United States v. Davon Peyton

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2013 Decided March 21, 2014

No. 10-3099

UNITED STATES OF AMERICA,
APPELLEE

v.

DAVON PEYTON,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cr-00015-1)

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.
 2

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
 3

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
 4

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
 5

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 (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.
 6

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 7 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
 7

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 found waiver of arguments under Rule 12, by
contrast, involved defendants raising wholly new claims or
switching legal theories on appeal. See, e.g., United States v.
Hewlett, 395 F.3d 458, 460 (D.C. Cir. 2005) (defendant who
argued below that police lacked probable cause for
warrantless arrest could not argue on appeal that arrest
warrant was defective); Mitchell, 951 F.2d at 1297 (defendant
who argued below that police lacked probable cause to search
could not argue on appeal that police lacked warrant); United
States v. Bailey, 675 F.2d 1292, 1294 (D.C. Cir. 1982)
(defendants who argued below that joinder was impermissibly
prejudicial could not argue on appeal that joinder violated
Federal Rule of Criminal Procedure 8(b)); see also 6 WAYNE
R. LAFAVE, SEARCH AND SEIZURE § 11.1(a), at 12-13 & n.29
(5th ed. 2012) (collecting cases). Finding no waiver of
Peyton’s argument, we turn to its merits.

B

“At the very core [of the Fourth Amendment] stands the
right of a man to retreat into his own home and there be free
from unreasonable governmental intrusion.” Silverman v.
United States, 365 U.S. 505, 511 (1961). A warrantless search
is the quintessential intrusion and is presumptively
unreasonable. The government can rebut that presumption by
 8

showing that the police, despite lacking a warrant, were
permitted to undertake the search by someone with authority.
See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). Such
consent need not come from the target of the search. It may
come from “a third party who possesse[s] common authority
over . . . the premises or effects sought to be inspected.”
United States v. Matlock, 415 U.S. 164, 171 (1974).
“Common authority” does not refer to some kind of
“technical property interest.” Georgia v. Randolph, 547 U.S.
103, 110 (2006). It arises simply from

mutual use of the property by persons generally having
joint access or control for most purposes, so that it is
reasonable to recognize that any of the co-inhabitants has
the right to permit the inspection in his own right and that
the others have assumed the risk that one of their number
might permit the common area to be searched.

Matlock, 415 U.S. at 171 n.7. Even a person who does not
actually use the property can authorize a search if it is
reasonable for the police to believe she uses it. See Rodriguez,
497 U.S. at 186. Such “apparent authority” is sufficient to
sustain a search because the Fourth Amendment requires only
that officers’ factual determinations in such situations “always
be reasonable,” “not that they always be correct.” Id. at 185.
We review de novo whether an officer’s belief that a
consenting individual has actual authority is reasonable.
United States v. Law, 528 F.3d 888, 904 (D.C. Cir. 2008) (per
curiam).

The fact that a person has common authority over a
house, an apartment, or a particular room, does not mean that
she can authorize a search of anything and everything within
that area. As we held in Donovan v. A.A. Beiro Construction
Co., “While authority to consent to search of a common area
 9

extends to most objects in plain view, it does not
automatically extend to the interiors of every enclosed space
within the area.” 746 F.2d 894, 901-02 (D.C. Cir. 1984); see
also United States v. Karo, 468 U.S. 705, 725 (1984)
(O’Connor, J., concurring in part and concurring in the
judgment) (“A homeowner’s consent to a search of the home
may not be effective consent to a search of a closed object
inside the home.”). This principle flows logically from the
way people live in shared spaces. Two may agree to share a
room, such that neither could object to the other allowing a
third party to enter, but they often retain private interior
spaces—a closet, a footlocker, a dresser drawer—that they do
not let the other use and that they do not assume the other will
allow a third party to inspect. See United States v. Davis, 332
F.3d 1163, 1169 n.4 (9th Cir. 2003) (“By staying in a shared
house, one does not assume the risk that a housemate will
snoop under one’s bed, much less permit others to do so.”).

At first, this limitation on the scope of common authority
might seem to put the police in a bind. Must an officer, having
determined that a person has common authority over an
apartment, separately confirm her authority over every closed
container in the apartment before relying on her consent to
conduct a search? No, for in many instances the person’s
common authority over the larger area (say, the living room)
will make it reasonable for the police to believe that she
shares use of its closed containers (say, the drawers of the
television stand). She will have apparent authority over those
spaces. This is the same point we made in Donovan, where
we explained how to identify the types of containers over
which common authority appears to extend: “The rule has to
be one of reason that assesses the critical circumstances
indicating the presence or absence of a discrete expectation of
privacy with respect to the particular object: whether it is
secured, whether it is commonly used for preserving privacy,
 10

etc.” 746 F.2d at 902 (quoting United States v. Block, 590
F.2d 535, 541 n.8 (4th Cir. 1978)); see also United States v.
Basinski, 226 F.3d 829, 834-35 (7th Cir. 2000) (using similar
factors in analyzing apparent authority over closed
containers).

