[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 03-10691 ELEVENTH CIRCUIT
November 5, 2003
________________________
D. C. Docket No. 02-20055-CR-JLK THOMAS K. KAHN
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY BACKUS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 5, 2003)
Before CARNES, BARKETT and DUHE*, Circuit Judges.
CARNES, Circuit Judge:
Jeffrey Backus pleaded guilty to and was convicted of possessing a firearm
*
Honorable John M. Duhe, Jr., United States Circuit Judge for the Fifth Circuit, sitting by
designation.
and ammunition after having been convicted of a felony, in violation of 18 U.S.C.
§ 922(g)(1). The guilty plea was conditioned on Backus being allowed to appeal
the denial of his motion to suppress the results of a search of his home. That
search, which turned up firearms and ammunition proving Backus’ guilt of the
crime of possessing them, was conducted with the express consent of his estranged
wife. This is Backus’ appeal from the denial of his motion to suppress, and it
brings to us an interesting Fourth Amendment issue arising out of a domestic
abuse situation.
I.
The law is settled that permission to conduct a consensual search of
property owned or occupied by a prospective defendant may be obtained from
another person who possesses “common authority over or other sufficient
relationship to the premises.” See United States v. Matlock, 415 U.S. 164, 171, 94
S. Ct. 988, 993 (1974); see also Coolidge v. New Hampshire, 403 U.S. 443, 487-
90, 91 S. Ct. 2022, 2048-50 (1971). The Supreme Court has explained that
common authority for purposes of consent to search is not determined merely by
property law, but “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
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own right and that the others have assumed the risk that one of their number might
permit the common area to be searched.” Matlock, 415 U.S. at 171 n.7; 94 S. Ct. at
993 n.7.
Under this common authority doctrine, a spouse who jointly owns and
occupies the marital home with the defendant may consent to a search of it with
the same effect as if the defendant himself had done so. See id. at 177, 94 S. Ct. at
996; United States v. Thompson, 421 F.2d 373, 376 (5th Cir. 1970)1. The issue in
this case is whether the consent of an estranged wife who still jointly owns the
marital home with the defendant, but who has not been in that home in some time,
is effective against the defendant. Because the answer may depend on the factual
circumstances of the wife’s absence, we turn to them.
II.
Sylvia and Jeff Backus were married in 1990 and began their life together in
Miami.2 Within a month after they joined together in matrimony, Backus began
1
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this Court
adopted as binding precedent all published decisions of the former Fifth Circuit issued before
October 1, 1981.
2
All of the facts contained in this opinion are taken from the record, and most come from
the evidentiary hearing that the magistrate judge conducted on the motion to suppress. After
conducting that hearing, the magistrate judge observed: “There doesn’t seem to be much
disagreement on the facts in the case, are there?” Counsel for Backus responded: “No, sir. I
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verbally and physically abusing Mrs. Backus. He repeatedly screamed at her and
made threats. Among the threats were that he would put bullets through her
kneecaps and in her stomach so that she would be in a wheelchair and have to eat
powdered mixes through a bag for the rest of her life. There was also a lot of
physical abuse, and it escalated over time. Sometimes Backus shoved Mrs.
Backus and pulled her hair, sometimes he put her in a headlock, and sometimes he
punched her. She was afraid of him throughout their ten years of marriage. After
it was over Mrs. Backus testified, with considerable understatement, that her
marriage to Backus had been “tough to say the least.”
It was tough on the children, too. Mrs. Backus had three sons, two of them
from an earlier marriage. Her firstborn was Gabriel, who was seven years old
when she and Backus married. Her secondborn’s name is not disclosed in the
record, but the record does reveal that the children’s services agency took that
child away from Backus and her in 1995, and gave custody of him to Mrs. Backus’
mother. Mrs. Backus understood that was done because she had not protected the
child from her husband. The third son, who was born to the couple soon after they
married, was named Jeffrey, Jr.
don’t believe that there are.” Our reading of the record confirms that the facts, which we set out
in this opinion, were undisputed at the time the motion to suppress was denied by the district
court following the evidentiary hearing that the magistrate judge had conducted.
