Appeal from the United States District Court for the Eastern District of Wisconsin. No. 75-Cr-44 Judge ROBERT W. WARREN, Presiding.
Swygert and Sprecher, Circuit Judges and Campbell, District Judge.*fn*
CAMPBELL, Senior District Judge.
Following a jury trial, appellant was convicted of bank robbery in violation of 18 U.S.C. § 2113 (a) and (b). On appeal, he argues that certain evidence obtained in a search of his apartment should have been suppressed by the trial court.
On March 3, 1975, Charles Edwardsen was arrested on certain State charges not otherwise pertinent to this appeal. Following his arrest, Edwardsen admitted to having participated in the robbery of the Western State Bank of Oshkosh, Wisconsin. He also told the arresting officers that clothing which had been worn during the robbery was in appellant's apartment, and agreed to accompany the officers to the apartment and surrender these items. Edwardsen stated that he had permission to use the apartment, but did not have a key. After arriving there, Edwardsen advised the officers that they could gain entry through sliding glass doors located at the side of the building. After gaining entry, Edwardsen directed the officers to the clothing, stolen money and a gun which had been used in the bank robbery.
Testimony disclosed that Edwardsen had been staying at the home of Shirley Lorentz at the time of his arrest, that he had known Harris about three weeks, that he had been present at defendant's apartment perhaps a dozen times, and that on one occasion he had remained at the apartment after defendant had left. This latter instance was apparently the only time that Edwardsen was present at the apartment in Harris' absence. On that occasion, Harris told Edwardsen that when he left he should lock the apartment.
Prior to trial, defendant moved without success to suppress evidence obtained as a result of the warrantless search of his apartment. Harris' sole contention on appeal is that the court erred in denying his motion, and although he suggests several different arguments in support of this contention, we find it only necessary to consider his assertion that Edwardsen lacked sufficient authority to validly consent to a search of Harris' apartment.
The government here seeks to justify the warrantless search by imputing to the defendant the consent given by Edwardsen. Both parties agree that the issue is controlled by the Supreme Court's decision in United States v. Matlock, 415 U.S. 164, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974). They, of course, disagree regarding the proper application of that case.
In Matlock, the Supreme Court reiterated that
"When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was 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.
In a footnote, the Court added that
"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 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.
The government was required to prove by the preponderance of the evidence that (1) at the time Edwardsen consented to the search, the searching officers reasonably believed that he possessed the necessary common authority over the premises to validly consent to the warrantless search, and (2) that immediately prior to the search facts existed which established that he did in fact possess such authority.*fn1 In denying defendant's motion, the district court implicitly determined that the government had met its burden in both respects. We disagree.
The testimony disclosed that Edwardsen was not residing in defendant's apartment at the time of the search. He had known the defendant for only three weeks and had been alone in the apartment only once. On that occasion, which was apparently the last time Edwardsen visited the apartment,*fn2 he had been told by Harris before the latter's departure that upon leaving, Edwardsen should lock the apartment. Since Harris did not give Edwardsen a key, it can hardly be surmised that he expected Edwardsen to enter and leave the locked apartment at will. Under these facts, we are compelled to conclude that Edwardsen did not share with Harris the common authority over the premises necessary to validly consent to the warrantless ...