MICHAEL OWEN BRANNAN, PETITIONER V. UNITED STATES OF AMERICA No. 89-7641 In The Supreme Court Of The United States October Term 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A 2647-2654) is reported at 898 F.2d 107. JURISDICTION The judgment of the court of appeals was entered on March 12, 1990. A petition for rehearing was denied on April 18, 1990. The petition for a writ of certiorari was filed on May 29, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's estranged wife had the authority to consent to a search of the family home she owned jointly with petitioner. STATEMENT After a jury trial in the United States District Court for the Central District of California, petitioner was convicted on three counts of fraudulently using a counterfeit access device, in violation of 18 U.S.C. 1029(a)(1), and two counts of misusing a social security number, in violation of 42 U.S.C. 408(g)(2). He was originally sentenced on August 29, 1988, to fifteen years' imprisonment pending completion of a psychiatric study under 18 U.S.C. 4205(d). On December 19, 1988, after the psychiatric study was completed, the district court suspended execution of the remainder of the sentence and placed petitioner on probation for a five-year period. 1. The evidence at trial showed that petitioner engaged in a fraudulent scheme to obtain and use credit cards issued to fictitious persons with fictitious social security numbers. Gov't C.A. Br. 2-5. From November 1985 until his arrest in April 1988, petitioner obtained numerous credit cards from companies such as American Express and financial institutions by submitting applications containing false information. Pet. 3. a. On April 28, 1988, Secret Service agents conducted a search of the house at 33264 MacKay Drive in Lake Elsinore, California, which was jointly owned by petitioner and his estranged wife, Susan Brannan. Mrs. Brannan voluntarily gave her written consent to this search. /1/ The search produced evidence of petitioner's fraudulent use of credit cards. b. Petitioner moved to suppress the evidence found in the search of 33264 MacKay Drive, arguing that his wife lacked sufficient authority over the premises to consent to the search. In response, the government submitted evidence showing that Mrs. Brannan had the requisite authority over the premises, and that the agents who conducted the search had reasonably believed that Mrs. Brannan had such authority. Mrs. Brannan and petitioner had purchased the house at 33264 MacKay Drive in June 1987 and had lived there together until March 1988. On February 3, 1988, petitioner assaulted Mrs. Brannan and was arrested by local authorities for spousal abuse. On February 4, Mrs. Brannan obtained a temporary restraining order directing petitioner to move out of 33264 MacKay Drive. Nevertheless, petitioner returned to the MacKay Drive residence when he was released from jail on February 7, 1988. In early March, Mrs. Brannan moved out of the house, fearing for her safety. She took with her only one suitcase, but did not intend to abandon the rest of her property. Within a week, petitioner changed the locks, and obtained a temporary restraining order excluding Mrs. Brannan from the house pending a hearing to be held on March 21, 1988. Pet. C.A. E.R. 45-46 (Declaration of Susan K. Brannan). Following the March 21, 1988, hearing, a judge of the California Superior Court, Family Law Annex issued an interim order directing petitioner to stay at least 100 yards away from Mrs. Brannan's residence and place of employment, and stating that Mrs. Brannan was to pick up her personal items and property from petitioner's residence on April 9, 1988, at 9:00 a.m. Pet. App. C, Paragraphs 7, 14 (Order of March 25, 1988). The order did not continue the temporary exclusion of Mrs. Brannan from the house, nor did it direct Mrs. Brannan to stay away from the house. Mrs. Brannan understood that the order was not designed to limit her access to her home, but had been entered in order to ensure that petitioner would in fact be available on April 9, 1988, to unlock the door. On April 22, 1988, petitioner was arrested. Mrs. Brannan went to the house that day to check on her dog and found the door open. She and her mother stayed in the house on the evening of April 27, the day before the search. Pet. C.A. E.R. 46. Special Agent Eisenbeisner, one of the agents who conducted the search, was told by Mrs. Brannan that she jointly owned the house with petitioner, and was informed about their recent domestic conflicts. Mrs. Brannan also told him of her early March departure from the house, after petitioner had threatened to kill her. She added