IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 91-2922 ____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JUAN IBARRA, JOHN JOE GUERRERO, and ROBERT FRANKLIN CHAMBERS,
Defendants-Appellees.
_________________________________________________________________ _
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________ (June 30, 1992)
Before POLITZ, Chief Judge, KING, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:
This case was taken en banc solely to review the claim of
Robert Franklin Chambers that his fourth amendment rights were
violated by a search conducted by the authorities. On that issue
the en banc court is equally divided and, accordingly, the ruling
of the district court suppressing evidence with respect to
Chambers is AFFIRMED. United States v. Holmes, 537 F.2d 227 (5th
Cir. 1976). E. GRADY JOLLY, Circuit Judge, with whom, POLITZ, Chief Judge,
GARWOOD, SMITH, WIENER, EMILIO M. GARZA and DeMOSS, Circuit
Judges, join, would affirm the district court for the following
reasons:
I would affirm the district court because the law
enforcement officers breached the Fourth Amendment when they
interpreted Robert Franklin Chambers' simple consent to search
the Ashby Street house--knowing that Chambers was only a guest in
the house--as authority to break forcibly into a sealed attic
space.
I
At approximately 10:00 p.m. on May 21, 1991, several law
enforcement officers approached the house located at 215 Ashby
Street in Baytown, Texas. They knocked on the door. When
Chambers answered the door, an officer explained that they were
conducting a narcotics investigation and wanted Chambers'
cooperation. Chambers allowed the officers to come inside. The
officers told him that on the basis of people who had been seen
at the house earlier that day, from whom incriminating records
had been seized, they believed that money or drugs were located
in the Ashby Street house. Officer Trumps asked Chambers if he
could search the house and garage. Chambers said, "That would be all right." Chambers was then asked to sign a written Consent to
Search form, which, apparently, couches the consent in the
broadest possible terms. Chambers refused. According to Officer
Trumps, "[H]e said the house wasn't his. He was allowed to stay
there for a few days. I think he had already been there for a
few days. [H]e felt he didn't have the authority to sign the
document to allow a search although he was giving us verbal
consent." Chambers told the officers that he had split up with
his wife, and that the house belonged to his wife's brother, who
was allowing him to stay in the house for a week or so.1
1 The officers interpreted this consent as follows:
THE COURT: All right. Let me ask you this: On the basis of that oral [consent], but his unwillingness to sign the consent, did you feel that if you wanted to, you had the right to bring fire axes in, for instance, and chop open the walls?
THE WITNESS: Yes, sir.
THE COURT: Do you feel that you had the right to disembowel the appliances and look into the minutia of the air conditioners or the stove, the refrigerator, that sort of thing?
THE COURT: In fact, bringing a backhoe or that sort of thing and dig up the backyard or underneath the foundation of the house?
THE COURT: And you felt that you had all of those rights based on this consent that he gave you orally, even though he refused to sign the form?
-3- During the initial search of the house, the officers found a
brown grocery bag containing numerous rubber bands and torn-up
pieces of paper, torn pieces of currency, and a pistol underneath
a mattress. The officers realized that the house had an attic
and soon discovered that the only way to gain access to the attic
was through the ceiling of the bedroom closet. The entrance to
the attic, however, was sealed off with boards. Through a crack
in the boards, the officers were able to see a blue object, but,
according to the district court's findings, there was nothing
incriminating about this object's appearance.
After the access to the attic was discovered, an officer
found a sledge hammer and used it to knock out the boards in the ceiling which had been securely placed there. The Court finds it to be incredulous that the sledge hammer was used merely as a tool to push up the boards, given the testimony as to how well secured the boards were and especially considering that Agent Brooks initially made reference to the breaking of boards. Stated another way, having assessed the demeanor and credibility of the witness and having considered Officer Trumps' candidly expressed opinion and belief that the initial general consent authorized virtually a boundless search, by whatever means possible, this Court finds that the agents engaged in flagrant structural demolition of the premises in order to accomplish their objective and purpose which was undertaken as though having no limitations whatsoever.
