UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4160
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RONNIE GERALD BELT,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:13-cr-00030-JPB-JSK-1)
Argued: January 29, 2015 Decided: April 28, 2015
Before DUNCAN, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge Wynn wrote a
dissenting opinion.
ARGUED: Brian Joseph Kornbrath, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Clarksburg, West Virginia, for Appellant. Stephen
Donald Warner, OFFICE OF THE UNITED STATES ATTORNEY, Elkins,
West Virginia, for Appellee. ON BRIEF: William J. Ihlenfeld,
II, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronnie Gerald Belt (“Appellant”) claims West Virginia
State Police troopers ran afoul of the Fourth Amendment when
they entered his home at the invitation of his eleven-year-old
son. Following this entry, Appellant provided the troopers
information they then used to obtain a search warrant. The
search revealed various items, including items used for
manufacturing methamphetamine. As a result, Appellant was
charged with possession of material used in the manufacture of
methamphetamine and maintaining a drug involved premises in
violation of 21 U.S.C. §§ 843 and 856, respectively.
Asserting the evidence seized from his home and the
statements he made to the troopers were fruits of the
unconstitutional entry of his home, Appellant moved to suppress
both. The district court denied the motion to suppress,
concluding that the troopers’ entry did not offend the Fourth
Amendment.
We affirm the district court’s denial of Appellant’s
motion to suppress. In doing so, we assume the troopers
violated the Fourth Amendment when they entered Appellant’s home
but hold that Appellant’s statements were sufficiently
attenuated from the constitutional violation such that
suppression is not warranted.
2
I.
The facts underlying this appeal are undisputed. In
early April 2013, West Virginia State Police Sergeant Gerald D.
Dornburg received a phone call from an unidentified woman. This
anonymous tipster told Sergeant Dornburg that methamphetamine
was being produced or used at Appellant’s home and that a child
was present in the home. In response, Sergeant Dornburg
contacted Troopers Steven Blake and S.C. Baier. The three
troopers intended to travel to Appellant’s home and conduct a
“knock and talk,” hoping to find Appellant at home and to engage
him in conversation regarding the information provided by the
tipster. 1 J.A. 35. 2
When the trio of troopers arrived at Appellant’s home,
they noticed a young boy outside near a four-wheeler off to the
side of the home. Sergeant Dornburg estimated that the boy
appeared to be ten to twelve years old. The troopers, all of
whom were in uniform, approached the home. One of the troopers
asked the boy whether the home was Appellant’s; the boy replied
1
Prior to going to Appellant’s home, the troopers obtained
Appellant’s criminal history. Appellant was, among other
things, previously convicted for making illegal purchases of
ephedrine or a like substance. Ephedrine is a chemical that can
be used to produce methamphetamine. See, e.g., Zhenli Ye Gon v.
Holder, 992 F. Supp. 2d 637, 658 (W.D. Va. 2014).
2
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
3
that it was and that he was Appellant’s son. The boy then told
the troopers that his father was inside and proceeded to invite
the troopers into the home through the side door connected to
the kitchen. The troopers followed the boy into Appellant’s
home.
Once inside the home, Sergeant Dornburg waited alone
in the kitchen while Troopers Blake and Baier went to speak with
Appellant. The two troopers, led by the boy, found Appellant in
the living room of his home. Once there, they informed
Appellant about the anonymous call received earlier in the day.
Then one of the troopers asked Appellant if he would consent to
a search of the home. He refused to consent and informed the
troopers they were going to need a warrant. In response, one of
the troopers asked Appellant, “What are you worried about? What
are you concerned with?” J.A. 48. Appellant replied that there
were “two jars upstairs that had been used for something.” Id.
Appellant explained that the jars contained “[t]hat stuff that
everybody’s making.” Id. at 49.
Considering the anonymous tipster’s information and
Appellant’s statements and criminal history, the troopers
believed Appellant was referring to methamphetamine. With that,
the troopers secured the home. Trooper Blake left to secure a
warrant; Sergeant Dornburg, Trooper Baier, Appellant, and the
boy stayed behind in Appellant’s kitchen.
4
Based on the information provided by Trooper Blake,
the magistrate court issued a search warrant. The resulting
search of Appellant’s home turned up firearms and various items
used in the shake-and-bake method of manufacturing
methamphetamine. The troopers arrested Appellant, who was
subsequently charged with possession of material used in the
manufacture of methamphetamine and maintaining a drug involved
premises in violation of 21 U.S.C. §§ 843 and 856, respectively.
Appellant moved to suppress the evidence seized from
his home and the statements he made to the troopers for several
reasons. Among these reasons and pertinent on appeal, Appellant
claimed the evidence and statements were tainted by the initial
unconstitutional entry of his home. The initial entry was
unconstitutional, Appellant argued, because his son did not have
apparent authority to consent to the troopers’ entry of the
home.
The district court disagreed and found apparent
authority existed under the circumstances. The district court
also noted that, even if the troopers violated the Fourth
Amendment, “the initial entry into the home [was] far too
attenuated to the ultimate discovery of the evidence.” J.A.