4
Backus abused his namesake child, Jeffrey, as well as Jeffrey’s half-brother
Gabriel, who also lived with the couple. He would hit the two boys, sometimes
with a shoe. He would also withhold food from them when he was mad. On
occasion, he would make young Jeffrey sleep on the bathroom floor to punish him
for making mistakes during the night. Backus’ abuse of Jeffrey got worse around
the time that he was seven years old. It was then that Backus beat Jeffrey with a
shoe so badly that Mrs. Backus took him to the hospital. Photographs were taken
of Jeffrey’s bruises, and the shoe that had been used in the beating was given to
the authorities. Backus was charged with aggravated child abuse, but to Mrs.
Backus’s shock that charge was later dropped. She never understood why.
Mrs. Backus was afraid that if she divorced Backus, he would get visitation
rights with Jeffrey. Throughout their marriage Backus had threatened that if she
tried to divorce him he would take Jeffrey away so that she would never see him
again. Mrs. Backus believed that would happen, which is why she stayed married
to Backus for a decade. As she put it, “I would have died first before I would let
him have Jeffrey.”
The abuse continued and escalated throughout the marriage, although the
venue of it changed in 1996. That year Mr. and Mrs. Backus, who had been living
in an apartment together, jointly purchased a two-level townhouse, had the deed
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made out in both of their names, and as co-owners lived there along with Jeffrey
and Gabriel. They lived together in that Miami townhouse until what Mrs. Backus
describes as “the breaking point” occurred in April of 2001.
On Saturday, April 7, 2001, Backus and Gabriel, who was then around 18
years old and a senior in high school, got into a fight. It ended when Gabriel left
and went to live at a friend’s house. After Gabriel left, Backus called Mrs.
Backus on her cell phone and screamed at her. The next night, Mrs. Backus and
Jeffrey went to dinner and did not return to the townhouse until around 11:00 p.m.
When they got back Backus was still screaming about the fight with Gabriel. For
awhile Mrs. Backus had been sleeping on the couch downstairs in an attempt to
avoid her husband’s anger, and she tried that again. This time it didn’t work.
Around 4:00 a.m. the next morning, Monday, April 9, 2001, Mrs. Backus
awoke to her husband screaming, grabbing her by the hair, and throwing her onto
the floor. While she was on the floor, he hit her over the head with a flashlight. He
then threw a vase at her. She blocked the vase with her leg. As a result of this
assault, Mrs. Backus suffered a hairline fracture and bruises to her leg, which have
never healed. She still has problems with that leg. She also had bumps on her
head and headaches from the blows there. That was the attack which convinced
Mrs. Backus to leave.
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Backus did not want his wife and son to leave. She effected their escape
that Monday morning by leading Backus to believe that she was taking Jeffrey to
school; Backus apparently did not realize that it was Spring break. Due to the
nature of the ruse, Mrs. Backus was able to take her purse, cell phone, and keys,
but nothing more. Left behind were all of her and Jeffrey’s clothes except what
they had on, all of his toys (he was 10 or 11 years old then), and all of their
personal belongings, including some of her jewelry. She described what they left
behind as: “Everything. Everything.” They even had to leave behind their pets,
including what Mrs. Backus described as “a favorite cat,” which she had for ten
years. Jeffrey had a puppy that he wanted to take with him, so he went upstairs
and told his father that they wanted to take the little dog for a walk. Backus must
have been suspicious, because he wouldn’t allow the boy to take the puppy. As
Mrs. Backus figured it, “He kept the dog hostage, basically.” The little hostage
had to be left behind when Mrs. Backus and Jeffrey fled.
Later that day, Backus called Mrs. Backus on her cell phone and screamed
for her to bring Jeffrey home. True to the profile of an abused wife, Mrs. Backus
began having second thoughts about leaving and that night considered returning to
Backus. She later explained that, after years of abuse, what she had been going
through with him seemed normal to her. Young Jeffrey, however, did not want to
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go back. He became hysterical and begged not to return. Mrs. Backus knew that
if she went back, “there was going to be consequences for me to pay,” because
when Backus “gets mad, he gets mad.”
