IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA :
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v. : CRIM. NO.
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:
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Defendant. :
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MOTION TO SUPPRESS TANGIBLE EVIDENCE AND INCORPORATED MEMORANDUM OF POINTS AND AUTHORITIES AND REQUEST FOR EVIDENTIARY HEARING
ARGUMENT
Consent does away with the Fourth Amendment's warrant requirement. With valid consent, the police may search one's home, person or possessions without a warrant and without probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). However, when the government relies upon a claim of consent, the government bears the burden of proving that the consent was voluntarily given; that the person consenting was one with authority to consent; and that the actual search did not exceed the scope of the consent given.
Bumper v. North Carolina, 391 U.S. 543 (1968).
The issue raised by the search in this case is whether the person who consented to the search of Laverne xxxxxxxxxx's room, her mother, had the authority to consent to the search of her daughter's room.
A search does not violate the Fourth Amendment where police obtain consent to search from one who possesses common authority over the premises with the absent non-consenting target of the search. U.S. v. Mattock, 4415 U.S. 164 (1974). In this case, police obtained a written consent signed by Ms. xxxxxxxxxx's mother who, they presumed, had common authority over her daughter's room. The authority which justifies the third party consent does not rest upon the law of property, . . . 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 own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
Id. at 171 n.7.
It is highly unlikely that a young woman would not have an expectation of privacy in her own room even if that room is in her mother's house. Factually, the police officers could not have believed Mrs. xxxxxxxxxx had authority to consent to the search because there was no information available to them that Mrs. xxxxxxxxxx had mutual use of the room with her daughter. The government's burden then, to establish whether or not Ms. xxxxxxxxxx's mother had the authority to consent, cannot be met if the agents confronted a situation that left the mutual use of the room in question. U.S. v. Whitfield, 939 F.d. 1071 (D.C. 1991).
The fact that Ms. xxxxxxxxxx's mother consented when faced with information about her daughter"s involvement in a bank robbery, and the government relies on that consent to legitimize the search in this case, then the government has the burden of proving by clear and convincing evidence that the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 53 (1968).
The circumstances surrounding the search of Ms. xxxxxxxxxx's room have only proven that the government has not accomplished its burden of proving there was actual consent by Ms. xxxxxxxxxx's mother to permit the search of Ms. xxxxxxxxxx's bedroom.
CONCLUSION
Ms. xxxxxxxxxx contends that the search of her bedroom was invalid. The items seized were found only as the result of an illegal search and seizure. Therefore, for the above reasons, Ms. xxxxxxxxxx respectfully requests the court to grant her motion to suppress the tangible evidence seized from her bedroom.
Respectfully submitted,
A. J. KRAMER
FEDERAL PUBLIC DEFENDER
Amy Seidman
Assistant Federal Public Defender
On Behalf of Laverne xxxxxxxxxx
625 Indiana Avenue, N.W.
Washington, D.C. 20004
(202) 208-7500
Dated: December 16, 1996
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Motion To Suppress Tangible Evidence and the Incorporated Memorandum of Points and Authorities In Support Thereof has been personally served by telecopier as well as by first-class postage pre-paid mail upon Valinda Jones, Assistant U.S. Attorney, the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 this 18th day of Dcember, 1996.
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Amy Seidman
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, :
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Plaintiff, :
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v. : CASE NO. 96-141 (GK)
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LAVERNE xxxxxxxxxx, :
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Defendant. :
______________________________________________________________
O R D E R
Upon consideration of defendant's Motion to Suppress Tangible Evidence, the government's response thereto, and the evidence presented to the Court, it is hereby this _____ day of __________, 1996 ORDERED that defendant's Motion to Suppress is GRANTED, and it is
FURTHER ORDERED that the evidence seized from the defendant is suppressed.
___________________________________
Gladys Kessler
United States District Judge
COPIES TO:
Amy Seidman
Assistant Federal Public Defender
625 Indiana Ave. N.W. Suite 550
Washington, D.C. 20004
Valinda Jones
Assistant United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20001