CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 72-1355 Argued: December 10-11, 1973 --- Decided: February 20, 1974
MR. JUSTICE WHITE delivered the opinion of the Court.
In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Court reaffirmed the principle that the search of property, without warrant and without probable cause, [p166] but with proper consent voluntarily given, is valid under the Fourth Amendment. The question now before us is whether the evidence presented by the United States with respect to the voluntary consent of a third party to search the living quarters of the respondent was legally sufficient to render the seized materials admissible in evidence at the respondent's criminal trial.
Respondent Matlock was indicted in February, 1971, for the robbery of a federally insured bank in Wisconsin, in violation of 18 U.S.C. § 2113. A week later, he filed a motion to suppress evidence seized by law enforcement officers from a home in the town of Pardeeville, Wisconsin, in which he had been living. Suppression hearings followed. As found by the District Court, the fact were that respondent was arrested in the yard in front of the Pardeeville home on November 12, 1970. The home was leased from the owner by Mr. and Mrs. Marshall. Living in the home were Mrs. Marshall, several of her children, including her daughter, Mrs. Gayle Graff, Gayle's three-year-old son, and respondent. Although the officers were aware at the time of the arrest that respondent lived in the house, they did not ask him which room he occupied or whether he would consent to a search. Three of the arresting officers went to the door of the house and were admitted by Mrs. Graff, who was dressed in a robe and was holding her son in her arms. The officers told her they were looking for money and a gun, and asked if they could search the house. Although denied by Mrs. Graff at the suppression hearings, it was found that she consented voluntarily to the search of the house, including the east bedroom on the second floor which she said was jointly occupied by Matlock and herself. The east bedroom was searches, and the evidence at issue here, $4,995 in cash, was found in a diaper [p167] bag in the only closet in the room. [n1] The issue came to be whether Mrs. Graff's relationship to the east bedroom was sufficient to make her consent to the search valid against respondent Matlock.
The District Court ruled that, before the seized evidence could be admitted at trial, the Government had to prove, first, that it reasonably appeared to the searching officers, "just prior to the search, that facts exist which will render the consenter's consent binding on the putative defendant," and, second, that, "just prior to the search, facts do exist which render the consenter's consent binding on the putative defendant." There was no requirement that express permission from respondent to Mrs. Graff to allow the officers to search be shown; it was sufficient to show her authority to consent in her own right by reason of her relationship to the premises. The first requirement was held satisfied because of respondent's presence in the yard of the house at the time of his arrest, because of Gayle Graff's residence in the house for some time and her presence in the house just prior to the search, and because of her statement to the officers that she and the respondent occupied the east bedroom. [n2]
The District Court concluded, however, that the Government had failed to satisfy the second requirement and [p168] had not satisfactorily proved Mrs. Graff's actual authority to consent to the search. To arrive at this result, the District Court held that, although Gayle Graff's statements to the officers that she and the respondent occupied the east bedroom were admissible to prove the good faith belief of the officers, they were nevertheless extrajudicial statements inadmissible to prove the truth of the facts therein averred. The same was true of Mrs. Graff's additional statements to the officers later on November 12 that she and the respondent had been sleeping together in the east bedroom regularly, including the early morning of November 12, and that she and respondent shared the use of a dresser in the room. There was also testimony that both Gayle Graff and respondent, at various times and places and to various persons, had made statements that they were wife and husband. These statements were deemed inadmissible to prove that respondent and Gayle Graff were married, which they were not, or that they were sleeping together as a husband and wife might be expected to do. Having excluded these declarations, the District Court then concluded that the remaining evidence was insufficient to prove
to a reasonable certainty, by the greater weight of the credible evidence, that, at the time of the search, and for some period of reasonable length theretofore, Gayle Graff and the defendant were living together in the east bedroom.
The remaining evidence, briefly stated, was that Mrs. Graff and respondent had lived together in a one-bedroom apartment in Florida from April to August, 1970; that they lived at the Marshall home in Pardeeville from August to November 12, 1970; that they were several times seen going up or down stairs in the house together; and that the east bedroom, which respondent was shown to have rented from Mr. and Mrs. Marshall, contained evidence that it was also lived in by [p169] a man and a woman. [n3] The District Court thought these items of evidence created an "inference" or at least a "mild inference" that respondent and Gayle Graff at times slept together in the east bedroom, but it deemed them insufficient to satisfy the Government's burden of proof. The District Court also rejected the Government's claim that it was required to prove only that, at the time of the search, the officers could reasonably have concluded that Gayle Graff's relationship to the east bedroom was sufficient to make her consent binding on respondent.
The Court of Appeals affirmed the judgment of the District Court in all respects. 476 F.2d 1083. We granted certiorari, 412 U.S. 917, and now reverse the Court of Appeals.