Instead of returning home, Mrs. Backus and Jeffrey fled to Chicago where
they stayed in shelters for abused wives and children for the next six months.
During that period Mrs. Backus made two trips back to Miami. The first one was
two weeks after they had left. She and Jeffrey had to return because the children’s
services agency was threatening to file neglect charges against her and take Jeffrey
away because she did not have him in school. The agency wanted to see Jeffrey.
She and Jeffrey came back to straighten out that problem, which she ultimately did
by putting Jeffrey in school in Chicago. During that trip back to Miami, they did
not return to the townhouse and Backus, but instead stayed with Mrs. Backus’s
friends. Backus apparently did not know they were in Miami.
Mrs. Backus also took this opportunity of being in Miami to file a police
report with the domestic violence unit of a local law enforcement agency about the
April 9, 2001 assault that had led to her and Jeffrey leaving. The domestic
violence officers advised her to get a restraining order against Backus, but told her
that they could not guarantee her safety or that of her son. Mrs. Backus knew that
her husband would not pay any attention to a restraining order, because he already
8
had ignored a number of them (apparently obtained on behalf of others). She
interpreted what she was told as meaning: “I was on my own.” She and Jeffrey
went back to the shelters in Chicago.
The second time Mrs. Backus returned to Miami was for a brief visit to see
her oldest son graduate from high school. This is the son who had moved out and
had been living with friends after he had fought with Backus. (When testifying
about it later, Mrs. Backus proudly pointed out that in spite of everything Gabriel
had worked hard and was an honors student.)
With the exception of those two trips, Mrs. Backus and Jeffrey were away
from Miami for six months, beginning in April of 2001 and continuing until the
search of the townhouse that October. During that period she made no attempt to
see Backus or to go back to their townhouse. When asked why she did not attempt
to return to the townhouse she owned along with her husband, Mrs. Backus
explained: “You have to realize something. [Backus] had a history which I was
aware of, and I was not going to put myself or my son at risk. Not any more. . . .”
During the time she was gone, Mrs. Backus could not make any mortgage or
utility payments on the townhouse because she had left her job in Miami and did
not have the money to make payments.
9
Backus was not willing to let things go. He wrote letters to Mrs. Backus and
sent them to her through her family. Two of those letters are in the record. One is
dated October 1, 2001, and the other is undated. The letters contain threats such
as: “Death will come knocking;” “your [sic] going to get people killed;” “I am
warning you I don’t play child games. I want pay back and it is going to be Ugly;”
“[n]o more appeals, no 2nd chance;” and “I welcome the electric chair, wham, bam
and it’s over!”
Around October 2001, Backus began harassing Mrs. Backus’s sister in
Coral Gables by going to her home and throwing objects onto her yard and porch,
including bottles, fireworks, and what appeared to be a bomb but wasn’t. He also
called Mrs. Backus’s mother and threatened to kill his wife’s family and to gouge
her mother’s eyes out with a spoon. Mrs. Backus’s sister contacted the Coral
Gables Police Department, and that led to the Miami police bringing charges
against Backus for his threats against Mrs. Backus’s mother. In connection with
that case, police officers in Miami contacted Mrs. Backus, who returned there to
talk with them about Backus.
Mrs. Backus told the officers that her husband had a number of firearms in
the townhouse, which interested them in part because it is illegal for him, as a
convicted felon, to possess firearms. Mrs. Backus knew all about the firearms
10
because her husband, whose criminal record prevented him from buying them, had
made her buy them for him. He had threatened to harm her if she didn’t help him
get the firearms, even saying that if she didn’t he would spray her with bug spray
and set it on fire.
Because of the potential federal firearms charges, the Miami police got the
Bureau of Alcohol, Tobacco and Firearms involved in the case. Some of the
officers verified through property records that Mrs. Backus owned the townhouse
jointly with her husband, and they asked her to sign a consent form authorizing
them to search the townhouse and a gun safe where she had told them the firearms
were kept. In addition to giving the officers consent to search, Mrs. Backus gave
them her house keys and the combination to the gun safe. This happened on
October 18, 2001. Mrs. Backus cooperated fully with the officers in connection
with the search because she was concerned that her husband might go on a
rampage, and she wanted to get her belongings back: “I wanted to get at least the
cat back which I had for ten years. My clothes. I left some of my jewelry behind.
