Seventh Circuit Criminal Case of the Week: Silence and Consent

seventh-circuit2In 2006, Jarrett James robbed the same bank in Middleton, Wisconsin, on two different occasions, getting away with about $120,000.  He was later apprehended, convicted in federal court, and sentenced to 42 years in prison.  His appeal centered on the government’s warrantless seizure of a safe from his mother’s home.  The safe contained a gun matching a description of the weapon used in one of the robberies.  When the government sought to use the gun as evidence against him at trial, James argued unsuccessfully that the gun should be suppressed because it was obtained in violation of his Fourth Amendment protection against unreasonable searches and seizures.

In United States v. James (No. 08-3327), the Seventh Circuit (per Judge Flaum) also rejected the Fourth Amendment claim and affirmed James’ conviction.  Specifically, the court held that the seizure complied with the Fourth Amendment because James’ mother consented to a police officer taking the safe.  The holding is notable because James’ mother never expressly agreed to the seizure; the case thus illustrates circumstances in which Fourth Amendment consent may be inferred from silence.  The case also raises interesting questions regarding the mother’s motivations and the underlying parent-child dynamics.

With James a suspect in the two Middleton bank robberies, detective Darrin Zimmerman interviewed James’ mother, Linda Martin, in October 2006.  Martin informed Zimmerman that James was in police custody in Nebraska on another charge.  A week after this interview, Martin called Zimmerman to tell him that she had received a letter from James regarding a gun in a safe at her house.  Martin stated that she would not open the safe until police came over.  (Here, I wonder about the apparent betrayal of trust in the parent-child relationship.  Nothing in the Seventh Circuit opinion sheds much light on Martin’s motivations.  This was perhaps one of those wrenching cases of conflict between a person’s duties as citizen and as parent.)

Zimmerman proposed that he come to her house, and Martin did not object.  When he arrived, she showed him where the safe was.  (We are told that Martin’s lawyer was also present; I’m mystified as to why she retained a lawyer — perhaps it is an indication that she was having second thoughts about assisting the police gather evidence against her son.)  When Zimmerman stated his intention to seize the safe immediately and obtain a warrant to search its contents later, Martin and her lawyer remained silent.  Later, Martin provided Zimmerman with the keypad code for the safe.

In addressing James’ Fourth Amendment claim, the Seventh Circuit noted that third-party consent is a well-recognized exception to the general rule that police must obtain a warrant prior to seizing evidence.  Martin had legal authority to consent to the seizure because James permitted her to exercise control over the safe.  And she did give implied consent, the court decided, through her phone call to Zimmerman, by leading Zimmerman to the safe, and by failing to object to Zimmerman’s stated intention to seize the safe.

Other new criminal cases last week were:

United States v. Moore (No. 07-3978) (Tinder, J.) (evidence was sufficient to support defendant’s bank robbery conviction).

United States v. Brown (No. 08-2273) (Tinder, J.) (district court unambiguously accepted plea agreement).

United States v. Kincaid (No. 08-1953) (Ripple, J.) (defendant waived right to present Commerce Clause issue on appeal).

United States v. Lauderdale (No. 08-2428) (Bauer, J.) (district court did not abuse discretion in refusing to grant mistrial based on alleged prosecutorial misconduct).

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