It has been assumed by the parties and the courts below that the voluntary consent of any joint occupant of a residence to search the premises jointly occupied is valid against the co-occupant, permitting evidence discovered in the search to be used against him at a criminal trial. This basic proposition was accepted by the Seventh Circuit in this case, 476 F.2d at 1086, as it had been in prior cases, [n4] and has generally been applied [p170] in similar circumstances by other courts of appeals, [n5] and various state courts. [n6] This Court left open, in Amos v. United States, 25 U.S. 313, 317 (1921), the question whether a wife's permission to search the residence in which she lived with her husband could "waive his constitutional rights," but more recent authority here clearly indicates that the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared. In Frazier v. Cupp, 394 U.S. 731, 740 (1969), the Court "dismissed rather quickly" the contention that the consent of the petitioner's cousin to the search of a duffel bag, which was being used jointly by both men and had been left in the cousin's home, would not justify the seizure of petitioner's clothing [p171] found inside; joint use of the bag rendered the cousin's authority to consent to its search clear. Indeed, the Court was unwilling to engage in the "metaphysical subtleties" raised by Frazier's claim that his cousin only had permission to use one compartment within the bag. By allowing the cousin the use of the bag, and by leaving it in his house, Frazier was held to have assumed the risk that his cousin would allow someone else to look inside. Ibid. More generally, in Schneckloth v. Bustamonte, 412 U.S. at 245-246, we noted that our prior recognition of the constitutional validity of "third party consent" searches in cases like Frazier and Coolidge v. New Hampshire, 403 U.S. 443, 487-490 (1971), supported the view that a consent search is fundamentally different in nature from the waiver of a trial right. These cases at least make clear that, when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. [n7] The [p172] issue now before us is whether the Government made the requisite showing in this case.
The District Court excluded from evidence at the suppression hearings, as inadmissible hearsay, the out-of-court statements of Mrs. Graff with respect to her and respondent's joint occupancy and use of the east bedroom, as well as the evidence that both respondent and Mrs. Graff, at various times and to various persons, had represented themselves as husband and wife. The Court of Appeals affirmed the ruling. Both courts were in error.
As an initial matter, we fail to understand why, on any approach to the case, the out-of-court representations of respondent himself that he and Gayle Graff were husband and wife were considered to be inadmissible against him. Whether or not Mrs. Graff's statements were hearsay, the respondent's own out-of-court admissions would surmount all objections based on the hearsay rule both at the suppression hearings and at the trial itself, and would be admissible for whatever inferences the trial judge could reasonably draw concerning joint occupancy of the east bedroom. See 4 J. Wigmore, Evidence § 1048 (J. Chadbourn rev.1972); C. McCormick, Evidence § 262 (2d ed.1972). [n8]
As for Mrs. Graff's statements to the searching officers, it should be recalled that the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility [p173] of evidence. [n9] In Brinegar v. United States, 338 U.S. 160 (1949), it was objected that hearsay had been used at the hearing on a challenge to the admissibility of evidence seized when a car was searched and that other evidence used at the hearing was held inadmissible at the trial itself. The Court sustained the trial court's rulings. It distinguished between the rules applicable to proceedings to determine probable cause for arrest and search and those governing the criminal trial itself --
There is a large difference between the two things to be proved, as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.
Id. at 173. That certain evidence was admitted in preliminary proceedings but excluded at the trial -- and the Court thought both rulings proper -- was thought merely to "illustrate the difference in standards and latitude allowed in passing upon the distinct issues of probable cause and guilt." Id. at 174.
That the same rules of evidence governing criminal jury trials are not generally thought to govern hearings before a judge to determine evidentiary questions was confirmed on November 20, 1972, when the Court transmitted to Congress the proposed Federal Rules of Evidence. Rule 104(a) provides that preliminary questions concerning admissibility are matters for [p174] the judge, and that, in performing this function, he is not bound by the Rules of Evidence except those with respect to privileges. [n10] Essentially the same language on the scope of the proposed Rules is repeated in Rule 1101(d)(1). [n11] The Rules in this respect reflect the general views of various authorities on evidence. 5 J. Wigmore, Evidence § 1385 (3d ed.1940); C. McCormick, Evidence § 53, p. 122 n. 91 (2d ed.1972). See also Maguire & Epstein, Rules of Evidence in Preliminary Controversies as to Admissibility, 36 Yale L.J. 1101 (1927).
Search warrants are repeatedly issued on ex parte affidavits containing out-of-court statements of identified and unidentified persons. United States v. Ventresca, 380 U.S. 102, 108 (1965). An arrest and search without a warrant were involved in McCray v. Illinois, 386 U.S. 300 (1967). At the initial suppression hearing, the police proved probable cause for the arrest by testifying to the out-of-court statements of an unidentified informer. The Government would have been obligated to produce the informer and to put him on the stand had it wanted to use his testimony at defendant's trial, but we sustained the use of his out-of-court statements at the suppression hearing, as well as the Government's [p175] refusal to identify him. In the course of the opinion, we specifically rejected the claim that defendant's right to confrontation under the Sixth Amendment and Due Process Clause of the Fourteenth Amendment had in any way been violated. We also made clear that there was no contrary rule governing proceedings in the federal courts.
