United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 8, 2003
__________________________ Charles R. Fulbruge III
Clerk
No. 02-60326
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY DOUG SHELTON,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
___________________________________________________
Before JONES, WIENER, and DeMOSS, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Jimmy Doug Shelton (“Shelton”) appeals the
district court’s denial of his motion to suppress evidence that his
estranged wife, Cheryl Shelton (“Cheryl”), removed from his house
and gave to law enforcement officials. On the basis of our close
review of the record and our analysis of relevant authority, we
hold that Shelton’s Fourth Amendment rights were not violated by
admission of evidence obtained for the government by Cheryl as a
paid informant. Therefore, we affirm.
I. FACTS AND PROCEEDINGS
After six years of marriage, Cheryl abruptly left the home
that she shared with Shelton. She moved out because of an extra-
marital affair that Shelton was allegedly having with his
secretary. When she left, Cheryl took some of her clothes and
other possessions with her, but she left behind many other personal
belongings, including, among other things, clothes, jewelry,
photographs, and furniture. With Shelton’s knowledge and assent,
she also kept her house key and her personal security access code
for the house alarm system. Although Cheryl never moved back into
the house, she and Shelton were not legally separated during the
period in question and neither party filed for divorce.
A few days after she moved out, Cheryl —— together with her
daughter, Camile Prather (“Camile”) —— returned to the former
marital residence so that Cheryl could retrieve some more of her
belongings. Camile videotaped boxes of bingo cards while she was
in the house. At about the same time, Cheryl’s sister, Debbie
Wheeler (“Debbie”) who had been cooperating with a government
investigation of Shelton since the previous month, informed Cheryl
of the on-going investigation of Shelton’s bingo operations and
encouraged her to speak with the government. Cheryl agreed and met
with an IRS agent and an Assistant U.S. Attorney a week after she
had vacated her marital home.
At that meeting, Cheryl volunteered to help the government
with its criminal investigation of Shelton, testifying later that
she “wanted to do the right thing” and that she “didn’t want to get
2
in trouble.”1 The agents orally assured Cheryl that if she would
assist in the investigation, she would not be prosecuted for her
role in the alleged conspiracy and indicated that she would be
compensated financially in some way.
Cheryl informed the government agents that there were items in
Shelton's home that might further their investigation, including
bingo cards in an upstairs bedroom and a notebook with records of
the alleged skimming operation on top of a grandfather clock in the
front hallway of the house. The government agents advised Cheryl
of their interest in the notebook and any other items that she
could obtain relative to the skimming operation, and Cheryl
subsequently gave the government the videotape that Camile had made
during their first visit to Shelton’s residence together. After
that initial visit, Cheryl returned to Shelton’s house many more
times, both on her own accord and at the specific direction of the
government. She did so to obtain particular items of evidence for
the benefit of the government’s investigation, as well as to pick
up her mail and personal belongings. She continued making visits
to the house over a period of at least four months.
After Shelton was charged, he filed a motion to suppress,
challenging nine specific visits to his house by Cheryl and the
1
Cheryl had been actively involved in the illegal skimming
operation as a co-conspirator and, as explained infra, continued
to alter the bingo session sheets, although at that point as a
government agent, as late as October 1997.
3
items she had taken.2 In recommending that the district court
grant the motion to suppress, the magistrate judge acknowledged
that Shelton had made no attempt to limit Cheryl's access to the
home, and noted that the items that Cheryl had taken from the home
after she moved out were located in areas to which she had free
access. Emphasizing that Cheryl maintained no ownership interest
in the home, however, the magistrate judge concluded that Cheryl’s
permission from Shelton to enter the home, although not limited
spacially, was limited functionally to picking up her mail and
personal belongings. This, concluded the magistrate judge, limited
the purpose of her authorized access. Although she was entitled to
retrieve personal items, ruled the magistrate judge, Cheryl’s
principal purpose in entering the home was not to pick up her mail
and personal items, but to collect evidence against her husband at
the direction of the government. Consequently, reasoned the
magistrate judge, her activities exceeded the limited purpose for
2
The items retrieved are as follows: (1) 2 pages from the
notebook; (2) 12 photos of skim records and 3 photos of boxes of
bingo cards; (3) 24 photos of boxes of bingo cards, a promissory
note of Shelton to pay his brother, Billy Shelton, $100,000 in
$2,500 monthly payments, a handwritten schedule of $97,500 of
$2,500 monthly payments, and receipt dated 12/03/96 showing a
payment to Billy Shelton, and a typed payment schedule dated
11/06/95 to 10/18/96; (4) bingo paper packing slip; (5) the
notebook, which was copied by agents and then returned to the top
of the grandfather clock by Cheryl; (6) at the request of Sue
Carnathan, who worked with Shelton, Cheryl accompanied her to the
home to pick up some bingo cards; (7) note signed by Shelton's
son, John, regarding the "exact amount" on paperwork and bingo
session sheets; (8) skim records and an envelope of skim records
delivered to agents for photocopying; and (9) invoice/packing
slip for bingo cards sold to "Bob Harrison."