The district court’s conclusion that Hicks had common
authority over the living room generally does not answer the
critical question here: Did she have authority over the
shoebox? 1 There is no evidence that Hicks either shared use
of the shoebox with Peyton or had permission to do so, and
the government does not argue that she had actual authority.
Instead, the government invokes Donovan to suggest that
Hicks had apparent authority, emphasizing three
circumstances that suggest Peyton did not retain a privacy
interest in the shoebox. The living room where he slept
remained a common area, with a diminished expectation of
privacy for things left there. Peyton took no special steps to
hide or protect the shoebox. And a shoebox is not “the type of
container that has historically been accorded the highest
privacy expectations.” Appellee’s Br. 34.

1
The fact that the district court thought it was sufficient to
address only the room as a whole does not mean Peyton’s argument
below must have concerned only the room as a whole. See supra at
6-7; cf. Block, 590 F.2d at 540 & n.7 (“Our review of the district
court’s order makes it apparent that the court concluded that once
authority to search the room itself was found, that authority
extended to the interior of the footlocker in the room. . . . The
decisive error, of course, and the one precisely under review here, is
the ultimate conclusion that authority existed to consent to search of
the footlocker, by whatever intermediate steps of reasoning it was
reached.”).
 11

Standing alone, these circumstances might suggest that
the shoebox was not a private space and that it was reasonable
for the police to believe that Hicks’s authority over the living
room also encompassed the shoebox. But these were not the
only circumstances the police were aware of. They knew that
Hicks and Peyton both lived in the small apartment, and they
were thus on notice that some spaces in the apartment might
be used exclusively by Peyton. Indeed, the officer who
opened the shoebox had been inside the apartment during the
earlier warrant search and knew that Peyton’s bed was in the
living room. But most critically, according to the sworn
account of that very officer, Hicks told the police that Peyton
kept his “personal property” in the area around the bed, where
the shoebox was found. In light of this clear statement that
there was an area of the room that was not hers, it was not
reasonable for the police to believe that Hicks shared use of
the closed shoebox. Hicks lacked apparent authority to
consent to its search. Cf. United States v. James, 353 F.3d
606, 615 (8th Cir. 2003) (“It cannot be reasonable to rely on a
certain theory of apparent authority, when the police
themselves know what the consenting party’s actual authority
is . . . .”).

Our decision in United States v. Whitfield, 939 F.2d 1071
(D.C. Cir. 1991), bolsters our conclusion. In Whitfield, FBI
agents investigating a bank robbery sought a mother’s
permission to search her adult son’s bedroom in the family
home. Id. at 1072-73. The district court ruled that the mother
had apparent authority to allow the search. We reversed,
holding that the mother had not told the agents enough about
her use of the son’s room for them reasonably to believe she
had common authority:

[T]he government’s burden to establish that a third party
had authority to consent to a search . . . cannot be met if
 12

agents, faced with an ambiguous situation, nevertheless
proceed without making further inquiry. If the agents do
not learn enough, if the circumstances make it unclear
whether the property about to be searched is subject to
“mutual use” by the person giving consent, “then
warrantless entry is unlawful without further inquiry.”

Id. at 1075 (quoting Rodriguez, 497 U.S. at 188-89)
(emphasis added in Whitfield). Apparent authority does not
exist where it is uncertain that the property is in fact subject to
mutual use. 2 Hicks’s statement that Peyton kept his personal
property in the area around the bed did more than create such
uncertainty: it strongly suggested she did not use the shoebox
or have permission to do so. The police should not have
searched the shoebox without first making further inquiry to
determine whether Hicks had authority. See United States v.
Taylor, 600 F.3d 678, 680-85 (6th Cir. 2010) (concluding that
resident did not have apparent authority to consent to search
of shoebox in spare-bedroom closet where circumstances
created ambiguity regarding mutual use).

Some circuits have not followed Whitfield’s logic that
ambiguity is enough to defeat apparent authority in cases
involving closed containers in shared spaces. See Taylor, 600
F.3d at 685-86 (Kethledge, J., dissenting) (noting divergent
approaches to consent searches of closed containers). The
Seventh Circuit, for instance, has concluded that the risk of
uncertainty in these situations should be borne by the
defendant, not the police. A person with common authority
over the premises is presumed to have authority over closed
containers found there unless the police receive “positive
information” to the contrary. United States v. Melgar, 227

2
It is this principle that makes Whitfield so important, not its
factual similarity to this case. Cf. Dissenting Op. at 4-5.
 13

F.3d 1038, 1041 (7th Cir. 2000). Similarly, the Second Circuit
has held that a lessee has authority to consent to the search of
all closed containers within an apartment except those that
“obviously” belong to someone else. United States v. Snype,
441 F.3d 119, 136 (2d Cir. 2006). But even these standards
would not compel a different outcome here. Hicks’s statement
to the officers, combined with their knowledge of the shared
living arrangement between Peyton and Hicks, was “positive
information” that arguably made it “obvious” that the closed
shoebox belonged specifically to Peyton.

