In a case handled in the trial court by one of Louisiana’s most respected lawyers and by me on appeal in the Fifth Circuit, the Northern District of Mississippi held that we were not ineffective for not arguing that defendant’s wife’s seizure of evidence in a joint criminal enterprise was distinct from her search. The facts are somewhat convoluted, but the defendant’s wife was involved in a bingo revenue skimming operation with the defendant, and she moved out when she suspected him of having an affair. Yet, she still had keys to the house, the code to the alarm system, and participated in altering records to effect the skim after they separated. There is no way defendant can prevail, so the § 2255 is denied without a hearing. The defendant assumed the risk that his wife would rat him out to the government and take information on the skimming operation to the IRS and FBI. [The District Court also noted the government’s response to the 2255 was faulty, too.] Shelton v. United States, 2007 U.S. Dist. LEXIS 85244 (N.D. Miss. November 16, 2007):
Jimmy Doug Shelton argues that his trial and appellate counsel were ineffective in failing to challenge Cheryl’s seizure of the evidence under the Fourth Amendment. He has cobbled together the holdings from several cases to support this argument, and if the cases had meshed better, he might have won the day. Unfortunately for Shelton, the fragments he attempts to assemble into a new rule of law arise out of factual scenarios distinguishable from the case at hand, and, in the end, cannot stand together.
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Resolution of the Propriety of the Seizure of Evidence
A dilemma left unresolved under the authority cited by the parties is whether a spouse can have sufficient authority to consent to a search of the premises — yet have insufficient authority [*17] to consent to the seizure of evidence therefrom. The court concludes that such a situation is theoretically possible — but has not arisen under the facts of this case. As discussed below, the court finds that Cheryl Shelton had sufficient authority to seize the evidence in question and provide it to the government without a warrant. In addition, even if the court were to find that Cheryl Shelton did not have sufficient authority to seize the evidence without a warrant, Jimmy Doug Shelton assumed the risk that she would nonetheless do so, and the seizure was thus reasonable.
Jimmy Doug Shelton argues that the warrantless seizure of the papers from his home is presumptively unconstitutional unless it falls within one of the widely recognized exceptions to the warrant requirement, e.g., exigent circumstances, consent, plain view, national security, inventory search, or inevitable discovery. The exception at issue in this case is consent–Cheryl Shelton’s power to give the government permission to search the Jimmy Doug Shelton home–and permission to seize the evidence used against her husband. A fact complicating the court’s analysis of this issue is Cheryl Shelton’s decision to move out of the marital home after discovering evidence that her husband had been unfaithful to her. Had Cheryl Shelton remained in the marital home, she would clearly have had complete custody and control of the home and its contents and thus could have given valid consent to search and seize anything in the home and provide it to the government. Matlock v. United States, 415 U.S. 164, 171, n. 7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (mutual use of property, or joint access or control of it is generally sufficient). In this case, however, Cheryl Shelton had moved out of the marital home and moved in with her sister. She retained a key to the home, as well as the security code, and had agreed with her husband that she would periodically enter the home to retrieve her mail and other items. This arrangement appears to be an effort by each spouse to maintain civility during a turbulent time in their marriage. Both spouses understood that Cheryl Shelton had authority to enter the home outside the presence of Jimmy Doug Shelton. As such, no matter what restrictions she and her husband decided she should observe while there, she had unfettered–and unsupervised–access to everything inside. Cheryl and Jimmy Doug Shelton were still married–and could conceivably have reconciled if they had chosen to do so. Indeed, neither Cheryl nor Jimmy Doug Shelton took any legal steps to divorce. They were also both involved in the illegal bingo skimming operation.
This set of circumstances gave Cheryl Shelton authority to search the home and seize evidence from it–whether she acted as an agent of the government or for her own reasons. In addition, Jimmy Doug Shelton assumed the risk that his wife (who was also his partner in the bingo skimming operation) would turn on him by searching and seizing evidence of their crimes and turning it over to the government.
. . .
The Supreme Court has applied the Fourth Amendment to a seizure in the absence of a search [Soldal]–and held that a seizure may implicate the Fourth Amendment even when a defendant’s privacy interests in the seized objects are completely extinguished. However, as a matter of reason, many of the factors used to determine whether a defendant has a reasonable expectation of privacy in a home (to determine the reasonableness of a search) can also be used to determine the degree of a third party’s connection to a premises (to determine the reasonableness of a seizure). Naturally, the greater the connection a third party has to a premises, the lower the defendant’s expectation of privacy becomes–and the more reasonable a search or seizure authorized by that third party appears. These factors rise and fall together.
Wives and husbands are bound in the closest of relationships–matrimony–and they usually share a residence. As such, situations under which a wife could not consent to a search of the premises–and the seizure of evidence therefrom–will be rare. The intimate nature of the marital relationship gives either spouse the authority to consent to searches and seizures within the marital home. Cheryl Shelton chose to move out of the marital home and move in with her sister because Cheryl believed her husband had been unfaithful to her. Neither party, however, took any legal steps to initiate a divorce, and Jimmy Doug Shelton consented to Cheryl Shelton’s unfettered access to the home. He took no steps to hide the evidence of illegal skimming from the charity bingo operation from his wife by removing the evidence from the home or locking it away.
Prior history: United States v. Shelton, 181 F. Supp. 2d 649 (N.D. Miss. 2001), aff’d 337 F.3d 529 (5th Cir. 2003), cert. denied 540 U.S. 1229, 124 S. Ct. 1507, 158 L. Ed. 2d 172 (2004).