4
which she was allowed into the home by Shelton, and thus
constituted unlawful searches.
Despite the recommendation of the magistrate judge, the
district court denied Shelton's motion to suppress.3 The court
found that Shelton had neither attempted to limit Cheryl's access
to the home nor attempted to exclude Cheryl in any way from access
to the evidence that she obtained and turned over to the
government.4 The court held that Cheryl had actual common
authority to permit a search by agents of the government and to
deal directly with the contents of the house.5
After the court denied his motion to suppress, Shelton agreed
to plead guilty to one count of the superseding indictment, viz.,
filing a false tax return for his bingo operation. As part of the
agreement, Shelton consented to the forfeiture of the bingo
building and $303,718.73, subject to pending forfeiture actions,
but reserved the right to appeal the denial of his motion to
suppress evidence and, if successful, to withdraw his guilty plea.
Shelton was sentenced to nine months imprisonment, one year of
supervised release, and a fine of $20,000. He timely filed a
notice of appeal.
II. ANALYSIS
3
United States v. Shelton, 181 F. Supp. 2d 649 (N.D. Miss.
2001).
4
Id. at 655.
5
Id. at 656-58.
5
A. Standard of Review
When hearing an appeal from a district court’s ruling on a
motion to suppress, we review that court’s factual findings for
clear error and its ultimate conclusion about the constitutionality
of the law enforcement conduct de novo.6 We consider the evidence
in the light most favorable to the prevailing party, here the
government.7
B. Authority to Grant Consent
Valid consent to a search is a well-established exception to
the normal requirement that law enforcement officers must have a
warrant grounded in probable cause before conducting a search.8 In
United States v. Matlock, the Supreme Court extended to third
parties the ability to grant this consent when those third parties
“possess[] common authority over or other sufficient relationship
to the premises or effects sought to be inspected.”9 “Common
authority,” the Court explained
is, of course, not to be implied from the mere property
interest a third party has in the property. The
authority which justifies the third-party consent...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
6
United States v. Orozco, 191 F.3d 578, 581 (5th Cir. 1999).
7
Id.
8
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
9
415 U.S. 164, 171 (1974)(emphasis added).
6
one of their number might permit the common area to be
searched.10
Based on this definition and even a cursory glance at the
facts, we have no doubt that if government agents had searched
Shelton’s home with Cheryl’s consent while she was still living
there, their search would have been lawful: She unquestionably
would have had the authority —— “common authority” with Shelton ——
to permit a search encompassing such common areas as the front
hallway, where the skimming notebook lay on top of the grandfather
clock, and an upstairs bedroom, where the illegal bingo cards were
stashed. The same would have held true for anything that she might
have removed from the house and turned over to the government.
This is so because, even though Cheryl never had an ownership
interest in the house, she was Shelton’s wife and had shared its
occupancy with him for at least six years.11 Shelton left the bingo
operation’s materials in common areas of the house, demonstrated no
intention to conceal those items from Cheryl, and, in fact,
continually solicited her active participation in the skimming
operation. All of these factors would have given Cheryl “joint
access or control for most purposes,” as long as she resided in the
10
Id. at 171, n.7.
11
In Matlock, the Court expressly downplayed the
significance of property ownership when deciding whether a third
party possessed common authority to consent. 415 U.S. at 171,
n.7 (stating that “[t]he authority which justifies the third-
party consent does not rest upon the law of property, with its
attendant historical and legal refinements”).
7
house with Shelton as husband and wife.
The only difference between this hypothetical example and the
actual facts of the instant case is that Cheryl had moved out of
the marital residence one week before she agreed to assist the
government in its investigation. Thus, the precise issue presented
here is whether Cheryl maintained the same (or sufficient) common
authority to consent to this search, beginning a mere week after
she had vacated the house and continuing for the next four months,
during which time she took evidence from Shelton’s house and gave
it to the government. Although she did not literally usher
government agents into the house so that they could conduct their
own search, Cheryl effectively allowed them to search the premises
by acting as their agent in collecting and delivering items of
evidence for them during that period and at their express direction
and control.
