United States v. Shelton

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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