111. Accordingly, the district court denied Appellant’s motion
to suppress.
5
Thereafter, Appellant pled guilty to possession of
material used in the manufacture of methamphetamine. However,
he reserved his right to appeal the district court’s denial of
his motion to suppress. The district court entered its judgment
on February 21, 2014. Appellant timely appealed.
II.
Our review of the district court’s ruling on
Appellant’s motion to suppress is twofold. We review the
district court’s conclusions of law de novo; we review the
district court’s factual findings for clear error. See United
States v. Buckner, 473 F.3d 551, 553 (4th Cir. 2007).
III.
Appellant argues that the troopers violated the Fourth
Amendment by entering his home. He contends that the troopers
could not reasonably believe the boy had authority to invite
them into the home. Accordingly, Appellant asserts his
statements to the troopers, which were used to secure a warrant
and led to the discovery of incriminating evidence, were tainted
by the Fourth Amendment violation; therefore, the statements and
physical evidence should be suppressed.
Appellant asks us to define the contours of third-
party consent and to decide when government agents can
reasonably conclude that a minor has the apparent authority to
extend an invitation to enter a home. We do not need to reach
6
this issue, however, because this case presents a more narrow
ground on which we can affirm the district court’s denial of
Appellant’s motion to suppress. The attenuation doctrine
compels the outcome of this case.
Although evidence obtained as a result of an
unconstitutional search is suppressed under most circumstances,
the attenuation doctrine allows us to assume a constitutional
violation occurred and decide instead whether an intervening act
dispelled the taint of the violation. See United States v.
Seidman, 156 F.3d 542, 548 (4th Cir. 1998) (“[A]n intervening
‘act of free will [may] purge the primary taint of the unlawful
invasion.’” (quoting Wong Sun v. United States, 371 U.S. 471,
486 (1963))). If the taint of the violation is dispelled,
suppression is not available. The Government bears the burden
of establishing admissibility. See id. Our analysis of whether
an act is sufficiently intervening focuses on “(1) the amount of
time between the illegal action and the acquisition of the
evidence; (2) the presence of intervening circumstances; and (3)
the purpose and flagrancy of the official misconduct.” Id. Our
analysis is guided by a “careful sifting of the unique facts and
circumstances of the case.” Id. (quoting Schneckloth v.
Bustamonte, 412 U.S. 218, 233 (1973)) (internal quotation marks
omitted).
7
A.
Assuming the troopers ran afoul of the Fourth
Amendment and upon review of the circumstances of this case, we
conclude the taint of any Fourth Amendment violation was
dispelled. Accordingly, Appellant’s statements and the physical
evidence seized form Appellant’s home are not subject to
suppression.
1.
Time -- the first Seidman factor -- is not on the
Government’s side. Upon entering the home, Appellant’s son led
Troopers Blake and Baier directly to his father. And upon
finding Appellant, Troopers Blake and Baier began their
conversation with Appellant. Little time passed between when
the troopers entered Appellant’s home and when they found and
spoke with Appellant. However, a single factor weighing against
attenuation does not end our inquiry. See, e.g., Seidman, 156
F.3d at 549 (noting this inquiry “does not require that each of
the factors set forth be resolved in favor of the Government”
(internal quotation marks omitted)).
2.
Intervening circumstances -- the second Seidman
factor -- weighs in favor of finding the statements were
attenuated from the entry of the home. The circumstances here
are similar to those in Seidman, where this factor weighed in
8
favor of a finding of attenuation. In Seidman, “[a]lmost
immediately after [the government agent] entered the home, any
taint arising from [his] entry was attenuated by [appellant’s]
consent to the conversation.” 156 F.3d at 549. The same is
true here. Rather than asking the troopers to leave, Appellant
willingly engaged in a conversation with the officers about the
jars upstairs in his house that contained “[t]hat stuff that
everybody’s making.” J.A. 49.
The differences between this case and Seidman do not
make Seidman -- as the dissent puts it -- “manifestly
distinguishable.” The factual fit between this case and Seidman
may not be exact, but it is sufficient. Appellant did not close
the door behind the troopers and motion for them to join him as
had Seidman. Importantly, however, he did not ask the troopers
to leave when they arrived in his living room. Instead, after
reminding the troopers they would need a warrant to search the
house, Appellant continued to converse with the troopers,
willingly engaging in the conversation. The consensual
conversation with the troopers, the willingness to engage the
troopers -- an independent act of free will -- severed
Appellant’s statements from the troopers’ initial entry into the
home. And thus any taint that may have existed was dispelled.
9
3.
Purpose and flagrancy -- constituting the third
Seidman factor -- also weigh in favor of finding the statements
were attenuated from the entry of the home. The troopers did
not act with a flagrant disregard of the law. Cf. Brown v.
Illinois, 422 U.S. 590, 593 (1975) (officers broke into
apartment and held individual at gunpoint); Wong Sun, 371 U.S.
at 474 (officers broke open a door and placed individual under
arrest and in handcuffs); see also Seidman, 156 F.3d at 550
(discussing Wong Sun and Brown in the context of this factor).