Everything.”
Federal and state officers went to the townhouse to serve an arrest warrant
on Backus for domestic abuse and to search for the firearms. He wasn’t there.
Mrs. Backus’s keys opened the lower lock on the door but not the deadbolt above
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it, which looked as though it had been recently replaced. Mrs. Backus, who was
being kept at a safe place nearby, gave the officers permission to open the door by
force, which they did. Once inside, the officers did not find any of Mrs. Backus’s
and Jeffrey’s clothing or personal belongings. There were a number of
malnourished cats in the townhouse, but not Mrs. Backus’s favorite cat. The
record does not disclose its fate or the fate of Jeffrey’s puppy.
The record does disclose that the officers found a pump action shotgun
under the sheets in Backus’ bed. They also found three assault weapons and
almost 4,000 rounds of ammunition in Backus’ gun safe, which they opened with
the combination Mrs. Backus had given them.
III.
Thereafter, Backus was indicted for possessing a firearm and ammunition
after having been convicted of a felony. He moved to suppress all evidence of the
firearms and ammunition that had been found during the search of the townhouse.
The ground for Backus’ motion was that Mrs. Backus had abandoned the
townhouse and thereby lost the authority to consent to a search of it. An
evidentiary hearing was held on that motion. During that hearing, true to form,
Backus disrupted Mrs. Backus’s testimony by shouting insults at her and ordering
12
her to “shut up.” The magistrate judge in turn ordered Backus to shut up and
threatened to gag him if he didn’t.
After hearing all of the evidence, the magistrate judge noted that the facts
were essentially undisputed and recommended that the motion to suppress be
denied. He did so after finding that: Mrs. Backus had left the house she jointly
owned because she and her son feared Backus; during the six months she was
hiding from him, Mrs. Backus continued to be a joint owner of the house with a
joint right to control it; and, the only reason she had not asserted control over the
property during that time was that Backus’ violent, abusive behavior prevented her
from doing so. The magistrate judge concluded that Mrs. Backus did exercise her
lawful right to control over the property when she consented to a search of it by
law enforcement. The district court adopted the magistrate judge’s report and
recommendation and entered an order denying the motion to suppress. Thereafter,
Backus pleaded guilty to the charge against him, conditioned on his right to bring
this appeal.
IV.
We said at the beginning of this opinion that the case presents an interesting
Fourth Amendment issue, and it does. We didn’t say that it was a difficult issue,
and it is not. Backus’ position is based upon his assertion that his wife abandoned
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the townhouse when she left it on the morning of April 9, 2001, or in any event,
abandoned it sometime between then and October 18, 2001, when she gave her
consent to the search. To say that Mrs. Backus abandoned her home is like saying
that Dolley Madison abandoned hers when she fled the White House the day
before the British troops set it ablaze. There is a difference between voluntarily
giving up your home and being forced to flee from it in fear for your life and the
life of your child. The law should take account of that difference. Failure to do so
would condone and reward violent, abusive behavior.
Mrs. Backus had as much ownership interest in the marital home as her
husband did. Both their names were on the deed, and they had occupied the house
jointly for five years. Only when the violence Backus was inflicting on her and
her son became too much to take did she leave the home. But for his criminal acts
against them, Mrs. Backus would have stayed there. It matters not that during the
six months Mrs. Backus was hiding from her husband she failed to pay anything
toward the mortgage or the utility bills. She had no money to do so, because she
had to give up her job to get away from Backus. Nor is it significant that she did
not return to their townhouse after he was arrested and before he was convicted,
because she was afraid that he would get out and come there looking for her. Her
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fears were not exaggerated. In sentencing Backus, the district court departed
upward because of “the serious threats this defendant has made to his wife.”