Findings of Fact and Conclusions of Law, 4-5 (record citations
omitted). Once in the attic, the officers found nearly
$1,000,000 in cash, ledgers, and a money-counting machine.
-4- The district court concluded that Chambers "freely and
voluntarily consented" to the search of the house and garage, but
that such consent "could not reasonably have been interpreted by
these agents to have included a structural dismantling of the
secured closet ceiling - attic floor by use of a sledge hammering
technique." Id. at 8. It held that the items found in the
search of the rooms of the house were admissible, but suppressed
the evidence found in the attic. The United States appealed, and
a panel of this court reversed the district court's suppression
order. United States v. Ibarra, 948 F.2d 903 (5th Cir. 1991).
We voted to hear en banc only Chambers' claim that his Fourth
Amendment rights were violated.
II
The question we consider today is simple but, we think,
important. The standard by which we frame this question has been
set out by the Supreme Court:
The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of "objective" reasonableness -- what would the typical reasonable person have understood by the exchange between the officer and the suspect?
Florida v. Jimeno, ___ U.S. ___, 111 S.Ct. 1801, 1803-04 (1991).
Translated to this case, the question we are presented is whether
a reasonable officer would have understood Chambers' simple
assent -- "That would be all right" -- to search the house, in
which he was an invited guest, to include consent to forcible
-5- entry into a part of the house that had been securely sealed.
A
To set the stage for determining whether the officers
exceeded the scope of Chambers' consent, we first examine the
search that followed his consent. We start with the standard of
review:
"While we review questions of law de novo, `[i]n reviewing a trial court's ruling on a motion to suppress based on live testimony at a suppression hearing, the trial court's purely factual findings must be accepted unless clearly erroneous, or influenced by an incorrect view of the law, and the evidence must be viewed most favorabl[y] to the party prevailing below."
United States v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th
Cir.), cert. denied, 495 U.S. 923 (1990) (quoting United States
v. Maldonado, 735 F.2d 809, 814 (5th Cir. 1984)).2
According to the district court, Agent Patton discovered the
way to gain access to the attic through the ceiling of the
bedroom closet. The district court found that the attic entrance
was covered by boards "which had been securely placed there."
Agent Patton "found a sledge hammer and used it to knock out the
boards in the ceiling."
The district court considered testimony that the
2 We further note in passing that when the justification for a search is based on consent, the government has the burden of proving that the search was conducted within the scope of the consent received. United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990); see also Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).
-6- sledgehammer was used only as a tool to push up the boards to be
"incredulous" in the light of other testimony as to how well
secured the boards were. Indeed, the district court noted, Agent
Brooks testified that the boards were broken with the
sledgehammer. We think there is little doubt, when viewed in the
light most favorable to Chambers, the prevailing party below,
that the evidence supports the district court's finding that the
entrance to the attic was securely sealed with boards.
Furthermore, the evidence supports the district court's finding
regarding the degree of force used by the officers to gain entry
into the attic. Agent Brooks testified on direct examination at
the suppression hearing that the attic access was "boarded up
fairly securely," and that he "believe[d]" Officer Patton "had to
use a hammer to break those boards or loosen them to get up into
the attic." Although on cross-examination, Brooks altered his
testimony somewhat to say that Officer Patton "didn't use a
sledgehammer violently," but more as "a tool to push up on the
boards that were securing that hole," the district court, "having
assessed the demeanor and credibility of the witness," found this
altered testimony "incredulous." The district court was entitled
to choose between the two versions, and to find that the attic
was a sealed-off space and that the boards securing the attic
entrance were broken with the sledgehammer. We recognize that it
is not the role of the appellate court to substitute its own
judgment for such supported findings of the district court.