Although we certainly question the choice to simply
follow Appellant’s eleven-year-old son into the home, this
choice does not rise to a flagrant disregard of the law.
Nothing indicates the troopers acted with an improper purpose.
The troopers intended to conduct a “knock and talk” until
Appellant’s son invited them into the home, and after Appellant
refused to permit the troopers to search his home, one trooper
merely asked what worried Appellant. Appellant could have
refused to answer this question. The fact that Appellant felt
comfortable refusing consent to search the home reflects an
absence of intimidation in this scenario. And although the
troopers asked a few questions after being denied access to
search the home, the voluntary nature of the discussion between
Appellant and the troopers did not change. The circumstances
10
here are not as extreme as those presented in Wong Sun and
Brown; just as in Seidman, “[t]he degree of coercion resulting
from the police officers’ illegal acts in Wong Sun and Brown
. . . simply was not present here.” Seidman, 156 F.3d at 550.
Discussing the purpose and flagrancy of the troopers’
actions, the dissent focuses on what the troopers could have
done under the circumstances. To be sure, the troopers’ conduct
here leaves much to be desired. But this is not the focus of
our inquiry, despite our belief that the troopers should have
proceeded with greater caution and respect for Appellant’s
privacy. The dissent offers reasonable alternatives -- advice
troopers should heed in the future -- but nothing here suggests
that the troopers here intimidated or coerced Appellant. In
fact, Appellant conceded as much at oral argument. 3 Under these
circumstances, this factor weighs against suppression.
Considering all of these factors, we conclude that the
district court did not err by finding Appellant’s statements
were attenuated from the entry of his home. There may have been
little time between the entry of the home and the conversation
between Appellant and the troopers, but the circumstances here
3
“We can’t argue that it wasn’t a voluntary process. [The
troopers] didn’t berate [Appellant], they didn’t coerce anything
out of him.” Oral Argument at 6:09, United States v. Belt, No.
14-4160, available at http://coop.ca4.uscourts.gov/
OAarchive/mp3/14-4160-20150129.mp3.
11
and the actions of the troopers do not reveal any
perniciousness. If the entry of Appellant’s home was poisonous,
Appellant provided the antidote when he engaged the troopers in
conversation.
B.
Although we do not decide whether the troopers
violated the Fourth Amendment, we digress to express our concern
with the actions of the troopers in this case. On brief and at
argument, the Government was unwavering in its support of the
district court’s conclusion that the troopers could rely on the
apparent authority of Appellant’s eleven-year-old son when they
followed the boy into the home.
Limited information should limit the actions of
government agents. When the apparent authority of a minor is at
issue, the touchstone of the apparent authority inquiry is
whether a reasonable person would believe the child could invite
others into the home. Cf. United States v. Cazun, 62 F. App’x
441, 442 (4th Cir. 2003) (concluding apparent authority turns on
“whether the facts available . . . at the time would justify a
reasonable person to believe the consenting party had authority
to allow entry”). The troopers in this case had very little
information; they only knew the young boy they encountered
outside was Appellant’s son and that they were at Appellant’s
home.
12
But our cause for concern does not end with the
limited information available to the troopers. Before inviting
the troopers into the home, Appellant’s son told them his father
was inside. Upon encountering a child who is standing outside a
home and who says a parent is inside, any reasonable person
whose purpose was to speak with the adult of the house would not
simply barge into the home. For this trio of troopers, however,
these facts were no reason to hesitate. To the contrary, they
simply took this fortuitous set of circumstances as an open
invitation to enter the home. We are inclined to believe a
reasonable officer, knowing the stranger he has come to visit is
home, would ask the stranger’s child to fetch the parent,
waiting to enter until an adult extended an invitation.
IV.
We conclude that the district court properly denied
Appellant’s motion to suppress because the statements he made to
the troopers were attenuated from the presumed unconstitutional
entry of his home.
AFFIRMED
13
WYNN, Circuit Judge, dissenting:
Acting on an anonymous tip, three armed and uniformed
police officers drove to Defendant Ronnie Belt’s residence to
investigate potential drug activity. Upon seeing his eleven-
year-old son playing outside the home, the officers told the
child they needed to speak with Belt. At the child’s
invitation, the officers entered the home—not through the front
door, as an ordinary visitor might, but through the kitchen.
They did not knock on the kitchen door. Nor did they announce
their presence in any way. Rather, chaperoned by the young boy,
the officers walked through Belt’s kitchen and confronted him in
his living room. There they immediately began questioning him
about suspected drug activity. His responses to those questions
enabled the officers to obtain a warrant, which led to the
discovery of methamphetamine manufacturing evidence in a matter
of hours.
The majority holds that Belt’s responses to the officers’
interrogatories constituted intervening acts that severed the
causal connection between the officers’ illegal entry and the
discovery of incriminating evidence. However, Belt’s answers to
the officers questions came on the heels of their illegal entry
into his home as part of an “an uninterrupted course of events.”
United States v. Watson, 703 F.3d 684, 697 (4th Cir. 2013). And
nothing in the record warrants an inference that the officers’
14
discovery of the evidence was “unaffected by the initial
illegality”—the officers’ illegal entry into his home. Id. at
698. Thus, I cannot agree with the majority’s decision to
affirm the district court’s denial of Belt’s motion to suppress
on this basis.
