United States v. Peyton, 10–3099.

• Decision Date: 21 March 2014
• Docket Number: No. 10–3099.,10–3099.
• Citation: 745 F.3d 546
• Parties: UNITED STATES of America, Appellee v. Davon PEYTON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

745 F.3d 546

UNITED STATES of America, Appellee

v.Davon PEYTON, Appellant.

No. 10–3099.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 11, 2013.

Decided March 21, 2014.

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.

Anne Y. Park, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman, John P. Mannarino, Matthew M. Graves, and Steven B. Wasserman, Assistant U.S. Attorneys.

Before: HENDERSON, GRIFFITH, and SRINIVASAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Dissenting opinion filed by Circuit Judge HENDERSON.

GRIFFITH, Circuit Judge:

Appellant Davon Peyton challenges the district court's ruling that evidence the police gathered from his apartment during two warrantless searches could be used against him at trial. For the reasons set forth below, we reverse in part, vacate in part, and remand the case to the district court.

I

Peyton and his 85–year–old great-great-grandmother, Martha Mae Hicks, shared a small, one-bedroom apartment in a complex at 401 K St. NW, Washington, D.C. Both were named as residents on the lease. Hicks used the bedroom, and Peyton kept his bed and belongings in the living room. On June 21, 2009, police officers arrested Peyton in the parking lot outside the apartment complex for possession of crack cocaine. Five days later, the police obtained and executed a search warrant for the apartment. The search yielded no evidence against Peyton, but resulted in the arrest of several people who were in the apartment at the time with drugs and drug paraphernalia.

Shortly thereafter, the police received a tip that Peyton was using the apartment to deal drugs. Four officers, including one who had participated in the earlier warrant search, returned to the apartment on July 14, this time without a warrant. The officers knew Peyton had recently been arrested yet again (the record is not clear why) and would not be there. They hoped that Hicks would consent to the search. When the police knocked on the door, Peyton's girlfriend, Tyra Harvey, answered. They asked to speak with Hicks, and Harvey told them that she was in the bedroom. While two officers waited just inside the entryway, two others entered the bedroom through its open door only a few steps away and found Hicks sitting on the bed.

The officers told Hicks that they believed there might be drugs in the apartment and wanted her permission to conduct a search. They presented Hicks with a consent form, which she signed, that stated she was freely agreeing to let the police search the entire apartment. The search began in the living room. According to one of the officers, as they came near Peyton's bed, Hicks told them that that part of the living room was “the area where [Peyton] keeps his personal property.” Def.'s Ex. 6, Aff. ¶ 7, United States v. Peyton, Crim. No. 10–15 (D.D.C. July 22, 2010) (search warrant affidavit). One of the officers saw a closed shoebox next to Peyton's bed and picked it up. When he opened the shoebox, he smelled marijuana. Inside the shoebox, he found more than 25 grams of marijuana, 70 grams of crack cocaine, and $4000 in cash. The officers then searched the adjoining kitchen, where they discovered two plates and a razor blade covered with a white residue in the cabinets.

Relying on the evidence found in the shoebox during the July search, a grand jury issued an indictment against Peyton on January 12, 2010, for possession with intent to distribute 50 grams or more of crack cocaine and a detectable amount of marijuana. On January 20, four police officers returned to the apartment with an arrest warrant in hand. Peyton answered the door and was immediately handcuffed. A protective sweep of the apartment found Hicks in the bedroom and Harvey and an unidentified male in the living room. Smelling a strong odor of marijuana, the officers asked Hicks for permission to conduct a full search of the apartment. She agreed and signed a consent form. Present throughout the search, Peyton did not object. The officers found crack cocaine, marijuana, and a handgun in the kitchen cabinets.

Armed with this new evidence, on January 26, 2010, the grand jury issued a superseding indictment against Peyton that restated the original charges but also added three more: possession with intent to distribute crack cocaine, possession with intent to distribute marijuana, and possession of a firearm in furtherance of a drug trafficking offense.

