U.S. v. Ibarra

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 91-2922
____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

JUAN IBARRA, JOHN JOE GUERRERO,
and ROBERT FRANKLIN CHAMBERS,

Defendants-Appellees.

_________________________________________________________________
_

Appeal from the United States District Court for the
Southern District of Texas
_________________________________________________________________
(June 30, 1992)

Before POLITZ, Chief Judge, KING, WILLIAMS, GARWOOD, JOLLY,
HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE,
EMILIO M. GARZA, and DeMOSS, Circuit Judges.

PER CURIAM:

This case was taken en banc solely to review the claim of

Robert Franklin Chambers that his fourth amendment rights were

violated by a search conducted by the authorities. On that issue

the en banc court is equally divided and, accordingly, the ruling

of the district court suppressing evidence with respect to

Chambers is AFFIRMED. United States v. Holmes, 537 F.2d 227 (5th

Cir. 1976).
E. GRADY JOLLY, Circuit Judge, with whom, POLITZ, Chief Judge,

GARWOOD, SMITH, WIENER, EMILIO M. GARZA and DeMOSS, Circuit

Judges, join, would affirm the district court for the following

reasons:

I would affirm the district court because the law

enforcement officers breached the Fourth Amendment when they

interpreted Robert Franklin Chambers' simple consent to search

the Ashby Street house--knowing that Chambers was only a guest in

the house--as authority to break forcibly into a sealed attic

space.

I

At approximately 10:00 p.m. on May 21, 1991, several law

enforcement officers approached the house located at 215 Ashby

Street in Baytown, Texas. They knocked on the door. When

Chambers answered the door, an officer explained that they were

conducting a narcotics investigation and wanted Chambers'

cooperation. Chambers allowed the officers to come inside. The

officers told him that on the basis of people who had been seen

at the house earlier that day, from whom incriminating records

had been seized, they believed that money or drugs were located

in the Ashby Street house. Officer Trumps asked Chambers if he

could search the house and garage. Chambers said, "That would be
all right." Chambers was then asked to sign a written Consent to

Search form, which, apparently, couches the consent in the

broadest possible terms. Chambers refused. According to Officer

Trumps, "[H]e said the house wasn't his. He was allowed to stay

there for a few days. I think he had already been there for a

few days. [H]e felt he didn't have the authority to sign the

document to allow a search although he was giving us verbal

consent." Chambers told the officers that he had split up with

his wife, and that the house belonged to his wife's brother, who

was allowing him to stay in the house for a week or so.1

1
The officers interpreted this consent as follows:

THE COURT: All right. Let me ask you this:
On the basis of that oral [consent], but his
unwillingness to sign the consent, did you feel
that if you wanted to, you had the right to bring
fire axes in, for instance, and chop open the
walls?

THE WITNESS: Yes, sir.

THE COURT: Do you feel that you had the
right to disembowel the appliances and look into
the minutia of the air conditioners or the stove,
the refrigerator, that sort of thing?

THE WITNESS: Yes, sir.

THE COURT: In fact, bringing a backhoe or
that sort of thing and dig up the backyard or
underneath the foundation of the house?

THE WITNESS: Yes, sir.

THE COURT: And you felt that you had all of
those rights based on this consent that he gave
you orally, even though he refused to sign the
form?

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 During the initial search of the house, the officers found a

brown grocery bag containing numerous rubber bands and torn-up

pieces of paper, torn pieces of currency, and a pistol underneath

a mattress. The officers realized that the house had an attic

and soon discovered that the only way to gain access to the attic

was through the ceiling of the bedroom closet. The entrance to

the attic, however, was sealed off with boards. Through a crack

in the boards, the officers were able to see a blue object, but,

according to the district court's findings, there was nothing

incriminating about this object's appearance.

After the access to the attic was discovered, an officer

found a sledge hammer and used it to knock out the
boards in the ceiling which had been securely
placed there. The Court finds it to be
incredulous that the sledge hammer was used merely
as a tool to push up the boards, given the
testimony as to how well secured the boards were
and especially considering that Agent Brooks
initially made reference to the breaking of
boards. Stated another way, having assessed the
demeanor and credibility of the witness and having
considered Officer Trumps' candidly expressed
opinion and belief that the initial general
consent authorized virtually a boundless search,
by whatever means possible, this Court finds that
the agents engaged in flagrant structural
demolition of the premises in order to accomplish
their objective and purpose which was undertaken
as though having no limitations whatsoever.