There is, therefore, much to be said for the proposition that, in proceedings where the judge himself is considering the admissibility of evidence, the exclusionary rules, aside from rules of privilege, should not be applicable; and the judge should receive the evidence and give it such weight as his judgment and experience counsel. [n12] However that may be, certainly there should be no automatic rule against the reception of hearsay evidence in such proceedings, and it seems equally clear to us that the trial judge should not have excluded Mrs. Graff's statements in the circumstances present here.
In the first place, the court was quite satisfied that the statements had, in fact, been made. Second, there is nothing in the record to raise serious doubts about the truthfulness of the statements themselves. Mrs. Graff harbored no hostility or bias against respondent that might call her statements into question. Indeed, she testified on his behalf at the suppression hearings. Mrs. Graff responded to inquiry at the time of the search that she and respondent occupied the east bedroom together. A few minutes later, having led the officers to the bedroom, she stated that she and respondent shared the one dresser in the room and that the woman's clothing in the [p176] room was hers. Later the same day, she stated to the officers that she and respondent had slept together regularly in the room, including the early morning of that very day. These statements were consistent with one another. They were also corroborated by other evidence received at the suppression hearings: Mrs. Graff and respondent had lived together in Florida for several months immediately prior to coming to Wisconsin, where they lived in the house in question and where they were seen going upstairs together in the evening; respondent was the tenant of the east bedroom, and that room bore every evidence that it was also occupied by a woman; respondent indicated in prior statements to various people that he and Mrs. Graff were husband and wife. Under these circumstances, there was no apparent reason for the judge to distrust the evidence and to exclude Mrs. Graff's declarations from his own consideration for whatever they might be worth in resolving, one way or another, the issues raised at the suppression hearings. If there is remaining doubt about the matter, it should be dispelled by another consideration: cohabitation out of wedlock would not seem to be a relationship that one would falsely confess. Respondent and Gayle Graff were not married, and cohabitation out of wedlock is a crime in the State of Wisconsin. [n13] Mrs. Graff's statements were against her penal interest, and they carried their own indicia of reliability. This was sufficient in itself, we think, to warrant admitting them to evidence for consideration by the trial judge. This [p177] is the case even if they would be inadmissible hearsay at respondent's trial either because statements against penal interest are to be excluded under Donnelly v. United States, 228 U.S. 243, 272-277 (1913), or because, if Rule 804(b)(4) of the proposed Federal Rules of Evidence becomes the law, such declarations would be admissible only if the declarant is unavailable at the time of the trial.
Finally, we note that Mrs. Graff was a witness for the respondent at the suppression hearings. As such, she was available for cross-examination, and the risk of prejudice, if there was any, from the use of hearsay was reduced. Indeed, she entirely denied that she either gave consent or made the November 12 statements to the officers that the District Court excluded from evidence. When asked whether, in fact, she and respondent had lived together, she claimed her privilege against self-incrimination and declined to answer.
It appears to us, given the admissibility of Mrs. Graff's and respondent's out-of-court statements, that the Government sustained its burden of proving by the preponderance of the evidence that Mrs. Graff's voluntary consent to search the east bedroom was legally sufficient to warrant admitting into evidence the $4,995 found in the diaper bag. [n14] But we prefer that the District Court [p178] first reconsider the sufficiency of the evidence in the light of this decision and opinion. The judgment of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals with directions to remand the case to the District Court for further proceedings consistent with this opinion.
1. There were other seizures in the house and the east bedroom on November 12, but none of them is at issue here.
2. Mrs. Graff was not advised that she had a right to refuse to consent to the search. The District Court expressed no view as to whether the absence of such advice would render her consent invalid, since it found that her consent, however voluntary, would not bind the respondent with regard to the search of his room. Schneckloth v. Bustamonte, 412 U.S. 218 (1973), has since made clear, of course, that it is not essential for the prosecution to show that the consenter knew of the right to refuse consent in order to establish that the consent was voluntary.
3. When the officers searched the east bedroom, two pillows were on the double bed, which had been slept in, men's and women's clothes were in the closet, and men's and women's clothes were also in separate drawers of the dresser.
4. E.g., United States v. Stone, 471 F.2d 170, 173 (1972), cert. denied, 411 U.S. 931 (1973); United States v. Wixom, 441 F.2d 623, 624-625 (1971); United States v. Airdo, 380 F.2d 103, 106-107, cert. denied, 389 U.S. 913 (1967). Each of these cases cited with approval United States v. Sferas, 210 F.2d 69, 74 (CA7), cert. denied sub nom. Skally v. United States, 347 U.S. 935 (1954), which expressed the rule
that, where two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either.