Nor is our conclusion that Hicks lacked authority
undermined by United States v. Harrison, 679 F.2d 942 (D.C.
Cir. 1982). In Harrison, the defendant’s wife discovered
boxes of marijuana in an area of their basement that both used
to store personal items. She called the police and asked them
to remove the marijuana, which they did without a warrant.
Id. at 945, 947. When the defendant sought to suppress the
evidence, we held that, under the Supreme Court’s reasoning
in Matlock, the wife’s common authority over the basement
storage area gave her “full authority to release the boxes of
marijuana into police custody.” Id. at 947. Harrison’s
reasoning on this point is not entirely clear, in part because
the opinion does not distinguish between actual and apparent
authority, but Whitfield viewed Harrison as turning on the
notion that it was reasonable for officers to assume that a
husband and wife would share use of the storage area. See
Whitfield, 939 F.2d at 1074-75 (citing Harrison). But just as a
comparable assumption of mutual use was not warranted in
Whitfield itself, so it is not warranted here. The closed
shoebox was not located in a storage area shared by a husband
and wife; it was next to the defendant’s bed, 3 in an area his

3
Unlike our dissenting colleague, we consider this an
important fact that makes the case for apparent authority much
 14

great-great-grandmother described as containing his “personal
property.” Under these very different circumstances, it was
not reasonable for the police to believe that Hicks had the
necessary authority. Accordingly, the evidence recovered
from the shoebox must be suppressed.

Our dissenting colleague argues that under Matlock,
Peyton assumed the risk of this search. See Dissenting Op. at
9-10. We take a narrower view of the risk he assumed. To be
sure, Peyton assumed the risk that Hicks would permit
outsiders (including the police) into the room where he slept,
and he thereby also assumed the risk that those outsiders
would see any of his possessions left in plain view. Thus, had
Peyton left a handgun lying atop his bed, we would not
require its suppression. But it does not follow that Peyton also
assumed the risk of Hicks’s permitting outsiders to rummage
through his closed containers to discover items not in plain
view. The dissent suggests that, under Donovan, it is enough
that the shoebox itself was in plain view. See Dissenting Op.
at 9. We think that misreads the key sentence of Donovan—
quoted in full above, at 8-9—which distinguishes between
“objects in plain view” and “the interiors of . . . enclosed
space[s].” Donovan, 746 F.2d at 901-02; see also United
States v. Rodriguez, 888 F.2d 519, 523-24 (7th Cir. 1989)
(“Many a closed container is accessible; [but] opening it
requires justification . . . . Why a lack of privacy in the room
implies a lack of a privacy interest in the contents of the
containers remains a mystery.”).

The dissent also contends we have put cotenants like
Hicks, who want the police to remove any contraband in a
shared dwelling, in an untenable position. See Dissenting Op.

weaker than if the shoebox had been, say, sitting by itself in the
middle of the room.
 15

at 8-9. We respectfully disagree. It cannot be that a cotenant’s
desire that the police remove any contraband creates in her
common authority that does not otherwise exist. The mother
in Whitfield would not have had the necessary authority
simply by telling the agents that she ardently wished them to
confiscate any evidence of her son’s wrongdoing. Moreover,
our ruling does not leave cotenants like Hicks helpless: “The
co-tenant acting on his own initiative may be able to deliver
evidence to the police, Coolidge [v. New Hampshire, 403 U.S.
443, 487-489 (1971)] (suspect’s wife retrieved his guns from
the couple’s house and turned them over to the police), and
can tell the police what he knows, for use before a magistrate
in getting a warrant.” Georgia v. Randolph, 547 U.S. 103, 116
(2006).