Findings of Fact and Conclusions of Law, 4-5 (record citations

omitted). Once in the attic, the officers found nearly

$1,000,000 in cash, ledgers, and a money-counting machine.

THE WITNESS: Yes, sir.

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 The district court concluded that Chambers "freely and

voluntarily consented" to the search of the house and garage, but

that such consent "could not reasonably have been interpreted by

these agents to have included a structural dismantling of the

secured closet ceiling - attic floor by use of a sledge hammering

technique." Id. at 8. It held that the items found in the

search of the rooms of the house were admissible, but suppressed

the evidence found in the attic. The United States appealed, and

a panel of this court reversed the district court's suppression

order. United States v. Ibarra, 948 F.2d 903 (5th Cir. 1991).

We voted to hear en banc only Chambers' claim that his Fourth

Amendment rights were violated.

II

The question we consider today is simple but, we think,

important. The standard by which we frame this question has been

set out by the Supreme Court:

The standard for measuring the scope of a
suspect's consent under the Fourth Amendment is
that of "objective" reasonableness -- what would
the typical reasonable person have understood by
the exchange between the officer and the suspect?

Florida v. Jimeno, ___ U.S. ___, 111 S.Ct. 1801, 1803-04 (1991).

Translated to this case, the question we are presented is whether

a reasonable officer would have understood Chambers' simple

assent -- "That would be all right" -- to search the house, in

which he was an invited guest, to include consent to forcible

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entry into a part of the house that had been securely sealed.

A

To set the stage for determining whether the officers

exceeded the scope of Chambers' consent, we first examine the

search that followed his consent. We start with the standard of

review:

"While we review questions of law de novo,
`[i]n reviewing a trial court's ruling on a motion
to suppress based on live testimony at a
suppression hearing, the trial court's purely
factual findings must be accepted unless clearly
erroneous, or influenced by an incorrect view of
the law, and the evidence must be viewed most
favorabl[y] to the party prevailing below."

United States v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th

Cir.), cert. denied, 495 U.S. 923 (1990) (quoting United States

v. Maldonado, 735 F.2d 809, 814 (5th Cir. 1984)).2

According to the district court, Agent Patton discovered the

way to gain access to the attic through the ceiling of the

bedroom closet. The district court found that the attic entrance

was covered by boards "which had been securely placed there."

Agent Patton "found a sledge hammer and used it to knock out the

boards in the ceiling."

The district court considered testimony that the

2
We further note in passing that when the justification for
a search is based on consent, the government has the burden of
proving that the search was conducted within the scope of the
consent received. United States v. Strickland, 902 F.2d 937, 941
(11th Cir. 1990); see also Schneckloth v. Bustamonte, 412 U.S.
218, 222 (1973).

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sledgehammer was used only as a tool to push up the boards to be

"incredulous" in the light of other testimony as to how well

secured the boards were. Indeed, the district court noted, Agent

Brooks testified that the boards were broken with the

sledgehammer. We think there is little doubt, when viewed in the

light most favorable to Chambers, the prevailing party below,

that the evidence supports the district court's finding that the

entrance to the attic was securely sealed with boards.

Furthermore, the evidence supports the district court's finding

regarding the degree of force used by the officers to gain entry

into the attic. Agent Brooks testified on direct examination at

the suppression hearing that the attic access was "boarded up

fairly securely," and that he "believe[d]" Officer Patton "had to

use a hammer to break those boards or loosen them to get up into

the attic." Although on cross-examination, Brooks altered his

testimony somewhat to say that Officer Patton "didn't use a

sledgehammer violently," but more as "a tool to push up on the

boards that were securing that hole," the district court, "having

assessed the demeanor and credibility of the witness," found this

altered testimony "incredulous." The district court was entitled

to choose between the two versions, and to find that the attic

was a sealed-off space and that the boards securing the attic

entrance were broken with the sledgehammer. We recognize that it

is not the role of the appellate court to substitute its own

judgment for such supported findings of the district court.