that she had left most of her personal goods behind and had not intended, by moving out, to relinquish her interest in the premises. Agent Eisenbeisner reviewed a copy of the March 25, 1988, family court order and noted that it contained no provision limiting Mrs. Brannan's access to, or authority over, the house. Nevertheless, before obtaining Mrs. Brannan's consent to search, Agent Eisenbeisner discussed the situation with an Assistant United States Attorney, who concluded that Mrs. Brannan could lawfully consent to the search. When he obtained her consent, Agent Eisenbeisner believed that Mrs. Brannan had an unlimited right of access to the house, and possessed the authority to consent. Pet. C.A. E.R. 42-44 (Declaration of Jeffrey Charles Eisenbeisner). c. The district court denied the motion to suppress. It was "convinced," after "listening to the testimony of * * * Michael and Susan Brannan," that Mrs. Brannan "was not precluded by the order dated March 25, 1988, from access to the residence where the search occurred on April 28, 1988" and thus "was fully entitled to give her consent to the search." In the alternative, the court held that the agents "conducting the search could also conclude in good faith that she apparently had the authority to give her permission" for the search. Gov't C.A. Br. 6-7, 11, quoting R.T. 7/8/88 at 24-25. 2. The court of appeals affirmed the denial of petitioner's motion to suppress. /2/ Applying the standard set forth in United States v. Matlock, 415 U.S. 164, 170 (1974), for determining whether a person has common authority over a dwelling for purposes of consenting to its search, the court concluded that it was "reasonable for the trial court here to conclude that Susan Brannan retained actual authority to consent to the search of the Brannan house." Pet. App. A 2650-2651. /3/ ARGUMENT Petitioner renews his contention that his estranged wife lacked authority to give valid consent to the search of their jointly owned dwelling. That factbound contention lacks merit and does not warrant this Court's review. In addition, as the trial court held, the search was plainly justified in any event, because the officers who conducted the search reasonably believed that petitioner's wife had the requisite authority to consent. 1. In United States v. Matlock, 415 U.S. 164 (1974), this Court held that police may conduct a warrantless search of a person's dwelling on the basis of the consent of a third party who has common authority over the dwelling. The Court explained that such 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." Id. at 171 n.7; see Frazier v. Cupp, 394 U.S. 731, 740 (1969). In this case, both courts below correctly concluded that the Matlock standard was satisfied. The evidence established that Mrs. Brannan jointly owned the premises in question, and that she had voluntarily left the house because she feared for her safety. Her possessions remained at the house, and, although petitioner had changed the locks, he had no basis for excluding her from access to the house that was jointly owned by her. Moreover, Mrs. Brannan slept in the house the night before the search, and was engaged in collecting her personal belongings while the search took place. Those facts demonstrate that Mrs. Brannan had common authority over the premises, and was exercising it when she consented to the search. Cf. United States v. Long, 524 F.2d 660, 661 (9th Cir. 1975) ("Mrs. Long had a joint right to control the house with her husband and in fact exercised that right at the time she accompanied the agents to the house by collecting her personal belongings from the house while the agents were conducting the searches."); United States v. Trzaska, 859 F.2d 1118, 1120-1121 (2d Cir. 1988) (consent was validly given by estranged wife who only recently moved out, still retained a key to the residence, and still had her personal belongings there); United States v. Crouthers, 669 F.2d 635, 642-643 (10th Cir. 1982) (consent was validly given by wife who had moved in with parents but retained key to apartment and had not abandoned marriage). Petitioner's claim (Pet. 7) that the March 25, 1988, California family court order divested Mrs. Brannan of authority over the dwelling is incorrect. That order did not direct Mrs. Brannan to vacate, or stay away from, her own house -- despite the blank spaces in the printed form of order to provide for such matters. Indeed, the order did not continue the temporary restraining order excluding Mrs. Brannan from the premises. /4/ Rather, the order affirmatively required petitioner to cooperate in admitting her to the dwelling on a