NO. 93-3096


       UNITED STATES OF AMERICA, Plaintiff-Appellee,


       ANDREW xxxxxxx, Defendant-Appellant.









Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

District Court

Criminal No. 92-0347


Pursuant to Rule 11(a)(1) of the General Rules of this court, appellant Andrew xxxxxxx hereby states as follows:


The appellant, Andrew xxxxxxx, and the appellee, the United States of America, are the only parties in this court and were the only parties in the district court.


This is an appeal from an order entered on October 14, 1992, by the district court (Honorable Gerhard A. Gesell) denying the defendant's motion to suppress tangible evidence and statements. Judge Gesell filed a Memorandum and Order, detailing his findings of fact and legal conclusions. (A. 16). Footnote This order has not been reported.


This case has not previously been before this court. There are presently no other related cases pending in this Court of which counsel is aware.























A.The Defendant Had A Legitimate Privacy Interest

In The Bedroom And The Safe

i.Legitimately On The

Premises - Considered

ii.Privacy Interest - The Bedroom

iii.Privacy Interest - The Safe

B.The Lessee Did Not Have Common AuthorityOver The Bedroom Or The Safe

C.The Police Did Not Have a Reasonable Belief That The Lessee Could Consent









Pursuant to Rule 28(f) of the Federal Rules of Appellate Procedure and Rule 11(a)(3) of the General Rules of this court, pertinent statutes are set forth in the addendum to this brief.


Jurisdiction of this appeal from the final judgment of conviction entered by the district court is conferred by 28 U.S.C. § 1291. The district court had jurisdiction over the case pursuant to 18 U.S.C. § 3231. The appellant filed a timely notice of appeal.


Was the warrantless police search, pursuant to the consent of the lessee, of the defendant's locked safe located within his locked bedroom, reasonable?

















NO. 93-3096




       UNITED STATES OF AMERICA, Plaintiff-Appellee,


       ANDREW xxxxxxx, Defendant-Appellant.






On September 10, 1992, a federal grand jury sitting in the District of Columbia returned a three count indictment charging the defendant with possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii); possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c); and possession with intent to distribute five grams or more of cocaine base within one thousand feet of a school, in violation of 21 U.S.C. §§ 841(a)(1) and 860(a). (A. 1-2).

On October 1, 1992, the defendant subsequently filed a motion to suppress all tangible evidence and statements. (A. 3). The defendant contended that his Fourth Amendment rights were violated when officers, pursuant to a third-party consent, searched and seized some twenty (20) grams of crack cocaine from a locked safe located in the defendant's bedroom closet. The court conducted an evidentiary hearing on October 9, 1992, and at the conclusion of such hearing took the matter under advisement. On October 14, 1992, District Judge Gerhard A. Gesell issued a memorandum opinion denying the defendant's motion to suppress. Judge Gesell, relying on United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992), found the search to be reasonable, concluding that it did not violate any "sound" expectation of privacy of the defendant, who was considered to have been "unwanted" on the premises. (A. 18).

On December 15, 1992, the defendant entered a conditional plea of guilty to the first two counts of the indictment, reserving his right to appeal the court's denial of his motion to suppress. The government dismissed the third count at sentencing on May 14, 1993. Sentence was imposed on May 14, 1993, and a notice of appeal was filed on May 19, 1993. (A. *).


The government called only one witness, Officer James Shieder of the Metropolitan Police Department, at the suppression hearing. He testified that at approximately 11 p.m. on August 11, 1992, he conducted a search of Apartment B at 1400 Fairmont Street, N.W., in the District of Columbia. (A. 23). A few hours later, he participated in the arrest of the defendant. (A. 23). The officer stated that around May or June of 1992, the lessee of Apartment B, Ms. Barbara Hoffman-Jones, learned of the defendant through her cousin, and agreed to rent to him an extra room in her apartment in exchange for $150. (A. 25, 36). Footnote The money was given up front. (A. 25). He begin to rent the room sometime in May or June of 1992. (A. 36). His stay was to be for a short period of time, a few weeks, "until he [could get] his feet on the ground as far as a place to stay on his own." (A. 25, 37). The defendant, however, had not paid anymore money and had since refused to leave. (A. 36). The record is unclear as to when the defendant was initially asked to leave. (A. 37). About a week prior to the defendant's arrest on August 11, and after allegedly observing him on a couple of occasions with narcotics in the apartment, Ms. Hoffman-Jones called the police and asked them to remove the defendant from her house. (A. 27). The police responded, physically removed him from her apartment, and advised him not to return. (A. 27). According to Officer Sheider's hearsay testimony, shortly thereafter, the defendant returned to the apartment by means of the key that initially had been given to him, and asked Ms. Hoffman-Jones not to call the police to have him removed again. (A. 27-28).




It was around 10:00 p.m. when Ms. Hoffman-Jones called the police on August 11, 1992. (A. 52). She was not present at her apartment, at the time of her call, as her apartment did not have a phone. At the time of her call, she told the police that if the defendant was not at the apartment, he would be coming back and forth throughout the evening, in and out of the apartment. (A. 60). When the police arrived at approximately 11:00 p.m. the defendant was not there. (A. 61). Upon the arrival of officers Shieder and Sutherland, Ms. Hoffman-Jones signed a consent to search form in the officer's unmarked police car prior to their entry, (A.51), purportedly giving the police consent to search Mr. xxxxxxx's bedroom. She gave the police the key to the front door of her apartment so as to prevent damage to the door. (A. 29). The police were already apprised by her that the defendant stored drugs in a safe in his bedroom. (A. 30). Footnote Though Hoffman-Jones was present at some time during the search, she was not in the apartment when the officers first entered. (A. 55). Upon entering, the police went straight to the bedroom door of the defendant, who was absent at the time. (A. 29, 61). Footnote They broke down the locked door, proceeded directly to the closet, pulled out the floor safe, and forced it open. (A. 29-30). Discovered in the safe amongst certain of the defendant's documents, money, and jewelry was about 26 grams of a rock substance, which later tested positive for cocaine, and a plate from which were recovered the latent fingerprints of the defendant. (A. 30). Footnote On a shelf in the closet police found photographs of Mr. xxxxxxx in which he was wearing several different coats, each of which was hanging in the closet when the police seized it. (A. 31-32).

