United States v. Thompson, 27129.

• Decision Date: 24 March 1970
• Docket Number: No. 27129.,27129.
• Citation: 421 F.2d 373
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John THOMPSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

421 F.2d 373 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. John THOMPSON, Defendant-Appellant.

No. 27129.

United States Court of Appeals, Fifth Circuit.

January 30, 1970.

Rehearing Denied March 24, 1970.

William L. Crull, III, New Orleans, La., (Ct. Apptd.), for appellant.

Louis C. LaCour, U. S. Atty., Horace P. Rowley, III, Asst. U. S. Atty., New Orleans, La., for appellee.

Before WISDOM, THORNBERRY and SIMPSON, Circuit Judges.

THORNBERRY, Circuit Judge:

This is an appeal from a conviction for armed robbery of a national bank. On May 25, 1967, defendant and two other men were indicted for violating 18 U.S.C. § 2113(a), (d). The indictment alleged that the defendants robbed the Magazine Street Branch of the National Bank of Commerce in New Orleans of $60,019.00 and that they put in jeopardy the lives of the tellers by using pistols. On June 21, defendant pleaded not guilty. After a two-day hearing before United States District Judge James Comiskey, defendant's pre-trial motion to suppress evidence and a confession was denied; his motion for severance, however, was granted.

On September 3 and 4, 1968, the case against defendant was tried by a jury before United States District Judge Fred Cassibry. The government introduced the testimony of fifteen witnesses and seven exhibits, and then rested. Defendant introduced one exhibit. Defendant did not testify. The jury found defendant guilty as charged, and on November 6, 1968, Judge Cassibry sentenced him to prison for twenty years.

Defendant appeals, alleging that:

(1) The trial court erred in admitting evidence seized at defendant's house because the search and seizure was based on the invalid consent of defendant's wife.

(2) The trial court erred in admitting testimony regarding evidence seized at the house of defendant's mother since a search warrant was never introduced into evidence or placed in the record in any manner.

(3) The trial court erred in admitting defendant's confession into evidence because the confession was not voluntary.

(4) The trial court erred in admitting the FDIC certificate into evidence as proof of the insured and national character of the victim bank.¹

The sequence of events leading to the arrest of defendant is as follows: By the afternoon of the day of the robbery (January 13, 1967), defendant had become a suspect. About 7:00 p.m., several New Orleans police officers went to defendant's apartment. Defendant was not there, but his wife was. The officers informed her that they did not have a search warrant and requested permission to search the apartment. They advised her that her husband was a suspect and informed her of her right to refuse permission to search. The police explained the written "Permission for Search and Seizure" form to her, and she then consented in writing to the search. The officers searched the apartment and seized two pieces of cut women's stocking (which the robbers had worn over their faces) and one National Bank of Commerce money band from the garbage can in the kitchen. Defendant's wife then informed them that some of the stolen money was at the home of defendant's mother.

On the basis of this information, the police applied to a state criminal district judge for a search warrant for the house of defendant's mother, and the warrant was issued. About 11:00 p.m. of the day of the robbery, the police searched the premises of defendant's mother and seized twenty thousand dollars of the stolen money.

On the morning of January 14, the New Orleans police applied to a state criminal district judge for a warrant to arrest defendant. The warrant was issued. Later that same day, the police were informed that the suspected bandits were at an apartment on Florida Avenue in New Orleans. About midnight the police went to the apartment but found no one there. They waited, and about 6:00 a.m. on the morning of January 15, defendant and a co-defendant and two girls entered the apartment, and defendant was disarmed and arrested.

I.

Defendant argues that it was reversible error for the trial court to admit the evidence that was seized from his home. The search of defendant's house was conducted without a search warrant but was consented to by defendant's wife. Defendant argues that the search was illegal because (1) his wife did not have authority to consent to the search, and (2) her consent was not freely and voluntarily given.

