United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE
Kyle L. Eidson (“Kyle”) and Ruth M. Eidson
(“Ruth”) (formerly Ruth M.
Moler-Dotter) 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. 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. 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.
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
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.
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).
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
Authority to 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).
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. 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.
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. 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. 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 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.
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