Because no intervening acts severed the causal connection
between the officers’ entry and the discovery of the evidence
Belt sought to exclude, the constitutional question in this case
is squarely before us. Addressing this question leads to the
conclusion the officers’ entry into Belt’s home violated the
Fourth Amendment. No reasonable officer would believe that
Belt’s eleven-year-old child had authority to consent to the
officers’ entry into Belt’s home, nor does the record establish
that the child had actual authority to give such consent.
I.
The majority holds that Belt’s motion to suppress was
properly denied because the officers’ discovery of evidence was
too attenuated from their entry, which the majority assumes was
illegal. I disagree because the officers’ discovery of evidence
was part of an “an uninterrupted course of events” arising from
their illegal entry. Id.
Evidence discovered as a result of a Fourth Amendment
violation is generally subject to suppression under the
15
exclusionary rule. United States v. Andrews, 577 F.3d 231, 235
(4th Cir. 2009). The exclusionary rule is a prudential doctrine
meant to “compel respect” for the freedoms guaranteed by the
Fourth Amendment. Davis v. United States, 131 S. Ct. 2419, 2426
(2011) (internal quotation marks and citation omitted). By
excluding evidence discovered by way of a Fourth Amendment
violation, the rule “safeguard[s] against future violations of
Fourth Amendment rights through [its] general deterrent effect.”
Arizona v. Evans, 514 U.S. 1, 10 (1995).
The rule is not without its exceptions, however. Indeed,
evidence derived from an illegal search may be admissible where
the evidence was not come at “‘by exploitation of that
illegality’” but instead “‘by means sufficiently distinguishable
to be purged of the primary taint.’” United States v. Gaines,
668 F.3d 170, 173 (4th Cir. 2012) (quoting Wong Sun v. United
States, 371 U.S. 471, 488 (1963)). Thus “where there is
sufficient attenuation between the unlawful search and the
acquisition of evidence, the ‘taint’ of that unlawful search is
purged.” Id.
The Supreme Court has prescribed three factors for
determining whether the taint from a Fourth Amendment violation
had dissipated: “(1) the time between the Fourth Amendment
violation and the [acquisition of evidence], (2) the presence of
intervening circumstances, and (3) the flagrancy of the official
16
misconduct.” United States v. Hill, 649 F.3d 258, 267 (4th Cir.
2011) (citing Brown v. Illinois, 422 U.S. 590, 603–04 (1975)).
A.
The majority concludes, and I agree, that the first Brown
factor quite clearly cuts in favor of suppression. Very little
time passed between the officers’ illegal entry into Belt’s
residence and their successful attempt to elicit incriminating
statements regarding drug activity in his home. Within two
hours, a warrant had been issued and the evidence of
methamphetamine manufacturing obtained from Belt’s home.
B.
But I part ways with the majority in its application of the
second Brown factor—the presence of intervening circumstances
sufficient to break the causal chain between the Fourth
Amendment violation and the discovery of evidence. The majority
relies in large part on this Court’s ruling in United States v.
Seidman, 156 F.3d 542 (4th Cir. 1998).
In Seidman, after an informant acting as a government agent
illegally entered the defendant’s home, the informant was
greeted by the defendant, who explained that he had not answered
the door because he had been in the basement. The defendant
then closed the door behind the informant, waived him into his
kitchen, and carried on a forty-five minute conversation with
him “regarding their families, personal lives, Union business,
17
and [the informant]’s tax dilemma.” Id. at 549. In a divided
opinion, this Court held that the taint of the informant’s
illegal entry had been purged by “the intervening independent
acts of Seidman shutting the door behind [the informant],
motioning [the informant] into his kitchen, and engaging [the
informant] in conversation for a substantial period of time.”
Id. at 550.
Seidman is manifestly distinguishable from this case. Belt
did not welcome the officers into his kitchen. He did not shut
the door behind them. He did not waive the officers into his
living room. Nor did he willingly engage them in lengthy
conversation. The officers walked through his kitchen and
appeared suddenly and without warning in his living room. They
asked questions; he answered them. Nothing suggests that Belt
would have engaged the officers in conversation but for their
illegal entry into his home. The officers’ illegal entry was
thus part of an unbroken chain of events leading to the
discovery of evidence.
With great respect to my colleagues, I must express my
belief that the majority is truly grasping at straws when it
suggests that the facts of this case “sufficient[ly]” align with
Seidman because Belt “did not ask the troopers to leave.” Ante
at 9. In Seidman, the defendant’s actions made it abundantly
clear that he would have welcomed the government informant into
18
his home even if the informant had not let himself in—indeed,
the defendant stated that the only reason he did not open the
door was because he had been in the basement. Seidman, 156 F.3d
at 549. Thus, the defendant’s decision to speak to the
informant was clearly unaffected by the informant’s unlawful
entry. The government, which bears the burden of proving that
the taint of their unlawful entry had dissipated, id. at 548,
has presented no analogous evidence whatsoever in this case.
