UNITED STATES of America, Plaintiff-Appellee, v. Eulalie Natalie WHITEHORN, Defendant-Appellant, 123 F. App'x 752

MEMORANDUM Eulalie Whitehorn appeals her conviction, following a bench trial, for knowingly possessing 50 grams or more of methamphetamine, with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). White-horn argues that the district court erred in denying her motion to suppress evidence seized from a search of her motel room because (1) the police officers exceeded the scope of her initial consent; and (2) her subsequent written consent to a continuation of the search was not voluntary.

On June 20, 2002, three Great Falls Police Department officers knocked on the door of Eulalie Whitehorn’s motel room in the course of investigating a highly publicized series of local art thefts. These thefts, which had taken place in March and April 2002, involved a man and woman using a baby carriage to shoplift bronzes, oil paintings, and watercolor paintings from several art stores. The missing artwork included a four-inch bronze statue. The officers had received an anonymous tip regarding Whitehorn’s connection to Sherry Frasure, who had been arrested in connection with the thefts eight days earlier.

They used the “knock-and-talk” procedure because the county attorney would not typically issue search warrants based on anonymous tips. After Whitehorn answered the door, the officers explained that they were investigating the Frasure case, and they asked Whitehorn’s permission to search the room. The precise content of their statements to Whitehorn is disputed.

A contemporaneously prepared report and a probable cause affidavit by Officer Eric Baumann — the officer who spoke to White-horn at the door — record that the stated scope of the search was for “the theft of several artworks” and “stolen artwork,” respectively. At the suppression hearing, Officer Baumann testified that he asked permission to search “for the stolen property that included the artworks.” Officer Baumann further testified that miniature figurines and jewelry were among the items recovered from Frasure’s storage units.

None of the search warrants issued in connection with the Frasure investigation ever specified either jewelry or miniature figurines. The record included several other accounts of the search’s stated object. Sergeant Dan Kohm noted in a report that the stated object of the search was “any stolen items, consistent with the Frasure investigation,” and he testified at the hearing that Whitehorn had given the officers permission to look “for stolen property.” Detective Brian Black’s probable cause affidavit indicates that the stated object of the search was “stolen items” “related” to the Frasure case.

On the stand, Detective Black characterized the express object of the search several times: ‘We stated that we were looking at that time for any stolen property or items related to the Sherry Frasure case,” “This is related to the Sherry Frasure case. All the stolen items,” We’re looking for any related stolen property,” and We’re looking for stolen items related to this stolen property.” Based on this testimony, the district court found that the officers asked Whitehorn permission to look for “items related to the Frasure case or for stolen property,” with no further definition of the object of the search.

In a zippered compartment of White-horn’s purse, which was pushed under a bed, one of the officers found a small cylindrical mini-M & M container. He opened the container and found baggies containing what turned out to be methamphetamine inside. When confronted with the evidence, Whitehorn became upset and stated that the officers did not have permission to search in her purse. At this point, the officers broke off the search, and Officer Baumann went to the county attorney’s office to obtain a search warrant.

Officer Baumann returned and stated that the county attorney’s office instructed him to ask Whitehorn to sign a consent form and to return for a search warrant if she refused. Whitehorn signed the consent form. The officers found additional methamphetamine, drug paraphernalia, and stolen property in the ensuing search.

The district court concluded that because the officers told Whitehorn that they were looking for “items related to the Frasure case or for stolen property,” with no further definition of the object of the search, it was reasonable for the officers to search the purse, as well as within any item within the purse “that could contain such evidence that was or might be directly tied to the Frasure case.” It also found that Whitehorn’s written consent was voluntary. As a result, it denied Whitehorn’s motion to suppress evidence seized both before and after the signing of the consent form.

This court reviews de novo a district court’s denial of a motion to suppress. United States v. Perez-Lopez, 348 F.3d 839, 844 (9th Cir.2003). Whether a search exceeded the scope of a suspect’s consent is a determination reviewed for clear error. United States v. Perez, 37 F.3d 510, 515 (9th Cir.1994). Whether a consent to search is voluntary depends upon the totality of the circumstances and is a question of fact reviewed for clear error. United States v. Enslin, 327 F.3d 788, 792 (9th Cir.2003). A warrantless search of a home is presumptively unreasonable under the Fourth Amendment. Payton v.

New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The Fourth Amendment prohibition of unreasonable searches also protects the legitimate expectation of privacy of an occupant of a hotel or motel room. Bailey v. Newland, 263 F.3d 1022, 1029 (9th Cir.2001). We have also held that “[a] person has an expectation of privacy in his or her private, closed containers.” United States v. Davis, 332 F.3d 1163, 1167 (9th Cir.2003) (quoting United States v. Fultz, 146 F.3d 1102, 1105 (9th Cir.1998)).

