr. Butler's testimony, one of the officers then unzipped the suitcase, finding some currency and clothes inside.

Chief Bethell and Agent Beaureguard testified that upon discovering that the suitcase was locked, they informed Mr. Butler that they would not open it; Chief Bethell testified that he remarked to Mr. Butler that he believed the lock could easily be opened, and handed Mr. Butler his pocket knife, whereupon Mr. Butler successfully sprang the lock and unzipped the suitcase. Agent Beaureguard testified similarly with the exception of stating that he, rather than Mr. Butler, unzipped the suitcase, finding therein the money which had earlier that day been taken during a robbery of a savings and loan.

It is the Court's finding that the items found inside the bureau drawer and the suitcase were seized in violation of the defendant's Fourth Amendment rights. It is well settled that consent to search effective to validate a warrantless search and seizure may, in appropriate circumstances, be given by a person other than the victim of the search. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). This third person authority may be based upon the fact that the third person shares with the absent target of the search a common authority over, general access to, or mutual use of the place or object sought to be inspected under circumstances that make it reasonable to believe that the third person has the right to permit the inspection in his own right and that the absent target has assumed the risk that the third person may grant this permission to others. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

It is equally well settled, however, that third party consent, no matter how voluntarily given, cannot validate a warrantless search when the circumstances manifest to the contrary that the absent target of the search retains an expectation of privacy in the place or object, notwithstanding some appearance of claim of authority by the third person. United States v. Block, 590 F.2d 535 (4th Cir. 1978). Indeed, one of the basic issues in any case involving an alleged violation of the Fourth Amendment is whether the defendant had a reasonable expectation of privacy in the place or...