-7- Indeed, the Supreme Court has told us in straightforward
language that the "clearly erroneous" standard of review "plainly
does not entitle a reviewing court to reverse the finding of the
trier of fact simply because it is convinced that it would have
decided the case differently. . . . Where there are two
permissible views of the evidence, the factfinder's choice
between them cannot be clearly erroneous." Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985).3 The district court,
as we have noted, expressly stated that its factual findings with
respect to the degree of force and the extent of damage to the
attic entrance were based on its assessment of the demeanor and
credibility of the witnesses. We think that it is unjustifiable,
under the governing standard of review, for us to disregard those
findings. We therefore accept the finding that the use of a
sledgehammer to break the boards securing the attic entrance
3 Those who would reverse seize upon the district court's characterization of the damage to the attic entrance as "structural demolition," to reach the conclusion that the finding is clearly erroneous. They seek to minimize the damage found by the district court by describing the police conduct as the mere removal of "a barrier blocking a visible access that had been created before their arrival." In doing so, however, they apply their own subjective interpretation of those words, and substitute their narrow view of what constitutes a "structure" for the district court's equally plausible, but broader, view. We, of course, agree that if "structural demolition" can only mean such destruction as would render a house uninhabitable, there was no "structural demolition." Although it may not be the only manner of expressing the damage done by the police, we think that the district court's characterization of a secure barrier of boards sealing off a part of the house as a "structure" is certainly plausible under the facts of this case.
-8- constituted a "structural demolition" of the entrance to the
attic.4
B
We now consider the central issue: whether the search
exceeded the scope of Chambers' consent. The district court's
relevant factual findings regarding the circumstances of that
consent are amply supported by the record. Chambers told the
officers that he did not own the house, but was only a guest
there. In response to the officers' request for permission to
search the house and garage, Chambers simply stated, "That would
be all right." The district court found, however, that "he
adamantly declined and refused to sign [a] written Consent to
Search form." Officer Trumps testified that Chambers refused to
sign the form because he did not own the house and, therefore,
felt that he did not have the authority to do so. Despite the
officers' attempts to convince Chambers that he had authority to
sign the consent form, he remained steadfast in his refusal
because it was not his house.
As we have stated previously, the Supreme Court has defined
the standard for measuring the scope of consent as one of
"`objective' reasonableness--what would the typical reasonable
4 As an additional ground for suppressing the evidence found in the attic, the district court held that the officers' conduct violated the Due Process Clause. Because rehearing was granted only on Chambers' Fourth Amendment claim, the panel's reversal of that ruling is undisturbed.
-9- person have understood by the exchange between the officer and
the suspect?" Florida v. Jimeno, ___ U.S. at ___, 111 S.Ct. at
1803-04. Although the question of objective reasonableness is a
question of law, the factual circumstances surrounding the
consent are central to determining the nature of the consent and
how it would have been understood by a reasonable person. We, of
course, are not bound by the district court's conclusions of law.
We must observe, however, that the district judge had the
opportunity to observe the demeanor of the witnesses and judge
their credibility, and he concluded that the consent could not
possibly have been understood as permission for the officers to
use a sledge hammer to break the boards securing the entrance to
the attic. Viewing the record as a whole in the light most
supportive of the district court's ruling, we agree.
"[T]his Nation's traditions are strongly opposed to using
force without definite authority to break down doors." Colonnade
Catering Corp. v. United States, 397 U.S. 72, 77 (1970).5 In the
light of the circumstances that led to the consent -- that
5 Colonnade supports those who would reverse not at all. In Colonnade, the agents had statutory permission to be on the premises and to conduct a search; in short, they had the equivalent of general consent to search the premises. 397 U.S. at 74. When, however, it came to breaking through a locked door, the Court held that the agents' statutory authority to search was not enough; definite authority, such as a warrant to break and enter, was required. Id. at 74, 77. Here, those who would reverse do not argue that the officers had definite authority to break the boards securing the attic entrance, but claim that such authority was implicit in the general consent given by Chambers. Colonnade specifically rejects such a conclusion.
-10- Chambers was only a guest in the house and his "adamant" refusal
to sign a Consent to search form -- we reject the notion that the
simple assent -- "That would be all right" -- can reasonably and
objectively be understood as Chambers' tacit authorization for
the police to take a sledgehammer and break their way into a part
of the house that had been securely sealed with boards. The fact
that Chambers neglected to foresee the officers' conduct and
failed specifically to state any limitations on his permission to
search the house is, we think, an insufficient basis for
interpreting his consent as authorizing the officers to damage
the house or any property in it.6
When an individual gives a general statement of consent without express limitations, the scope of a permissible search is not limitless. Rather it is constrained by the bounds of reasonableness: what a police officer could reasonably interpret the consent to encompass. . . .
