The opinion of the court was delivered by: OBERDORFER
LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE
Maurice Whitfield turned himself in to the Federal Bureau of Investigation after FBI agents investigating a theft of $ 43,000 visited his home and, upon the consent of his mother to search the house, found $ 16,000. Defendant moves to suppress evidence taken from his room in his mother's house on the grounds that his mother did not have authority to consent to the search. In addition, he moves to suppress statements made to FBI agents in the absence of counsel. Defendant also moved for a reduction in bond. A hearing on the three motions was held on September 17, 1990. At that hearing, the motion for a reduction in bond was denied and the other two motions were taken under advisement.
On May 25, 1990, the FBI was called to investigate a theft of $ 43,000 from a vault in a Brinks facility on West Virginia Avenue in Washington D.C. Upon arriving at the Brinks facility, FBI Agent Scott Salter was informed that the theft had taken place on May 23 sometime after 11:00 p.m. He was shown a videotape taken from a security camera in which a person walked through the vault and bent over a bin containing money. The head of security at the facility informed him that the person in the videotape was Maurice Whitfield, an employee on the cleaning staff at the Brinks facility, and that Whitfield had not shown up for work on May 24 or May 25.
A threshold question arises as to whether defendant was a tenant and his mother was also his landlady. Agent Salter first testified that Farrie Whitfield told him that her son does not pay rent. When asked by government counsel what she had specifically said, however, he testified instead that she had said that her son didn't have any money. Agent Roberts later took the stand and testified that when asked about rent, the mother shook her head indicating a negative response and stated "get real -- that boy's been unemployed." Agent Roberts had no recollection of Farrie Whitfield's answering "no" when asked whether her son paid rent. Farrie Whitfield testified that she did not tell the agents that Maurice did not pay rent and that in fact he did pay rent when he was working. She stated that he had paid $ 500.00 per month during two previous periods of employment but that at the moment he was only able to pay $ 100.00 per paycheck. She indicated that $ 500.00 per month was not the rate of rent but rather that he paid that much while working certain jobs so that the periods in which he paid more would balance the periods in which he was unable to pay as much. She testified that she had told the agents in response to their questions that Maurice had paid her $ 100.00 very recently and also that Maurice didn't pay a flat rate but only paid rent when he was working. Piecing together the testimony of the agents and the mother establishes that defendant had something in the nature of a landlord-tenant relationship with his mother.
Agent Salter further testified that he had asked if defendant's room was open or locked and that Farrie Whitfield had indicated that it was open. He stated that he would like to conduct a search of the house and Whitfield orally gave her consent to search the room. However, she refused to sign a consent form. In response to questions by the Court, Agent Salter testified that he did not leave the premises to obtain a search warrant because of the risk that defendant might return and remove the money. He also stated, however, that in his experience, a warrant could be obtained in from one to four hours but that it was not possible to obtain a warrant by telephone except in the most extreme circumstances. He considered the possibility that one agent could wait at the house while the other left to obtain a warrant but rejected that idea because he believed the mother's consent was sufficient to validate the search.
After Farrie Whitfield gave her oral consent, the agents went to defendant's room. It was open at the time. They searched defendant's entire room in his mother's presence. They found there no property or clothing of the mother or anyone else. Inside the pockets of several of defendant's jackets hanging in a closet in the room, the agents found packets of bills in Federal Reserve envelopes totaling $ 16,000.00. Thereafter, according to Agent Salter, Willie Whitfield, Maurice Whitfield's brother, arrived home and instructed his mother to tell the agents to leave. Farrie Whitfield told the agents to leave the premises and they did so, taking with them the money they had found.
On May 28, Farrie Whitfield phoned Agent Salter to tell him that her son wanted to turn himself in. Maurice Whitfield showed up at the FBI office the next morning and was taken to an interview room with Salter and Agent John Kerr and advised of his rights. Defendant told the agents that he wanted an attorney. Agent Salter testified that he told Whitfield that he would like the rest of the money back and that Whitfield responded that the rest of the money was in the house. According to Salter, when asked if there was anything else, Whitfield testified that the money had been too much temptation and described how he took the money. He testified that he, Agent Kerr, and Maurice Whitfield, had visited the house again for the purpose of searching a false ceiling in the basement where Whitfield indicated the money was hidden. At the second visit, Farrie Whitfield gave her consent in writing, but the search did not uncover any additional money.
Agent Salter testified that, after the statements about the money and after the second search, when the two agents and Whitfield had returned to the FBI office, Whitfield asked whether what he had said would be used against him in court and Salter had answered "probably not." In his Motion to Suppress the Statements, defendant represented that, after requesting an attorney, he was questioned about the theft and asked where the money was, at which point he reiterated his request for an attorney. He claims that the agent told him in response that, since he had requested an attorney, nothing he said could be used against him and his statements would not go out of the room. In his motion, defendant asserts that he then made a statement that he had put the money in a trash bag when he stole it, and taken it home later. However, defendant offered no testimony to prove the agents' alleged assurances that his statement would not be used against him.
The core question is whether defendant's mother had authority to consent to a search of his room in her house. The Supreme Court has determined that a warrantless search of a person's home does not violate the Fourth Amendment where police officers have obtained the consent of a third party who possesses "common authority" over the premises. United States v. Matlock, 415 U.S. 164, 171, 39 L. Ed. 2d 242, 94 S. Ct. 988, 993 (1974). The Court defined common authority as "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." Id. n. 7.
Such common authority does not include that of a landlord to consent to a search of a tenant's locked house or apartment. See Chapman v. United States, 365 U.S. 610, 5 L. Ed. 2d 828, 81 S. Ct. 776 (1961) (landlord without key not authorized to instruct police to enter through unlocked window); McDonald v. United States, 335 U.S. 451, 93 L. Ed. 153, 69 S. Ct. 191 (1948) (search invalid where police climbed into landlady's window in rooming house in her presence, spied illegal activity through transom, and entered boarder's room); United States v. Warner, 843 F.2d 401 (9th Cir. 1988) (landlord with key not authorized to let police into tenant's garage where he had right of access for limited purpose of repairs and mowing lawn); see also Stoner v. California, 376 U.S. 483, 11 L. Ed. 2d 856, 84 S. Ct. 889 (1964) (hotel clerk does not have authority to consent to search of guest's room).
On the other hand, a joint tenant or spouse who shares a house or apartment has common authority over the rooms in it and may consent to a search of them. See, e.g., United States v. Harrison, 220 U.S. App. D.C. 124, 679 F.2d 942 (D.C. Cir. 1982) (wife had authority to consent to search of boxes in basement); Wright v. United States, 389 F.2d 996 (8th Cir. 1968) (codefendant who had key to defendant's apartment, stayed there at times and kept some belongings there had authority to consent to search); Donovan v. A.A. Beiro Constr. Co., 241 U.S. App. D.C. 161, 746 F.2d 894 (D.C. Cir. 1984) (District of Columbia as owner of construction site had authority to consent to inspection by OSHA of all of the open ...