To read the majority opinion, which repeatedly uses
verbiage such as “willing[]” and “consensual” to describe Belt’s
conversation with the police officers, one would think our task
here was to determine whether Belt’s statements were voluntary
under the Fifth Amendment. However, “[t]his Court and the
Supreme Court have consistently held that an analysis of the
voluntariness of a statement is a separate inquiry from
determining whether the taint from a Fourth Amendment violation
has dissipated.” Hill, 649 F.3d at 269 (citing Taylor v.
Alabama, 457 U.S. 687, 690 (1982) (“[T]his Court [has] firmly
established that the fact that a confession may be ‘voluntary’
for purposes of the Fifth Amendment . . . is not by itself
sufficient to purge the taint of an illegal arrest.”)). The
appropriate inquiry is not whether Belt was physically or
otherwise coerced into making incriminating statements. Rather,
we must look to whether Belt’s statements constituted
19
intervening acts that severed the causal connection between the
officers’ unconstitutional entry into the home and the discovery
of evidence.
Further, particularly when viewed in the context of our
precedent, Seidman does not stand for the proposition that
voluntary incriminating acts or statements by a defendant
necessarily purge the taint of a constitutional violation. In
United States v. Gooding, for example, police officers illegally
stopped the defendant at a bus stop, suspecting him of carrying
drugs. 695 F.2d 78, 84 (4th Cir. 1982). Moments later, the
officers requested permission to search his briefcase and flight
bag. The defendant opened his briefcase and bag, and actively
handed items to the police officers. We held that the
defendant’s voluntary decision to facilitate the officer’s
search did not constitute intervening circumstances sufficient
to purge the taint of the illegal stop. Id.
Indeed, the Supreme Court itself has found intervening
circumstances only where the defendant had the opportunity “to
consider carefully and objectively his options and to exercise
his free will.” Taylor, 457 U.S. at 691. The Supreme Court has
therefore found intervening circumstances to have occurred where
the defendant appeared at a hearing before a magistrate judge
and was advised of his rights, see Johnson v. Louisiana, 406
U.S. 356, 365 (1972), or was arraigned and released from custody
20
for six-days before making incriminating statements, see Wong
Sun, 371 U.S. at 491. Under such circumstances, the causal
chain between the initial illegality and the defendant’s
statements is clearly broken. Brown, 422 U.S. at 602.
Here, by contrast, Belt’s answers to the officers’
questions came after their sudden appearance in his home, on the
heels of their illegal entry, and were thus part of an “an
uninterrupted course of events.” Watson, 703 F.3d at 697. The
government has not established that their subsequent discovery
of the evidence was “unaffected by the initial illegality.” Id.
at 698. 1
Given the absence of intervening circumstances, this Brown
factor weighs in favor of suppression.
C.
The third Brown factor—the flagrancy of the official
misconduct—presents a somewhat mixed picture. As the majority
notes, the officers’ conduct in this case certainly pales in
comparison to the egregious misconduct present in some Supreme
Court cases. See ante at 10 (collecting cases). On the other
hand, we recently held that “flagrancy” within the context of a
1
It should go without saying that refusing to speak with
uniformed, armed police officers who suddenly appear in one’s
living room is an altogether different prospect than declining
to do so when they stand outside one’s door as a normal visitor
would.
21
Fourth Amendment violation is more likely to exist when the
police misconduct “involves ‘the physical entry of the home,
which is the chief evil against which the wording of the Fourth
Amendment is directed.’” Hill, 649 F.3d at 270 (quoting Payton
v. New York, 445 U.S. 573 (1980)).
The Supreme Court has also directed courts to look to the
“quality of purposefulness” of the Fourth Amendment violation to
determine whether the taint of that violation is attenuated.
Brown, 422 U.S. at 605. The officers in this case purported to
rely upon the consent of Belt’s eleven-year-old son to gain
entry into his home. Upon learning that Belt was home, the
officers could easily have knocked on his door, identified
themselves, and sought Belt’s consent before entering. They
chose not to do so. Nor did they ask Belt’s son to retrieve his
father from the home. These alternatives would have avoided not
only violating Belt’s Fourth Amendment rights but also the oft-
cited safety risks involved when officers confront individuals
in their homes without warning. Cf. United States v. Dunnock,
295 F.3d 431, 434 (4th Cir. 2002) (recognizing that the knock
and announce rule “(1) protect[s] the safety of occupants of a
dwelling and the police by reducing violence; (2) prevent[s] the
destruction of property; and (3) protect[s] the privacy of
occupants.”). Instead, the officers, fully aware that they had
not obtained a warrant to search Belt’s home, exploited Belt’s
22
minor son to gain entrance into the home. This enabled them to
conduct a plain view search of the interior and to question Belt
in his living room on their own terms.
Taking the Brown factors together, it must be concluded
that the taint from the officers’ illegal entry had not
dissipated and that the district court thus erred in admitting
the challenged evidence on that basis.
II.
Having determined that no intervening circumstances
existed, there remains to be addressed what ought to be the
central issue in this case—whether the officers’ entry into
Belt’s home on the supposed authority of an eleven-year-old
child violated the Fourth Amendment to the United States
Constitution.
