United States v. David Michael Kelley

REINHARDT, Circuit Judge,

dissenting:

The majority’s opinion does a serious disservice to Fourth Amendment privacy interests. The majority displays no awareness of the reality of modern living arrangements in which friends or acquaint-*567anees routinely share houses and apartments in order better to afford the high cost of rent. In fact, such arrangements are prevalent among students, new entrants in the workforce, and unmarried working- and middle-class individuals. Even married couples sometimes are forced by economic necessity to share living quarters with others. The majority ignores these realities, as well as the applicable law, and blithely plunges ahead to uphold a search of one housemate’s bedroom on the basis of a wholly ineffective “consent” granted by another. In doing so, my colleagues sorely misperceive a critical aspect of Fourth Amendment law that is disposi-tive of the present case. Specifically, the majority refuses to acknowledge that a third party cannot validly grant consent to a search of her housemate’s private living quarters unless she has “joint access and control for most purposes” of those living quarters. The law is clear: joint access to the common areas of a shared house or apartment is not sufficient, even when coupled with limited access to the housemate’s quarters.

The facts relevant to the authority of Holly Bakker to consent to a search of David Kelley’s bedroom are relatively straightforward. The police arrested Mr. Kelley, the appellant, as he exited his residence with Ms. Bakker. The police then took Mr. Kelley, but not Ms. Bakker, to FBI headquarters. Mr. Kelley did not give the police his consent to search his bedroom. After Mr. Kelley had been taken away, the police asked Ms. Bakker for consent to search his bedroom and the rest of the residence. Approximately fifteen minutes later, after some discussion between the police and Ms. Bakker, Ms. Bakker consented to the search. During the search, the police seized items located in Mr. Kelley’s bedroom closet and on a chair in his bedroom. These items were introduced at Mr. Kelley’s trial over his objection that they were obtained in the course of an illegal search and seizure.

As the district court found, because Mr. Kelley did not consent to a search of his residence, the only possible basis for the FBI’s warrantless search of his bedroom was the authority of Ms. Bakker to authorize it. The district court found that Ms. Bakker had the authority permit the police to search Mr. Kelley’s bedroom based on three — and only three1 — findings of fact: (1) that Ms. Bakker stated that she had signed the lease for the apartment; (2) that Ms. Bakker stated that she had access to the apartment; and (3) that Ms. Bakker stated that although she and Mr. Kelley had separate bedrooms, she had access to his bedroom for the purpose of using the one telephone in the apartment (located in the corner of his bedroom).2

The question, then, is whether the facts that Ms. Bakker signed the lease, had general access to the common areas of the apartment, and had highly limited access to Mr. Kelley’s bedroom are by themselves sufficient as a matter of law to support a finding that Ms. Bakker had the authority to authorize the police to engage in a war-rantless search of Mr. Kelley’s bedroom and its effects. The standard that governs *568that inquiry is clear: the Supreme Court repeatedly has held that third party consent to such an intrusive police procedure is constitutionally valid only when the third party has “joint access or control for most purposes ” over the quarters to be searched. Illinois v. Rodriguez, — U.S. -, 110 S.Ct. 2793, 2797-98, 111 L.Ed.2d 148 (1990) (emphasis added); United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 (1974).

There is no question that the first two facts — lease status and general access to the common portions of the property — constitute a legally insufficient basis upon which to authorize a warrantless search of Mr. Kelley’s private living quarters. See, e.g., United States v. Heisman, 503 F.2d 1284, 1288 (8th Cir.1974); see also Chapman v. United States, 365 U.S. 610, 616-17, 81 S.Ct. 776, 779-80, 5 L.Ed.2d 828 (1961) (holding that a landlord cannot validly consent to a search of a tenant’s apartment despite ownership and legal authority to enter the premises). Our court previously has stated explicitly that the mere status of housemate is insufficient to confer on a person the ability to authorize a police officer to search his or her housemate’s bedroom. See Cunningham v. Heinze, 352 F.2d 1, 4 (9th Cir.1965), cert. denied, 383 U.S. 968, 86 S.Ct. 1274, 16 L.Ed.2d 309 (1966). The issue in the present case is simply whether the addition of the third fact — the ability to use a telephone located in the housemate’s bedroom — suffices to transform what undisputably would be an invalid consent into a lawful authorization of a warrantless search. The answer is clearly, “no.”

In order to conclude that Ms. Bakker could lawfully consent to a police search of Mr. Kelley’s bedroom, it would be necessary to find that she had “joint access or control for most purposes ” over the premises to be searched. One who has been granted permission to enter a room solely for the purpose of using the telephone certainly does not have “joint access or control for most purposes” over that area. The majority opinion cites no precedent that in any way suggests or supports a contrary result. Indeed, no reported federal opinion has ever held that third party consent is valid in a situation such as the one presented here.

