United States Court of Appeals
For the First Circuit
No. 03-1189
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN T. MARSHALL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Boudin, Circuit Judge,
Siler,* Senior Circuit Judge,
and Lynch, Circuit Judge.
Thomas P. Colantuono, United States Attorney, with whom Helen
White Fitzgibbon and Donald Feith, Assistant United States
Attorneys, were on brief for appellee.
William T. Boyle was on brief for defendant, appellant.
October 29, 2003
*
Of the Sixth Circuit Court of Appeals, sitting by
designation.
SILER, Senior Circuit Judge. Defendant-Appellant John T.
Marshall appeals the district court’s denial of his motion to
suppress child pornography seized at his residence. For the
reasons that follow, the judgment of the district court is
affirmed.
I. BACKGROUND
On February 5, 2002, Police Officer Christopher Hutchins
responded to a call from Ms. Geis, owner of the residence at 7
Dixon Avenue in Newfields, New Hampshire. When Officer Hutchins
arrived, Geis informed him that she rented the two upstairs
bedrooms of her home to John Marshall and Kathleen Jones. She
informed Officer Hutchins that Marshall had been arrested on
burglary charges and was concerned that he might have stored stolen
property on the premises.
Geis asked Officer Hutchins to search the upstairs apartment
to look for stolen items, but he told her that he could not search
the apartment without a warrant because Marshall and Jones had a
right to their privacy. At Geis’s request, however, Officer
Hutchins walked to the top of the stairs leading to the apartment
and observed that one of the doors was ajar. Through the opening
in the door, he saw a black bag with a camera sticking out of it.
He took one step into the room and saw that the camera was a Sony,
which was consistent with the camera stolen from a nearby home. At
that point, Officer Hutchins asked a fellow police officer to
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secure the premises while he went to the police station to prepare
an affidavit in support of an application for a search warrant.
Jones arrived at the apartment while Officer Stevens was
securing the residence. She asked to enter her apartment to gather
some personal effects so that she could tend to her sick child who
was staying at his father’s home. Officer Stevens told Jones that
she would not be allowed to enter her apartment because a search
warrant was being sought as part of a police investigation into
several area burglaries. Jones confessed that she knew that
Marshall had been involved with the stolen property, but stated
that she had no involvement in any burglaries and indicated that
she wanted to cooperate with the police. Although Officer Stevens
did not have a blank copy of a consent form with him, Jones stated
that she would grant permission for a search of her apartment.
Soon thereafter, Officer Lamontagne arrived at the scene with
a consent to search form, whereupon he advised Jones that she could
leave the premises if she wanted, but told her that “it would be in
her best interest to stay, that she could stop the consent search
at any time, and that she should observe what was going on.”
Officer Stevens then read the consent to search form in its
entirety to Jones. Jones signed the consent form, which gave the
police permission to “take from my premises any property, any
letters, papers, material to any other property or things which
they desire as evidence for criminal prosecution in the case or
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cases under investigation.” Officers Stevens and Lamontagne
reiterated that she could stop the search at any time.
Upon his return to the residence, Officer Hutchins asked Jones
if she voluntarily gave her consent to search the premises, without
being threatened or coerced. She replied yes. Officer Hutchins
then had Jones add his name to the consent to search form and
advised her that she could revoke her consent at any time.
Although Officer Hutchins again urged her to remain on the
premises, Jones left.
The officers proceeded with the search and recovered stolen
social security cards, $3,400 in cash, United States Savings Bonds,
two video cameras, and several videotapes. Officer Stevens viewed
the videotapes using the VCR and television in the apartment. One
of the videotapes depicted a naked female child exiting the shower,
modeling various outfits, and wrestling with the defendant. The
videotape also showed a man using the same child’s hand to
masturbate an adult male and contained scenes of the child being
digitally penetrated by a man believed to be Marshall.
Marshall was later indicted on charges of production of child
pornography, in violation of 18 U.S.C. §§ 2251(a) and (d) and 2256,
and possession of child pornography, in violation of 18 U.S.C. §
2252A(a)(5)(B). He subsequently filed a motion to suppress the
videotape, arguing that Geis lacked authority to consent to the
search of the stairwell and that Jones’s consent was coerced.