. . . [A] police officer could not reasonably interpret a general statement of consent to search an individual's vehicle to include the intentional infliction of damage to the vehicle or the property contained within it. Although an individual consenting to a vehicle search should expect that search to be thorough, he need not anticipate that the search will involve the destruction of his vehicle, its parts or contents. Indeed, it is difficult to conceive of any circumstance in which an individual would voluntarily consent to have the spare tire of their automobile slashed. Unless an individual
6 Nor is Chambers' apparent silence while the officers sledge-hammered their way into the attic suprising, inasmuch as he was alone in the house and greatly outnumbered by law enforcement officers who had already found some evidence of an incriminating nature.
-11- specifically consents to police conduct that exceeds the reasonable bounds of a general statement of consent, that portion of the search is impermissible.
United States v. Strickland, 902 F.2d 937, 941-42 (11th Cir.
1990). Cf. Jimeno, ___ U.S. at ___, 111 S.Ct. at 1804 ("It is
very likely unreasonable to think that a suspect, by consenting
to the search of his trunk, has agreed to the breaking open of a
locked briefcase within the trunk, but it is otherwise with
respect to a closed paper bag.")
There is an additional reason, grounded in strong policy
concerns, that we are not inclined to construe the simple assent
that was given in this case as an agreement to allow the
dismantling of any part of the house or as permission to destroy
any property in the house. The Supreme Court has stated that
"the community has a real interest in encouraging consent, for
the resulting search may yield necessary evidence for the
solution and prosecution of crime, evidence that may ensure that
a wholly innocent person is not wrongly charged with a criminal
offense." Schneckloth v. Bustamonte, 412 U.S. 218, 243 (1973).
It is obvious to us that citizens will have greater incentives to
permit consensual searches of their property if they have some
assurance that law enforcement officers will respect their
premises while conducting such searches. The community's
interest in encouraging consent would not be advanced by
interpreting Chambers' simple assent to the search of the house
-12- to include consent to break forcibly into the sealed attic space
with a sledgehammer.
III
We would hold that a typical reasonable person would not
have interpreted Chambers' consent to extend to breaking the
boards securing the attic entrance. Accordingly, for the
foregoing reasons, we would affirm the district court's order
granting Chambers' motion to suppress the evidence seized from
the attic of the Ashby Street house.
DUHÉ, Circuit Judge, with whom KING, WILLIAMS, HIGGINBOTHAM,
DAVIS, JONES and BARKSDALE, Circuit Judges, join, would reverse
the district court for the following reasons:
The United States appeals the district court order
suppressing evidence seized pursuant to a consent search. We
voted to hear en banc the claim of Appellee Robert Franklin
Chambers that his Fourth Amendment rights were violated by the
search of the Ashby Street house, and that the evidence seized
therefrom should be suppressed.7 I would reverse and remand.
7 With regard to Chambers's due process claim and the standing and cross-appeals of his co-defendants, the panel opinion remains in force.
-13- Facts
After arresting two men suspected of drug trafficking and
money laundering, Houston police went to 215 Ashby Street, a
house both men had visited that day. Appellee Chambers answered
the door and, after the officers asked to come in, allowed them
to enter. The officers told Chambers of their investigation.
Chambers told them that he had been living in the house for two
weeks. The officers asked if they could search the house and
garage for evidence of money laundering and drug trafficking, and
Chambers agreed. The officers then presented Chambers with a
consent form, which they read in part to him and which he
perused. Chambers, however, refused to sign a consent form,
stating that he did not own the house, his brother-in-law did.
The Ashby Street house consisted of a bedroom with a closet,
a kitchen, a living room, a bathroom, and an attic. On their
first time through the house, the officers found rubberbands and
paper (items typically used by money launderers to divide and
label cash) in the kitchen and ripped currency and a gun in the
bedroom. One officer then went outside to see if the house had
attic or cellar space. Noting that it had an attic, he returned
inside to search for an entrance. One was found, boarded up, in
the bedroom closet. The police then used a sledgehammer to
remove the boards. Upon entering the attic, they found nearly
$1,000,000 in cash, ledgers, and a money counting machine.