Consent to search is a well-established exception to the Fourth Amendment prohibition of warrantless searches. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Enslin, 327 F.3d at 793. The scope of a search is defined by its expressed object. See Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); United States v.

Gutierrez-Mederos, 965 F.2d 800, 803 (9th Cir.1992). “[T]he standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness— what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. at 251, 111 S.Ct. 1801. The stated object of the search also determines which containers an officer may inspect without exceeding the scope of a consent to search. See id. at 249, 111 S.Ct. 1801.

It is “objectively reasonable” for a police officer to believe that a consent to search a specific area authorizes the opening of “a closed container found within [the area] that might reasonably hold the object of the search.” Id. We hold that the typical reasonable person would not understand a consent to search for “items related to the Frasure case or for stolen property” to authorize the opening of Whitehorn’s mini-M & M container. The government concedes that the container in question could not hold even the four-inch bronze.

The government therefore relies on the fact that stolen miniature figurines and jewelry were recovered during the search of Frasure’s storage units, as well as the fact that the storage unit rentals involved receipts, to establish the objective reasonableness of the officers’ search. Although jewelry and miniature figurines were recovered from Frasure’s storage units, none of the search warrant affidavits for sites related to the Frasure investigation, either predating or postdating the search of Whitehorn’s motel room, ever mentioned jewelry or miniature figurines.

The record does not demonstrate that a typical reasonable person — as opposed to a police officer familiar with the search of Frasure’s storage units eight days earlier, as well as the inventory of items recovered therein — would understand “items related to the Frasure investigation” to include storage receipts, jewelry, or miniature figurines. Rather, the record shows that the typical reasonable person would regard “the Frasure investigation” as involving the heavily publicized string of recent art thefts from art stores.

Under the objectively reasonable standard, “related” items or “stolen property” would consist of the bronzes, oil paintings, and watercolor paintings shoplifted by means of the baby carriage ruse. We further hold that evidence seized pursuant to Whitehorn’s written consent, given after the initial discovery of methamphetamine in the mini-M & M container, is “subject to exclusion under the Fourth Amendment as the fruit of the prior unconstitutional entry.” United, States v. Jones, 286 F.3d 1146, 1152 (9th Cir.2002).

A consent to search is tainted if “the evidence indicates that it stemmed from the prior illegal Government action.” United States v. Oaxaca, 233 F.3d 1154, 1158 (9th Cir.2000). We have explained that even a voluntary consent can be tainted because “a person might reasonably think that refusing to consent to a search of his home when he knows that the police have, in fact, already conducted a search of his home, would be a bit like closing the barn door after the horse is out.” United States v.

Furrow, 229 F.3d 805, 814 (9th Cir.2000); see also Oaxaca, 233 F.3d at 1159 (“[W]here, as here, the police confront a person with contraband that they have illegally found, the subsequent consent to search is fruit of the Government action.”). To dissipate the taint of the illegal search, the government must show that there was some “significant intervening time, space, or event.” Jones, 286 F.3d at 1152 (quoting United States v. Buchanan, 904 F.2d 349, 356 (6th Cir.1990)) (internal quotation marks omitted). The government has not made such a showing here.

Whitehorn knew that the officers had searched her purse, and she was confronted with the contraband discovered during that search. While the record is not clear as to the timing of events, no more than a few hours elapsed between the illegal search and the signing of the consent form. Therefore, no intervening event dissipated the taint of that illegality. Because we hold that the initial illegal search tainted Whitehorn’s subsequent written consent, we do not reach the Fifth Amendment voluntariness question. See United States v. Suarez, 902 F.2d 1466, 1468 (9th Cir. 1990).

The district court erred in not suppressing evidence obtained during the searches of Whitehorn’s motel room. “On direct appeal, we apply the harmless-error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), which requires the error to be harmless beyond a reasonable doubt.” United States v. Bishop, 264 F.3d 919, 927 (9th Cir.2001) (internal quotation marks omitted). The district court’s error was not harmless beyond a reasonable doubt because admission of the seized drugs was crucial to Whitehorn’s conviction for knowing possession of methamphetamine with intent to distribute.

For the foregoing reasons, we REVERSE Whitehorn’s conviction. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. . The parties appear to disagree as to whether the consent to search form was designed to be retroactive or prospective in operation. We follow the approach of the district court in analyzing the consent form as relating to "the continued search following the execution of that form.”