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Marshall further argued that the officers exceeded the scope of the
search when they viewed the videotapes.
Following an evidentiary hearing, the district court denied
the motion to suppress. It concluded that Geis had the authority
to consent to the search of the stairwell leading to Marshall’s
apartment because it was a common area. It also found that Jones
knowingly and voluntarily consented to the search of the upstairs
bedrooms. Additionally, it determined that the officers acted
reasonably by viewing the tapes and, therefore, did not exceed the
scope of the consent. Marshall entered a conditional plea of
guilty to one count of production of child pornography and was
sentenced to a term of seventeen years.
II. ANALYSIS
This court reviews a district court’s legal conclusions
involved in denying a motion to suppress the evidence de novo, and
its findings of fact for clear error. United States v. Ngai Man
Lee, 317 F.3d 26, 29-30 (1st Cir. 2003). The district court’s
credibility findings should be accorded deference and overturned
only if this court has a definite and firm conviction that a
mistake has been committed. United States v. Nee, 261 F.3d 79, 84
(1st Cir. 2001).
A. Consent to Search the Stairway
Marshall challenges the district court’s determination that
Geis had the authority to consent to Officer Hutchins’s search of
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the stairway leading to the rooms he and Jones rented. He argues
that Geis lacked authority to give Hutchins permission to enter the
stairwell and, as a consequence, the videotapes obtained from the
search should be suppressed as fruit of the poisonous tree. See
generally Wong Sun v. United States, 371 U.S. 471 (1963).
In ruling on the motion to suppress, the district court found
that the stairway and landing were common areas of the home and
concluded that any one of its residents, Geis included, could have
consented to a search of those areas. See United States v.
Matlock, 415 U.S. 164, 170 (1974) (“[C]onsent of one who possesses
common authority over the premises or effects is valid against the
absent, non-consenting person with whom that authority is
shared.”); United States v. Hyson, 721 F.2d 856, 859 n.7 (1st Cir.
1983) (holding that consent based on common authority “rests [] on
mutual use of the property by persons generally having joint access
or control for most purposes”). In support of its ruling, the
district court cited the following: (1) Geis told Officer Hutchins
that she rented the two upstairs bedrooms to Kathleen Jones and
John Marshall; (2) Geis did not specifically tell Officer Hutchins
that she considered the stairway to be her tenants’ space; (3) Geis
never completely removed her personal property from the rented
rooms; and (4) Geis had gone upstairs on occasions to get something
she needed.
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Marshall nevertheless argues that the district court erred in
finding the stairwell to be a common area, given Geis’s testimony
that she considered the hallway up to the second floor to be her
tenants’ personal space. The district court considered this
testimony, but credited the testimony of the officers over the
testimony of Geis. Marshall fails to address the district court’s
credibility findings and, therefore, they should not be disturbed.
See Nee, 261 F.3d at 84 (holding that credibility findings should
not be disturbed unless “after reviewing all of the evidence, [the
court] [has] a definite and firm conviction that a mistake has been
committed”).
Even if Geis did not have actual authority to authorize the
search, the evidence need not be suppressed because Officer
Hutchins had a reasonable basis for believing that Geis had common
authority over the stairway. In Illinois v. Rodriguez, 497 U.S.
177 (1990), the Supreme Court held that the Fourth Amendment is not
violated when an officer enters without a warrant because he
reasonably, though erroneously, believed that the person who
consented to his entry is authorized to do so. Id. at 186. An
officer’s reliance on a person’s apparent authority must be judged
against an objective standard: whether a person of reasonable
caution with the facts available to him or her would believe the
consenting party had authority over the premises. Id. at 186.
