Moreover, in none of these cases was there evidence as to the commanding presence of the agents or the relative ease with which the agents could have obtained a warrant.
The question involves the extent to which Maurice Whitfield's expectation of privacy can be balanced against the extent and scope of his mother's authority over his belongings. In United States v. Lyons, 227 U.S. App. D.C. 284, 706 F.2d 321 (D.C. Cir. 1983), a defendant who invited two undercover officers into his room for the purpose of drug trafficking was held not to have consented to a search subsequent to his arrest of a coat hanging in an open closet or items in an open suitcase that were not in plain view. The court stated that the question there was whether Lyons "reasonably believed that the room and the closet were not open to the world at large." Id. at 326. The court also stated that "an expectation of privacy, strictly speaking, consists of a belief that uninvited people will not intrude in a particular way." Id. (Emphasis in original.) The government has failed to carry its burden of establishing as a matter of fact and law that any access retained by defendant's mother/landlady or any privacy interest waived extended to the pockets of defendant's jackets in his closet.
Despite the foregoing, the Supreme Court's decision in Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 2793, 111 L. Ed. 2d 148, 58 U.S.L.W. 4892 (1990), requires denial of the motion to suppress. However unreasonable in the abstract the search of the pockets of jackets of defendant in the closet may have been, Agent Salter reasonably believed that defendant's mother had authority to consent to the entire search of defendant's room and all of its contents. Agent Salter could, and did, reasonably infer that the defendant was not paying rent currently and he apparently gave no thought to the possibility that it was defendant's practice to do so when he could afford it. Moreover, there was no square precedent on which to resolve on the spot the close and original question of whether, even if the mother had authority to consent to a search of her son's room, she had authority to consent to a search of the pockets of his jackets in a closet in his room. It was not unreasonable for the agent to believe, in the circumstances, that she had that authority, even though analysis yields a contrary conclusion. Accordingly, on authority of Rodriguez, the accompanying Order denies defendant's motion to suppress the product of the search of defendant's pockets.
Defendant contends that the statements he made in the absence of counsel were offered with the understanding that they would not be used against him. The government concedes that the statements were made after defendant had requested counsel and may not be used in its case in chief. The government argues, however, that the statements were made voluntarily and should be available to the prosecution for purposes of impeachment. See Oregon v. Hass, 420 U.S. 714, 43 L. Ed. 2d 570, 95 S. Ct. 1215 (1975); Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971). If the statements were made involuntarily as a result of coercive activity by the police, they would not be available to the government even for purposes of impeachment. See New Jersey v. Portash, 440 U.S. 450, 459, 59 L. Ed. 2d 501, 99 S. Ct. 1292, 1297 (1979); Mincey v. Arizona, 437 U.S. 385, 398, 57 L. Ed. 2d 290, 98 S. Ct. 2408, 2416 (1978); see also Colorado v. Connelly, 479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986) (involuntary statements inadmissable only when they result from coercive state activity).
Agent Salter's testimony that defendant did not bring up the question of admissibility until after numerous statements were made and the agents and defendant had visited the house and conducted the second search is uncontroverted. Although the conversation in which the statements were made was initiated by the police, no evidence was presented to demonstrate that defendant was induced to make the statements by promises of immunity. Accordingly, they are admissable for purposes of impeachment. See Michigan v. Harvey, 494 U.S. 344, 110 S. Ct. 1176, 108 L. Ed. 2d 293 (1990).
For the reasons stated herein, an Order will deny defendant's Motion to Suppress Physical Evidence, grant defendant's Motion to Suppress the Statements for the purposes of use in the government's case in chief and deny that Motion for purposes of impeachment, and deny defendant's Motion for Review and Modification of Conditions of Release.
ORDER - September 21, 1990, Filed
For the reasons stated in the accompanying Memorandum, it is this 21st day of September, 1990, hereby
ORDERED: that defendant's Motion to Suppress Physical Evidence should be, and is, hereby DENIED; and it is further
ORDERED: that defendant's Motion to Suppress Statement should be, and is, hereby GRANTED for purposes of use by the government in its case in chief and should be, and is, hereby DENIED for purposes of impeachment; and it is further
ORDERED: that defendant's Motion for Review and Modification of Conditions of Release should be, and is, hereby DENIED.
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