A.
Although the Fourth Amendment generally prohibits
warrantless searches, see Maryland v. Dyson, 527 U.S. 465, 466,
(1999), a valid consent to search a residence provides an
exception to the usual warrant requirement, see Schneckloth v.
Bustamonte, 412 U.S. 218 (1973). Where the defendant moves to
suppress the fruits of a warrantless search, the government
bears the burden of establishing, by a preponderance of the
23
evidence, that it obtained valid consent. United States v.
Buckner, 473 F.3d 551, 554 (4th Cir. 2007).
It is well-established that consent to search may be
obtained from a third party. However, two criteria must be met
for such a consent to be effective. First, the third party must
have authority to consent to the search. Trulock v. Freeh, 275
F.3d 391, 402-03 (4th Cir. 2001) (citing Stoner v. California,
376 U.S. 483 (1964)). Second, “the third party’s consent must
be voluntary.” Id. at 403 (citing Bumper v. N. Carolina, 391
U.S. 543, 548 (1968)).
In United States v. Matlock the Supreme Court held that a
third party has actual authority to consent to a search when the
third party possesses “common authority over or other sufficient
relationship to the premises . . . sought to be inspected.” 415
U.S. 164, 171 (1974). The Court explained:
The authority which justifies the third-party consent
does not rest upon the law of property, with its
attendant historical and legal refinements, but rests
rather 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 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.
Id. at 172 n. 7 (emphasis added). Thus, a co-tenant will
generally have authority to consent to police searches to the
24
co-tenant’s own private rooms or of common areas in the home
when other co-tenants are absent or do not object.
Even where the consenting third party lacks “actual
authority” to consent, a third party may nonetheless have
“apparent authority” if “the facts available to the officer at
the moment warrant a person of reasonable caution [to believe]
that the consenting party had authority” to consent to the
search. Buckner, 473 F.3d at 555 (alterations and quotation
marks omitted). Thus, under the apparent authority doctrine,
the Fourth Amendment is not violated when officers reasonably,
although erroneously, believe that the person who consents to
their entry has the authority to do so. Illinois v. Rodriguez,
497 U.S. 177, 188 (1990).
B.
No Supreme Court case has addressed whether or to what
extent the Matlock test applies to minor children who consent to
entry into or searches of a parent’s home. Nor has this Circuit
addressed this issue. Some of our sister circuits, however,
have, and in doing so applied the Matlock test in child-consent
cases with little to no regard for the special dynamic that such
cases present, as though children could be the gatekeepers of
their parents’ Fourth Amendment rights.
In Lenz v. Winburn, the Eleventh Circuit considered whether
a nine-year-old child had authority to consent to her guardian
25
ad litem’s entry into her grandparents’ home. 51 F.3d 1540
(11th Cir. 1995). The court concluded that the child’s age was
irrelevant under Matlock. The court reasoned that “the third-
party consent rule recognizes that sharing space with another
lessens the expectation of privacy in that space,” and that
“[t]his compromise of the expectation of privacy is no less the
case for a minor co-occupant than for an adult.” Id. at 1543.
In United States v. Clutter, the Sixth Circuit held that a
search of a residence conducted with the consent of a
defendant’s fourteen-, twelve-, and ten-year-old children was
valid. 914 F.2d 775 (6th Cir. 1990). The court found that
where the children routinely were left in exclusive control of
the house, “the government satisfied its burden of demonstrating
that the initial warrantless search of the bedroom was by
consent, since the boys enjoyed that degree of access and
control over the house that afforded them the right to permit
inspection of any room in the house,” and the defendants assumed
that risk. Id. at 778.
In United States v. Gutierrez–Hermosillo, the Tenth Circuit
held that a warrantless search by the police following their
admission into the defendant’s motel room by his fourteen–year–
old daughter was valid. 142 F.3d 1225 (10th Cir. 1998).
Analyzing the case through the lens of “apparent authority,” the
court concluded that the officers could have reasonably believed
26
that the daughter had the authority to allow them to enter the
motel room where she appeared to be fourteen years old, she
answered the door, and the officers knew that she was traveling
with her father. These facts, the court stated, were sufficient
to establish the officers’ reasonable belief that the daughter
had “mutual use” of the motel room and that the defendant
“assumed the risk” that she would permit the officers to enter.
Id. at 1231. Applying similar reasoning, the Tenth Circuit
recently held in United States v. Sanchez that the defendant’s
fifteen-year-old daughter, who “was home babysitting her younger
brother, a task she regularly performed alone,” and who thus was
“routinely . . . in charge of the family’s house,” could consent
to probation officers’ plain-view inspections of the premises.
608 F.3d 685, 689-90 (10th Cir. 2010).
C.
Some lower federal courts and state courts have been less
willing to apply such third-party consent reasoning blindly to
cases involving minors.
For instance, in Abdella v. O’Toole, officers knocked on
the door of the defendant’s residence and were greeted by an
eleven-year-old child. 343 F. Supp. 2d 129, 134 (D. Conn.