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At the time of the search, Geis told Officer Hutchins that she
rented the two upstairs bedrooms to Marshall and Jones. She did
not inform him that she considered the stairway and landing part of
Marshall’s rented space. When Geis asked Officer Hutchins to
search the upstairs bedrooms, he told her that he could not conduct
a search without a warrant because Marshall and Jones had an
expectation of privacy; nevertheless, Geis then asked him to search
the stairwell. Because Officer Hutchins had just explained the
limitation on his ability to conduct a search, he could reasonably
assume that Geis would not have thereafter asked him to search
Marshall’s private space. Thus, Geis’s request for him to walk up
the staircase, under these circumstances, would have given a
reasonable person the impression that she had common authority over
this area.
Finally, although Officer Hutchins did not act reasonably in
stepping inside the open door to the bedroom, his brief entry into
the room was insignificant. As the district court noted, Officer
Hutchins already had probable cause to search based on Geis’s
statements and what he observed from outside the door. Moreover,
the information obtained from his search was never conveyed to
Jones and did not play a role in obtaining her later consent to
search the rooms. See United States v. Maldonado-Espinosa, 968
F.2d 101, 103-04 (1st Cir. 1992).
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B. Consent to Search the Apartment
Marshall also challenges the district court’s finding that
Jones’s consent was freely and voluntarily given. Proof of valid
consent requires that the prosecution show, by a preponderance of
the evidence, that the consent was knowingly, intelligently, and
voluntarily given. United States v. Perez-Montanez, 202 F.3d 434,
438 (1st Cir. 2000). Whether consent was voluntary or the result
of coercion is a question of fact to be determined from an
examination of the totality of circumstances. United States v.
Twomey, 884 F.2d 46, 51 (1st Cir. 1989) (citation omitted).
Factors to be considered include age, education, experience,
knowledge of the right to withhold consent, and evidence of
coercive tactics. Id. at 51.
The officers testified that Jones freely consented both
verbally and in writing after the consent to search form was read
to her in its entirety. Furthermore, they testified that Jones was
repeatedly informed of her right to refuse consent. Conversely,
Jones testified that her consent was obtained through threats and
coercion. She stated that she was denied access to her home and
was forced to sit in her car while the officers secured her home,
was intentionally frightened into believing that she would be
arrested in front of her children if she did not consent, and was
told that the officers would search the rooms even if she did not
consent because they were going to get a search warrant. The
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district court credited the officers’ testimony and specifically
discredited Jones’s testimony, concluding that Jones lied to
protect Marshall. In the absence of a reason not to do so, this
court defers to the district court’s personal observations and
evaluation of the witnesses’ credibility. See Perez-Montanez, 202
F.3d at 438.
Even if Jones’s testimony is to be believed, the district
court’s finding of no coercion survives this court’s review.
Although Jones was not permitted to enter her home while the
officers were present, she was not placed in custody or restrained
in any way. Her testimony that the officers told her that she
could stay implies that she realized that she was free to leave.
Moreover, the fact that the officers told her that they were going
to search the apartment regardless of whether she consented because
they intended to get a warrant is not inherently coercive.
Probable cause had been established and the officers had a good
faith belief that a warrant would issue. See Twomey, 884 F.2d at
52. But See Bumper v. North Carolina, 391 U.S. 543 (1968) (holding
that consent was not voluntarily given where the officers indicated
that they already had a warrant to imply that resisting consent
would be futile).
C. Scope of the Search
Marshall next argues that, regardless of whether Jones’s
consent was voluntary, the officers’ search of the videotapes
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exceeded the scope of her consent. The district court concluded
that viewing the videotapes reasonably fell within the scope of the
consent since video equipment was listed among the stolen items.
The circuits are divided on the question of the appropriate
standard of review regarding questions of the scope of consent and
this circuit has yet to rule on the matter. United States v.
Melendez, 301 F.3d 27, 32 (1st Cir. 2002) (noting that the Fifth
Circuit reviews de novo and the Eighth Circuit reviews for clear
error).
Warrantless searches may not exceed the scope of the consent
given. The scope of consent is measured by a test of objective
reasonableness: “what would the typical reasonable person have
understood by the exchange between the officer and subject?”
