Wednesday, May 18, 2016
Prostitute has Common and Apparent Authority to Consent to Search Room in Which She is Working
In United States v. Murray, No. 15-2054, 2016 WL 1697082 (3d Cir., April 28, 2016), Defendant challenged his conviction for distribution of crack cocaine and related offenses. In Murray, Bensalem police were investigating alleged prostitution in the area. Police had been informed by the owner of the at the Sunrise Motel that a suspected prostitute had been picked up at the motel by someone driving a green Cadillac. Police also received a tip on that same day from a woman named “Jessica Brown” that a man named “Mills” drove a green Cadillac. Ms. Brown informed police that “Mills” was currently residing at the Knights Inn, and he had drugs in his possession. During the evening on the same day that they had received these two tips, police observed a green Cadillac at a third motel, the Neshaminy Motor Inn. Police learned that the owner of the green Cadillac was Defendant, and he had rented one room at the motor inn. By this time, police also had learned that Defendant had rented two rooms at the Knights Inn, for which he paid cash and provided a copy of his driver’s license. As they continued their investigation, police observed the green Cadillac at the Knights Inn parked in front of one of the two rooms rented by Defendant. Officers also made contact with a woman, identified as “Jessica Burns,” inside the room rented by Defendant at the Neshaminy Motor Inn. Initially, Ms. Burns had asked an officer if he wanted a date. During the officers’ subsequent attempt to talk to Ms. Burns, she refused to do. However, Ms. Burns ultimately acquiesced, and informed the officers that she was in fact a prostitute, and she worked for the man who had rented the room. She also informed the officers that this man was a drug dealer who supplied her with drugs.
Eventually, Defendant arrived at the room at the Neshaminy Motor Inn in which police were interrogating Ms. Burns. The officers recognized Defendant from his driver’s license, and promptly frisked him. The search yielded keys to the two rooms Defendant had rented at the Knights Inn, as well as a cell phone and a large wad of cash. Based upon the statements elicited from Ms. Burns and the items recovered from Defendant’s person, police obtained search warrants for the two rooms at the Knights Inn and the green Cadillac. In one of the rooms at the Knights Inn, police recovered 192.4 grams of crack cocaine.
At the suppression hearing, Defendant argued that Ms. Burns possessed neither common nor apparent authority to consent to a search of the room at the Neshaminy Motor Inn. He also argued that the frisk of his person was illegal. The lower court found Ms. Burns’ testimony credible regarding her voluntary consent to search the room at the Neshaminy Motor Inn. The lower court also determined that Ms. Burns had common authority, or in the alternative apparent authority, to give consent to search the room. The lower court further ruled that the frisk of Defendant was lawful because police possessed the requisite reasonable suspicion to believe he was armed and dangerous. The lower court also determined that Defendant consented to the search of his person. The lower court ultimately concluded that the search warrants were lawfully issued.
Defendant entered a guilty plea, but preserved his right to appeal the lower court’s denial of his suppression motion. The Third Circuit upheld the lower court’s denial of Defendant’s suppression motion. Specifically, the Third Circuit concluded that, based upon the facts as known to police at the time of the encounter, i.e., that Ms. Burns was a prostitute employed by Defendant, the officers reasonably believed that Ms. Burns had common authority, or at the very least apparent authority, over the room. The Third Circuit also ruled that, based on the information police had obtained to that point, i.e, that Defendant was a drug dealer who ran a prostitution operation, the officers reasonably believed that Defendant would be armed and dangerous. Distinguishing United States v. Myers, 308 F.3d 251, 258 (3d Cir. 2002), the court concluded that a frisk inside one’s home is permissible if limited to the extent necessary to protect police and secure the situation. The court also ruled that, based upon the testimony of the arresting officer, Defendant had in fact given consent for police to search him.
Amendment 801 to § 2G2.2(b)(3)(F) is a substantive change to the Guidelines, and does not apply retroactively under § 2255
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