Finally, there is nothing in the Supreme Court’s recent
decision in Fernandez v. California, 134 S. Ct. 1126 (2014),
that is inconsistent with our ruling. In that case, police sought
to enter an apartment shared by Fernandez and his girlfriend,
Roxanne Rojas, but Fernandez objected. The police then
removed Fernandez and lawfully arrested him. Roughly an
hour later, the police returned, obtained Rojas’s consent to
search the apartment, and discovered various pieces of
evidence later used against Fernandez. Id. at 1130-31.
Fernandez challenged the search solely on the ground that,
under Georgia v. Randolph, his earlier objection barred the
subsequent consent search. Id. at 1131. The Court disagreed,
holding that Randolph is limited to cases where, earlier
objections notwithstanding, an objecting cotenant is
physically present at the time police ask to search. Id. at 1134-
37. That holding has no bearing on our case, which does not
involve an objecting cotenant. Our case concerns the scope of
a cotenant’s common authority, an issue not addressed in
Fernandez for a simple reason: Fernandez never disputed that
Rojas had the necessary common authority. Id. at 1138
 16

(Thomas, J., concurring) (“[P]etitioner does not contest that
Rojas had common authority over the premises.”); see also
People v. Fernandez, 145 Cal. Rptr. 3d 51, 58 (Cal. Ct. App.
2012) (no challenge to Rojas’s authority). Fernandez thus
says nothing that undermines our analysis of Hicks’s
authority.

III

As to the January 2010 search, Peyton asserts that the
drugs and gun seized from the kitchen should have been
suppressed because they are “fruit of the poisonous tree” of
the July searches of the kitchen and shoebox. Under this
venerable doctrine, evidence that would likely not have been
found but for a Fourth Amendment violation must usually be
suppressed. See generally United States v. Holmes, 505 F.3d
1288, 1292-94 (D.C. Cir. 2007). First, as Peyton sees it, the
police would not have sought Hicks’s consent to conduct a
search of the kitchen in January without first having
discovered the plates and razor blades in the kitchen cabinets
during the portion of the July search that the district court
found unlawful. Although we can understand why Peyton
would try to take advantage of this finding (which the
government did not appeal), we reject this argument, for we
agree with the government that it strains credulity to think this
was the reason for the January search of the kitchen. It seems
far more likely, simply as a matter of sound police work, that
the officers would have wanted to search the kitchen of a
suspected drug dealer regardless of whether they had
discovered evidence there before.

Peyton’s better argument is that the evidence seized in
January is tainted by the illegal search of the shoebox in July.
The causal chain seems direct: the evidence discovered in the
shoebox was the basis for Peyton’s indictment; the indictment
 17

led to the arrest warrant; and it was during the execution of
the warrant that the officers sought and received Hicks’s
consent to search the kitchen. Even so, we decline to decide in
the first instance whether the evidence seized in January is the
fruit of the unlawful search of the shoebox. We are a court of
review, not of first view, and the district court, having
concluded that the July search of the shoebox was legal, had
no occasion to address this issue. We therefore vacate the
portion of the district court’s order relating to the evidence
seized in January and remand to let the district court have the
first opportunity to address the matter, and, if it deems
appropriate, to conduct additional fact-finding to supplement
the record. See, e.g., United States v. Hill, 649 F.3d 258, 270
(4th Cir. 2011); United States v. Valentine, 539 F.3d 88, 96 &
n.10 (2d Cir. 2008). Our decision to remand is bolstered by
how little space the parties devoted to this issue in their briefs.
Both parties should have the opportunity to develop their
arguments more fully before the district court.

If, on remand, the district court concludes there is a
causal connection, it will likely need to address whether
Hicks’s consent to the January search was “an act prior to
discovery of the challenged evidence sufficient ‘to purge the
primary taint’ and break the causal chain between the illegal
government conduct and the evidence’s ultimate discovery.”
Holmes, 505 F.3d at 1294. The district court should be guided
by Holmes. There we noted that consent can purge the taint
of police misconduct only if it is voluntary and not the
product of “exploitation” of the earlier illegality. Id.; see also
4 LAFAVE, supra, § 8.2(d), at 101-04 & n.133. In determining
whether the police exploited the illegal shoebox search, the
district court should consider the temporal proximity between
that search in July and the discovery of the evidence in
January, the presence of intervening circumstances, and, most
importantly, the “purpose and flagrancy” of the illegal
 18

shoebox search. See Holmes, 505 F.3d at 1294 (citing Brown
v. Illinois, 422 U.S. 590, 603-04 (1975)).

IV

Federal Rule of Criminal Procedure 11 permits a
defendant who has entered a conditional guilty plea to
withdraw that plea if he “prevails on appeal.” FED. R. CRIM.
P. 11(a)(2). Our decision to suppress the evidence in the
shoebox undermines the first two charges in the superseding
indictment, possession with intent to distribute crack cocaine
and marijuana, respectively. The former was one of the two
charges to which Peyton pled guilty. As such, we think there
is a high “probability that the excluded evidence would have
had a material effect on [Peyton’s] decision to plead guilty”
and therefore conclude that he is entitled to withdraw his plea.
United States v. Leake, 95 F.3d 409, 420 n.21 (6th Cir. 1996);
accord United States v. Latz, 162 F. App’x 113, 121 (3d Cir.
2005) (“[A] defendant ‘prevails on appeal’ only when he
persuades the Court of Appeals to exclude a piece of evidence
that is material to his case.”). Accordingly, upon the district
court’s resolution of the remaining suppression issue, Peyton
may choose whether to withdraw his guilty plea. If he does
so, the government remains free to reinstate the charges it
dismissed pursuant to the plea agreement as that agreement
allows.