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 Indeed, the Supreme Court has told us in straightforward

language that the "clearly erroneous" standard of review "plainly

does not entitle a reviewing court to reverse the finding of the

trier of fact simply because it is convinced that it would have

decided the case differently. . . . Where there are two

permissible views of the evidence, the factfinder's choice

between them cannot be clearly erroneous." Anderson v. City of

Bessemer City, 470 U.S. 564, 573-74 (1985).3 The district court,

as we have noted, expressly stated that its factual findings with

respect to the degree of force and the extent of damage to the

attic entrance were based on its assessment of the demeanor and

credibility of the witnesses. We think that it is unjustifiable,

under the governing standard of review, for us to disregard those

findings. We therefore accept the finding that the use of a

sledgehammer to break the boards securing the attic entrance

3
Those who would reverse seize upon the district court's
characterization of the damage to the attic entrance as
"structural demolition," to reach the conclusion that the finding
is clearly erroneous. They seek to minimize the damage found by
the district court by describing the police conduct as the mere
removal of "a barrier blocking a visible access that had been
created before their arrival." In doing so, however, they apply
their own subjective interpretation of those words, and
substitute their narrow view of what constitutes a "structure"
for the district court's equally plausible, but broader, view.
We, of course, agree that if "structural demolition" can only
mean such destruction as would render a house uninhabitable,
there was no "structural demolition." Although it may not be the
only manner of expressing the damage done by the police, we think
that the district court's characterization of a secure barrier of
boards sealing off a part of the house as a "structure" is
certainly plausible under the facts of this case.

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constituted a "structural demolition" of the entrance to the

attic.4

B

We now consider the central issue: whether the search

exceeded the scope of Chambers' consent. The district court's

relevant factual findings regarding the circumstances of that

consent are amply supported by the record. Chambers told the

officers that he did not own the house, but was only a guest

there. In response to the officers' request for permission to

search the house and garage, Chambers simply stated, "That would

be all right." The district court found, however, that "he

adamantly declined and refused to sign [a] written Consent to

Search form." Officer Trumps testified that Chambers refused to

sign the form because he did not own the house and, therefore,

felt that he did not have the authority to do so. Despite the

officers' attempts to convince Chambers that he had authority to

sign the consent form, he remained steadfast in his refusal

because it was not his house.

As we have stated previously, the Supreme Court has defined

the standard for measuring the scope of consent as one of

"`objective' reasonableness--what would the typical reasonable

4
As an additional ground for suppressing the evidence found
in the attic, the district court held that the officers' conduct
violated the Due Process Clause. Because rehearing was granted
only on Chambers' Fourth Amendment claim, the panel's reversal of
that ruling is undisturbed.

-9-
person have understood by the exchange between the officer and

the suspect?" Florida v. Jimeno, ___ U.S. at ___, 111 S.Ct. at

1803-04. Although the question of objective reasonableness is a

question of law, the factual circumstances surrounding the

consent are central to determining the nature of the consent and

how it would have been understood by a reasonable person. We, of

course, are not bound by the district court's conclusions of law.

We must observe, however, that the district judge had the

opportunity to observe the demeanor of the witnesses and judge

their credibility, and he concluded that the consent could not

possibly have been understood as permission for the officers to

use a sledge hammer to break the boards securing the entrance to

the attic. Viewing the record as a whole in the light most

supportive of the district court's ruling, we agree.

"[T]his Nation's traditions are strongly opposed to using

force without definite authority to break down doors." Colonnade

Catering Corp. v. United States, 397 U.S. 72, 77 (1970).5 In the

light of the circumstances that led to the consent -- that

5
Colonnade supports those who would reverse not at all. In
Colonnade, the agents had statutory permission to be on the
premises and to conduct a search; in short, they had the
equivalent of general consent to search the premises. 397 U.S.
at 74. When, however, it came to breaking through a locked door,
the Court held that the agents' statutory authority to search was
not enough; definite authority, such as a warrant to break and
enter, was required. Id. at 74, 77. Here, those who would
reverse do not argue that the officers had definite authority to
break the boards securing the attic entrance, but claim that such
authority was implicit in the general consent given by Chambers.
Colonnade specifically rejects such a conclusion.