Later that evening after leaving the apartment, the officer received a telephone call, whereupon he returned and arrested the defendant in the lobby of the apartment building. (A. 33, 83-84). Positive identification was made by Hoffman-Jones that that was the individual who owned the safe. (A. 32). Found on his person at the time of the arrest were 20 ziplock bags containing crack. (A. 32).

At the suppression hearing, relying on United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992), the prosecutor argued that the search was valid because of the defendant's unlawful presence. He stated:

The government argument is that [sic] she had common authority to consent based on the defendant's unlawful presence in the apartment, not that they shared the room or that she had any access to the bedroom at all, and the government's evidence is that she did not have generally access to the bedroom. She was able to get in once or twice, but the defendant had a lock to the bedroom.

(A. 56). In response, counsel for the defendant, relying on United States v. Whitfield, 939 F.2d 1071 (D.C. Cir. 1991), argued that the defendant had a reasonable expectation of privacy in the bedroom, and that because Hoffman-Jones did not have common authority over it, she could not give valid consent to search it. (A. 58-59). That court stated that this was a case about a man who was there illegitimately, (A. 58) and that the burden was on the defense to:

Establish to me [the judge] that this man [officer] didn't have a reasonable belief when he went in that he was dealing with a situation where someone was there without permission, peddling drugs, threatening a person who had a right to be there, and if that isn't what police work is all about I don't understand the law.



On October 14, 1992, the district court issued a Memorandum, whose factual findings tracked the officer's testimony, and an Order, denying the defendant's motion to suppress. (A. 16). The court found that Hoffman-Jones on August 11, 1992, had signed form consenting to a search of an apartment she had rented and occupied. After advising Officer Shieder that the defendant was occupying a room there without her consent. (A. 16). The defendant initially paid Ms. Hoffman-Jones $150 to occupy a room sometime in May or June of 1992, on an oral agreement that his stay was to be for a "few weeks, or until he got his feet on the ground." (A. 16). After suspecting that the defendant was dealing drugs, she called the police to remove him, who warned him not to return. (A. 16). The defendant, however, had a key and did return later, threatening her not to call the police again.

As to the search of Mr. xxxxxxx's bedroom, the court stated:

She told them about her suspicions and her observations

of the defendant's behavior involving drugs, mentioning a safe he kept in his room. She signed the consent form authorizing the search and gave the police the house key. The defendant was not present. The police broke down the door to his locked room in her apartment and found the defendant's safe exactly where Ms. Hoffman-Jones had described it. After breaking into the safe, they found approximately twenty grams of crack cocaine, along with some of the defendant's papers, which identified him by name. The officers then left the premises.

(A. 17). The court also found that following his arrest, Mr. xxxxxxx made several spontaneous statements. (A. 19).

The court concluded that based on its findings of facts, the defendant had no "reasonable expectation of privacy there," as he was "clearly unwanted on Ms. Hoffman-Jones's property." (A. 18). Thus, the court decided that Mr. xxxxxxx should have known from already having been forcibly removed at her request, that he was no longer wanted on her premises and "that she might again request police assistance." (A. 18). The court held that "the officers had sufficient reliable information" and "sufficient reason to conduct the search" and found that they "reasonably believed that Ms. Hoffman-Jones had the authority to consent to the search." (A. 18).

The court correlated the defendant's case to that of United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992), where it was held that the defendant, who was unlawfully staying in the apartment of another, had assumed the risk that the "proper lessee of the searched apartment would call on others to evict him." (A. 18). While noting that the Patrick court assumed (without deciding), that Patrick had a reasonable expectation of privacy, Judge Gesell ruled that the consent of the lessee here (Hoffman-Jones) was valid and therefore the search was lawful. As an alternative ground for the denial of the suppression motion, the court cited to exigent circumstances to justify the failure to obtain a search warrant before searching Mr. xxxxxxx's bedroom. (A. 19).

Because the court found that the defendant's arrest subsequent to the search and seizure was lawfully executed, he denied suppression of Mr. xxxxxxx's post-arrest spontaneous statements and the crack cocaine found on his person at the time of arrest.


As this case involves an appeal from the denial of a suppression motion, the district court "will be affirmed so long as any reasonable view of the record supports its denial of the motion to suppress." United States v. Patrick, 959, F.2d 991, 998 n.8 (D.C. Cir. 1992) (citations omitted). Although its findings supporting its conclusion are reviewed under a clearly erroneous standard, the court's "ultimate conclusion that the search did not violate the fourth amendment" is reviewed de novo. Id. at 996 n.6. (citation omitted).

Under the three-part test established by this court to suppress evidence obtained from a third-party consent search, the movant must meet all three requirements: (1) he had a reasonable expectation of privacy in the area searched, (2) the one authorizing the consent did not have common authority over or mutual use of the area, and (3) based on the facts known to them at the time of entry into the area, the police did not have a reasonable belief that the party authorizing the search could consent. 959 f.2d at 997.

Mr. xxxxxxx had a privacy interest in the bedroom, even if he was "unwanted" on the premises. Since Ms. Hoffman-Jones did not have common access and mutual use of the bedroom and its contents, her authority to consent to its entry, without further inquiry, was not reasonably apparent. Assuming, however, that the officers reasonably believed that she had the authority to consent to the search of the bedroom, it was not apparent, without further inquiry, that such authority extended to the search of closed containers within it, specifically, the safe, which indisputably belonged to Mr. xxxxxxx. It was clearly apparent that Hoffman-Jones, having no knowledge of the safe's combination, did not have "joint access" and "mutual use" of it. Mr. xxxxxxx not only had a high expectation of privacy in his safe, -- which is used to protect ones private property -- he manifested that privacy interest by locking it and storing it in his closet, within his usually locked bedroom. Thus, his privacy interest in the safe allows him to contest its search, even if he didn't have a privacy interest in the room itself.