So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
I disagree with the majority’s conclusion that Davon
Peyton’s great-grandmother Martha Mae Hicks lacked
authority to consent to the July 14, 2009 search of the
shoebox found lying on the living room floor of the apartment
she and Peyton shared.1 Hicks plainly had not only apparent
but actual authority to consent to a search of the common
living room and its contents, including the shoebox.
Accordingly, I dissent from the majority’s decision and would
affirm the district court’s judgment.2
I believe the district court correctly concluded that
Hicks’s consent to search the apartment, including the living
room, was valid because “she possessed common authority
over the entire apartment.” Transcript of Motions Hearing
100, United States v. Peyton, Crim. No. 10-15 (D.D.C. July
22, 2010) (7/22/2010 Hr’g Tr.) (citing United States v.
Matlock, 415 U.S. 164 (1974)); see Georgia v. Randolph, 547
U.S. 103, 106 (2006) (“The Fourth Amendment recognizes a
valid warrantless entry and search of premises when police
obtain the voluntary consent of an occupant who shares, or is

1
In district court, Hicks was referred to as Peyton’s
“grandmother” or great-grandmother, although he now
characterizes her as his great-great-grandmother. See Br. for
Appellant at 4 n.2.
2
I thus see no need to address Peyton’s argument that the
January 2010 search was unlawful as tainted by the July 14, 2009
search. See Majority Opinion (Maj. Op.) at 16-18. I would also
affirm the district court’s other holdings regarding the July 14, 2009
search because Peyton’s girlfriend Tyra Harvey, as a guest, had
authority to open the apartment door to the police and the district
court did not clearly err in finding Hicks’s consent to the apartment
search was voluntary. See 4 Wayne R. LaFave, Search and Seizure
§ 8.5(e) (5th ed. 2012) (authority of guest to open door to police);
United States v. Wilson, 605 F.3d 985, 1027 (D.C. Cir. 2010) (clear
error standard for voluntariness of consent).
 2
reasonably believed to share, authority over the area in
common with a co-occupant who later objects to the use of
evidence so obtained.” (citing Illinois v. Rodriguez, 497 U.S.
177 (1990); United States v. Matlock, supra)). Regarding the
living room in particular, the court found that “[t]he fact that
it could be said that [Peyton] used the living room as a
bedroom doesn’t detract from the fact that it was also the
living room in the apartment and that they shared common
authority over both the living room and the kitchen and the
single bathroom.” 7/22/2010 Hr’g Tr. 100. This finding—
which the majority does not gainsay—is not clearly
erroneous. See United States v. Wilson, 605 F.3d 985, 1027
(D.C. Cir. 2010). The living room was to all appearances a
common area (as a “living room” by customary usage
generally is) notwithstanding Peyton used it “as a place for
sleeping, at least on occasion,” 7/22/2010 Hr’g Tr. 43
(stipulation by parties); it offered the only access to the
kitchen and Peyton’s purported personal living area within the
living room was not specifically demarcated. The particular
“circumstances” the government cited to support the room’s
common nature (as the majority recites them)—that the living
room “remained a common area, with a diminished
expectation of privacy for things left there” and that Peyton
“took no special steps to hide or protect the shoebox[, which]
is not ‘the type of container that has historically been
accorded the highest privacy expectations’ ”—do indeed
“suggest that the shoebox was not a private space and that it
was reasonable for the police to believe that Hicks’s authority
over the living room also encompassed the shoebox.”
Majority Opinion (Maj. Op.) at 10-11 (quoting Br. for
Appellee at 34).
As the majority correctly recites, the officers searching
the apartment “knew that Hicks and Peyton both lived in the
small apartment”—this is precisely the circumstance that gave
each of them shared authority over the common areas—and,
 3
in light of Peyton’s age and relationship to Hicks, that the
police “were thus on notice that some spaces in the apartment
might be used exclusively by Peyton.” Id. at 11 (emphases
added); cf. United States v. Whitfield, 939 F.2d 1071, 1075
(D.C. Cir. 1991) (noting parents may (or may not) “permit
their adult sons and daughters to have exclusive use of the
rooms they occupy”).
Where the majority strays, however, is in its assertion
that Hicks made a “clear statement that there was an area of
the [living] room that was not hers.” Maj. Op. at 11. The sole
evidence the majority offers of the “clear statement” that
Hicks had ceded authority over some amorphous “area of the
room” is the recital in a later search warrant affidavit signed
by one of the searching officers that the officer “went to a bed
in the apartment’s living room”3 and “Hicks identified this as
the area where Mr. Peyton keeps his personal property.”
Def.’s Ex. 6, Aff. ¶ 7, United States v. Peyton, Crim. No. 10-
15 (D.D.C. July 22, 2009) (JA 60). To derive from this
simple (yet vague) account of Hicks’s words that there was
some “portion of the living room that Peyton claimed and
Hicks acknowledged was uniquely his,” Maj. Op. at 6
(emphasis added)—and from which Hicks herself was
therefore excluded (or at least deprived of authority
thereover)—is a stretch too far. Moreover, Hicks herself
asserted authority over the entire apartment. The consent
form she signed authorized the officers “to conduct a