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Chambers was only a guest in the house and his "adamant" refusal

to sign a Consent to search form -- we reject the notion that the

simple assent -- "That would be all right" -- can reasonably and

objectively be understood as Chambers' tacit authorization for

the police to take a sledgehammer and break their way into a part

of the house that had been securely sealed with boards. The fact

that Chambers neglected to foresee the officers' conduct and

failed specifically to state any limitations on his permission to

search the house is, we think, an insufficient basis for

interpreting his consent as authorizing the officers to damage

the house or any property in it.6

When an individual gives a general statement
of consent without express limitations, the scope
of a permissible search is not limitless. Rather
it is constrained by the bounds of reasonableness:
what a police officer could reasonably interpret
the consent to encompass. . . .

. . . [A] police officer could not reasonably
interpret a general statement of consent to search
an individual's vehicle to include the intentional
infliction of damage to the vehicle or the
property contained within it. Although an
individual consenting to a vehicle search should
expect that search to be thorough, he need not
anticipate that the search will involve the
destruction of his vehicle, its parts or contents.
Indeed, it is difficult to conceive of any
circumstance in which an individual would
voluntarily consent to have the spare tire of
their automobile slashed. Unless an individual

6
Nor is Chambers' apparent silence while the officers
sledge-hammered their way into the attic suprising, inasmuch as
he was alone in the house and greatly outnumbered by law
enforcement officers who had already found some evidence of an
incriminating nature.

-11-
 specifically consents to police conduct that
exceeds the reasonable bounds of a general
statement of consent, that portion of the search
is impermissible.

United States v. Strickland, 902 F.2d 937, 941-42 (11th Cir.

1990). Cf. Jimeno, ___ U.S. at ___, 111 S.Ct. at 1804 ("It is

very likely unreasonable to think that a suspect, by consenting

to the search of his trunk, has agreed to the breaking open of a

locked briefcase within the trunk, but it is otherwise with

respect to a closed paper bag.")

There is an additional reason, grounded in strong policy

concerns, that we are not inclined to construe the simple assent

that was given in this case as an agreement to allow the

dismantling of any part of the house or as permission to destroy

any property in the house. The Supreme Court has stated that

"the community has a real interest in encouraging consent, for

the resulting search may yield necessary evidence for the

solution and prosecution of crime, evidence that may ensure that

a wholly innocent person is not wrongly charged with a criminal

offense." Schneckloth v. Bustamonte, 412 U.S. 218, 243 (1973).

It is obvious to us that citizens will have greater incentives to

permit consensual searches of their property if they have some

assurance that law enforcement officers will respect their

premises while conducting such searches. The community's

interest in encouraging consent would not be advanced by

interpreting Chambers' simple assent to the search of the house

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to include consent to break forcibly into the sealed attic space

with a sledgehammer.

III

We would hold that a typical reasonable person would not

have interpreted Chambers' consent to extend to breaking the

boards securing the attic entrance. Accordingly, for the

foregoing reasons, we would affirm the district court's order

granting Chambers' motion to suppress the evidence seized from

the attic of the Ashby Street house.

DUHÉ, Circuit Judge, with whom KING, WILLIAMS, HIGGINBOTHAM,

DAVIS, JONES and BARKSDALE, Circuit Judges, join, would reverse

the district court for the following reasons:

The United States appeals the district court order

suppressing evidence seized pursuant to a consent search. We

voted to hear en banc the claim of Appellee Robert Franklin

Chambers that his Fourth Amendment rights were violated by the

search of the Ashby Street house, and that the evidence seized

therefrom should be suppressed.7 I would reverse and remand.

7
With regard to Chambers's due process claim and the
standing and cross-appeals of his co-defendants, the panel
opinion remains in force.

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Facts

After arresting two men suspected of drug trafficking and

money laundering, Houston police went to 215 Ashby Street, a

house both men had visited that day. Appellee Chambers answered

the door and, after the officers asked to come in, allowed them

to enter. The officers told Chambers of their investigation.

Chambers told them that he had been living in the house for two

weeks. The officers asked if they could search the house and

garage for evidence of money laundering and drug trafficking, and

Chambers agreed. The officers then presented Chambers with a

consent form, which they read in part to him and which he

perused. Chambers, however, refused to sign a consent form,

stating that he did not own the house, his brother-in-law did.