Shelton argues on appeal (as he did in the district court)
that by using Cheryl as a paid informant for the purpose of
conducting warrantless searches of his home, the government
violated his Fourth Amendment rights. He insists that Cheryl
lacked common authority under Matlock and Rodriguez. Even though
with his knowledge and acquiescence, Cheryl continued to possess a
key and security access code, contends Shelton, her authority to
enter his home was narrowly restricted to picking up her mail and
retrieving personal belongings; and, as a result, he retained a
reasonable expectation of privacy in his home for all other
8
purposes and to all other extents. This privacy interest was
violated, Shelton asserts, because Cheryl's principal reason for
entering his home was to gather evidence for the government, not to
pick up her mail and her personal effects. Shelton relies heavily
on the magistrate judge's determination that he "clearly did not
consent to a paid government informant entering his home to
retrieve other than personal items."
For its part, the government maintains that Shelton lost any
expectation of privacy vis-à-vis Cheryl when he made her a co-
conspirator in his bingo skimming and tax fraud schemes, and used
their matrimonial domicile to store illegal bingo cards and conceal
records of fraudulent activities. Inasmuch as Cheryl enjoyed
unlimited physical access to the entire interior of the home,
without any interference from Shelton or even any requirement that
he be present, left her personal possessions in the home, and
retained her key and access code, argues the government, Cheryl was
vested with actual and apparent authority to obtain the evidence
from the house and deliver it to the government.
Even though we are aware of no case in which a court has
confronted essentially identical factual circumstances, the Supreme
Court and other federal circuit courts have addressed similar
cases, giving us at least a degree of guidance. In the process of
establishing the rule of apparent common authority, the Supreme
Court in Illinois v. Rodriguez determined that the third party in
question, the girlfriend of the defendant Rodriguez, lacked actual
9
common authority over defendant’s apartment.12 The Court based its
conclusion on several discrete factors: (1) The girlfriend had
lived at the apartment with her two children for approximately six
months; (2) she and her children had moved out of defendant’s
apartment a month before the search took place; (3) she had not
contributed to rent and was not on the lease; (4) she occasionally
spent the night at the apartment with Rodriguez but never went
there alone and never invited friends over; (5) she took her and
her children’s clothing with her when she moved out, but left some
furniture and household effects; and (6) she had a key to the
apartment, but might have taken it without defendant’s knowledge.13
The facts of this case are readily distinguishable. In
contrast to the girlfriend in Rodriguez, Cheryl had been married to
Shelton for six years; neither of them took any legal steps to
separate or divorce; she shared his house with him as the marital
residence for at least the same amount of time as they were
married; she moved out only one week before agreeing to collect
evidence for the government; and after moving out, she visited the
house in Shelton’s absence at her will, either alone or with
members of her family. These facts establish a much more
substantial connection to the premises than that of the defendant’s
girlfriend in Rodriguez.
12
497 U.S. 177, 181-82 (1990).
13
Id. at 181.
10
In United States v. Smith, we rejected a challenge to the
third-party consent given by the estranged wife of the defendant.14
Although she was estranged, the wife was present, in the
defendant’s absence, when the police first visited the home.15 We
noted additionally that she was co-lessee of the house, and that
during the divorce proceedings, she was granted exclusive
possession of the home.16 Similarly, in United States v. Koehler,
a car-search case, we concluded, on the basis of particular factual
circumstances, that the wife had common authority to permit the
police to search a car driven almost exclusively by her husband.17
Although prior to his arrest, the husband had strictly limited his
wife’s access to the car, we concluded that this fact was
outweighed by evidence that (1) the wife was the legal owner of the
car, (2) the husband allowed his son to drive it, and (3) the
husband did not object when his wife was given the keys to the car
by a police officer.18 In short, our cases addressing third party
14
930 F.2d 1081 (5th Cir. 1991).
15
Id. at 1083.
16
Id. at 1085.
17
790 F.2d 1256, 1259-60 (5th Cir. 1986).
18
Id. Here, the magistrate judge, the district court, and
both parties on appeal also discuss the relevance of our decision
in United States v. Jenkins. 46 F.3d 447 (5th Cir. 1995). While
Jenkins is similar to the extent that a third party became a
government agent and consented to the search of defendant’s
videotapes, it is quite distinct factually. It involved an
employer-employee relationship, in which the items searched were
shipped to the employee and were in his sole possession when he
11
consent by a defendant’s spouse are also factually distinct from
this case and demonstrate a closer connection of the third party to
the area searched than exists here.