3
Although the search warrant affidavit refers to a “bed,” the
officer who testified at the evidentiary hearing “d[id not] recall if
there was a bed or couch” but “ believe[d] there was a couch that
was there.” 7/22/2010 Hr’g Tr. 42. The government referred to it
below as a “daybed.” Gov’t’s Opp’n to Def.’s Mot. to Suppress
Tangible Evidence 1, Transcript of Motions Hearing at 8, United
States v. Peyton, Crim. No. 10-15 (D.D.C. July 27, 2010)
(7/27/2010 Hr’g Tr.).
 4
complete search of [her] premises” and, after signing the
form, Hicks instructed the officers: “This is my house and if
Davon has anything illegal in here I want you to take it.”
Gov’t Ex. 6 (signed consent form); Def.’s Ex. 6 ¶ 6 (search
warrant affidavit) (emphasis added), United States v. Peyton,
Crim. No. 10-15 (D.D.C. July 22, 2009) (JA 55, 60). None of
these circumstances makes it even “arguably . . .
‘obvious’ that the closed shoebox belonged specifically to
Peyton.” Maj. Op. at 13 (emphasis added).
Nor is the precedent the majority cites convincing. In
United States v. Whitfield, 939 F.2d 1071 (D.C. Cir. 1991),
the majority’s principal authority, the court faced a far
different factual situation. There, government agents had
seized evidence (stolen cash) from the pockets of four coats
hanging in the clothes closet opening off the defendant’s
second floor bedroom in his mother’s house, after they
obtained the mother’s consent to search the bedroom. The
court concluded that “[a]s a factual matter, the agents could
not reasonably have believed Mrs. Whitfield had authority to
consent to th[e] search” because they “simply did not have
enough information to make that judgment.” 939 F.2d at
1074. The court explained that, assuming the agents had
reason to believe the mother, as a resident of the house,
“ ‘generally’ had ‘joint access’ ” to her son’s unlocked
bedroom, her “ability, or even legal right, to enter simply
qualified her as a person who . . . could give consent to a
search of property subject to her ‘mutual use,’ ”—“whether
she had ‘mutual use’ of the room or the closet containing the
defendant’s clothing could not be determined” given “[t]he
bedroom itself was not a ‘common area’ and the agents had
no grounds for believing otherwise.” Id. (quoting Matlock,
415 U.S. at 171 n.7, q.v. (“The authority which justifies the
third-party consent . . . rests . . . on mutual use of the property
by persons generally having joint access or control for most
purposes, so that it is reasonable to recognize that any of the
 5
co-inhabitants has the right to permit the inspection in his own
right and that the others have assumed the risk that one of
their number might permit the common area to be
searched.”)). The “ambiguous situation” in Whitfield was
whether the adult son’s separate bedroom, which was plainly
“not a ‘common area,’ ” and the adjoining closet—accessible
only through the bedroom and containing the son’s clothing
in which the contraband was found—constituted “his private
enclave.” Id. at 1075. There was no such ambiguity
regarding the common living room here; the disputed area
was indeed indistinguishable from the rest of the open living
room space which was “common” not only because it was the
“living room” but also because it constituted the sole pathway
to the kitchen. That Peyton slept in the room “on occasion”
and “ke[pt] his personal property” there did not transform the
room—or some unmarked and undefined area within it—into
his personal preserve to the exclusion of Hicks and her
belongings. Without some indication from Hicks that the
shoebox was off-limits to her, the officers were not “faced
with an ambigu[ity]” different from that attaching to any
property in any common area shared by more than one
resident.4
The situation here more closely resembles United States
v. Harrison, 679 F.2d 942 (D.C. Cir. 1982). In Harrison, the
defendant’s wife (Mrs. Harrison) had invited police officers to
the house she shared with the defendant and asked them to
remove “two large unsealed boxes containing seventeen
packages of marijuana” she had found “in a storage area used
by both her and [the defendant] under the basement stairwell.”
Id. at 945. We affirmed the district court’s denial of the
defendant’s motion to suppress the marijuana because Mrs.