The Ashby Street house consisted of a bedroom with a closet,

a kitchen, a living room, a bathroom, and an attic. On their

first time through the house, the officers found rubberbands and

paper (items typically used by money launderers to divide and

label cash) in the kitchen and ripped currency and a gun in the

bedroom. One officer then went outside to see if the house had

attic or cellar space. Noting that it had an attic, he returned

inside to search for an entrance. One was found, boarded up, in

the bedroom closet. The police then used a sledgehammer to

remove the boards. Upon entering the attic, they found nearly

$1,000,000 in cash, ledgers, and a money counting machine.

Upon the motion of Appellee Chambers, the district court

suppressed the evidence found in the attic. From the bench the

district court judge gave the reasons for his ruling. He
indicated that Chambers gave a "reasonably knowing and

appropriate" consent to search the house and garage. Though the

judge believed the search of the rooms and the garage of the

house to be reasonable, he found that the search of the attic was

not, stating that by the time the police found the attic

entrance, Chambers was constructively under arrest. The judge

further stated that having found evidence of money laundering,

probable cause was clearly established and the intervention of a

magistrate was necessary to determine the propriety of entering

the attic.

The district court judge later submitted written reasons for

suppressing the evidence found on Ashby Street. He found that

Chambers's consent to search the house had been free and

voluntary, but could not have included consent to structurally

dismantle the secured closet ceiling by use of a sledgehammer.

The judge also concluded that the Due Process Clause called for

suppression, finding that the conduct of the officers was

"outrageous" and qualified "as the sort of arbitrary and

capricious police conduct that shocks [a court's] sense of

justice and fundamental fair play."

Analysis

To establish a Fourth Amendment violation, Chambers must

show that he had a legitimate expectation of privacy in the area

searched. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); United

States v. Antone, 753 F.2d 1301, 1306 (5th Cir.), cert. denied,

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15
474 U.S. 818 (1985). In assessing whether a legitimate

expectation of privacy exists, we examine several factors

including:

whether the defendant has a possessory
interest in the thing seized or the place
searched, whether he has the right to exclude
others from that place, whether he has
exhibited a subjective expectation of privacy
that it would remain free from governmental
intrusion, whether he took normal precautions
to maintain privacy and whether he was
legitimately on the premises.

United States v. Haydel, 649 F.2d 1152, 1155 (5th Cir. Unit A

July 1981), cert. denied, 455 U.S. 1022 (1982).

Chambers resided in the house; in fact the district court

found that he was the sole occupant. He exerted control over it

and was legitimately on the premises. Chambers, therefore, has

standing to object to the submission of evidence found there.

When reviewing a district court's suppression ruling, we

accept the court's factual findings unless they are "clearly

erroneous or influenced by an incorrect view of the law." United

States v. Lanford, 838 F.2d 1351, 1354 (5th Cir. 1988). The

district court's ultimate conclusions of Fourth Amendment

reasonableness, however, are subject to de novo review. United

States v. Colin, 928 F.2d 676, 678 (5th Cir. 1991).

I adopt the factual findings of the district court with one

exception. Because I find no support for the district court's

finding that the police structurally dismantled the attic

entrance, I reject it as clearly erroneous. None of the

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16
testimony offered to the court suggests that the police disturbed

the structural integrity of the Ashby Street house. To the

contrary, the record indicates that the house was built with an

attic space and that an access to this space was located in the

ceiling of the bedroom closet. Though this hole was covered by

boards, through them one could see what appeared to be a bag,

indicating that the attic was in use. The police did not alter

the frame of the house; they removed a barrier blocking a visible

access that had been created before their arrival.

The removal of such a barrier does not constitute a Fourth

Amendment violation. The police may search without a warrant

when they have consent to do so from a person with authority to

give consent. Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct.

2793, 2797 (1990). Chambers, though not the owner of the house,

resided there as its sole occupant and thus had authority to

consent to the search.8 The district court found, and I agree,

8
We are not, therefore, faced with a question of third-
person authority, an issue that frequently arises when a third
party allows the police to inspect an absent owner's belongings.
The owner of the Ashby Street house is not a party to this
appeal. In third-party situations, the absent owner's
expectations of privacy may play a role in determining whether
the third party had authority to consent. See United States v.
Kinney, 953 F.2d 863, 866 (4th Cir. 1992) (Girlfriend who had
never opened defendant's locked closet lacked authority to
consent to the search of the closet.), petition for cert. filed,
(U.S. May 8, 1992); United States v. Block, 590 F.2d 535, 540,
542 (4th Cir. 1978) (Defendant's mother had no authority to
search locked footlocker when mother asserted defendant's claim
of privacy over it and disclaimed any right of access to it.).

