The People for the American Way has said the United States Court of Appeals for the District of Columbia is “dominated by right wing ideologues” who have the “last word” on more important laws of this nation than any other Federal appeals circuit. With nine Republican-nominated judges and only four Democratic-nominated judges, it is understandable that the court has a reputation for having a “rightward ideological tilt.”
That’s why the March 21, 2014 decision by the appeals court in the case of Davon Peyton is quite extraordinary.
It is an unusual Fourth Amendment case; the kind of cases which almost always draw criticism from one political tilt or another. The Peyton decision, involving a small-time drug dealer, was decided by a three-judge panel: two Republicans and one Democrat. In coming to a decision, one of the Republican-nominated judges joined the Democratic-nominated judge to reverse Peyton’s drug conviction.
Davon Peyton pled guilty to possession with intent to distribute a detectable amount of cocaine base (a lesser included offense to his original crack cocaine charge) and a weapons charge. The Government and Peyton agreed to an 84-month sentence. The district court accepted the plea agreement. The background facts of the case are not really that unusual. Peyton lived in a small, one-bedroom apartment, which he shared with his 85-year-old great grandmother, Martha Mae Hicks, in Washington, D.C. Both their names were on the lease. Hicks used the bedroom while Peyton had a bed and his personal belongings in the living room.
On June 21, 2009, local police arrested Peyton in a parking lot outside the apartment complex for possession of crack cocaine. On June 26, the police sought, and obtained, a search warrant for the Peyton/Hicks apartment. While the ensuing search did not discover any drugs in the apartment, several people in the apartment at the time were arrested for possession of either drugs or drug paraphernalia.
Clearly, the police had Peyton in their crosshairs as a neighborhood drug dealer. Not long after the June 26th search, the police arrested Peyton again, and while he was still in custody, they received a tip that he had been using the apartment to deal drugs. Four officers, including one who had participated in the June 26 search, returned to the apartment—this time without a warrant. Knowing Peyton would not be there, the officers hoped they could get the elderly Hicks to consent to a warrantless search.
It was sloppy police work compounded by their conduct at the apartment. At the door they found Peyton’s girlfriend, Tyra Harvey. They asked for Hicks and were told she was in the bedroom. Two officers walked past Harvey into the nearby bedroom where they found Hicks sitting on the bed. The officers told the grandmother they believed drugs were in the apartment and asked for her permission to search it while they simultaneously handed her a “consent” form which she signed. Once the officers got near Peyton’s bed in the living room, Hicks told them that that area was where Peyton kept “his personal property.
The officers continued to rummage through Peyton’s belongings until one saw a closed shoebox in which he found 25 grams of marijuana, 70 grams of crack cocaine, and $4,000 in cash. The officers then moved into the kitchen where, according to the appeals court, “they discovered two plates and a razor blade with white residue in the cabinets.”
On January 12, 2010, a grand jury indicted Peyton for possession with intent to distribute 50 grams or more of crack cocaine and a detectable amount of marijuana. But the police were not finished with Peyton. Eight days after his indictment, four officers armed with an arrest warrant went to Peyton’s apartment where they immediately took him into custody after he answered the door. The officers then launched a “protective sweep” of the apartment during which they found Hicks, Harvey, and unidentified male in the living room.
Smelling odor of marijuana, the officers once again asked Hicks for permission to search the apartment. She again agreed and signed another consent form. Peyton, who was standing nearby in handcuffs, did not object. The ensuing search yielded crack cocaine, marijuana, and a handgun in kitchen cabinets.
Armed with this new evidence, prosecutors obtained a superseding indictment on January 26, 2010 which added three charges to the original indictment: possession with intent to distribute crack cocaine, possession with intent to distribute marijuana, and possession of a firearm in furtherance of a drug trafficking offense.