4
Indeed, the majority makes Hicks’s guiding the officers to the
area of the living room where Peyton slept and “kept his stuff”
tantamount to a declaration that she surrendered her use thereof.
 6
Harrison “had full authority to release the boxes of marijuana
into police custody, viz., she fit[] fully within the ‘common
authority’ criteria enunciated in Matlock.” Id. at 947. The
court explained:
Mrs. Harrison had full “common authority” to the
storage area in the basement. That area was unlocked
and open, and contained personal items that
belonged to both appellant and his wife. The boxes
were not sealed or taped and were closed only by
“criss-crossed” flaps. Moreover, the record provides
no indication that the boxes were marked in any way
indicating appellant’s ownership. Nor is there
anything in the record to indicate that appellant ever
asserted that the boxes were exclusively in his
control or even that they were his personal effects.
Id. Like the boxes in Harrison, the shoebox here was found
in plain sight, unsealed and unmarked, within a shared
common area. Nothing about the box itself suggested it was
private, much less exclusive to Peyton. Nor does the record
indicate that Hicks’s “common authority” over the living
room had been partitioned to exclude the box or the area of
the floor where it was found. Armed with the consent of co-
resident Hicks to search the entire living room—without any
express reservation—the searching officers could reasonably
believe, at a minimum, that her authority to consent reached
the shoebox lying in plain view on the living room floor. See
Illinois v. Rodriguez, 497 U.S. 177, 186 (1990) (“Whether the
basis for [the authority to consent to a search] exists is the sort
of recurring factual question to which law enforcement
officials must be expected to apply their judgment; and all the
Fourth Amendment requires is that they answer it
reasonably.”). They were entitled to “proceed on the basis of
the ‘factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians,
 7
act.’ ” Whitfield, 939 F.2d at 1074 (quoting Brinegar v.
United States, 338 U.S. 160, 175 (1949)). Thus, they could
“assume” that co-residents great-grandmother and great-
grandson, like husband and wife in Harrison, “mutually use
the living areas in their residence and have joint access to
them so that either may consent to a search.” Whitfield, 939
F.2d at 1074-75 (citing Harrison, 679 F.2d at 946-47). The
officers were not required to engage in “metaphysical
subtleties” to carve out a separate but undefined room-within-
a-room that was reserved to Peyton’s exclusive use and
dominion. See Frazier v. Cupp, 394 U.S. 731, 740 (1969)
(declining to “engage in such metaphysical subtleties in
judging the efficacy of [defendant’s cousin’s] consent” to
search duffel bag as would be required under defendant’s
theory that cousin “only had actual permission to use one
compartment of the bag and that he had no authority to
consent to a search of the other compartments”).5
One fact the majority completely ignores is to me critical
to a common sense review of the challenged search.