2004). When the officers asked if they could search the
upstairs of the home, the child responded by saying, “I don’t
care.” Id. The court assumed arguendo that the statement was
27
tantamount to consent to search and thus analyzed whether the
child had authority to grant consent. In framing the Matlock
test, the court stated that “the threshold inquiry in finding
the common authority necessary for actual third-party authority
to consent to a warrantless search of property is whether the
owner, co-owner or co-inhabitant of the property has assumed the
risk that the third-party will permit the property to be
searched.” Id. at 135. The court concluded that “[t]here is no
basis, on the facts presented here, to conclude that the
[parents] assumed the risk that their eleven-year old daughter
would permit the police to search their home or personal
property.” Id.
The Abdella court was highly critical of Lenz, rejecting
the Eleventh Circuit’s assumption that minors have authority to
consent to searches of their parents’ homes based merely on
their shared access to common areas:
It is not reasonable or realistic to assume that an
eleven-year old child, home alone, has always been
authorized to act as an independent co-tenant, such
that the parents should be on notice that their
expectation of privacy is compromised. The factual
record must show some clear sign that the child had
responsibility for the home and the property the
police desired to search.
Id. at 136-37.
Similarly, in United States v. Barkovitz, a district court
held that a twelve-year-old child lacked actual or apparent
28
authority to consent to a search of his father’s bedroom. 29 F.
Supp. 2d 411, 413-16 (E.D. Mich. 1998). In Barkovitz, officers
responded to a “shots fired” call placed by the defendant’s
neighbor. Id. at 412. When the officers arrived, they noticed
a twelve-year-old boy standing on the porch of the defendant’s
home. The officer’s asked the child “Where is the gun?,” and
the child walked the officers into the home and into his
father’s bedroom, where his father’s gun was kept. Id. The
court distinguished the Sixth Circuit’s decision in Clutter,
noting that there was no evidence that the twelve-year-old was
“regularly left alone.” Id. at 414. The court concluded,
“[t]he government failed to show that [the child] had the actual
authority to allow anyone in the house, much less his father’s
bedroom.” Id.
Some state courts have been less willing to find that a
child’s access to a shared family space imbues the child with
actual or apparent authority to allow visitors into the home.
Most notably, in People v. Jacobs, 729 P.2d 757 (Cal. 1987),
police officers went to the defendant’s house and asked his
eleven-year-old stepdaughter, who answered the door, if the
defendant was home. Id. at 759. The child, who was babysitting
her younger siblings at the time, admitted the officers into the
“front room” of the residence and told the officers that the
defendant would be home in one hour. Id. The officers asked
29
for a quick tour of the house to confirm the defendant’s
absence. The child accompanied the officers through the rooms
of the house. On the way out, the officers noticed in plain
view a television set matching the description of one that had
been stolen. The officers seized the set as contraband, and the
defendant was later arrested.
In applying the Matlock test, the California Supreme Court
noted that the consent given by minor children must be analyzed
in light of the disparate levels of authority possessed by
parent and child: “Minor children . . . do not have coequal
dominion over the family home. Although parents may choose to
grant their minor children joint access and mutual use of the
home, parents normally retain control of the home as well as the
power to rescind the authority they have given.” Id. at 482.
The court stated that “a child cannot waive the privacy rights
of her parents” and that the evidence “viewed most favorably to
the prosecution, does not support a finding that [the child] had
the actual or apparent authority to permit even a superficial
survey of the rooms of the house.” Id. Rather than establish a
per se rule against searches based on a minor’s consent, the
court recognized that “as a child advances in age she acquires
greater discretion to admit visitors on her own authority.” Id.
at 483. The California Supreme Court also noted that exceptions
can allow a minor to consent to, for example, “searches made at
30
the request of a child or when a child is the victim of or a
witness to a crime.” Id.
D.
While the United States Supreme Court has yet to address
whether or to what extent the Matlock test applies to minor
children, the Court recently made clear that for purposes of
analyzing consent under the Fourth Amendment, the relationship
between a parent and a child must be treated differently from
that of co-tenants with equal authority over common premises.
In Georgia v. Randolph, the Supreme Court considered
whether third-party consent is valid when another co-occupant
who is physically present at the scene refuses to consent. 547
U.S. 103 (2006). The Court concluded that “it is fair to say
that a caller standing at the door of shared premises would have
no confidence that one occupant’s invitation was a sufficiently
good reason to enter when a fellow tenant stood there saying,
‘stay out.’” Id. at 113. A reasonable visitor would assume
that the a resolution must be reached between the co-occupants
“through voluntary accommodation, not by appeals to authority.”
Id. at 114.
On the other hand, the Court said that the Fourth Amendment
calculus changes when the relationship between co-occupants is
hierarchical in nature, such as that between “parent and child.”
Id. Common sense dictates that one would not expect that an
31
eleven-year-old child could override the valid consent given by
a parent to the search of a common area of the home by raising
his or her own objection. The simple fact that a child has
joint access to that area of the home does not imbue the child
with authority to prevent officers from searching that area when
a parent has authorized such a search. This alone suggests that
a child fundamentally lacks “joint access or control” even over
the common areas of the home within the meaning of Matlock.