Finally, the district court's fallback position that the warrantless break-in and search of the bedroom, based on exigent circumstances, is not supported by the evidence at the suppression hearing. Becuase Mr. xxxxxxx was not even in the bedroom at the time of the search, no exigent circumstances existed. Therefore, the warrantless entry into the bedroom and the search of the locked safe were unlawful.

Since the search and seizure of evidence was illegal, Mr. xxxxxxx's subsequent arrest, which was based upon the fruits of the search of the safe was also unlawful. Therefore, the evidence seized incident to that arrest, together with the post-arrest statements made by the defendant, must likewise be suppressed as fruits of the police illegality.




A.The Defendant Had A Legitimate Privacy Interest In The Bedroom And The Safe.

The Fourth Amendment "protects people from unreasonable government intrusions into their legitimate expectations of privacy." United States v. Chadwick, 433 U.S. 1, 7, 97 S. Ct. 2476, 2481 (1977). Further, "[i]t is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is 'per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.'" Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043 (1973) (citing Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)). "It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." 412 U.S. at 219, 93 S. Ct. at 2043-44 (citations omitted).

This Court, under United States v. Patrick, 959 F.2d 991, 997 (D.C. Cir. 1992), has established a three-part test, derived from various Supreme Court decisions, to determine the validity of a third party consent search. To find a violation of the Fourth Amendment, a person must meet all three prongs of that test. Footnote First, the person has the burden to establish that he had a reasonable expectation of privacy in the premises or effects searched. If not, the inquiry stops and the consent is valid, for a search within the Fourth Amendment did not occur. Rakas v. Illinois, 439 U.S. 128, 148-49, 99 S. Ct. 421, 432-33, (1978); Florida v. Riley, 488 U.S. 445, 455 , 109 S. Ct. 693, 699 (1989) (O'Connor, J., concurring). Second, the person must demonstrate that the party authorizing the search did not have common authority or other sufficient relationship over the scope of the search. United States v. Matlock, 415 U.S. 164, 171 n.7, 94 S. Ct. 988, 993 n.7 (1974). Third, he must demonstrate that the police officer's belief that the consenter had the authority to consent was unreasonable. Illinois v. Rodriguez, U.S. , 110 S. Ct. at 2799-2801. By necessary implication, if there was no apparent authority to consent, "then warrantless entry without further inquiry is unlawful unless actual authority exists." Rodriguez, 110 S. Ct. at 2801. The legitimacy of the search then, rests entirely on the officer's belief. Id.; Florida v. Jimeno, U.S. , 111 S. Ct. 1801 (1991).

In its memorandum, the lower court reasoned that Mr. xxxxxxx was staying unlawfully on the premises. This led the court to take the position, ipso facto, that he did not have a reasonable expectation of privacy, and thus, could not object to the lessee's consent to search the bedroom and its contents. The court wrote:

 The defendant cannot rely on the lack of common authority, however, to defeat this search. There is no shared privacy interest between the defendant and the consenting party. The defendant, whose presence was clearly unwanted on Ms. Hoffman-Jones's property, had no reasonable expectation of privacy there. . . . The defendant had been forcibly removed at Ms. Hoffman-Jones's request in a previous incident. He knew from that experience that Ms. Hoffman-Jones did not want him on the premises any longer and also knew that she might again request police assistance. The search did not violate any sound expectation of privacy on the part of the defendant.

(A. 18) (emphasis added). The court inferred that since xxxxxxx had already been forcibly removed once before by the police, that he assumed the risk "that she might again request police assistance." Footnote (Id.). Based upon this logic, the court concluded that Mr. xxxxxxx did not have "any sound expectation of privacy." (Id.). The lower court's analysis prevented the defendant from ever reaching the first hurdle of the three-prong Patrick test.

While the essential facts are not in dispute, this Court must address de novo the lower court's "ultimate conclusion that the search did not violate the fourth amendment." Patrick, 959 F.2d 991, 996 n.6 (citation omitted). That Mr. xxxxxxx did not have any "sound expectation of privacy" is predicated on the court's following interwoven findings: (1) the defendant was not legitimately on the premises and (2) he assumed the risk that the lessee that would call on others to assist in evicting him. These findings will be considered in turn.

i.Legitimately On The Premises - Considered

Protection from certain kinds of governmental intrusion is the general privacy protection covered under the Fourth Amendment, even though its protections go further. Katz, 389 U.S. at 349, 88 S. Ct. at 510. By finding that the defendant was "clearly unwanted," on the premises, the court addressed the defendant's Fourth Amendment protection "a priori" as a real property issue, i.e., whether he was "legitimately on [the] premises." See Jones v. United States, 362 U.S. 257, 267, 80 S. Ct. 725, 734 (1960) ("anyone legitimately on premises where a search occurs may challenge its legality."). By concluding in the negative, and by correlating "unwanted" with "unlawful," the court held that there was no privacy interest to dispute the government intrusion. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656 (1984) (a "search" occurs "when an expectation of privacy that society is prepared to consider reasonable is infringed."); Rakas, 439 U.S. at 147-48, 99 S. Ct. at 432-33 (if there was no privacy interest, there is no fourth amendment violation).

In Rakas, the defendants were passengers of an automobile which they claimed to have neither a possessory nor a property interest in. They attempted to suppress the seizure of evidence which they likewise asserted to have no possessory interest in. They argued that because they were occupants of the car, i.e., "legitimately on the premises," they had "standing" to contest the legality of the search. 439 U.S. at 129-30, 99 S. Ct. at 141-43. In rejecting their Fourth Amendment claim, the Court held that the standard announced in Jones,"legitimately on [the] premises" was an inflexible one, that it "creates too broad a gauge for measurement of Fourth Amendment rights." 439 U.S. at 142, 99 S. Ct. at 429. By way of illustration, the Court pointed to a casual visitor entering a house one minute prior to a search of that house and departs one minute after the search ends, though legitimately on the premises, he could not have a legitimate expectation of privacy to contest the legality the search of the house. 439 U.S. at 142, 99 S. Ct. at 430. The Court asserted that though the defendants may have been "legitimately on the premises," "in the sense that they were in the car with the permission of the owner is not determinative of whether they had a legitimate expectation of privacy in the particular areas of the automobile searched." 439 U.S. at 149, 99 S. Ct. at 433.