The majority makes a passing reference to the applicable test by way of a one-sentence conclusion that Ms. Bakker “had joint access and control, for most purposes, of the residence she shared with Kelley, which was the premises to be searched.” Opinion at 566. That statement is puzzling at best. Ms. Bakker undoubtedly had joint access “for most purposes” to her own room and to the common areas of the apartment, and hence could validly consent to a search of those places. However, for purposes of this appeal, those portions of the apartment are not the “premises to be searched.” The disputed area was Mr. Kelley’s bedroom and bedroom closet, not Ms. Bakker’s bedroom or the common areas of the apartment.3 It is the disputed portion of the premises which could not be searched in the absence of “joint access or control for most purposes” over them by Ms. Bakker. Mr. Kelley’s privacy interest in his bedroom is not diminished by the fact that Ms. Bakker had access to other areas of the apartment; similarly, the police may not search a bedroom merely because other areas of the apartment may lawfully be searched. Precedent makes clear that Ms. Bakker could validly consent to a warrant-less search of Mr. Kelley’s bedroom only if she had “joint access and control for most purposes” over the bedroom itself. See Cunningham, 352 F.2d at 4-5 (noting that the validity of consent is analyzed according to the particular area to be searched and the extent of the housemate’s access to that particular area); see also Heisman, 503 F.2d at 1288 (holding consent invalid when a housemate had unlimited access to the common areas of the apartment but *569only limited access to her housemate’s bedroom). The majority blatantly ignores these cases, as well as the other cases discussed below.4

Based upon the facts of this case and the district court’s findings, it is undeniable that Ms. Bakker did not have joint access or control for most purposes over Mr. Kelley’s bedroom, regardless of her access to other areas of the apartment which the police also searched. Ms. Bakker’s single purpose access is analogous to precedents involving a landlord who purports to grant consent to a search of his tenant’s property despite the fact that he has access only for the limited purpose of making repairs or retrieving personal property from the garage. See United States v. Warner, 843 F.2d 401 (9th Cir.1988); United States v. Impink, 728 F.2d 1228 (9th Cir.1984); see also Cunningham, 352 F.2d at 4-5 (reversing conviction because “appellant alleges that the bedroom closet and effects it contained were his, and that he had not voluntarily shared their control with Mrs. Schmidt_ Even if Mrs. Schmidt had express or implied authority to enter appellant’s bedroom for housekeeping purposes, it would not follow that she could permit a police search of appellant’s room, closet, and effects.”).5 The limited purpose cases uniformly reject the purported consent, because a person with limited purpose access lacks the “joint access and control for most purposes” necessary under Rodriguez and Matlock.6

The present case is quite similar to United States v. Heisman, 503 F.2d 1284 (8th Cir.1974). Heisman held that one co-tenant could not validly consent to a search of the other co-tenant’s bedroom even though both tenants had signed the lease, both tenants had keys to the apartment, and the co-tenant purporting to grant the consent had previously entered the bedroom to be searched. See id. at 1288. In Heisman, “[although there was no door or lock to Heisman’s room, it was nevertheless an area set aside for his own private use. *570[The co-tenant] had only been in the room once and then with Heisman’s permission. As a practical matter, Keterson did not have access or control of Heisman’s room for any purpose.” Id. (emphasis in original).

Cases which have upheld a third party’s consent have all found that the consenter’s access to the premises was equal to or greater than that of the person asserting a privacy interest. In United States v. Guzman, 852 F.2d 1117 (9th Cir.1988), for instance, we held that a wife who leased her husband’s apartment, sometimes stayed there, possessed a key, and stored clothes and makeup there had the authority to consent to a search of the apartment. In Guzman, we specifically stated that the husband had produced no evidence that the wife’s access to the apartment was limited. Similarly, in United States v. Yarbrough, 852 F.2d 1522 (9th Cir.), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 140 (1988), we upheld the consent given by the owner of a shack who had permitted the defendant to stay there for one month. We noted that the shack had only one habitable room, that both the defendant and the owner left personal property in that room, and that the defendant had a key to the shack. In Yarbrough, we stated that the owner “had complete access throughout the property in general, and to the room lived in by [the defendant] in particular. It was as much his own place as it was [the defendant’s].” Id. at 1534. See also United States v. Sealey, 830 F.2d 1028 (9th Cir.1987) (holding that a wife validly consented to a search of the garage when she was married to the defendant, was part owner of the home, and had “unlimited access to all areas”); United States v. Hamilton, 792 F.2d 837 (9th Cir.1986) (holding that the defendant’s mother validly consented to a search of a motor home parked in the driveway of her house when the motor home was connected by an electrical cord to her house, the mother was observed entering the motor home repeatedly, and the mother apparently had supervisory authority over two teenage girls who were inside the motor home because it was reasonable to conclude that the mother had common authority over the motor home sufficient to give valid consent). There is, however, no reported federal decision which has upheld the granting of consent by a person with limited access such as was enjoyed by Ms. Bakker in the present case.

