United States v. Mattlock, 72-1449.

• Decision Date: 05 February 1973
• Docket Number: No. 72-1449.,72-1449.
• Citation: 476 F.2d 1083
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. William Earl MATTLOCK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

476 F.2d 1083 (1973)

UNITED STATES of America, Plaintiff-Appellant, v. William Earl MATTLOCK, Defendant-Appellee.

No. 72-1449.

United States Court of Appeals, Seventh Circuit.

Argued November 30, 1972.

Decided February 5, 1973.

Certiorari Granted May 29, 1973.

John O. Olson, U. S. Atty., Madison, Wis., for plaintiff-appellant.

Donald S. Eisenberg, Madison, Wis., for defendant-appellee.

Before HASTINGS, Senior Circuit Judge, CAMPBELL, Senior District Judge,^* and MORGAN, District Judge.^*

Certiorari Granted May 29, 1973. See 93 S.Ct. 2734.

ROBERT D. MORGAN, District Judge.

This appeal is prosecuted by the United States to review an order of the court below suppressing certain evidence seized by state officers and FBI agents in three separate warrantless searches of a residence house.

On November 12, 1970, at about 9:30 a. m., sheriff's officers of Columbia County, Wisconsin, arrested defendant, a bank robbery suspect, in the yard of a residence house rented by a Walter Marshall and Elaine Marshall, the arrest being made some distance from the house itself. Residents of the house at the time were Elaine Marshall, Gayle Graff, a daughter of the Marshalls, Graff's infant son, at least two younger Marshall children, and the defendant.

Immediately after the arrest, certain of the officers went to the house and were admitted by Graff. The officers told Graff that they were looking for money and a gun and wished to search the house. Graff consented. The officers seized $4,995 and certain other items from a closet and a dresser drawer in a second floor bedroom, identified in the record as the east bedroom.

The same officers conducted a second search shortly after the first was concluded. Graff again admitted them to the house and consented to a further search.¹ Certain items were then seized from a closet on the first floor of the house. The second search began about 10:15 a. m.

The third search was conducted about 4:30 p. m. of the same day by FBI agents and local officers. Three of the officers were admitted to the house by one of the younger children, where they waited while the fourth officer involved brought Mrs. Marshall from her place of employment to the house. Mrs. Marshall signed a written consent to search. During that search, certain items were seized from a dresser drawer in the east bedroom. Others were seized from locations on the first floor.

Following extensive evidentiary hearings, the court found and concluded that the government had proved that it reasonably appeared to the several officers, just prior to the searches, that facts existed in each instance from which the officers could reasonably believe that both Graff and Mrs. Marshall had authority to consent to a search and that their respective consents would be binding upon the defendant. The evidence related to Graff's apparent authority to consent was that she and defendant, among others, resided in the house; that she admitted the officers while dressed in night clothes and a robe; that she then told the officers that she and defendant both occupied the east bedroom, and that women's clothing therein contained was hers; and that she had told the officers that she used the two upper drawers of a dresser in the room and the defendant used the two lower drawers.

The appearance of Mrs. Marshall's authority was found in the fact that she and her husband were the lessees of the whole premises from a third party owner. Though finding apparent authority to consent, the trial judge expressed his incredulity of the fact that none of the officers had asked Mrs. Marshall about the arrangement under which defendant occupied the east bedroom.

The judge expressed a reservation as to search of the bottom two dresser drawers, since there was no testimony as to whether Graff's statement that defendant, only, used those drawers was made before or after the search, saying that if the information was known prior to the search, there was no apparent authority to bind defendant by Graff's consent.

From Mrs. Marshall's testimony, the court found that a rental agreement had existed between defendant and Mrs. Marshall, pursuant to which he paid her $25.00 per week for the use of the east bedroom and board. The court found and concluded that prior to the several searches, facts did not exist which would render the consent of either Graff or Mrs. Marshall to a search of the east bedroom binding upon the defendant.

In that regard, the court refused to consider the hearsay evidence that Graff had stated to the searching officers that she occupied the east bedroom with the defendant, and that certain clothing there located was hers, as substantive evidence that the room was jointly occupier by her and the defendant.²

The court ordered that all evidence seized from the east bedroom be suppressed. Defendant's motion to suppress evidence seized from other areas of the house was denied on the ground that defendant had no standing to object to a search of any part of the house except the east bedroom.

The government's principal contention against the suppression order is that appearance of authority to consent satisfies Fourth Amendment requirements, and that the court erred in requiring proof of facts showing actual authority to consent. Thus, the government argues that an imposter, having no connection with a residence searched, would bind a putative defendant if it reasonably appeared to the searching officer that the imposter had the right to consent to a search. Statement of the argument is largely its own refutation. Furthermore, the government bases its position to a great extent upon United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L.Ed. 653 (1950). Rabinowitz can only be viewed as shaky authority, since the broad rationale of that case was quite generally overruled in Chimel v. California, 395 U.S. 752, 768, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Security in one's home from unreasonable searches and seizures is a personal right, e. g., Stoner v. California, 376 U.S. 483, 489, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Anderson v. United States, 399 F.2d 753, 755 (10 Cir., 1968), not to be eroded "by unrealistic doctrines of `apparent authority.'" Stoner v. California, supra, at 488, 84 S.Ct. at 892.

One of joint occupants of a residence may consent to a search of the premises jointly occupied and by his consent bind the nonconsenting occupant to face the evidence seized. E. g., United States v. Stone, 471 F.2d 170, 7 Cir. 1972; United States v. Airdo, 380 F.2d 103 (C.A.7 1967), cert. denied, 389 U.S. 913, 88 S.Ct. 238, 19 L.Ed.2d 260. The government relies wholly on such cases. United States v. Wixom, 441 F.2d 623 (C.A.7 1971); United States v. Botsch, 364 F.2d 542 (C.A.2 1966), cert. denied, 386 U.S. 937, 87 S.Ct. 959, 17 L.Ed.2d 810 and Drummond v. United States, 350 F.2d 983 (C.A.8 1965), cert. denied, 384 U.S. 944, 86 S.Ct. 1469, 16 L.Ed.2d 542, all involving consent by one of partners in crime to search premises to which all had equal access; United States v. Airdo, supra, involved admitted joint occupancy; Burge v. United States, 342 F.2d 408 (C.A.9 1965), cert. denied, 382 U.S. 829, 86 S.Ct. 63, 15 L. Ed.2d 72, joint occupants of a bathroom searched; Weaver v. Lane, 382 F.2d 251 (C.A.7 1967), cert. denied, 392 U.S. 930, 88 S.Ct. 2289, 20 L.Ed.2d 1390, consent by hostess to search room of temporary visitor; Gurleski v. United States, 405 F.2d 253 (C.A.5 1968), involved joint use and possession of automobile. It is equally clear that a landlord cannot by his consent waive a tenant's right to be free from an unreasonable search. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961). Nor can a person having no right of occupancy of premises bind another by his consent to a search of the premises. Stoner v. California, supra.

A comparison of the many cases reveals that a vicarious consent is sustained only when actual authority to consent is shown to have existed when consent was given. In our view, Judge Doyle has simply articulated the correct principle which courts until now have applied without clear articulation thereof. He...