The fact that property interests in the premises do not control a Fourth Amendment privacy analysis, was first addressed in Katz, 389 U.S. at 353, 88 S. Ct. at 512 (1967), where even though there was no physical trespass in the electronic surveillance of a telephone booth, the Court held that a Fourth Amendment claim turns not upon a property right in the invaded place, but rather on whether the person who claims that protection has a legitimate expectation of privacy in that place. Id. While the Court in Rakas recognized that privacy rights are in most cases linked to either a real or personal property right, "[o]ne of the main rights attaching to property is the right to exclude others," 439 U.S. at 145-46 n.12, 99 S. Ct. at 430-31 n.12, the Court refused to paint Fourth Amendment privacy rights against a backdrop of property law. " [E]ven a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted therein." Id. (citations omitted).

In the present case, the district court applied the very criterion, rejected in Rakas, i.e., whether the defendant was "legitimately on the premises," to determine whether Mr. xxxxxxx had a privacy interest in the area searched. Footnote 439 U.S. at 149, 99 S. Ct. at 433. For Mr. xxxxxxx, the question turns on whether he can still claim a violation of his privacy rights if he was, assuming arguendo, "wrongfully" on the premises. Jones, 362 U.S. at 266, 80 S. Ct. at 734. In Jones, the Court affirmatively stated that by virtue of one's wrongful presence, one "cannot invoke the privacy of the premises searched" to challenge the legality of search when its fruits are used against him. 362 U.S. at 266, 80 S. Ct. at 734; Rakas, 439 U.S. at 141 n.9, 99 S. Ct. at 429 n.9. An example portrayed in Rakas of one whose presence on the premises was not "legitimate" or "wrongful" is that of "a burglar plying his trade in a summer cabin during the off season" who while having a subjective expectation of privacy, "is not one which the law recognizes as 'legitimate.'" 439 U.S. at 143 n.12, 99 S. Ct. at 430 n.9. A burglar, by definition, however, has no right in being where he is.

In Mr. xxxxxxx's case, his "unlawful" presence was not immediately apparent and never established. The district court, once making a determination that the defendant's presence was "unwanted," connected that with "wrongful," and stripped him of any possible Fourth Amendment right. Such an adjudication was made, however, without considering whether society would recognize the defendant's "unwanted" presence, as synonymous with "wrongful" or "unlawful." Even this Court in Patrick, while finding Patrick to be on the premises without permission, did not foreclose him from having a privacy interest, by deciding the case on other grounds. 959 F.2d at 998-99.

Whether for purposes of "exclusion" from the zone of protection under the Fourth Amendment, or "inclusion" into that zone, under Rakas, privacy rights are not to be demarcated by the enumeration "legitimately on [the] premises." 439 U.S. at 143, 99 S. Ct. at 430. Likewise, an individual may not have a legitimate expectation of privacy in the premises searched, yet still have a privacy interest in his own objects on the premises. While the visitor illustrated in Rakas could not claim a privacy right to a search of the house, he could still "contest the lawfulness of the seizure of evidence or the search if [his] own property [was] seized during the search." 439 U.S. 143 n.11, 99 S. Ct. 421, 430 (emphasis added). As the scope of one's privacy interest cannot be defined or circumscribed by whether he was "legitimately on [the] premises," 439 U.S. at 143, 99 S. Ct. at 430, by the same token, if one was not "legitimately on the premises," he should not be precluded from invoking a Fourth Amendment violation if the object searched or seized was his own. Cf., Soldal v. Cook County, Illinois, U.S. , 113 S. Ct. 538 (1992) (prior to conclusion of eviction proceedings, petitioners trailer home carted off by county sheriff - held that while no privacy interests were invaded, the interference amounted to an unlawful seizure for Fourth Amendment purposes).

ii.Privacy Interest - The Bedroom

In order to establish that the defendant could have a reasonable expectation of privacy in either the bedroom or its contents, the inquiry boils down to whether the police violated any reasonable expectation of privacy held by the defendant. See, Rawlings v. Kentucky, 448 U.S. 97, 106, 100 S. Ct. 2556, 2562 (1980) (After Rakas, the inquiries of "standing" to challenge a "search" merge into one: "whether government officials violated any legitimate expectation of privacy"). "The defendant must bear the burden of proving that his expectation of privacy was a reasonable one, and thus that a 'search' within the meaning of the Fourth Amendment even took place." Florida v. Riley, 488 U.S. at 455, 109 S. Ct. at 699 (O'Connor, J., concurring). The operative test in determining whether an individual actually had a reasonable expectation of privacy consists initially in an actual subjective expectation of privacy in the premises searched. Rakas, 439 U.S. at 143-44 n.12, 99 S. Ct. at 430-31 n.12. Second, the expectation must be one society can recognize as reasonable or legitimate. Katz, 389 U.S. at 361, 88 S. Ct. at 516 (Harlan, J., concurring). A privacy interest that is reasonable "consists of a reasonable expectation that uninvited and unauthorized persons will not intrude into a particular area." United States v. Lyons, 706 F.2d 321, 325 (D.C. Cir. 1983). In determining reasonableness, this Court must balance the interests of society and the individual claiming the privacy interest. Hudson v. Palmer, 468 U.S. 517, 527, 104 S. Ct. 3194, 3201 (1984).

As the defendant did not testify, his subjective mind-set with regard to the bedroom is verified by the statements of Officer Shieder at the suppression hearing. The defendant usually kept his bedroom door locked. Those times when the lessee actually entered the room were rare. The lessee did not have a key, which indicates that he took those "precautionary measures customarily taken by those seeking privacy." Rakas, 439 U.S. 128, 152, 99 S. Ct. 421, 435 (Powell, J., concurring). Based upon those actions, he expected that the premises and its effects would remain private.