Several other courts have addressed and upheld instances in
which a wife, sometimes estranged, has consented to a search of the
residence in which her defendant-husband lived; but none of the
circumstances in those cases closely mirror the ones now before
us.19 Only the Second Circuit has upheld such a search under fairly
analogous facts. In United States v. Trzaska, that court
sanctioned a third-party consent search, because (1) the wife had
permitted the government search. Id. at 449-50, 456. These
differences, we conclude, are significant enough that Jenkins is
at most of limited usefulness in our analysis.
19
See United States v. Gevedon, 214 F.3d 807, 809, 811 (7th
Cir. 2000) (finding that the estranged wife had common authority
to consent to a search of a garage next to the house, when the
wife had moved out of the house several months earlier, but a
court had subsequently given her sole possession of the house and
garage); United States v. Duran, 957 F.2d 499, 503-04 (7th Cir.
1992) (upholding the common authority of a wife to consent to a
search of a farmhouse adjacent to her marital residence, even
though she had no ownership interest in the property, never used
the farmhouse, and had no possessions there); United States v.
Brannan, 898 F.2d 107, 108 (9th Cir. 1990) (concluding that an
estranged wife had common authority to consent to a search of the
house of which she was joint-owner, even though she had moved out
two or three months beforehand and defendant had changed the
locks); United States v. Crouthers, 669 F.2d 635, 642-43 (10th
Cir. 1982) (upholding the common authority of a partially
estranged wife to consent to a search of the house, when she had
moved out two weeks before the search, she still had a key, and
she had been present at the house with her husband); United
States v. Long, 524 F.2d 660, 660-61 (9th Cir. 1975) (holding
that an estranged wife had common authority to consent to the
search of the jointly owned house, when she removed possessions
on the days of the search and, and despite the fact that she had
moved out weeks beforehand and defendant had changed the locks).
12
moved out of the apartment she shared with her husband only two
weeks before the search, (2) she still possessed a key to the
apartment, and (3) she removed some personal belongings from the
apartment on the day of the search.20 Trzaska, however, neither
indicated the wife’s legal relationship to the property nor
involved multiple trips to the house as a government agent for the
principal purpose of obtaining evidence against the defendant
husband.
Considering all of these cases together, the only rule that
emerges is that the validity of a search grounded in third-party
consent requires an intensely fact-specific inquiry, and that
slight variations in the facts may cause the results to vary.
Consequently, the question that here remains unanswered is whether
Cheryl’s nexus with Shelton’s house, on its own terms and
conditions, amounted to a “sufficient relationship to the premises”
or “joint access or control for most purposes.”21 The Supreme Court
has only briefly elaborated that this standard requires us to
determine whether it is “reasonable to recognize that [Cheryl] has
the right to permit the inspection in [her] own right,” and whether
Shelton “assumed the risk that [Cheryl] might permit the common
area to be searched.”22 Post-Matlock cases, such as Rodriguez,
20
859 F.2d 1118, 1119-20 (2d Cir. 1988).
21
Matlock, 415 U.S. at 171 & n.7.
22
Id. at 171, n.7.
13
Smith, Koehler and Trzaska, demonstrate though that this
formulation has led to very fact-oriented precedents, none of which
truly govern this case. Given that the Rodriguez Court found
actual common authority lacking under its facts, but that Smith,
Koehler and Trzaska upheld common authority under their respective
circumstances, the body of case law fails to furnish a clear
governing principle for deciding this case.23
To better understand the scope of the Matlock standard and,
more importantly, how it applies to this case, we find it useful to
examine the privacy interests that animate the rule of third party
consent. Although consent to a search is a well-established
exception to the requirement for a warrant issued on the basis of
probable cause, courts have left the theory underlying this rule
largely unarticulated. The validity of a consensual search is
presumably based on the premise that a warrant and probable cause
are unnecessary to justify the invasion of privacy that accompanies
a consensual search, because by consenting, the individual evinces
a voluntary willingness to forgo that privacy. Similarly, third
party consent presumably extends the capacity to give consent to
individuals to whom the one with the privacy interest has already
substantially ceded his expectation of privacy. For example, when
23
We recognize that Rodriguez, which rejected common
authority, concerned a defendant’s girlfriend, and these other
cases, which found such authority, concerned defendants’ spouses;
but, without more, we cannot conclude this distinction alone
determines whether a third-party consent is permissible.