Florida v. Jimeno, 500 U.S. 248, 251 (1991). “[Courts] therefore
look beyond the language of the consent itself, to the overall
context, which necessarily encompasses contemporaneous police
statements and actions.” Melendez, 301 F.3d at 32 (citation
omitted).
The scope of a warrantless, but consensual, search is
generally defined by its expressed object. Jimeno, 500 U.S. at
251. In the instant case, Jones was told that the purpose of the
search was to look for stolen items and evidence showing Marshall’s
involvement in a recent burglary. The consent form she signed gave
the officers permission to “take from my premises any property, any
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letters, papers, material to any other property or things which
they desire as evidence for criminal prosecution in the case or
cases under investigation.” Thus, the question is whether a
reasonable person would conclude that the videotapes were within
the “expressed object” of the intended search.
Marshall contends that an objective observer would not have
concluded that Jones consented to the seizure or viewing of the
videotapes. First, he argues that the tapes were not among items
reported stolen and Jones did not authorize a search or seizure of
the tapes. Jones testified that she presumed that the search would
be limited to the box of stolen items that she pointed out to the
police and stated that she did not believe that she was consenting
to a search of items that she knew not to be stolen. Second,
Marshall argues that it was unreasonable for the officers to
believe that the tapes could have provided additional evidence of
the burglary since they would not have fit into the video
equipment/camcorders that were stolen.1
Although videotapes were not reported stolen, this is not a
case where the items seized are wholly unrelated to the expressed
object of the search. See United States v. Turner, 169 F.3d 84, 88
(1st Cir. 1999) (holding that seized computer files containing
child pornography fell outside the expressed object of the search
– to gather concrete, physical evidence of an assault – because
1
The stolen equipment uses 8mm tape, rather than VHS tapes.
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physical evidence would not be found on a computer). Nor is this
a case where the officers’ lawful search was a pretext for
otherwise unlawful aspects of a search. See generally United
States v. Hamie, 165 F.3d 80, 84 (1st Cir. 1999) (citing United
States v. Foster, 100 F.3d 846 (10th Cir. 1996); United States v.
Young, 877 F.2d 1099 (1st Cir. 1989); and United States v. Rettig,
589 F.2d 418 (9th Cir. 1978)). Rather, Officers Hutchins and
Stevens viewed the videotapes to see if they contained home movies
of the burglary victims and to narrow down the number of items
seized.2 As video equipment was among the items reported stolen,
and home videos of the victims would have provided evidence of
Marshall’s involvement in the burglary, the videotapes reasonably
fall within the expressed object of the search.
That Jones testified, after the fact, that she believed the
search was limited to the items reported stolen or those contained
in the box is of no consequence. The standard for measuring the
scope of a search is one of objective reasonableness, not the
consenting party’s subjective belief. For sure, a consenting party
may limit the scope of his or her consent or withdraw it
altogether. Jimeno, 500 U.S. at 252. However, where consent is
given and is reasonably understood to extend to a particular item,
2
While Marshall argues that this reason is pretense because
Officer Stevens did not have familiarity with the burglary victims,
the government retorts that “the officers were personally familiar
with the victims of the recent burglary and would certainly
recognize them were they depicted on the tape.”
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the Fourth Amendment does not require a more explicit
authorization. Id. Here, Jones consented in writing to a search
that clearly encompassed any property related to the burglary. As
such, a reasonable observer would conclude that the search could
extend beyond the mere items stolen so long as they were reasonably
calculated to produce evidence linking Marshall to the recent
burglary.
Furthermore, the fact that the officers were mistaken in their
belief that the tapes could be related to the stolen equipment does
not render their search unconstitutional. “The touchstone of the
Fourth Amendment is reasonableness.” Id. at 250 (citation
omitted). Hence, the Fourth Amendment does not require officers to
be correct in their assessment of the facts; it only requires that
they be reasonable. Rodriguez, 497 U.S. at 184 (discussing the
reasonableness requirement as applied to different factual
scenarios). Here, the officers were mistaken in their belief that
the videotapes might somehow be linked to the stolen equipment or
lead to evidence relevant to the burglary. Their belief, while
clearly mistaken, was not unreasonable.