Objectively, while he initially paid his rent, by the time the police first removed him from the premises, he was unwanted by the lessee. Mr. xxxxxxx's accepts then, the lower courts finding of fact that he was "clearly unwanted on Ms. Hoffman-Jones's property." (A. 18). See Patrick, 959 F.2d at 996 n.6 (citation omitted) (review of district court's findings in support of its conclusion under clearly erroneous standard of review). What Mr. xxxxxxx takes issue with, however, is the legal conclusion of what the court perceived as an assumption of risk on behalf of the defendant that "[the lessee] would call on others to assist [her] in evicting [him]." (See A. 18); Patrick, 959 F.2d at 998. This "assumption" is drawn from the fact that since Mr. xxxxxxx was unwanted on the premises, and since the lessee had already had him removed once before, he assumed the risk that "she might again request police assistance." (A. 18). Finding Patrick controlling, the lower court drew its reasoning directly from it. (A. 18-19).

In Patrick, "Patrick had moved into the apartment without permission and had taken over the bedroom when Smith was hospitalized. He did not pay rent." 959 F.2d at 94. Pursuant to a consent search by Smith, the officer's found in "plain view" in Patrick's bedroom, drugs. This Court held: "we think it is fair to conclude that Patrick assumed the risk that Smith would call on others to assist him in evicting Patrick. We therefore conclude that Smith was authorized to consent to the search of the bedroom and, accordingly, we reject Mr. Patrick's fourth amendment claim." 959 F.2d at 998. In adopting this rationale, the memorandum stated, '[u]nder the reasoning of Patrick, the consent given in this case must be upheld as valid." (A. 19).

But, there are glaring distinctions between Patrick and the instant case. Though the defendant in both cases was unwanted on the premises, Mr. xxxxxxx initially paid rent. Not so for Patrick. He was unwanted from the very beginning. Second, this Court in Patrick found two reasons for justifying the search. Because the bedroom door in Patrick was open, and not locked as in the instant case, the search of the visible bedroom in Patrick was justified initially as a "protective sweep" under Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093 (1990). 959 F.2d at 998-99. "We think the holding in Buie notwithstanding the search there was conducted pursuant to a warrant and not consent, supports the police search here. Accordingly, the police validly entered the bedroom when they looked through the open door and saw Patrick inside." Patrick, 959 F.2d at 997. But, by assuming (without deciding) that Patrick had a reasonable expectation of privacy in the bedroom, this Court went on to hold the search valid pursuant to the common authority analysis stated in Matlock, 415 U.S. at 171 n.7, 94 S. Ct. at 993 n.7. Patrick, 959 F.2d at 998.

In the instant case, however, the lower court found that a Matlock analysis was not applicable. (A. 18). Because the court determined that Mr. xxxxxxx did not have a privacy interest, there was none to be shared. (See infra at part B). By concluding that the defendant assumed the risk of eviction, the court applied common law landlord and tenant law, sine qua non, to Mr. xxxxxxx's privacy protections. The lower court condoned the first physical removal by the police of Mr. xxxxxxx, presumably based on his unwanted status. Footnote That removal was interpreted by the court as a clear warning to the defendant. That "clear warning" became better known by the court as an assumption of the risk eviction on behalf of the defendant. This leads to the question of whether society is prepared to recognize the defendant's privacy expectations in the bedroom as reasonable?

While it already has been pointed out that state law is not entirely dispositive for Fourth Amendment privacy determinations, Rakas, 439 U.S. at 143, 99 S. Ct. at 430; Rawlings, 448 U.S. at 105-06, 100 S. Ct. at 2561-2562, it is necessary to turn to it, not only to understand what the defendant's legal rights were, but how those entitlements legitimate his privacy expectations. That Mr. xxxxxxx initially paid the lessee rent is pivotal. He had an agreement, a lease. Under the D.C. Rental Housing Act of 1985, he was considered a "tenant," even if his entitlement was simply use of the premises. D.C. Code § 45-2503(36). Under that section, a "tenant" includes "a tenant, subtenant, lessee, sublessee, or other person entitled to the possession, occupancy, or the benefits of any rental unit owned by another person." Id. Patrick, however, paid nothing. He had no lease. He never had a possessory interest as he was there unlawfully from the beginning. He certainly did assume the risk of eviction.

For whatever reasons the lessee had, Mr. xxxxxxx was no longer welcomed. Wasn't the defendant entitled to some form of notice through judicial proceedings, prior to being thrown out by the police the first time? In D.C., "the landlord's common law right of self-help has been abrogated, and the legislatively created remedies for reacquiring possession are exclusive." Samuel v. King, D.W.L.R., Dec. 18, 1990, at 2753, 2756 ( D.C. Super. Ct. Nov. 4, 1990) (citing Mendes v. Johnson, 389 A.2d 781, 786 (D.C. 1978) (en banc). The primary legislatively created remedy referenced to in Samuel is the summary procedure of D.C. Code § 16-1501 (1989), which requires that the individual complained of be summons to appear in court and show cause why judgment should not be entered against him for the restitution of possession. See Samuel, 118 D.W.L.R. at 2756.

In Samuel, the plaintiff entered into an oral agreement to pay rent in the amount of $140.00 every two weeks for a room in the defendants' apartment. After falling into arrears on his rent, the defendants terminated the plaintiff's residency by changing the locks on the apartment. The defendants in Samuel argued that because the plaintiff was considered a "roomer," and not a tenant, that they were still entitled to resort to self-help. The court in Samuel, disagreed, finding that the characterization between a "roomer" and a tenant not to be dispositive, that wherever the summary procedure was available, the common law right to self-help was abolished. Samuel, 118 D.W.L.R. at 2756 (citing Mendes, 389 A.2d at 787).