Prior to trial, Peyton challenged the evidence seized during the warrantless searches in July 2009 and January 2010. The district court split the baby. The court ruled that Hicks had the authority to consent to a search of the apartment on July 9—that she voluntarily allowed the officers to search the living room but not the kitchen. With the respect to the January 2010 search, the court ruled Hicks had voluntarily consented to a search of the entire apartment.
Accordingly, the court ruled that the evidence seized in the kitchen during the July 9 search had to be suppressed.
While the appeals court had a number of issues before it related to the two searches, the sole issue the court dealt with in detail was whether Hicks had the authority to allow the police to search Peyton’s shoebox.
As a preliminary matter, the court brushed aside the Government’s argument that Peyton had waived this claim because he did not raise it at the suppression hearing in the district court. The court gave the Government a crash course in its precedents; namely, that defendants preserve an issue at a suppression hearing by simply stating “the basis of their objection to the admission of the evidence” and “need not articulate the entire body of law relevant to their claim.”
The D.C. Circuit began its authority to search the shoebox issue by pointing out that the very core of the Fourth Amendment protects an individual’s home from “unreasonable governmental intrusion” and that a warrantless search is the “quintessential intrusion and is presumptively unreasonable.” However, this presumption can be rebutted with a showing that someone with authority consented to the warrantless search. For a third party to consent to a search, they must enjoy “common authority” over the premises or effects to be searched. Inherent in this common authority principle is the requirement that an individual enjoy not only “joint access or control” of the premises but the right to permit inspection by third parties, such as the police.
As the appeals court pointed out, “the fact that a person has common authority over a house, an apartment, or a particular room does not mean that she can authorize a search of anything and everything within that area.” This principle is founded in common sense. While two people may agree to share a room or apartment with either an implicit or explicit understanding that they can admit a third party, each retains an expectation of privacy in the interior of their living space such as a closet, footlocker or dresser drawer. These private spaces are not part of the common area in which both parties have access and in which they can allow third party access.
The appeals court then laser focused its analysis on the shoebox issue. “The district court’s conclusion that Hicks had common authority over the living room generally does not answer the critical question here: Did she have authority over the shoebox? There is no evidence that Hicks either shared use of the shoebox with Peyton or had permission to do so, and the government does not argue that she had actual authority.
Instead, the government [suggest] that Hicks had apparent authority, emphasizing three circumstances that suggest Peyton did not retain a privacy in the shoebox. The living room where he slept remained a common area, with a diminished expectation of privacy for things left there. Peyton took no special steps to hide or protect the shoebox. And the shoebox is not ‘the type of container that has historically been accorded the highest privacy expectations.’”
While the appeals court was tolerant of these suggestions, the ruling panel was having no truck with them. “Standing alone,” the court reasoned, “these circumstances might suggest that the shoebox was not a private space and that it was reasonable for the police to believe that Hick’s authority over the living room encompassed the shoebox. But these were not the only circumstances the police were aware of. They knew Hicks and Peyton both lived in the small apartment, and they were thus on notice that some spaces in the apartment might be used exclusively by Peyton.
Indeed, the officer who opened the shoebox had been inside the apartment during the earlier warrant search and knew that Peyton’s bed was in the living room. But most critically, according to the sworn account of that very officer, Hicks told the police that Peyton kept his ‘personal property’ in the area around the bed, where the shoebox was found. In light of this clear statement that there was an area of the room that was not hers, it was not reasonable for the police to believe that Hicks shared use of the closed shoebox. Hicks lacked apparent authority to consent to its search.”
There’s no question that by sharing the apartment with his grandmother, Peyton assumed the risks that she could or would permit outsiders, including the police, into the living room where he slept and that those outsiders would see all the items he left in plain view. However, as the appeals court noted, this assumed risk did not extend to Hicks allowing “outsiders to rummage through his closed containers to discover items not in plain view.”
That this core Fourth Amendment logic was embraced by both a Republican and Democratic judge lends hope for bipartisanship after all.