Marshall also argues that, even if the officers had authority
to seize the tapes, they were obligated to get a warrant before
they viewed their contents because he had an expectation of privacy
and there were no circumstances that justified the officers’
warrantless search. In support of his argument, Marshall relies on
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United States v. Chadwick, 433 U.S. 1 (1977), and Walter v. United
States, 447 U.S. 649 (1980). In Chadwick, the Supreme Court held
that a warrantless search of a locked footlocker in the exclusive
possession of government officers violated the Fourth Amendment.
The officers in Chadwick arrested several individuals who were seen
carrying a footlocker that was reported to have been leaking talcum
powder, a substance commonly used to hide the smell of marijuana,
after sniffing dogs alerted the officers to the presence of a
controlled substance inside. Id. at 3-4. Following the arrest,
law enforcement officers opened the locked trunk and discovered
drugs. In ruling on the defendants’ motion to suppress, the Court
held that, once the officers had the container in their exclusive
control, they were required to get a search warrant since it was no
longer a search incident to an arrest and none of the other
exceptions to the warrant requirement existed. Id. at 15-16. The
Court reasoned that “[b]y placing personal effects inside a double-
locked footlocker, [the defendants] manifested an expectation that
the contents would remain free from public examination.” Id. at
11. Similarly, in Walter, the Supreme Court ruled that lawful
possession of films did not give law enforcement officials
authority to view the films. In that case, law enforcement
officers viewed several obscene films that were mistakenly
delivered to a third party rather than the consignee. Although
probable cause was established by the outside packaging suggesting
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illicit contents, the Court nevertheless ruled that the warrantless
viewing of the films constituted an unlawful search since none of
the exceptions to the warrant requirement existed. 447 U.S. at
654.
As the prosecution argues, however, both Chadwick and Walter
are distinguishable from the present case. Neither the owner of
the footlocker in Chadwick nor the owner of the films in Walter
consented to a search. Here, Marshall’s girlfriend consented to a
search of the rented bedrooms that was broad enough to encompass
the videotapes. Although Jones does not claim ownership over the
tapes, she had apparent authority to consent to their search since
she had regular access to them. The tapes were not kept in a
separate area where Jones lacked access or control over them. As
a consequence, Marshall has a lessened expectation of privacy in
their contents as compared to the defendants in Chadwick and
Walter.
The government contends that United States v. Jenkins, 46 F.3d
447 (5th Cir. 1995), is applicable to this case. In Jenkins, the
Court of Appeals for the Fifth Circuit upheld a warrantless search
of a shipment of illicit videotapes where the store clerk, who had
regular access to the tapes when he unpacked them at the owner’s
request, cooperated with FBI agents by allowing them to view the
tapes. Id. at 457-58. The court reasoned that the store clerk not
only had lawful possession of the tapes, but also had apparent
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authority to view the tapes via his regular access to them at work.
Id. at 458. As a consequence, the court found that the defendant
store owner could not have had a reasonable expectation of privacy
as to their contents and assumed the risk that his clerk would
watch the videotapes and allow others to do so. Id. at 459.
Although Jones did not explicitly consent to a search of the
videotapes as did the store clerk in Jenkins, much of the court’s
reasoning in that case is applicable. Jones’s access to the
videotapes suggests that Marshall, like the store owner in Jenkins,
assumed the risk that she might view the tapes herself or allow
others to do so. Thus, as Jones’s broad consent encompassed the
videotapes, her consent was similarly sufficient to overcome any
additional warrant requirement.
D. Questioning of the Witnesses from the Bench
Finally, Marshall contends that the district court prejudiced
his case and displayed improper bias by rehabilitating certain
government witnesses and asking leading questions from the bench at
the suppression hearing.
However, the record does not contain a transcript or excerpts
of the suppression hearing. Thus, this court is unable to
determine whether any improper questioning occurred. Therefore,
although the issue was raised, it is waived.
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III. CONCLUSION
For the foregoing reasons, the judgment of the district court
is affirmed.
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