In Mendes the rationale for abrogating self-help was based on public policy, finding that to permit self-help "would be to invite and sanction violence." Mendes, 389 A.2d at 786. Likewise, the court in Samuel stated: "Moreover, this conclusion was well-grounded in the public interest. An underlying public policy reason for creating a summary procedure for regaining possession was 'to avoid resort to self-help and force, condoned at common law.'" Samuel, 118 D.W.L.R. at 2756 (citing Tutt v. Doby, 459 F.2d 1195, 1198 (D.C. Cir. 1972). Finding that resorting to self-help to expel tenants has been fraught with "violence and quarrels and bloodshed," the Supreme Court in Lindsey v. Normet, 405 U.S. 56, 71, 92 S. Ct. 862, 873 (1972), stated that "[a]lternative legal remedy to prevent such breaches of the peace has appeared to be an overriding necessity to many legislatures and judges." Id. (citations omitted).

State law cuts strongly in favor of the defendant's legal entitlement. He had an entitlement in that room, if merely for occupancy. D.C. Code § 45-2503(36). There was a sufficient possessory interest, that would require under state law, an act by the judiciary to nullify. D.C. Code § 16-1501 (1989); Lindsey v. Normet, 405 U.S. at 72, 92 S. Ct. at 873-874. Prior to a summary proceeding, he had a sufficient legal interest in that room to determine who may or may not enter, at least for purposes of visiting him. He did not have to ask permission of the lessee for that. Cf., Olson, 110 S. Ct. at 1689 (overnight guest has an expectation of privacy that society is prepared to recognize as reasonable, yet has no legal interests in premises, and no authority to determine whether guests of his own may enter or not).

While property rights are no longer determinative of a "zone of privacy" after Katz, "they reflect society's explicit

recognition of a person's authority to act as he wishes in certain areas, and therefore should be considered in determining an whether an individual's expectations of privacy are reasonable." Rakas, 439 U.S. at 153, 99 S. Ct. at 435 (Powell, J., concurring). Mr. xxxxxxx was entitled to a summons, which is a form of notice. Only after a summary proceeding in state court could he have been determined to have been unlawfully on the premises. D.C. Code § 16-1501 (1989). The technicality of Mr. xxxxxxx's legal entitlement shows that his privacy expectation was legitimate. That he did take possession and move into the premises under a valid lease, is enough to legitimate Mr. xxxxxxx's expectations for Fourth Amendment purposes - even if he was unwanted by the lessee and failed to pay her any more rent. He was never lawfully ousted of his legal entitlement to the premises. He did not assume the risk of eviction. Society's own interests demand that Mr. xxxxxxx be accorded a privacy right in that bedroom. See, United States v. White, 541 F. Supp. 1181 (N.D. Ill. 1982) (lessor's resort to self-help by locking out delinquent tenant violated his privacy rights, where defendant's privacy expectation was substantiated by state law requirements that lessor resort to judicial proceedings to regain possession of premises).

iii.Privacy Interest - The Safe

Assuming arguendo, that Mr. xxxxxxx did not have a privacy interest in the bedroom, he certainly had one in the safe. As previously noted, one need not have a privacy interest in the premises, in order to have an interest with its objects. Rakas, supra, 439 U.S. at 143 n.11, 99 S. Ct. at 430. Likewise, "[a] privacy interest in a home itself need not be coextensive with a privacy interest in the contents or movements of everything situated inside the home. . . ." United States v. Karo, 468 U.S. 705, 725-26, 104 S. Ct. 3296, 3308-09 (1984) (O'Connor, J., concurring). By keeping the safe locked and by not disclosing the combination to the lessee, he asserted dominion and control over it. Rakas, 439 U.S. at 149, 99 S. Ct. at 149. By storing the safe within his bedroom, albeit, his bedroom closet, he took precautions to maintain his privacy in the safe. See id.

In United States v. Block, 590 F.2d 535 (4th Cir. 1978), holding ineffective the consent by defendant's mother to a search of a locked trunk in her adult son's room in her house stated:

Common experience of life, clearly a factor in assessing the existence and the reasonableness of privacy expectations, surely teaches all of us that the law's 'enclosed spaces' - mankind's valises, suitcases, footlockers, strong boxes, etc.- are frequently the objects of his highest privacy expectations, and that the expectations may well be at their most intense when such effects are deposited temporarily or kept semi-permanently in public places under the general control of another. Indeed, to the sojourner in our midst - all of us at one time or another - the suitcase or trunk may well constitute practically the sole repository of suchexpectations of privacy as are had.

Id., 590 F.2d at 541 (emphasis added). Clearly, as one who had only planned to stay at that residence temporarily, the safe provided Mr. xxxxxxx with his only sanctuary to keep private those items of the highest value to him. His subjective expectation was reasonable.

In balancing his interests with that of society to determine the reasonableness of his privacy expectation, it can be concluded that society as a whole possesses an understanding that one maintaining a safe within a rented a room, in the apartment of another, that a safe under these circumstances "deserves the most scrupulous protections from government intrusion." California v. Greenwood, 486 U.S. 35, 43, 108 S. Ct. 1625, 1630 (1988).




B.The Lessee Did Not Have Common Authority Over The Bedroom Or The Safe.

Notwithstanding the fact that the defendant had a reasonable expectation of privacy in the bedroom and the safe, that only gets him so far. Patrick, 959 F.2d at 997. As the court below predicated its decision on the lack of a privacy interest by the defendant in the areas searched, it was a foregone conclusion that the defendant had no basis to challenge the consent. (A. 18). For this reason, this Court's review of this matter must be de novo.

It is well settled that a third party may validly consent to the search of an area in which another has a reasonable expectation of privacy where the third party shares common authority over the area. Matlock, 415 U.S. at 172, 94 S. Ct. at 993. That consent from one who possesses common authority over the premises or effects "is valid as against the absent nonconsenting person with whom that authority is shared." Id. (citation omitted). That authority, however, is not merely to be presumed from the consenter's property rights in the area searched. The Court in Matlock stated:

Common authority 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 does not rest upon the law of property, with its attendant historical and legal refinements. . . 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.