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17
that his consent was voluntary.9 Unlike the district court,

however, I find that the consent to search extended to the attic.

Whether Chambers agreed to a search of the attic is a

question of objective reasonableness: would "the typical

reasonable person" understand the consent to extend to the attic?

Florida v. Jimeno, 111 S. Ct. 1801, 1803 (1991). Such a question

of objective reasonableness is a question of law subject to de

novo review. See United States v. Harrison, 918 F.2d 469 (5th

Cir. 1990) (reasonableness of investigatory stop is a conclusion

of law); United States v. Tedford, 875 F.2d 446, 448-49 (5th Cir.

1989) (objective reasonable reliance on search warrant is a

question of law). Chambers consented to a general search of the

premises for evidence of drug trafficking and money laundering.

He had the ability to limit the scope of the search "in the same

way that the specifications of a warrant limit a search pursuant

to that warrant." United States v. Dichiarinte, 445 F.2d 126,

9
Chambers contests this finding. The issue of
voluntariness is central to suppression of the attic evidence as
well as the admissibility of the kitchen and bedroom evidence.
To the extent that an appeal of the voluntariness finding
constitutes an appeal from the denial of Chambers's motion to
suppress the kitchen and bedroom evidence, it is impermissible.
United States v. Martin, 682 F.2d 506, 508 (5th Cir.), cert.
denied, 459 U.S. 1088 (1982). With respect to the attic
evidence, because the voluntariness claim, if successful, would
necessitate suppression of all evidence found at the Ashby Street
house, entitling Chambers, who has not cross-appealed, to greater
relief in this Court than he obtained from the district court, he
may not assert it. Granfinanciera, S.A. v. Nordberg, 492 U.S.
33, 109 S. Ct. 2782, 2788 (1989); United States v. New York
Telephone Co., 434 U.S. 159, 166 n.8 (1977).

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18
129 n.3 (7th Cir. 1971). But Chambers did not restrict the

search in any way, at any time, although he presumably was aware

of his right to do so, having read the consent form offered

him,10 and was present throughout the search's duration. I find

that an objective onlooker could understand this general consent

to extend to all integral parts of the house -- closets, attic,

and basement (had there been one) included -- in which evidence

of drug trafficking or money laundering could be found.11

Having authorized a search of the entire house, Chambers no

longer held a reasonable expectation of privacy in any of its

compartments. That entry to one chamber was difficult does not

alter this conclusion. The Supreme Court has stated that "a

lawful search extends to the entire area in which an object of

the search may be found and is not limited by the possibility

that separate acts of entry or opening may be required to

complete the search." United States v. Ross, 456 U.S. 798, 820-

21 (1982). Though the search in Ross was based on probable

cause, its reasoning applies equally to consent cases. See

10
It is not necessary, however, that the police establish
Chambers's "knowledge of his right to refuse consent."
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
11
One officer testified in response to the court's leading
question that this consent would authorize him to chop open the
walls with a fire ax or dig up the foundations with a backhoe.
This subjective belief evinces a terrible misunderstanding of the
reasonable bounds of the consent. What the officers thought they
could do is irrelevant in examining the objective reasonableness of
what they in fact did.

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19
United States v. Martinez, 949 F.2d 1117, 1120 (11th Cir. 1992)

(finding that the forced opening of the locked trunk of a car

stored in a mini-warehouse was authorized pursuant to the

defendant's consent to search the mini-warehouse for narcotics).

That force was used to effect the separate act of entry does

not necessarily render the search unreasonable. In Colonnade

Catering Corp. v. United States, for example, the Court addressed

whether an IRS agent without a warrant, and over the owner's

objections, was authorized to enter a locked storage room

pursuant to 26 U.S.C. § 7342, a statute levying fines against

owners who refused to admit Treasury Department officials on

their premises. 397 U.S. 72, 74 (1970). Finding that the

statute did not authorize forcible, warrantless entries, the

Court referred to this "Nation's traditions that are strongly

opposed to using force without authority to break down doors."