A close examination of the principles that underlie the
Matlock decision reveals that the mere notion of “joint access”
cannot control the outcome in cases such as this one. Indeed,
Matlock turned on the premise that when a co-occupant has “joint
access or control” over property “for most purposes,” it becomes
“reasonable to recognize [the co-occupant] has the right to
permit the inspection in his own right.” 415 U.S. at 172 n.7.
This premise breaks down when applied to minor children. As
Judge Lucero explained in his separate concurring opinion in
Sanchez: 2
The common understanding of an adult co-occupant’s
authority stands in stark contrast to that of a child.
2
While Judge Lucero recognized that the Tenth Circuit’s
reasoning in Gutierrez–Hermosillo necessitated the outcome
reached by the majority, he wrote separately to express his
“dismay” with the court’s application of “third-party consent
principles designed for adult relationships to relationships
involving children.” Id. at 692.
32
Although we would expect a roommate to be free to
invite whatever guests she chooses into the shared
home, we cannot apply that presumption for most minor
children. That is, one normally assumes that a minor
child is not allowed to invite guests into the home
absent a parent’s approval.
Sanchez, 608 F.3d at 694 (Lucero, concurring). Indeed,
“[c]hildren do not generally possess authority to permit guests
simply because they have joint access to the family home.” Id.
at 696. Put simply, “[a] child is not a roommate.” Id. at 692.
Thus, “the default assumption when a minor answers the door
should be that the child lacks authority to consent to a home
search.” Id. 697-98.
Nor can the Eleventh Circuit’s age-blind reasoning in Lenz
withstand a close reading of Matlock. In Lenz, the Eleventh
Circuit viewed the right of a co-occupant to consent to the
search of a shared space solely through the lens of “assumption
of risk.” Yet, in myopically focusing on assumption risk, the
court ignored the second and equally significant rationale
underlying the Matlock decision. Matlock emphasized that the
authority of the co-occupant must be such that he or she has may
permit the entry of a visitor “in his own right.” 415 U.S. 164,
172 n.7 (emphasis added). Yet, a child’s rights to come and go
within any area of the home exists at the discretion of his or
her parent. Thus, it makes little sense to say that because a
child is permitted access to the common areas of a home that the
33
child has authority to grant visitor’s access “in his own
right.” Id. As the California Supreme Court put it:
It does not startle us that a parent’s consent to a
search of the living room in the absence of his minor
child is given effect; but we should not allow the
police to rely on the consent of the child to bind the
parent. The common sense of the matter is that the .
. . parent has not surrendered his privacy of place in
the living room to the discretion of the . . . child.
Jacobs, 729 P.2d at 763 (quoting Lloyd L. Weinrab, Generalities
of the Fourth Amendment, 42 U. CHI. L. REV. 47 (1974)). Reasoning
to the contrary would lead to the startling and absurd
conclusion that Judge Lucero so fervently cautioned against:
that “a parent surrenders a portion of her Fourth Amendment
rights simply by bearing and raising a child.” Sanchez, 608
F.3d at 696.
I would hold that, absent evidence establishing that a
child has been given the authority “to permit the inspection [of
his parents home] in his own right,” Matlock, 415 U.S. at 172
n.7, the government cannot meet its burden in establishing the
elements of valid consent under the Fourth Amendment. 3 The mere
fact that a child answers the door or has been left home alone
will be insufficient.
3
Like other courts to who have reached similar conclusions,
I would recognize exceptions where, for instance, the child’s
own welfare is at risk.
34
E.
Turning to the undisputed facts of this case, even drawing
all inferences in the government’s favor, there can be no
question that Belt’s son lacked actual or apparent authority to
grant the officers entry into Belt’s home.
The officers approached Belt’s residence on an anonymous
tip regarding drug activity. The officers encountered a child
between the ages of ten and twelve playing outside the home.
They learned that this young boy was Belt’s son. They learned
that Belt was inside the home. The fact-gathering ended there.
On this information alone, the officers determined that this
child had the authority to admit visitors through a side door
into the home, through the kitchen, and into the living room.
That Belt did not chastise his son in front of the officers
for letting them in or immediately order the officers to leave
tells us very little, if anything, regarding the reasonableness
of their conduct. The officers did not ask Belt whether they
had permission to be in his home, and we may not imply consent
based on Belt’s silence alone. See generally WAYNE R. LAFAVE, 4
SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 8.2(b), at 61
(4th ed. 2004) (“[F]or constitutional purposes nonresistance may
not be equated with consent.”).
The officers could have asked Belt’s son to retrieve Belt
from the residence. They could have knocked on Belt’s front
35
door as an ordinary visitor might and sought to engage Belt in
conversation. They did not. Instead, they relied upon the
“consent” of Belt’s minor child to gain entry into his home,
where they then sought to gain incriminating evidence from Belt.
In doing so, they violated his Fourth Amendment rights.
III.
The officers’ illegal entry into Belt’s home led to the
discovery of evidence under circumstances that warrant
application of the exclusionary rule. Because, in my view, the
district court erred in denying Belt’s motion to suppress and
should be reversed, I respectfully dissent.
36