5
Even were Peyton’s room-within-a-room theory persuasive, I
would find it forfeited because he failed to articulate it to the
district court. See United States v. Vinton, 594 F.3d 14, 24 (D.C.
Cir. 2010); United States v. Redman, 331 F.3d 982, 986 (D.C. Cir.
2003). The argument Peyton offered below—that Hicks lacked
authority to consent to the search of the living room as a whole,
which is a discrete, albeit common unit of the apartment—is quite
different from the more complex argument he raises now—that she
lacked authority to consent to a search of some specific area within
the room—where Peyton slept and kept his belongings or the
contents of that area. Cf. Vinton, 594 F.3d at 24 (appellant who
argued in district court that officer lacked probable cause based on
facts uncovered during investigative stop waived argument on
appeal challenging probable cause finding based on supporting
facts having been obtained only after investigative stop was
extended beyond reasonable duration).
 8
According to the record, the 85-year-old Hicks, shaking her
head, told the officers: “This is my house and if Davon has
anything illegal in here I want you to take it.” Def.’s Ex. 6
¶ 6, supra, p. 4. When a law abiding citizen, especially an
elderly one, asks the police to remove contraband from her
home, what would my colleagues have the police do? Wait
until the undesirables who inevitably show up where drugs
are kept do her some harm? Or until Peyton himself, high on
cocaine, sets fire to the apartment? The notion that a citizen
cannot rid her home of contraband by asking the police to do
so and, in aid thereof, helping the officers in their search by
indicating a likely location—but instead must be told: “Sorry,
Ma’am, we can’t do that without your establishing that you
have use and control of every inch of the living room.”—is on
its face senseless. It also flies in the face of Fourth
Amendment jurisprudence as most recently expounded by the
United States Supreme Court in Fernandez v. California, 134
S. Ct. 1126 (2014).
In Fernandez, the Supreme Court affirmed the rule that
“consent by one resident of jointly occupied premises is
generally sufficient to justify a warrantless search.” Id. at
1133. Following this rule, the Court upheld the search of an
apartment to which resident Roxanne Rojas consented
approximately one hour after co-resident Walter Fernandez
expressly refused the police entry to search, whereupon he
was arrested on suspicion of domestic assault and taken to the
police station for booking. The Court narrowly construed the
exception to the co-resident consent rule carved out in
Georgia v. Randolph, which prohibits a search if a second co-
resident objects thereto—“accept[ing] Randolph on its own
terms” to “unequivocally require[] the presence of the
objecting occupant.” Id. at 1134-35. “Putting the exception
the Court adopted in Randolph to one side,” the Court
instructed, “the lawful occupant of a house or apartment
should have the right to invite the police to enter the dwelling
 9
and conduct a search.” Id. at 1137. “Any other rule would
trample on the rights of the occupant.” Id. In particular, the
Court advised, “an occupant may want the police to conduct a
thorough search so that any dangerous contraband can be
found and removed,” noting that in Fernandez “the search
resulted in the discovery and removal of a sawed-off shotgun
to which Rojas’ 4-year-old son had access.” Id. at 15. In this
case, Hicks consented to the police search of the living room
for the express purpose of removing contraband from her
apartment—a reasonable request the majority would have the
police—and this court—ignore. Her guidance to the police,
as I note below, did not affect the scope of her authority to
consent to the search.
It is true, as the Majority observes, that the mere “desire”
to remove contraband “cannot . . . create[] . . . common
authority that does not otherwise exist.” Maj. Op. at 15. The
majority does not dispute, however, that Hicks had authority,
as the district court found, to consent to a search of the
common living room, see supra p. 2, which authority
“extends to most objects in plain view”—including the seized
shoebox. Donovan v. A.A. Beiro Constr. Co., 746 F.2d 894,
901-02 (D.C. Cir. 1984). “The touchstone of Matlock’s third
party consent analysis is that any reasonable expectation of
privacy in common areas is lost once joint occupants assume
the risk that a co-occupant will allow access to the common
areas.” Id. at 899. Peyton assumed just such a risk and,
accordingly, had no reasonable expectation of privacy in the
shoebox that he left lying unmarked and unsecured on the
floor, visible and accessible to Hicks and to anyone Hicks
might invite into their shared living room—including the
police. See id. at 902 (To determine whether a reasonable
expectation of privacy exists, we apply a “rule . . . of reason
that assesses the critical circumstances indicating the presence
or absence of a discrete expectation of privacy with respect to
the particular object: whether it is secured, whether it is
 10
commonly used for preserving privacy, etc.” (quoting United
States v. Block, 590 F.2d 535, 541 n.8 (4th Cir. 1978) (noting:
“Obviously not every ‘enclosed space’ within a room or other
area—e.g. pockets in clothes, unsecured shoeboxes, and the
like—can claim independent status as objects capable of
search not within reach of the authorized area search.”))). I
do not see how Peyton’s privacy expectation could possibly
be revived by anything that Hicks said to the officers. The
Supreme Court’s concern expressed in Fernandez only
highlights Hicks’s right, as a lawful occupant of the
apartment, to enlist police assistance to remove illegal drugs
from the living room she and Peyton shared. She should not,
as the majority suggests, be reduced to self-help to evict from
her home the drug trafficking culture Peyton has invited in.
Such a rule would “trample on [her] rights.” Fernandez, 134
S. Ct. at 1137.6
The majority and I have together written almost 30
pages—not only to decide this case but also to guide a
constituency made up in large part of police officers, trial
judges and the bar. My colleagues rely on the common sense
language of Whitfield that an officer “faced with an
ambiguous situation” must make further inquiry before
concluding that “the property about to be searched is subject
to ‘mutual use’ by the person giving consent.” Maj. Op. at 12
(quoting 939 F.2d at 1075 (quoting Rodriguez, 497 U.S. at

6
In Fernandez, the Court rejected the petitioner’s argument
that his objection to the search should remain effective until
withdrawn in part because such a rule “would create the very sort of
practical complications that Randolph sought to avoid,” noting that
Randolph “adopt[ed] a ‘formalis[tic]’ rule, but it did so in the
interests of ‘simple clarity’ and administrability.” 134 S. Ct. at
1135 (quoting Randolph, 547 U.S. at 121, 122).
 11
188-89)).7 At the same time, they appear to recognize that
“this limitation on the scope of common authority might seem
to put the police in a bind.” Id. at 9. But then, distinguishing
between the shoebox and “say, the drawers of the television
stand,” id., both of which are located in a mutual use living
room, they conclude that the officers’ search of the drawers
would be reasonable but that the shoebox is verboten. On the
basis of a distance of no more than a few feet, then, they have
decided whether or not property is subject to mutual use.
How this measuring-stick jurisprudence is supposed to assist
those who look to us for guidance wholly escapes me.
Accordingly, I respectfully dissent.

7
As already noted, supra p. 5, there was no ambiguity
surrounding Hicks’s authority to consent.