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United States v. Eidson

United States District Court, D. Kansas

December 13, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
KYLE L. EIDSON, Defendant. UNITED STATES OF AMERICA, Plaintiff,
v.
RUTH M. EIDSON, f/k/a RUTH M. MOLER-DOTTER, Defendant.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER UNITED STATES DISTRICT JUDGE

         Defendants Kyle L. Eidson (“Kyle”) and Ruth M. Eidson (“Ruth”) (formerly Ruth M. Moler-Dotter)[1] are charged with violating 18 U.S.C. §§ 1708 and 1709 for allegedly taking Netflix DVDs out of United States Postal Service (“USPS”) mail receptacles.[2] Kyle filed this motion to suppress (Doc. 22), arguing that no valid consent was given for the search of their home. Ruth joined the motion. Doc. 20 in Case 18-CR-40026. The Court held an evidentiary hearing on November 6, 2018 and heard testimony from the two USPS agents who conducted the search; Austin Childers (“Childers”), who was present at the house during the search; a private investigator hired by Ruth's defense counsel; and Kyle. The Court admitted several exhibits, including an audio recording of statements made to the investigator by Bobby Barrett (“Barrett”), the other man present in the house during the search.[3] Based on the evidence and arguments presented by the parties and upon review of the applicable law, the Court finds that the search was not unlawful under the Fourth Amendment and denies the motions.

         I. BACKGROUND

         In 2016, Kyle and Ruth worked as USPS contract highway route carriers on separate routes in Wabaunsee County, Kansas. Contract highway route carriers pick up mail from mail receptacles at smaller post offices and transport it to other post offices for processing. After an unusually high number of Netflix DVDs placed in mail receptacles on Kyle's and Ruth's routes were not received by Netflix, the USPS began an investigation. Special Agent Mike Corf (“Agent Corf”) placed several test Netflix DVDs in the mail at the post offices on their routes. Agent Corf testified that none of the test DVDs mailed from the post office on Kyle's route were received by Netflix and most of them mailed from the post office on Ruth's route were not received.

         On June 2, 2016, after receiving no responses to his telephone messages to Kyle and Ruth, Agent Corf and Assistant Special Agent in Charge Michael Ridley (“Agent Ridley”) drove to their home to do a “Knock and Talk.” When Agent Corf knocked on the door, Childers answered it and Barrett joined him at the door. The agents showed their USPS identifications and told the men they wanted to talk to Kyle and Ruth about the missing Netflix DVDs. One of the men informed the agents that neither Kyle nor Ruth were home. After a discussion, the agents conducted a search of the entertainment center and nearby containers and found ninety-seven Netflix DVDs. After the agents took the DVDs and began walking toward their vehicle, Barrett came out of the house and handed Agent Corf five more DVDs that he said had been in a bedroom.

         II. STANDARD

         The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The home “is accorded the full range of Fourth Amendment protections” because the expectation of privacy is “most heightened” in the home. California v. Ciraolo, 476 U.S. 207, 213 (1986); Lewis v. United States, 385 U.S. 206, 211 (1966). Thus, a search of a person's home without a warrant is presumed unreasonable unless the government can show that “one of a carefully defined set of exceptions” applies. United States v. Cos, 498 F.3d 1115, 1123 (10th Cir. 2007) (internal quotation and citation omitted). Consent is one such exception to the warrant requirement. Id. at 1124. To invoke this exception, the government must show that consent was voluntarily given by the owner of the property or by a third party having actual or apparent authority to give consent. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 224 (1973) (voluntariness); Matlock, 415 U.S. at 171 (actual authority)). The necessary level of proof is a preponderance of the evidence. United States v. Rith, 164 F.3d 1323, 1328 (10th Cir. 1999).

         III. ANALYSIS

         The Eidsons argue that the DVDs seized from their home must be suppressed because neither Barrett nor Childers had actual or apparent authority to give consent to a search of the entertainment center or of the containers holding the DVDs. Doc. 22 at 5-6. For the reasons stated below, the Court disagrees.

         A. Authority to Consent

         Consent to a search is valid if it is voluntarily given by a person having actual or apparent authority to grant it. Rodriguez, 497 U.S. at 188. Actual authority exists where the consenting party is either the owner or a third party having “common authority over or other sufficient relationship to the premises or effects sought to be searched.” Matlock, 415 U.S. at 171. Apparent authority exists where “a police officer reasonably, but erroneously, believes that the third party has actual authority to consent.” Cos, 498 F.3d at 1128 (citing Georgia v. Randolph, 547 U.S. 103, 109 (2006) and Rodriguez, 497 U.S. at 181).

         The Court begins by analyzing apparent authority. For apparent authority, a court must consider whether “the facts available to the officer at the moment . . . ‘warrant a man of reasonable caution' [to believe that] the consenting party had authority over the premises[.]” Rodriguez, 497 U.S. at 188 (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). In evaluating apparent authority, courts use the framework of actual authority. United States v. Bass, 661 F.3d 1299, 1305 (10th Cir. 2011). A third party has actual authority to consent to a search if he has “either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes over it.” Rith, 164 F.3d at 1329 (citing Matlock, 415 U.S. at 171 n.7). The Court addresses only the first inquiry-mutual use of the property by joint access-because the second does not apply here.[4] The first is a fact- intensive inquiry focusing on whether the third party was allowed to enter the premises at will, without the consent of the defendant. Id. at 1330.

         Based on the following evidence, the Court concludes the agents had sufficient facts before the search to form a reasonable belief that Barrett and Childers had authority to consent to the search. First, the Court finds that Barrett invited the agents in-a fact established by Barrett's statement in his interview and the testimony of both agents at the hearing.[5] Next, the Court finds that when the agents asked the men if they lived in the house, both Barrett and Childers said they did. Although Barrett and Childers dispute this point, the Court finds the agents' testimony to be credible on this point.[6] The agents' testimony is consistent with each other and is corroborated by notes that Agent Corf took at the time of the search. The notes list each man's name, his birth date, and an address. Agent Corf explained that the addresses were the men's previous addresses and that the notations “Beginning May” and “Month” indicated the length of time each man said he had been living at the Eidsons' home. The Court finds that explanation reasonable and credible. Finally, the agents are experienced investigators[7] and Agent Corf testified that if the men had stated they did not live there, he would have simply left his business card with them and asked them to pass it on to Kyle and Ruth.

         The agents testified that their observations of the living area gave them further reason to believe the men were living there. Agent Ridley testified that it appeared the men were sleeping on the couches and that he saw two duffle bags in the living area. Childers testified that one of the bags belonged to him and contained clothes and peanut butter. Childers also testified that Barrett had a duffle bag of clothes there. Keeping personal belongings in the home is an indicator of mutual use of the property by virtue of joint access. See Cos, 498 F.3d at 1127. Another indicator is how often the third party is left alone in the home without the defendant present. Id. Although the evidence did not specifically reveal how often Barrett and Childers were in the home alone, they were there alone when the agents arrived and Childers told the agents that he played PlayStation when Kyle and Ruth were gone. The Court finds the above facts sufficient to meet the government's ...


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