particular date, a provision that was required because petitioner had changed the locks. While it is a fair inference from the order that Mrs. Brannan no longer lived at the MacKay Drive residence, it is not correct that Mrs. Brannan lacked control over premises of which she was the joint owner. As the district court found, Mrs. Brannan "was not precluded by the order dated March 25, 1988, from access to the residence where the search occurred on April 28, 1988" and thus "was fully entitled to give her consent to the search." R.T. 7/8/88 at 24-25. The element of ownership is the central distinction between this case and Illinois v. Rodriguez, No. 88-2018 (June 21, 1990). There, the Court held that the consenting party lacked the necessary "joint access or control for most purposes" over an apartment, when she had briefly lived with a man at the apartment and had moved out almost a month before consenting to its search; had never invited her friends to the apartment; had never gone to the apartment when the man was not there; and was not on the apartment lease and did not contribute to the rent. Slip op. 3-4. Here, in contrast, Mrs. Brannan had never relinquished her ownership of the house, and she did go to, and stay in, the house as soon she was assured, by petitioner's arrest, that he posed no threat to her. In light of those facts, Mrs. Brannan clearly possessed the necessary authority. /5/ 2. Even assuming that Mrs. Brannan lacked the actual authority needed to consent to a search of the home, the search was valid based on the reasonable belief of the Secret Service agents at the time of the search that Mrs. Brannan possessed the authority to consent. This Court held in Illinois v. Rodriguez, supra, that "(t)he Constitution is no(t) * * * violated when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises * * * ." Slip op. 8. /6/ Here, the agents carefully considered the specific circumstances surrounding Mrs. Brannan's relationship to the MacKay Drive house, and took the extra precaution of consulting with an Assistant United States Attorney before obtaining Mrs. Brannan's consent. The district court correctly found it entirely reasonable for the Secret Service agents to rely on Mrs. Brannan's authority to consent in light of the facts available to them. Judged under the objective standard of reasonableness that applies in this context, see Rodriguez, slip op. 11, the search of petitioner's house did not violate the Fourth Amendment. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General SEAN CONNELLY Attorney JUNE 1990 /1/ The consent form signed by Mrs. Brannan stated: "I, Susan Brannan, have been informed of my constitutional right not to have a search made of the premises * * * mentioned without a search warrant. I have also been informed of my right to consent to such a search. However, I hereby authorize * * * Special Agents U.S. Secret Service to conduct a complete search of the premises * * * at 33264 MacKay Dr., Lake Elsinore, CA." Pet. C.A. E.R. 59. /2/ The court also rejected petitioner's claim that he was not properly convicted under 18 U.S.C. 1029(a)(1) for using "counterfeit access devices." See Pet. App. A 2651-2654. Petitioner does not press that contention in this Court. /3/ As a result, the court did not reach the government's alternative argument that the trial court had correctly determined that the agents had reasonable grounds for believing that Mrs. Brannan had the authority to consent. Gov't C.A. Br. 11-12. /4/ By its terms, that order expired on the date of the March 21, 1988, hearing. Pet. C.A. E.R. 56. /5/ Similarly distinguishable are Bettuo v. Pelton, 260 N.W.2d 423 (Iowa 1977) (six months before consenting to a search of the house, the wife had voluntarily agreed to relinquish her interest in the house in return for keeping the family car), and State v. Verhagen, 272 N.W.2d 105 (Wis. App. 1978) (before consenting to the search, the wife had surrendered her rights to use and occupy the premises), on which petitioner relies. Pet. 10-11. Mrs. Brannan testified that she never intended "to give up any right of access to 33264 Mackay Drive." Pet. C.A. E.R. 46. /6/ The prevailing rule in the Ninth Circuit was consistent with the Court's holding. See United States v. Yarbrough, 852 F.2d 1522 (9th Cir.), cert. denied, 109 S. Ct. 171 (1988); United States v. Hamilton, 792 F.2d 837, 842 (9th Cir. 1986); United States v. Sledge, 650 F.2d 1075, 1080-1081 (9th Cir. 1981) (Kennedy, J.) ("(A) search is not invalid where a police officer in good faith relies on what reasonably, if mistakenly, appears to be a third party's authority to consent to the search.").