Backus focuses on his expectation of privacy, arguing that after six months
he had no reason to expect that Mrs. Backus was going to return or assert any
authority over the townhouse. See United States v. Shelton, 337 F.3d 529, 535-36
& n.24 (5th Cir. 2003). There is little to be said for that argument in this particular
case and much to be said against it. To begin with, expectations of privacy must
be reasonable to be honored by the law, see, e.g., United States v. Miravalles, 280
F.3d 1328, 1331 (11th Cir. 2002), and it is not reasonable to expect the law to
honor an expectation of a wrongdoer that is grounded in events brought about by
his wrongdoing. A lawless man cannot use violence to drive his wife away and
then reasonably expect the law to give him the benefit of her absence.
On a more factual note, if Backus truly did not expect his wife to return, it is
hard to understand why he would have felt it necessary to change the deadbolt
lock on the door to prevent her key from working in it. Moreover, in the letters
Backus sent to his wife through her family near the end of the six-month period,
he was still insisting that she return, albeit in his usual less than diplomatic terms:
“You had better get your ass over here and help;” “Don’t fear knocking on my
door, fear what’s coming if you don’t;” and “I am going to do something if you
15
don’t get your ass over here & grow the fuck up.” The point here is that it is not
clear that Backus did not expect his wife to return and exert authority over their
jointly owned townhouse, but it is clear that any expectation he may have had that
she would never do so was an unreasonable one.
In the language of the Supreme Court’s Matlock decision, given the
circumstances it is “reasonable to recognize” that Mrs. Backus had “the right to
permit the inspection in [her] own right” and that her husband “assumed the risk”
that she might permit the townhouse to be searched. Matlock, 415 U.S. at 171 n.7,
94 S. Ct. at 993 n.7. Our conclusion finds support in the decisions from all of the
other circuits that have addressed issues involving consent from an estranged wife
to search the marital home from which she has fled, all of which uphold the
resulting searches under various circumstances. See United States v. Gevedon, 214
F.3d 807, 808-11 (7th Cir. 2000); United States v. Brannan, 898 F.2d 107, 108
(9th Cir. 1990); United States v. Trzaska, 859 F.2d 1118, 1120 (2d Cir. 1988);
United States v. Crouthers, 669 F.2d 635, 642-43 (10th Cir. 1982); United States
v. Long, 524 F.2d 660, 661 (9th Cir. 1975); see also United States v. Shelton, 337
F.3d 529 (5th Cir. 2003) (involving an estranged wife who left because of her
husband’s infidelity).
16
The Long case involved facts particularly close to those before us. Mrs.
Long, like Mrs. Backus, had fled the marital home because she feared for her
safety, and in fleeing she had left behind a substantial number of her possessions.
She, too, lived elsewhere before telling law enforcement agents about her
husband’s criminal activities. She, too, signed a consent form permitting a search
and provided the agents with a key to the door. Her key, like Mrs. Backus’ key,
no longer worked so the agents had to gain access through other means. Id. at 660-
61. Her husband, the defendant in Long, challenged his resulting conviction on
the ground that his wife could not give valid consent for the search because she
did not have joint access or control of the house within the meaning of the
Matlock decision.
The Ninth Circuit rejected that contention, concluding that “[i]t cannot be
convincingly argued that Mrs. Long as a joint owner of the house did not have the
right to enter the house.” Id. at 661. The central fact was that the two of them had
shared the house “until Mrs. Long had been forced to leave due to her fear of her
husband.” Id. Exactly the same is true in this case. We reach the same conclusion
as the Long Court, which is that for consent purposes the wife still retained joint
access to, or control over, the house even though she had fled from it in fear of the
husband.
17
Backus attempts to wiggle out of the tight fit of the Long case by pointing
out that there the wife had been gone only a month, whereas here Mrs. Backus had
been gone for six months. That wiggle won’t work. Where a wife is driven by an
abusive husband from the home she jointly owns and jointly occupied, the
duration of her absence is likely to be influenced by the nature and extent of her
fear. The greater the fear, the longer the absence. We are not willing to extend to
violently abusive husbands something akin to a rule of repose against the authority
of their wives to consent to a search of jointly owned property. To do so would
reward unlawful behavior in direct proportion to the amount of terror it inflicts.
One month or six, Mrs. Backus still had enough “common authority over or
sufficient relationship to the premises,” Matlock, 415 U.S. at 171, 94 S. Ct. at
993, to consent to a search of it.
AFFIRMED.
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