Appeal from the Superior Court of the District of Columbia; (Hon. Sylvia Bacon, Trial Judge)
Before Ferren and Steadman, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Steadman
STEADMAN, Associate Judge : Appellant Cleveland Wright is presently serving extensive concurrent sentences imposed after his conviction, affirmed on appeal, of three charges stemming from a murder in 1978. In this collateral proceeding under D.C. Code § 23-110 (1989), appellant seeks a hearing, denied by the trial court, on his motion alleging that his trial counsel was ineffective. We conclude that appellant was entitled to a hearing on the issue of trial counsel's failure to file any motion to suppress the evidence seized during a search of appellant's bedroom dresser, conducted without a warrant but with the putative consent of appellant's father.
The appellant was convicted in 1979 on counts of premeditated first-degree murder while armed, felony first-degree murder while armed, and armed robbery in connection with the murder of William Horn by a .32 caliber bullet. *fn1 At trial, the government's chief witness, Ronald Willis, testified that appellant had confessed to him that he had killed Horn because he "needed some money." *fn2 Aside from this confession, the government's evidence consisted largely of testimony that appellant had subsequently participated with Santae Tribble in the sale of a revolver *fn3 of the same caliber and type as the one used to commit the murder and of evidence seized during a search of appellant's bedroom and adjoining crawl space. During this search, which the police conducted after obtaining the consent of appellant's father, *fn4 the police recovered from appellant's bedroom dresser four live .32 caliber rounds, one spent .32 caliber round, and a photograph of appellant showing him holding two guns, including a .32 caliber seven-shot revolver in his left hand that was identical in appearance to the gun that was sold. *fn5
Appellant, still represented by trial counsel, appealed his conviction to this court, alleging insufficiency of the evidence to convict and asserting several erroneous evidentiary rulings. We affirmed appellant's convictions in an unpublished opinion. Wright v. United States, No. 80-97 (D.C. May 18, 1981). Appellant subsequently filed pro se a motion to vacate his convictions and sentences pursuant to D.C. Code § 23-110 (1989). The motion later was supplemented by newly-retained counsel. As supplemented, the motion claimed that appellant's trial counsel was ineffective because he (1) failed to file a motion to suppress the ammunition, photograph and other evidence seized by the police during their warrantless search of appellant's room; (2) failed to file a motion to sever the counts involving the two victims; *fn6 and (3) failed to prepare the appellant's parents as witnesses. The trial court denied appellant's § 23-110 motion without a hearing. This appeal followed.
Appellant's principal focus on appeal is on his claim of ineffective assistance of trial counsel in failing to move for the suppression of the evidence found in his bedroom dresser. We consider the validity of a claim of ineffective assistance of counsel by reference to the familiar standards of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). First, appellant must establish that counsel's performance was deficient under prevailing professional norms. Id. at 687-88. Second, appellant must establish "prejudice," viz., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. This latter burden is particularly demanding when the claim is, as here, based on counsel's failure to file a suppression motion. In such circumstances, the movant must be prepared to introduce "whatever evidence will be necessary to succeed with suppression." Hockman v. United States, 517 A.2d 44, 50 n.9 (D.C. 1986); Asbell v. United States, 436 A.2d 804, 815 (D.C. 1981); see also Taylor v. United States, 603 A.2d 451, 459 (1992). *fn7
As we recently recapitulated in (James) Smith v. United States, No. 85-995 (D.C. May 1, 1992), in collateral ineffectiveness claims, there is a presumption that the trial Judge should conduct a hearing, see Ramsey v. United States, 569 A.2d 142 (D.C. 1990); Gaston v. United States, 535 A.2d 893 (D.C. 1988), "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." D.C. Code § 23-110 (c) (1989). See also Ellerbe v. United States, 545 A.2d 1197 (D.C.), cert. denied, 488 U.S. 868, 102 L. Ed. 2d 144 , 109 S. Ct. 174 (1988). To uphold the denial of a § 23-110 motion without a hearing, this court must conclude that under no circumstances could the movant establish facts warranting relief. In giving effect to the rule, the court has recognized that a hearing is not required if there are (1) vague and conclusory allegations; (2) palpably incredible claims; and (3) assertions that would not merit relief even if true. Ramsey, (supra) , 569 A.2d at 147 (citing McClurkin v. United States, 472 A.2d 1348, 1353 (D.C.), cert. denied, 469 U.S. 838, 83 L. Ed. 2d 76 , 105 S. Ct. 136 (1984); Pettaway v. United States, 390 A.2d 981, 984 (1978)).
Applying these standards, we are unable to affirm the trial court's denial of a hearing on the suppression issue on the relied-on grounds that appellant's claims were "palpably incredible" and "would not merit relief even if true." *fn8 Appellant's claim rests on his contention that appellant's father lacked authority to consent to the police search of appellant's bedroom and adjacent crawl space. In support of this claim, appellant asserted in an affidavit that he occupied two rooms on the second floor of his parents' house, that he paid rent for the rooms, *fn9 and that the rooms were set aside for his "sole and exclusive usage." This would not inherently seem a remarkable or unbelievable arrangement with an adult son; appellant was twenty years old at the time. *fn10
The touchstone for analyzing whether a warrantless search violates the Fourth Amendment where a third party consents to the search is whether the third party "possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 39 L. Ed. 2d 242 , 94 S. Ct. 988 (1974). See also id. at 171 n.7; Derrington v. United States, 488 A.2d 1314 (D.C. 1985), cert. denied, 486 U.S. 1009 (1988); Welch v. United States, 466 A.2d 829 (D.C. 1983); 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE, §§ 8.3, 8.4(b) (2d ed. 1987). Courts generally have been hesitant to conclude that a parent lacked authority to consent to a search of a child's bedroom even when the child has reached adulthood; however, "it is to be doubted that it is consistent with the Matlock rationale to say that an emancipated person may never have a protected individual privacy interest so long as he continues to reside in the family home." 3 LAFAVE, (supra) , § 8.4(b), at 285. See also id. at 285 n.65 (citing cases).
A recent case in our own federal court system is an example of explicit recognition of limits upon a parent's right to consent where an adult child is involved. In United States v. Whitfield, 747 F. Supp. 807 (D.D.C. 1990), rev'd and remanded, 291 U.S. App. D.C. 243, 939 F.2d 1071 (1991), a 29-year-old son had his own room in the house of his mother, to whom he paid rent when possible and "had something in the nature of a landlord-tenant relationship." 747 F. Supp. at 809. The degree of access that the mother had to the room was unclear. The trial court concluded, after an extensive review of the cases which it would be repetitive to duplicate here, that the government had failed to establish "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." Id. at 812. However, it refused to suppress, finding that "it was not unreasonable for the agent to believe, in the circumstances, that she had that authority, even though analysis yields a contrary Conclusion." Id. (citing Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990) (search based on third-party consent valid if officer reasonably believes third party has ...