14
A allows B to intrude on A‘s expectation of privacy, A is
essentially granting B a particular level of access and control
over A’s area of privacy, and is thereby assuming the risk of B’s
exposing A’s interest to others. Thus, it is the interest of the
defendant (A in our example) and the extent to which he either
retains or forgoes his expectation of privacy that substantially
informs our understanding of common authority in third-party
consent situations.24
Viewing third-party consent through the prism of privacy
interests enables us to approach the question of common authority
by asking whether A sufficiently relinquished his expectation of
privacy to B, i.e., allowed mutual or common use of the premises to
the extent of joint access and control for most purposes, so that
it is reasonably anticipated that B might expose the same privacy
interest to others, even including law enforcement officers. To
determine here whether and to what extent Shelton actually
relinquished his expectation of privacy to Cheryl, we find it
24
See Duran, 957 F.2d at 504 (finding that “[p]rivacy
interests, and the relinquishment thereof, also play prominently”
when explaining the notion of common authority in third party
consent cases). Relying solely on the words “joint access or
control for most purposes” can be misleading, because it directs
our focus solely to the third party’s independent control of
premises, rather than to the defendant’s initial decision to open
his privacy interest to the third party and thereby grant that
individual access and control over those interests. Although a
third party’s independent control of an area or personal effect
can, and does, influence whether that individual has common
authority to consent to a search, when a defendant also controls
that same area or personal effect, an analysis of his expectation
of privacy frequently will be necessary.
15
helpful to borrow from the well-established “search” standard, by
asking whether Shelton showed a subjective expectation of privacy
that society is prepared to accept.25 If the answer is yes, then
Cheryl would not have a connection to the premises sufficient to
give her common authority to open them to others. Again, we find
this approach useful, at least in this case, because it highlights
the abandonment-of-privacy rationale that underlies and
fundamentally justifies consensual searches. Indeed, our focus on
the conduct of the defendant (Shelton), rather than the conduct of
the third party (Cheryl), is sensible because it is the defendant’s
Fourth Amendment rights that are at stake in such situations.26
Again, Shelton now insists that after Cheryl moved out, her
access to his house was strictly limited to retrieving her
belongings and picking up her mail. In light of all the facts, we
disagree. Had he truly wanted to limit her access to these
purposes only, Shelton could have revoked Cheryl’s security code,
changed the locks, and set up an appointment for her to pick up her
25
As reiterated in Kyllo v. United States, no Fourth
Amendment search occurs “unless the individual manifested a
subjective expectation of privacy in the object of the challenged
search, and society [is] willing to recognize that expectation as
reasonable.” 533 U.S. 27, 33 (2001) (citations and internal
quotation marks omitted).
26
See Stoner v. California, 376 U.S. 483, 489 (1964)
(stating that “[i]t is important to bear in mind that it was the
[defendant’s] constitutional right which was at stake here, and
not the night clerk’s nor the hotel’s”). See also Katz v. United
States, 389 U.S. 347, 351 (1967) (finding that “the Fourth
Amendment protects people, not places”).
16
things while he was present at the house. Just as Shelton put
aside Cheryl’s mail, he could have collected her personal
belongings for her to pick up at one time. He could even have left
her mail outside the house or taken it to his office and given it
to her sister, who worked there.
Rather than take any of these precautions, however, Shelton
did nothing to suggest that Cheryl’s access to the house was
restricted to the extent that he now contends, or that he had re-
established his expectation of privacy vis-à-vis her curtailed use
of the house after she moved out. In essence, nothing changed. The
great weight of the evidence supports the conclusion that Shelton
never altered his position toward Cheryl’s use of the house after
she moved out, and that his low expectation of privacy relative to
her continued unchanged. Having been married to Cheryl and having
shared his home with her for at least six years, Shelton never
asked her to vacate the house in the first place; she left on her
own volition because of his purported marital infidelities. He
never filed for separation or divorce; he never changed the locks
or revoked Cheryl’s personal security code; he was aware that
Cheryl returned to the house from time to time, and he sorted her
mail for her; he apparently invited her to stay at the house on one
occasion when he planned to be out of town; he never changed the
locations of incriminating evidence of the bingo operation from the
places where they were kept while she was living at the house; and
—— perhaps most importantly —— Shelton never ceased his efforts to
17
involve her in the alleged skimming operation even five months
after she moved out. Thus, contrary to the magistrate judge’s
conclusion, there is practically no evidence in the record that
Shelton tried to restrict Cheryl’s access to the house or to limit
the reasons for which she could enter it. By continuing to allow
Cheryl free access to the house, and by continuing to involve her
in the skimming operation, Shelton demonstrated that he held no
subjective expectation of privacy toward her at any time, either
before or after her move.