Upon the motion of Appellee Chambers, the district court
suppressed the evidence found in the attic. From the bench the
district court judge gave the reasons for his ruling. He indicated that Chambers gave a "reasonably knowing and
appropriate" consent to search the house and garage. Though the
judge believed the search of the rooms and the garage of the
house to be reasonable, he found that the search of the attic was
not, stating that by the time the police found the attic
entrance, Chambers was constructively under arrest. The judge
further stated that having found evidence of money laundering,
probable cause was clearly established and the intervention of a
magistrate was necessary to determine the propriety of entering
the attic.
The district court judge later submitted written reasons for
suppressing the evidence found on Ashby Street. He found that
Chambers's consent to search the house had been free and
voluntary, but could not have included consent to structurally
dismantle the secured closet ceiling by use of a sledgehammer.
The judge also concluded that the Due Process Clause called for
suppression, finding that the conduct of the officers was
"outrageous" and qualified "as the sort of arbitrary and
capricious police conduct that shocks [a court's] sense of
justice and fundamental fair play."
Analysis
To establish a Fourth Amendment violation, Chambers must
show that he had a legitimate expectation of privacy in the area
searched. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); United
States v. Antone, 753 F.2d 1301, 1306 (5th Cir.), cert. denied,
-15- 15 474 U.S. 818 (1985). In assessing whether a legitimate
expectation of privacy exists, we examine several factors
including:
whether the defendant has a possessory interest in the thing seized or the place searched, whether he has the right to exclude others from that place, whether he has exhibited a subjective expectation of privacy that it would remain free from governmental intrusion, whether he took normal precautions to maintain privacy and whether he was legitimately on the premises.
United States v. Haydel, 649 F.2d 1152, 1155 (5th Cir. Unit A
July 1981), cert. denied, 455 U.S. 1022 (1982).
Chambers resided in the house; in fact the district court
found that he was the sole occupant. He exerted control over it
and was legitimately on the premises. Chambers, therefore, has
standing to object to the submission of evidence found there.
When reviewing a district court's suppression ruling, we
accept the court's factual findings unless they are "clearly
erroneous or influenced by an incorrect view of the law." United
States v. Lanford, 838 F.2d 1351, 1354 (5th Cir. 1988). The
district court's ultimate conclusions of Fourth Amendment
reasonableness, however, are subject to de novo review. United
States v. Colin, 928 F.2d 676, 678 (5th Cir. 1991).
I adopt the factual findings of the district court with one
exception. Because I find no support for the district court's
finding that the police structurally dismantled the attic
entrance, I reject it as clearly erroneous. None of the
-16- 16 testimony offered to the court suggests that the police disturbed
the structural integrity of the Ashby Street house. To the
contrary, the record indicates that the house was built with an
attic space and that an access to this space was located in the
ceiling of the bedroom closet. Though this hole was covered by
boards, through them one could see what appeared to be a bag,
indicating that the attic was in use. The police did not alter
the frame of the house; they removed a barrier blocking a visible
access that had been created before their arrival.
The removal of such a barrier does not constitute a Fourth
Amendment violation. The police may search without a warrant
when they have consent to do so from a person with authority to
give consent. Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct.
2793, 2797 (1990). Chambers, though not the owner of the house,
resided there as its sole occupant and thus had authority to
consent to the search.8 The district court found, and I agree,
8 We are not, therefore, faced with a question of third- person authority, an issue that frequently arises when a third party allows the police to inspect an absent owner's belongings. The owner of the Ashby Street house is not a party to this appeal. In third-party situations, the absent owner's expectations of privacy may play a role in determining whether the third party had authority to consent. See United States v. Kinney, 953 F.2d 863, 866 (4th Cir. 1992) (Girlfriend who had never opened defendant's locked closet lacked authority to consent to the search of the closet.), petition for cert. filed, (U.S. May 8, 1992); United States v. Block, 590 F.2d 535, 540, 542 (4th Cir. 1978) (Defendant's mother had no authority to search locked footlocker when mother asserted defendant's claim of privacy over it and disclaimed any right of access to it.).