It is the rule in this Circuit that "`where two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either.'" Gurleski v. United States, 5th Cir. 1968, 405 F.2d 253, 262, quoting United States v. Sferas, 7th Cir. 1954, 210 F.2d 69, 74. It has been generally assumed in this Circuit, however, that a wife, unlike other co-inhabitants, does not have authority to consent to a search of the premises she shares with her husband. In Cofer v. United States, 5th Cir. 1930, 37 F.2d 677, Judge Grubb stated:

We think the gun was delivered to the sheriff by the wife of Lee Cofer in response to the search warrant, which the sheriff had read to her, and not voluntarily. The wife was without authority to bind her husband by waiving a legal warrant, or consenting to an unauthorized search.

Judge Grubb gave no reasons for his statement that a wife was without authority to bind her husband by consenting to a search of the premises they shared. In light of the Court's holding that the wife's consent was not voluntary, the Court's statement concerning a wife's inability to consent to a search might be considered to be dicta. Dicta or not, the rule is contrary to modern authority, see United States v. Pugliese, 2d Cir. 1945, 153 F.2d 497; United States v. Airdo, 7th Cir. 1967, 380 F.2d 103; Foster v. United States, 8th Cir. 1960, 281 F.2d 310; Roberts v. United States, 8th Cir. 1964, 332 F.2d 892; Stein v. United States, 9th Cir. 1948, 166 F.2d 851; Nelson v. California, 9th Cir. 1965, 346 F.2d 73; State v. Comeaux, 252 La. 481, 211 So.2d 620 (1968), and the time has come to recognize that this forty-year-old statement no longer has vitality.

As we have noted, this Court has held that persons having equal rights to the use or occupation of premises may give consent to a search of those premises and the evidence thus disclosed can be used against either. Gurleski v. United States, supra. That is a sensible rule, and it would be incongruous to hold that a wife, who certainly has the rights of use and occupation of the premises she shares with her husband, cannot consent to a search of those premises. We agree with the Eighth Circuit that

* * * the right of the wife * * * to enter the home which was in her possession and control cannot be seriously questioned and that her invitation to and authorization to the officers to enter and search was an outgrowth thereof. It is not a question of agency, for a wife should not be held to have authority to waive her husband\'s constitutional rights. This is a question of the wife\'s own rights to authorize entry into the premises where she lives and of which she had control.

Roberts v. United States, supra, 332 F. 2d at 896. Our holding that a wife can consent to a search of the premises she shares with her husband is limited to those premises under mutual control. The issue of whether a wife can consent to the search of premises reserved exclusively for the husband is not before us, and we express no opinion on that question.

We must now decide whether Mrs. Thompson's consent to search the apartment was voluntarily given, for if this search was conducted without voluntary consent it was unreasonable and thus contrary to the Fourth Amendment of the United States Constitution. Defendant argues that, because of the circumstances, his wife was intimidated and her consent to the search was merely a frightened submission to authority. On the evening of the robbery, several non-uniformed police officers went to defendant's apartment but found no one there. The officers learned that Mrs. Thompson was at work and sent a police car to pick her up. When she arrived at the apartment with the two police officers who had picked her up from work, it was about 7:00 p.m. and dark. Mrs. Thompson was aware that all the men present were police officers, and invited them into the apartment. Therein, she was told of her right to remain silent and to have counsel. The officers informed her that her husband was suspected of bank robbery and that they believed evidence of the crime was inside the apartment. They asked her permission to search the premises and explained the written consent form to her. She thereupon gave her consent orally and in writing. The police searched the apartment and found incriminating evidence in a garbage can in the kitchen.

Defendant's argument is that because his wife was picked up from work by police officers, because there were several officers at the apartment, and because it was nighttime, her consent to the search was coerced and invalid. We disagree. After a careful review of the record, we can only conclude that the police officers did not coerce or intimidate Mrs. Thompson, and that she freely and intelligently consented to the search. The mere facts that there were several plain clothes police officers present, that she was picked up from work, and that it was nighttime simply do not compel a conclusion that defendant's wife was intimidated. The government sustained its burden of showing that the consent was voluntary: The testimony shows that Mrs. Thompson was adequately warned of her rights and that she was informed that a search could not be conducted without her consent. She orally agreed to the search and signed a written consent form. There is simply no basis to conclude from the record that Mrs. Thompson's consent was involuntary. Since the search of defendant's house was based on his wife's voluntary consent and was limited in...