In the district court, Peyton moved to suppress all of the evidence discovered during the warrantless searches in July 2009 and January 2010. Hicks testified for Peyton at the hearing on his motion. The government put on one police officer to testify about the July search and another to address the January search. Hicks and the officer gave slightly different accounts of the scope of the search Hicks authorized in July. Although Hicks did not dispute that she freely signed the form, her memory was that the police had asked to search only the living room. The officer remembered that Hicks had agreed to their search of the entire apartment. Hicks and the other officer gave consistent accounts of the scope of the January search. They both remembered that Hicks had read and signed the consent form, and neither said that Hicks had limited the search's scope.

Peyton challenged both searches on the ground that “Ms. Hicks did not have common authority over the area to be searched.” Transcript of Motions Hearing at 95, United States v. Peyton, Crim. No. 10–15 (D.D.C. July 22, 2010) (7/22/2010 Hr'g Tr.). The district court rejected this argument, concluding, as to the July search, that Hicks had authority to consent to the search of the entire apartment and that she voluntarily agreed to a search of the living room but not the kitchen. Accordingly, the district court ruled all the evidence seized admissible except for that found in the kitchen. As to the January search, the district court found that Hicks's consent was voluntary and covered the entire apartment. All the evidence found in January was held admissible.

In the wake of the district court's decision, Peyton pled guilty to possession with intent to distribute a detectable amount of cocaine base (a lesser included offense of the charge based on the crack found in the shoebox) and the weapons charge, but he reserved the right to appeal the denial of his motion to suppress. Peyton and the government agreed to a sentence of 84 months, and the district court accepted the deal.

We have jurisdiction over Peyton's appeal under 28 U.S.C. § 1291. We review the district court's legal rulings de novo and its factual findings for clear error. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Holmes, 505 F.3d 1288, 1292 (D.C.Cir.2007).

II

As to the July 2009 search, we agree with Peyton that Hicks could not lawfully permit the police to search his closed shoebox. Concluding the search was unlawful on this ground, we need not take up Peyton's other arguments that Harvey lacked authority to let the police enter in the first place and that Hicks did not voluntarily agree to the search.

A

The government contends that Peyton has waived his argument about the shoebox because he did not raise it at the suppression hearing.

An argument to suppress evidence not made before trial is waived, which means that absent good reason for not raising the argument at the district court, the appellant cannot ask us to consider the matter. Fed.R.Crim.P. 12(b)(3), (e); cf. United States v. Weathers, 186 F.3d 948, 957 (D.C.Cir.1999). Given the serious consequence of waiver in a criminal proceeding, it is fitting that defendants are able to preserve a suppression argument simply by “stat[ing] the basis of their objection to the admission of the evidence” before the district court. United States v. Mitchell, 951 F.2d 1291, 1297 (D.C.Cir.1991). In doing so, they “need not articulate the entire body of law relevant to their claim,” id., or expound their argument as “fulsomely” as they might in an appellate brief, United States v. Hutchinson, 268 F.3d 1117, 1121–22 (D.C.Cir.2001).

The government acknowledges that Peyton disputed Hicks's authority to allow a search of the living room, but contends that his failure to raise the “separate issue” of Hicks's authority over the shoebox means he waived that point. Appellee's Br. 30. Our dissenting colleague agrees, see Dissenting Op. at 561 n. 5, but we think this is too stingy a reading of what Peyton argued. At the suppression hearing, his counsel maintained that “for both searches Ms. Hicks did not have common authority over the area to be searched and therefore her consent was invalid.” 7/22/2010 Hr'g Tr. 95. When asked to elaborate, his counsel explained “that that area that was searched or that the officers requested permission to search was Davon's—the Defendant's area of where he slept and kept his belongings, and it's more than that. It's—that's his home as well.” Id. Peyton's argument was not only about the living room in its entirety. It was also about the portion of the living room that Peyton claimed and Hicks acknowledged was uniquely his. The district court recognized that Peyton's argument raised the issue of “whether [Hicks] had authority to consent to the search of the area where the Defendant's belongings were located.” Transcript of Motions Hearing at 11, United States v. Peyton, Crim. No. 10–15 (D.D.C. July 27, 2010) (emphasis added). Peyton did not need to emphasize that the evidence was inside the shoebox; that fact was obvious and undisputed.

In the end, Peyton presses the same legal theory on appeal that he raised below: Hicks lacked authority to allow the search of the place the evidence was found. The cases where we have...