-17- 17 that his consent was voluntary.9 Unlike the district court,
however, I find that the consent to search extended to the attic.
Whether Chambers agreed to a search of the attic is a
question of objective reasonableness: would "the typical
reasonable person" understand the consent to extend to the attic?
Florida v. Jimeno, 111 S. Ct. 1801, 1803 (1991). Such a question
of objective reasonableness is a question of law subject to de
novo review. See United States v. Harrison, 918 F.2d 469 (5th
Cir. 1990) (reasonableness of investigatory stop is a conclusion
of law); United States v. Tedford, 875 F.2d 446, 448-49 (5th Cir.
1989) (objective reasonable reliance on search warrant is a
question of law). Chambers consented to a general search of the
premises for evidence of drug trafficking and money laundering.
He had the ability to limit the scope of the search "in the same
way that the specifications of a warrant limit a search pursuant
to that warrant." United States v. Dichiarinte, 445 F.2d 126,
9 Chambers contests this finding. The issue of voluntariness is central to suppression of the attic evidence as well as the admissibility of the kitchen and bedroom evidence. To the extent that an appeal of the voluntariness finding constitutes an appeal from the denial of Chambers's motion to suppress the kitchen and bedroom evidence, it is impermissible. United States v. Martin, 682 F.2d 506, 508 (5th Cir.), cert. denied, 459 U.S. 1088 (1982). With respect to the attic evidence, because the voluntariness claim, if successful, would necessitate suppression of all evidence found at the Ashby Street house, entitling Chambers, who has not cross-appealed, to greater relief in this Court than he obtained from the district court, he may not assert it. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S. Ct. 2782, 2788 (1989); United States v. New York Telephone Co., 434 U.S. 159, 166 n.8 (1977).
-18- 18 129 n.3 (7th Cir. 1971). But Chambers did not restrict the
search in any way, at any time, although he presumably was aware
of his right to do so, having read the consent form offered
him,10 and was present throughout the search's duration. I find
that an objective onlooker could understand this general consent
to extend to all integral parts of the house -- closets, attic,
and basement (had there been one) included -- in which evidence
of drug trafficking or money laundering could be found.11
Having authorized a search of the entire house, Chambers no
longer held a reasonable expectation of privacy in any of its
compartments. That entry to one chamber was difficult does not
alter this conclusion. The Supreme Court has stated that "a
lawful search extends to the entire area in which an object of
the search may be found and is not limited by the possibility
that separate acts of entry or opening may be required to
complete the search." United States v. Ross, 456 U.S. 798, 820-
21 (1982). Though the search in Ross was based on probable
cause, its reasoning applies equally to consent cases. See
10 It is not necessary, however, that the police establish Chambers's "knowledge of his right to refuse consent." Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). 11 One officer testified in response to the court's leading question that this consent would authorize him to chop open the walls with a fire ax or dig up the foundations with a backhoe. This subjective belief evinces a terrible misunderstanding of the reasonable bounds of the consent. What the officers thought they could do is irrelevant in examining the objective reasonableness of what they in fact did.
-19- 19 United States v. Martinez, 949 F.2d 1117, 1120 (11th Cir. 1992)
(finding that the forced opening of the locked trunk of a car
stored in a mini-warehouse was authorized pursuant to the
defendant's consent to search the mini-warehouse for narcotics).
That force was used to effect the separate act of entry does
not necessarily render the search unreasonable. In Colonnade
Catering Corp. v. United States, for example, the Court addressed
whether an IRS agent without a warrant, and over the owner's
objections, was authorized to enter a locked storage room
pursuant to 26 U.S.C. § 7342, a statute levying fines against
owners who refused to admit Treasury Department officials on
their premises. 397 U.S. 72, 74 (1970). Finding that the
statute did not authorize forcible, warrantless entries, the
Court referred to this "Nation's traditions that are strongly
opposed to using force without authority to break down doors."
Id. at 77 (emphasis added).