5. E.g., United States v. Ellis, 461 F.2d 962, 967-968 (CA2), cert. denied, 409 U.S. 866 (1972); United States v. Cataldo, 433 F.2d 38, 40 (CA2 1970), cert. denied, 401 U.S. 977 (1971); United States ex rel. Cabey v. Mazurkiewicz, 431 F.2d 839, 842-843 (CA3 1970); United States v. Thompson, 421 F.2d 373, 375-376 (CA5), vacated on other grounds, 400 U.S. 17 (1970); Gurleski v. United States, 405 F.2d 253, 260-262 (CA5 1968), cert. denied, 395 U.S. 981 (1969); Wright v. United States, 389 F.2d 996, 998-999 (CA8 1968); Roberts v. United States, 332 F.2d 892, 894-898 (CA8 1964), cert. denied, 380 U.S. 980 (1965); United States v. Wilson, 447 F.2d 1, 5-6 (CA9 1971); Nelson v. California, 346 F.2d 73, 77 (CA9) , cert. denied, 382 U.S. 964 (1965); Burge v. United States, 342 F.2d 408, 413 (CA9), cert. denied, 382 U.S. 829 (1965).
6. E.g., People v. Howard, 166 Cal.App.2d 638, 651, 334 P.2d 105, 114 (1958); People v. Gorg, 45 Cal.2d 776, 783, 291 P.2d 469, 473 (1955); People v. Haskell, 41 Ill.2d 25, 28-29, 241 N.E.2d 430, 432 (1968); People v. Walker, 34 Ill.2d 23, 27-28, 213 N.E.2d 552, 555 (1966); Commonwealth ex rel. Cabey v. Rundle, 432 Pa. 466, 248 A.2d 197 (1968); State v. Cairo, 74 R.I. 377, 385-386, 60 A.2d 841, 845 (1948); Burge v. State, 443 S.W.2d 720, 722-723 (Ct.Crim.App. Tex.), cert. denied, 396 U.S. 934 (1969).
7. Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U.S. 610 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U.S. 483 (1964) (night hotel clerk could not validly consent to search of customer's room), but rests rather 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.
8. Rule 801(d)(2)(A) of the proposed Federal Rules of Evidence, approved by the Court on November 20, 1972, and transmitted to Congress, expressly provides that a party's own statements offered against him at trial are not hearsay.
9. Bridges v. Wixon, 326 U.S. 135, 153-154 (1945), upon which respondent and the Court of Appeals relied, involved the use of hearsay as substantive evidence bearing on the question of Bridges' membership in the Communist Party, a charge upon which a deportation order had been based. In addition to the fact that the use of unsworn, unsigned statements violated the rules of the Board of Immigration Appeals, the evidence was admitted to prove charges which directly jeopardized "the liberty of an individual," id. at 154, and not for the purpose of determining a preliminary question of admissibility, as in this case.
10. Rule 104(a) provides:
(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the judge, subject to the provisions of subdivision (b). In making his determination he is not bound by the rules of evidence except those with respect to privileges.
11. Rule 1101(d)(1) provides:
Rules inapplicable. The rules (other than those with respect to privileges) do not apply in the following situations:
(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the judge under Rule 104(a).
Should the exclusionary law of evidence, "the child of the jury system" in Thayer's phrase, be applied to this hearing before the judge? Sound sense backs the view that it should not, and that the judge should be empowered to hear any relevant evidence, such as affidavits or other reliable hearsay.
C. McCormick, Evidence § 53, p. 122 n. 91 (2d ed.1972).
13. Wis.Stat. § 944.20 (1971) provides:
Whoever does any of the following may be fined not more than $500 or imprisoned not more than one year in county jail or both: . . . (3) Openly cohabits and associates with a person he knows is not his spouse under circumstances that imply sexual intercourse.
14. Accordingly, we do not reach another major contention of the United States in bringing this case here: that the Government, in any event, had only to satisfy the District Court that the searching officers reasonably believed that Mrs. Graff had sufficient authority over the premises to consent to the search.
The Government also contends that the Court of Appeals imposed an unduly strict standard of proof on the Government by ruling that its case must be proved "to a reasonable certainty, by the great weight of the credible evidence." But the District Court required only that the proof be by the greater weight of the evidence, and the Court of Appeals merely affirmed the District Court's judgment. There was an inadvertence in articulating the applicable burden of proof, but it seems to have been occasioned by a similar inadvertence by the Government in presenting its case. In any event, the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence. See Lego v. Twomey, 404 U.S. 477, 488-489 (1972). We do not understand the Government to contend that the standard employed by the District Court was in error, and we have no occasion to consider whether it was.