UNITED STATES of America, Appellee, v. James Joseph DiPRIMA, Defendant-Appellant

United States Court of Appeals for the First Circuit1973-01-26No. No. 72-1085

472 F.2d 550

Summary · law.co

Holding. The court affirmed the conviction, holding that the mother's consent to search the apartment was valid and the defendant's presence without objection further supported the search's legality, and alternatively that the mother as householder had authority to consent regardless of whether the defendant objected.

The defendant rented a room in his mother's apartment and challenged the search of that room by police. The mother, after being informed of her right to refuse, consented to a search of the entire apartment including the defendant's room. The defendant was present and witnessed the police entering the bedroom but said nothing. The trial court found the mother had authority to consent as the householder and that the defendant's silence in the face of apparent consent precluded him from later objecting.

The appellate court upheld the search on two independent grounds. First, the defendant's presence and failure to object after witnessing the police entry constituted an affirmation of his mother's consent. Second, even without the defendant's acquiescence, the mother as householder possessed sufficient authority to consent to a general search of the apartment, including the defendant's room. The court determined that the defendant's weekly $10 payment for room and board did not establish exclusive possession sufficient to bar the mother's authority to consent. The court also rejected the defendant's other contentions regarding alleged jury misconduct and variance between the charges and proof.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Validity of consent to search given by a parent/householder for a room occupied by an adult child
Whether an occupant's silence and failure to object to a search constitutes acquiescence to consent
Scope of a householder's authority to consent to search of spaces occupied by other household members
Mistrial denial after juror contact with witness

Procedural posture

The defendant appealed his conviction after the trial court denied his motion to suppress evidence obtained from a warrantless search of his bedroom in his mother's apartment.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

ALDRICH, Senior Circuit Judge.

This is another of the flow of cases objecting to the fruits of a search and seizure where the police acted without a search warrant, but after a request for and a manifestation of consent. We pointed out as recently as Leavitt v. Howard, 1 Cir., 1972, 462 F.2d 992, 998, that to indicate consent, causing the police to forego the obtaining of a warrant, and then to object later, will offer a defendant an untoward advantage. Although the burden of proving consent is on the government, the claim that an apparent consent is not genuine must, for this reason, be carefully scrutinized.

In the case at bar defendant had a room in his mother’s apartment for which he made a weekly payment. The court, 329 F.Supp. 329, found that his younger brother shared the room and that his mother had free access thereto because she used the closet. It further found that the mother, after a full explanation by the police of her right to object, fully consented to the search of the apartment, including the room in question, that defendant was present within ready earshot, and that he saw the bedroom being entered and made no objection. The evidence sought to be suppressed was in plain view within the room.

The evidence fully supported the court’s findings. On either score defendant’s appeal is without merit. To hold that defendant could understand and say nothing, and later attack the validity of his mothers consent to enter his room, would be exactly contrary to the rationale we expressed in Leavitt, ante.

Furthermore, even absent an indication of consent by defendant, the court was warranted in finding authority in the mother, as the householder, to give a general consent. Cf. United States v. Mix, 5 Cir., 1971, 446 F.2d 615; Maxwell v. Stephens, 8 Cir., 1965, 348 F.2d 325, cert. denied 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353. See also State v. Kinderman, 1965, 271 Minn. 405, 136 N.W.2d 577, cert. denied 384 U.S. 909, 86 S.Ct. 1349, 16 L.Ed.2d 361; Jones v. State, 1972, 13 Md.App. 309, 283 A.2d 184. While some courts, in considering this issue on facts akin to the present, draw a distinction based on whether or not the defendants possession of the bedroom was exclusive, perhaps following the analogy of landlord and tenant, this defendant could be found not to come within these cases. The fact that he paid his mother $10 a week for board and lodging did not compel a finding, in the light of the other evidence, that he had exclusive possession of the bedroom.

Finally, we remark that “exclusive” possession is not an absolute term. A hotel clerk may have a key to a room, and so may the cleaning staff, but the clerk will not have apparent authority to consent to a search. Stoner v. California, 1964, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856. On the other hand, even if a minor child, living in the bosom of a family, may think of a room as “his,” the overall dominance will be in his parents. We cannot pronounce a rule that will answer all eases, except to say that to some extent the police must be allowed to rely upon the word of the householder and general appearances. In the case at bar they had both.

Defendant complains because, when one of the jurors was found to have asked a government witness whether he-knew some out-of-town relative of hers, the court refused to grant a mistrial. The court excused the juror, and having ascertained from the rest that they would not be influenced by the occurrence, instructed them to forget it. Defendant does not complain about the way this was done, but by the resulting denial of his motion. We think, however, the court acted entirely properly.

Equally invalid is defendant’s complaint that he was charged in the indictment with the crime, but the evidence showed him to be an aider and abettor, only. Defendant concedes that no circuit supports his claim that this was a fatal variance. We see no reason to be the first to do so. Cf. United States v. Lester, 6 Cir., 1966, 363 F.2d 68, cert. denied 385 U.S. 1002, 87 S.Ct. 705, 17 L.Ed.2d 542; Nassif v. United States, 8 Cir., 1966, 370 F.2d 147.

Affirmed.