Unlike the agent in Colonnade, the officers in the Ashby
Street house had authority for their search -- the express verbal
consent of Chambers. In further contrast, they were not met with
explicit opposition to their entry, as was the Colonnade agent.
To ignore the "without authority" language of the Colonnade
dictum would render impermissible much police action that we
regularly condone. For example, officers with warrants who are
refused entry are authorized by statute to break open doors and
windows. 18 U.S.C. § 3109 (1985).
-20- 20 Indeed, that officers with warrants are permitted to "break
open any outer or inner door or window of a house, or any part of
a house, or anything therein, to execute a search warrant" when
refused admittance, id., strengthens my conclusion that the
forced entry into the attic was reasonably within the scope of
Chambers's consent.12 For, Chambers's consent, unconditional as
it was, permitted the police to conduct the search "precisely the
same way as if the police has obtained a warrant." Schneckloth
v. Bustamonte, 412 U.S. 218, 243 (1973).
Appellee Chambers calls to our attention two automobile
consent-search cases. Jimeno, 111 S. Ct. at 1802; United States
v. Strickland, 902 F.2d 937 (11th Cir. 1990). In both cases, the
defendants gave the police unrestricted consent to search their
cars for narcotics. In Jimeno, the police opened a paper bag
found on the car's floorboard. The Supreme Court held that the
search of the bag was objectively reasonable, but distinguished
its holding from a Florida Supreme Court case suppressing
evidence found in a locked briefcase. The Court noted that "it
is very likely unreasonable to think that a suspect by consenting
to the search of his trunk has agreed to the breaking open of a
12 The Supreme Court also has contemplated the use of force to execute warrants: [T]he orderly completion of the search may be facilitated if the occupants of the premises are present. Their self- interest may induce them to open locked doors or locked containers to avoid the use of force . . . ." Michigan v. Summers, 452 U.S. 692, 703 (1981).
-21- 21 locked briefcase within the trunk, but it is otherwise with
respect to a closed paper bag." Jimeno, 111 S. Ct. at 1804.
In Strickland, one officer slashed open a spare tire found
in the defendant's car trunk. The Eleventh Circuit upheld the
introduction of the evidence found in the tire on the basis of
the officer's probable cause to suspect that the tire held
contraband. Strickland, 902 F.2d at 943. The court, however,
noted that the intrusion had exceeded the reasonable bounds of
the defendant's consent. Id. at 942. In both cases, therefore,
without suppressing the evidence found in either search, the
courts suggested it was unreasonable for officers to break into
sealed or locked objects found pursuant to consent searches.
This holding does not extend to such situations in which
locked containers or sealed objects -- entities independent of
the compartments in question -- are found, and opened, during
otherwise permissible searches.13 Today we face only the
13 The courts, however, have addressed the issue previously with respect to warrant searches, see United States v. Gonzalez, 940 F.2d 1413, 1420 (11th Cir. 1991) (valid warrant to search defendant's house for documents and currency authorized search of locked briefcase found in house), cert. denied, 112 S.Ct. 910 (1992); United States v. Morris, 647 F.2d 568, 572-72 (5th Cir. Unit B 1981) (valid warrant to search defendant's home for proceeds of bank robbery authorized search of locked jewelry box), and consent searches, see United States v. Lechuga, 925 F.2d 1035 (7th Cir. 1991) (search of suitcase inside closet was permissible pursuant to general consent to search apartment); United States v. Martinez, 949 F.2d 1117 (11th Cir. 1991) (consent to search mini-warehouse extends to locked car trunk found there); United States v. Sealey, 830
-22- 22 situation in which the police, in attempting to enter an area
reasonably understood to be within the scope of the consent,
forcibly removed a barrier to the existing passageway to an area
in the house without damaging its structure. Chambers, as sole
occupant, had authority to consent to the search. He did consent
to a search of the house without restricting the scope of that
search, thereby relinquishing his expectation of privacy in the
attic. Other means of access were unavailable. Based on these
facts, I would hold that the police conduct in this case was
reasonable.
F.2d 1028 (9th Cir. 1987) (searches of sealed containers in garage and travel bag in bedroom were permissible).
-23- 23