Neither was Shelton’s expectation that Cheryl would keep the
bingo operation materials private reasonable. “It is well settled
that when an individual reveals private information to another, he
assumes the risk that his confidant will reveal that information to
the authorities....”27 Although Shelton might have expected that,
for her own best interests, Cheryl would not divulge information or
evidence about their illegal activities, the Fourth Amendment does
not protect “a wrongdoer’s misplaced belief that a person to whom
he voluntarily confides his wrongdoing will not reveal it.”28
Indeed, as an accused philanderer, Shelton might have done well to
heed the admonition of the playwright William Congreve regarding a
27
United States v. Jacobsen, 466 U.S. 109, 117 (1984).
28
Hoffa v. United States, 385 U.S. 293, 302 (1966). See
also Jacobsen, 466 U.S. at 117.
18
woman scorned.29
Even though the cases from which these principles derive
concerned whether the police conduct at issue implicated the Fourth
Amendment at all, rather than whether the police violated an
established Fourth Amendment right, they nonetheless support the
conclusion that Shelton could not reasonably expect Cheryl to keep
the bingo operation materials in confidence. Like the defendants
who exposed their illegal conduct to government informants in these
earlier cases, Shelton voluntarily enlisted Cheryl in the illegal
skimming operation by having her alter the bingo session sheets and
by having her sign fraudulent tax forms.
In addition, Shelton’s proffered belief that Cheryl was only
picking up mail and personal belongings on her house visits does
not mean that Cheryl’s conduct amounted to potentially
impermissible trickery or deception.30 This is not a case in which
law enforcement officers gained access to the house by posing as
individuals engaging in law-abiding activities, such as a repairman
for a utilities company. Rather, Shelton actively involved Cheryl
29
William Congreve, The Mourning Bride, act 3, sc. 8 (1697)
(“Heaven has no rage like love to hatred turned, Nor hell a fury
like a woman scorned”).
30
See Lewis v. United States, 385 U.S. 206, 211 (1966)
(indicating that not every entry to premises by invitation
authorizes “an agent...to conduct a general search for
incriminating materials”); Gouled v. United States, 255 U.S. 298,
306 (1921) (overruled, in part, on other grounds) (finding that a
search by a government agent who enters a home or office “by
stealth, or through social acquaintance, or in the guise of a
business call” is prohibited by the Fourth Amendment).
19
in, and exposed her to, the precise illegal conduct for which the
government sought evidence.
Finally, neither Cheryl’s principal purpose of procuring
evidence for the government instead of picking up personal
belongings, nor the absence of her intention of returning to the
marriage —— even if true —— precludes our concluding that she
maintained common authority, because it is not her subjective
intention that controls our decision. As discussed above, the
validity of third-party consent depends in principal part on the
extent to which the defendant forgoes his reasonable expectation of
privacy toward that third party. Thus, although the intentions of
the third party may carry some weight, it is the defendant’s
treatment of his own privacy interests that predominates in the
determination of the third party’s right to consent. Shelton’s
decision to solicit Cheryl’s assistance in the bingo operation, and
at the same time to perpetuate her essentially unrestricted access
to the house, on par with the access that she had enjoyed while
residing there as his spouse, is what vested Cheryl with common
authority to consent to a search.
As today we hold that Cheryl possessed common authority to
consent to the government’s search, i.e., to remove the bingo
operation materials from Shelton’s house and deliver them to the
government, we need not address the issues of limited authority and
apparent authority raised by the parties.
III. CONCLUSION
20
We agree with the district court that Cheryl possessed common
authority to consent to a search of Shelton’s house. That this
manifested itself in her going into that house and taking evidence
out of it for the government rather than allowing the government
agents to enter the house themselves is of no moment. The result
is the same, either way. Shelton’s Fourth Amendment rights were
not violated, so the district court’s refusal to exclude those
items from the evidence was not error. For these reasons,
Shelton’s conviction on his guilty plea and his resulting sentence
are, in all respects,
AFFIRMED.
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