Under well-established law, Ms. Bakker could not give valid consent to a search of Mr. Kelley’s bedroom. Her relationship to that room was far too insubstantial. It would be well to remember that “[t]he rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or unrealistic doctrines of ‘apparent authority.’ ” Stoner v. California, 376 U.S. 483, 488, 84 S.Ct. 889, 892, 11 L.Ed.2d 856 (1964). Because the majority ignores that admonition, fails to construe our precedent properly, and gives voice to concepts that are inconsistent with the mandate of the Fourth Amendment, I respectfully dissent.

. Although in its statement of facts the majority asserts that "[fjollowing his arrest, Kelley told FBI Agent Walker that Ms. Bakker was his girlfriend,” opinion at 563, the district court did not find or rely on this "fact.” Nor is the majority opinion based to any degree on the purported relationship between Mr. Kelley and Ms. Bakker; to the contrary, both the district court and the majority concluded that Mr. Kelley and Ms. Bakker had separate bedrooms, and that her access to his bedroom was for an extremely limited purpose only — to use the telephone.

. As the majority concedes, Ms. Bakker informed the police that she had been housemates with Mr. Kelley for only three days prior to her “consent” to the warrantless search of his bedroom. See Opinion at 464. She also told the police that the phone had been installed just one day prior to Mr. Kelley’s arrest and her "consent” to the police search of his bedroom. Indeed, Ms. Bakker also said that she merely assumed that she had permission to enter Mr. Kelley’s bedroom in order to use the phone: she stated that she had not yet used it, had not yet discussed the issue with Mr. Kelley, and had not yet been in Mr. Kelley’s room for any reason whatsoever. Ms. Bakker’s “access” to Mr. Kelley's room therefore was not only contingent on a particular, limited function — use of the telephone — but also was completely hypothetical and unrealized.

. The police found no incriminating evidence in the common areas of the apartment or in Ms. Bakker’s bedroom. The evidence seized by the police was taken exclusively from Mr. Kelley’s bedroom and from his bedroom closet. Mr. Kelley does not contest the authority of Ms. Bakker to consent to a police search of the common areas — he claims only that Ms. Bakker lacked authority to permit the police to search his bedroom and closet.

. An interpretation of the phrase "premises to be searched” as encompassing the entire residence would lead to patently absurd results. If the test is general access to the common areas of the apartment regardless of the restrictions on access to private living quarters, then whether or not Ms. Bakker had any access to Mr. Kelley’s bedroom would be irrelevant. Under that construction, an individual could authorize the police to search areas to which he had no access as long as the entire area to be searched was sufficiently expansive so that he had joint access to "most” of it. Clearly, the majority, which relies on Ms. Bakker’s "access” to Mr. Kelley's bedroom, does not intend to take that position. Nor did the district court. Both considered the question of Ms. Bakker’s access to Mr. Kelley’s bedroom to be important.

. The majority does not explain how Ms. Bakker’s hypothetical access to the telephone in the far left corner of Mr. Kelley’s bedroom somehow imbued her with the authority to permit the police to rummage through Mr. Kelley’s closet, which was located on the far right side of the bedroom and to which Ms. Bakker had no access. Because I would hold that Ms. Bakker did not validly consent to the police search of Mr. Kelleys bedroom, I similarly would hold that she did not validly consent to a search of Mr. Kelley’s bedroom closet. Thus, I need not consider the question of the closet separately, although the answer to that question would be equally clear even in the event that Ms. Bakker had sufficient access to the bedroom itself.

.In United States v. Sledge, 650 F.2d 1075, 1080 n. 10 (9th Cir.1981), we stated in dicta that if a third party has limited access to the defendant’s premises, and that limited access is sufficient to allow the plain view discovery of the incriminating evidence, then the third party may consent to allow the police to stand in his place. Regardless of the validity of that proposition, the evidence discovered in Mr. Kelley’s closet was not in plain view of someone entering the bedroom to use the telephone. Nor, in fact, is there any evidence that the objects seized were in plain view of someone standing in front of the open closet door. Thus, the plain view principle is inapplicable.

The same footnote in Sledge also stated in dicta that other precedents had “implied that a defendant may assume the risk that the third party will at times exceed the scope of authorized access, as that is defined in precise and narrow terms.” That implication is far from obvious in the cases cited to support it, and in any event goes no further than tolerating minor deviations from narrowly prescribed uses. Even if we could conclude that Mr. Kelley had assumed the risk that Ms. Bakker would linger in his bedroom or wander around it while talking on the phone, we cannot reasonably conclude that by authorizing her to make telephone calls he had assumed the risk that she would rummage through his closet or grant consent to others to do so. Accordingly, the assumption of risk principle is inapplicable as well.