415 U.S. at 171 n.7, 99 S. Ct. at 993 n.7. (emphasis added). Common authority rests not with property interests, but rather "use and access to the property are the touchstones of authority." United States v. Chaidez, 919 F.2d 1193, 1201 (7th Cir. 1990) (citing Id.). Though the meanings of "mutual use" and "joint access" are far from clear, Chaidez, 919 F.2d at 1202 (citation omitted), they are the buzzwords which validate a third-party's consent authorization.

As a corollary to "mutual use," the party subjected to the search "assume[s] the risk" that "one of their number might permit the common area to be searched." Matlock, 415 U.S. at 171 n.7, 99 S. Ct. at 993 n.7. The "assumption of risk" approach was furthered in Chaidez as being the "underpinning of third-party consent," 919 F.2d at 1202, and likewise applied by this Court in Patrick. 959 F.2d at 998. The privacy interests of the co-tenant then, are limited by and are contingent upon the decisions of "the partner." Chaidez, 919 F.2d at 1202. Patrick was not able to object to the search of the cocaine found in his bedroom because of the "plain view" doctrine, but also because he "assumed the risk" of the consent to search given by the lessee. Footnote It is incumbent, however, that to find an "assumption the risk," there must have been common authority over the premises searched. The same principles of "mutual use" and "joint access" or control applies with respect to containers. "A homeowner who entirely lacks access to or control over a guest's closed container would presumably lack the power to consent to its search under the standards articulated by this Court. . ." United States v. Karo, 468 U.S. at 723-24, 104 S. Ct. at 3308 (citing Matlock). Thus, "authority to consent a general area ... cannot be thought automatically to extend to the interiors of every enclosed space capable of search within the area.'" Block, 590 F.2d at 541.

In Block, a mother with normal free access to her son's room, while having authority to consent to the search of his room, such authority to did extend to his locked footlocker, in particular where she disclaimed any shared right of access to it. 590 F.2d at 421. See also, United States v. Salinas-Cano, 959 F.2d 861, 861 (10th Cir. 1992) (lessor's consent to search of apartment did not extend to defendant's closed suitcase); United States v. Kinney, 953 F.2d 863, 865 (4th Cir. 1992) (girlfriend's consent did not extend to defendant's locked closet), United States v. Gilley, 608 F. Supp. 1065, 1069 (D.C. Ga. 1985) (in addition to authority over house in general, "joint access or control" over defendant's travel bag required).

Based on the government's own evidence and assertions, the lessee, clearly did not have sufficient use and access of the bedroom and, in particular, the safe. In their own words, "the government's evidence is that she did not have generally access to the bedroom. She was able to get in once or twice, but the defendant had a lock to the bedroom." (A. 56). Ms. Hoffman-Jones neither had a key to the bedroom and obviously did not have a key or combination to the safe. The one time she did enter the bedroom, she "stumbled" upon the safe. Footnote (A. 34). As a co-occupant of the apartment, Mr. xxxxxxx assumed the risk of a consent search only to the extent of the lessee's own privacy interests. "Consents define the extent of the privacy interest a person seeks to assert." Chaidez, 919 F.2d at 1202. The sole lessee on a written lease, without more, does not qualify for her privacy interests to extend into Mr. xxxxxxx's bedroom. Matlock, supra, 415 U.S. at 171 n.7, 99 S. Ct. at 999 n.7. While the defendant may have had accepted a lower degree of privacy by being a co-occupant, the amount he surrendered is in equal measure to the privacy interests attached by Ms. Hoffman-Jones. Based on the measures he took to maintain his privacy, there is no semblance of use and access on behalf of Ms. Hoffman-Jones to indicate that she had any reasonable expectation of privacy in the bedroom or safe sufficient to allow for a warrantless search.

C.The Police Did Not Have A Reasonable Belief That The Lessee Could Consent.

Though the lessee did not meet the "common authority" requirements necessary to authorize the consent, the search can still stand if the police reasonably believed that she had that authority. Rodriguez, U.S. , 110 S. Ct. 2793 (1990); United States v. Whitfield, 939 F.2d 1071 (D.C. Cir. 1991); Chiadez, 919 F.2d at 1201. Thus, even if the facts developed later show that the police were mistaken as to the consenter's authority, the constitutionality of the search hinges on the reasonableness of the officer(s)'s belief. Rodriguez, 110 S. Ct. at 2801. Notwithstanding the fact that a warrantless entry will fail if there was no apparent authority, if there was actual authority, the consent will be valid. Id.; Chaidez, 919 F.2d at 1201.

In Rodriguez the Supreme Court rejected the proposition that a government officer's judgment must not only be responsible, but also correct. Id., 110 S. Ct. at 2799. Rather, "in order to establish the reasonableness requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government . . . the police officer conducting a search or seizure under one of the exceptions of the warrant requirement - is not that they always be correct, but they always be reasonable. Id. at 2800. Rodriguez argued that his girlfriend did not have "common authority" over his apartment to authorize the search, whose argument the lower courts accepted. The Supreme Court, while agreeing that on the facts. she did not "common authority" over the premises, reversed and remanded to the state appellate court for a ruling to take into account whether the police could have reasonably believed, based on the facts known to them, that she did have that authority. Id. at 2801-02. Reasonableness is to "be judged against an objective standard: would the facts available to the officer at the moment . . . ' warrant a man of reasonable caution in the belief'" that the consenting party had authority over the premises. Id. at 2801 (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968)); Whitfield, 939 F.2d at 1074.