Id. at 77 (emphasis added).

Unlike the agent in Colonnade, the officers in the Ashby

Street house had authority for their search -- the express verbal

consent of Chambers. In further contrast, they were not met with

explicit opposition to their entry, as was the Colonnade agent.

To ignore the "without authority" language of the Colonnade

dictum would render impermissible much police action that we

regularly condone. For example, officers with warrants who are

refused entry are authorized by statute to break open doors and

windows. 18 U.S.C. § 3109 (1985).

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20
 Indeed, that officers with warrants are permitted to "break

open any outer or inner door or window of a house, or any part of

a house, or anything therein, to execute a search warrant" when

refused admittance, id., strengthens my conclusion that the

forced entry into the attic was reasonably within the scope of

Chambers's consent.12 For, Chambers's consent, unconditional as

it was, permitted the police to conduct the search "precisely the

same way as if the police has obtained a warrant." Schneckloth

v. Bustamonte, 412 U.S. 218, 243 (1973).

Appellee Chambers calls to our attention two automobile

consent-search cases. Jimeno, 111 S. Ct. at 1802; United States

v. Strickland, 902 F.2d 937 (11th Cir. 1990). In both cases, the

defendants gave the police unrestricted consent to search their

cars for narcotics. In Jimeno, the police opened a paper bag

found on the car's floorboard. The Supreme Court held that the

search of the bag was objectively reasonable, but distinguished

its holding from a Florida Supreme Court case suppressing

evidence found in a locked briefcase. The Court noted that "it

is very likely unreasonable to think that a suspect by consenting

to the search of his trunk has agreed to the breaking open of a

12
The Supreme Court also has contemplated the use of force
to execute warrants:
[T]he orderly completion of the search may be facilitated if
the occupants of the premises are present. Their self-
interest may induce them to open locked doors or locked
containers to avoid the use of force . . . ."
Michigan v. Summers, 452 U.S. 692, 703 (1981).

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locked briefcase within the trunk, but it is otherwise with

respect to a closed paper bag." Jimeno, 111 S. Ct. at 1804.

In Strickland, one officer slashed open a spare tire found

in the defendant's car trunk. The Eleventh Circuit upheld the

introduction of the evidence found in the tire on the basis of

the officer's probable cause to suspect that the tire held

contraband. Strickland, 902 F.2d at 943. The court, however,

noted that the intrusion had exceeded the reasonable bounds of

the defendant's consent. Id. at 942. In both cases, therefore,

without suppressing the evidence found in either search, the

courts suggested it was unreasonable for officers to break into

sealed or locked objects found pursuant to consent searches.

This holding does not extend to such situations in which

locked containers or sealed objects -- entities independent of

the compartments in question -- are found, and opened, during

otherwise permissible searches.13 Today we face only the

13
The courts, however, have addressed the issue
previously with respect to warrant searches, see United States
v. Gonzalez, 940 F.2d 1413, 1420 (11th Cir. 1991) (valid
warrant to search defendant's house for documents and currency
authorized search of locked briefcase found in house), cert.
denied, 112 S.Ct. 910 (1992); United States v. Morris, 647 F.2d
568, 572-72 (5th Cir. Unit B 1981) (valid warrant to search
defendant's home for proceeds of bank robbery authorized search
of locked jewelry box), and consent searches, see United States
v. Lechuga, 925 F.2d 1035 (7th Cir. 1991) (search of suitcase
inside closet was permissible pursuant to general consent to
search apartment); United States v. Martinez, 949 F.2d 1117
(11th Cir. 1991) (consent to search mini-warehouse extends to
locked car trunk found there); United States v. Sealey, 830

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situation in which the police, in attempting to enter an area

reasonably understood to be within the scope of the consent,

forcibly removed a barrier to the existing passageway to an area

in the house without damaging its structure. Chambers, as sole

occupant, had authority to consent to the search. He did consent

to a search of the house without restricting the scope of that

search, thereby relinquishing his expectation of privacy in the

attic. Other means of access were unavailable. Based on these

facts, I would hold that the police conduct in this case was

reasonable.

F.2d 1028 (9th Cir. 1987) (searches of sealed containers in
garage and travel bag in bedroom were permissible).

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