Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division No. IP 75-8-CR S. Hugh Dillin, Judge.
Tone, Bauer, Circuit Judges, and Hoffman,*fn* Senior District Judge.
Petitioners appeal from their convictions in a joint trial for bank robbery. Laurell Cook contends that the district court erred by admitting evidence against him obtained in an allegedly unlawful search and by not declaring a mistrial after a government witness testified to a confession made by co-defendant Bobby Cook inculpating him. Bobby Cook contends that the district court erred by not allowing him sufficient pretrial discovery, by admitting an oral statement he made to government officers, by denying him the opportunity to cross-examine a witness and by refusing to give the jury particular instructions.
We reverse Laurell's conviction and affirm Bobby's conviction.
On November 19, 1973, the Peoples Loan and Trust Company of Modoc, Indiana was robbed. After the robbery the FBI conducted an investigation and discovered the possible involvement of the appellants. On November 29, the FBI obtained from Laurell Cook's landlady, Mrs. Pearl White, her consent to search a poultry house on Mrs. White's property in part used by Laurell Cook. Incriminating items seized in the ensuing search were later admitted at trial against Laurell Cook.
About a year later, on November 22, 1974, appellant Bobby Cook was arrested near Eau Claire, Wisconsin on a warrant for firearms violations. After the arrest, he was given a proper Miranda warning by FBI Special Agent Eugene I. Sather and in response to the agent's interrogation gave a written statement in which he admitted his participation in the Modoc bank robbery. Three days later, while Special Agent Sather and Sergeant David Malone of the Eau Claire Police Department were transporting Bobby to the United States Magistrate's Office for a bond hearing, Bobby orally admitted complicity in the bank robbery.
In January, 1975, appellants were indicted for the bank robbery. Bobby Cook's motion to suppress his written confession of November 22, 1974 was overruled after a hearing. Laurell Cook's motion for a separate trial was also overruled and each appellant was found guilty by a jury after a joint trial.
Laurell Cook first alleges that the search of the poultry house was unlawful since the government did not meet the standard for third-party consent searches set forth by this court in U. S. v. Matlock, 476 F.2d 1083, 1087 (7th Cir. 1973):*fn1
"Defendant's constitutional rights [can] be waived only if it [is] proved that reasonable appearance of authority to consent existed and, also, that just prior to the search, facts existed showing actual authority to consent."
The government must prove these things by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 fn. 14, 39 L. Ed. 2d 242, 94 S. Ct. 988 (7th Cir. 1974). See Lego v. Twomey, 404 U.S. 477, 488-489, 30 L. Ed. 2d 618, 92 S. Ct. 619 (1972).
As to the first leg of the test (reasonable appearance of authority to consent), Cook argues that the government did not meet its burden of proof on this issue since the trial testimony indicated that the FBI did not ask Mrs. White about her actual authority over the poultry house.
While it is true that Mrs. White testified that she could not remember the FBI asking her about her rights in the poultry house, and no other testimony contradicts her statement, we think the facts establish the necessary appearance of authority. The poultry shed was relatively near the White house, being 50 feet west of that house, which was 200 feet north of Laurell's house. Mrs. White's act in giving consent was some indication that she had authority to do so, when that act was coupled with repeated references to the shed as hers. In the consent form she signed for the FBI, she clearly indicated that she considered the poultry house as belonging to her. Twice the poultry house is referred to with the word "my": "my poultry house and workshop"; "my premises".*fn2 Under the circumstances, there was a reasonable appearance of authority in Mrs. White to consent to the search.
We now turn to the second leg of the Matlock standard: actual authority to consent. In the Supreme Court opinion in Matlock, the Court deduced from the recent cases that a warrantless search may be conducted if consent is "obtained from a third-party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected" (415 U.S. at 171). They explained the meaning of common authority in a footnote:
"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 . . . rests . . . 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 177 fn. 7.
The record in the case at bar indicates that the interior of the poultry house is one large room in which the Whites have segregated one area with wire fence for their exclusive use. The Whites gave Cook permission to use the rest of the space as he wished. Cook used the allotted space, except for a corner where the Whites stored some disused chicken roosts.
Mrs. White testified that she had told Cook that her son, a farmer, might use the area to store surplus grain if an emergency arose, but she could not recall any occasion when her son had so used the space. Pressed by counsel, Mrs. White conceded that her family did not use the large area of the poultry house, but added that "if we felt like we wanted to, we felt we still could [use it]" (Tr. 284).
In summary, Laurell Cook was the actual user of the large area of the poultry house, except for the Whites' storage of the chicken roosts in one corner. The owner, Mrs. White, maintained the right for her or members of her family to use the area if the necessity arose.
These facts require us to make a rather subtle interpretation of the aforementioned footnote from the Supreme Court opinion in Matlock explaining the common authority which justifies a third-party consent. Cook argues that the dominant aspect of common authority is "mutual use of the property by persons having joint access or control for most purposes." He asks us to read the following clause, "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," as qualified by the preceding clause. Under this reading, Cook argues, Mrs. White had no common authority over the premises since neither she nor any one ...