In Whitfield, this Court applied the "common authority" requirements of Matlock, and reasonableness standard of Rodriguez, to determine that while the mother had "joint access" to her son's bedroom, the police, without further inquiry, could not have reasonably believed that she had "mutual use" of the room. 939 F.2d at 1075. There, a mother consented to the search of her 29 year old son's bedroom, whereupon the police discovered in the closet, in the pockets of his coats, proceeds from a theft. The district court, while finding that the mother did not have "free access" to the room to consent to the search of her son's clothing, allowed the evidence in by determining that the agents reasonably believed that she did. 939 F.2d at 1073. This Court reversed, holding that authority which justifies consent requires more than "joint access" to the premises searched, but also "mutual use" of that property, "so that it is reasonable to recognize that any of the co-habitants has the right to permit the inspection in his own right." Whitfield, 939 F.2d at 1074 (quoting Matlock, 415 U.S. at 171 n.7, 94 S. Ct. 993 n.7). In its analysis, this Court did give the officers the benefit of the doubt that since the bedroom door was open at least prior to the search, that a reasonable person could believe that Mrs. Whitfield had "joint access" to her son's room, in that both could enter. 939 F.2d at 1074. The government, however, failed to show that the officers, from the questions they asked of her, were able to reasonably determine that she had "mutual use" of the bedroom and closet. The bedroom was not a common area, and there was no reason for the agents to believe otherwise. Id. This Court found that: "The agents never asked Mrs. Whitfield whether she cleaned her son's room, visited him there, stored any of her possessions in the room, watched television there, or made use of the room at any time for any purpose." Id. Even allowing for the agents to make assumptions of "mutual use" that proceed from everyday practicalities, e.g., a husband and wife sharing their residence, a mother performing her parental duties in her minor child's room, there was no room for such an inference here. Without further information, the agents simply could not determine whether her 29 year old son had "exclusive use" of the room or not. Id. at 1075.

In the present case, the district court wrote, "[t]he officers had sufficient reliable information and sufficient reason to conduct the search. They reasonably believed that Ms. Hoffman-Jones had the authority to consent to the search. The circumstances of this case are similar to United States v. Patrick . . ." (A. 18). First, it should be noted that this Court never reached the question of "reasonableness" in Patrick because the inquiry terminated after deciding that Patrick assumed the risk of the search. 959 F.2d at 997. Here the lower court found that the police acted reasonably, by relying on Patrick - a legal impossibility. Presumably, the lower court found their actions reasonable based on Ms. Hoffman-Jones's representations as being the sole lessee to the apartment, and that she did not want Mr. xxxxxxx there. That reasoning, however, turns on state law, for it was quite obvious that she did not have the requisite "common authority" to authorize the search.

Once again, the court employed state law, this time, to validate the police action. Yet in applying state law, one finds that police are charged with the knowledge of local landlord-tenant law. Chapman v. United States, 365 U.S. 610, 619, 81 S. Ct. 776, 781 (1961) (Frankfurter, J., concurring). As self-help eviction, at least in the District of Columbia, has been abrogated for the past twenty-four years as of the time of Mr. xxxxxxx's arrest, Mendes, 389 A.2d at 787, it is hardly rational to premise a warrantless search of a bedroom and its contents based on the fact that the person residing there is "unwanted." Even assuming under state law, that self-help eviction is applicable, that power cannot extend to the warrantless search of the evicted tenant's property. Cf., Earl v. United States, 262 A.2d 598 (D.C. 1970) (while executing court eviction order, Deputy Marshal, upon finding contraband in evictee's opened suitcase, halted inventory and proceeded to obtain search warrant); see, Mendes, 389 A.2d at 794 (Nebeker, J., dissenting) ("it is a matter of blackletter law that even a rightful repossession of leased premises does not give the landlord the right to damage or destroy furnishing or other chattels on the premises").

State property law, once again cuts in favor of Mr. xxxxxxx. But, as already discussed supra in Parts A & B, and now here, in determining the reasonableness of the police belief in Ms. Hoffman-Jones authority, property law cannot dictate Fourth Amendment inquiries of unreasonable searches and seizures. See also, Stoner v. United States, 376 U. S. 483, 84 S. Ct. 889 (1964) (the reasonability of police search of Stoner's hotel room cannot be based on desk clerk's consent); Chapman, 365 U.S. at 615, 81 S. Ct. at 779 (landlord's consent to search tenant's apartment, merely because the police suspected tenant of operating a distillery, without evidence of exigent circumstances, is unconstitutional).

All the police knew when they stormed into the defendant's bedroom, was that other officers had been to the apartment once before to throw him out, (A. 34), that Ms. Hoffman-Jones who was the lessee, consented to the search, that she was scared of him and didn't want him and his drugs around, which were stored in his safe. (A. 24). They were aware that she "stumbled" upon the safe once when he by happenstance left his bedroom door open. (A. 34). Actual authority, however, doesn't save the search because it didn't exist. Though her name was the only one on the lease, Mr. xxxxxxx "in actuality" also had a lease and his own privacy interests. Footnote Though their search confirmed the lessee's allegations, the reasonableness of the search cannot be ratified by ex post facto verifications. See United States v. Socey, 846 F.2d 1439, 1446 (D.C. Cir. 1988) (citations omitted) (reasonableness of officer's belief cannot be judged on the basis of hindsight).

The information available at the moment of entry belies anything close to a reasonable belief that Ms. Hoffman-Jones could have "joint access" and "mutual use" of the bedroom or its contents. Upon letting themselves into the apartment, and approaching the defendant's bedroom, Shieder and his cohorts were confronted with a door - locked from the outside. Mr. xxxxxxx was absent. (A. 61). The lessee never had a key. (A. 36). At the time of breaking through the door, if anything, it was reasonable for them to believe that Mr. xxxxxxx had sole access and use of the bedroom, let alone the safe.

When police are faced with an ambiguous situation in executing a consent search, they are duty bound to inquire further. This Court in Whitfield stated,

It is the government's burden to establish that a third party had authority to consent to a search. Rodriguez, 110 S. Ct.at 2797. The burden cannot be met if agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry. If the agents do not learn enough, if the circumstances make it unclear whether the property about to be searched is subject to 'mutual use' by the person giving consent, 'then warrantless entry is unlawful without further inquiry,' Rodriguez, 110 S. Ct. at 2801 (emphasis added).

959 F.2d at 1075. What the police did in this case took on proportions that is best depicted by the words of Justice William O. Douglas in McDonald v. United States, 335 U.S. 451, 456, 69 S. Ct. 191, 193 (1948), "[p]ower is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home."