United States v. Cazun ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4359
CESAR GARCIA CAZUN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-99-93-PJM)
Submitted: February 20, 2003
Decided: March 10, 2003
Before NIEMEYER and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Richard C. Bittner, LAW OFFICES OF RICHARD C. BITTNER,
Glen Burnie, Maryland, for Appellant. Thomas M. DiBiagio, United
States Attorney, Sandra Wilkinson, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
2 UNITED STATES v. CAZUN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Cesar Garcia Cazun is a citizen of El Salvador. The Baltimore
office of the Immigration and Naturalization Service (INS) received
information from the Maryland Motor Vehicle Administration
(MVA) that someone using the name Garcia had applied for a driver’s
license, providing an address in Silver Spring, Maryland. INS agents
determined that the resident alien card provided to the MVA in the
name "Garcia" belonged to Cesar Garcia Cazun.
Agents obtained a photograph of Cazun from his file and went to
the Silver Spring address. Agents, speaking in Spanish, identified
themselves as INS agents and asked the Hispanic male who answered
the door if they could come inside. The man allowed them to enter,
whereupon the agents asked the four or five people in the living room
if any of them actually lived in the apartment. A woman identified
herself as a resident, and granted the agents permission to search the
apartment for Cazun. He was found in the bathroom and taken into
custody.
At a suppression hearing, the district judge found the agents’ testi-
mony as to this incident to be credible. He concluded that the agents
had permission to enter the apartment, and, although the individual
may not have had authority to allow that entry, the agents acted in the
good faith belief that they had valid consent. Cazun was found guilty
of illegal reentry of a deported alien, in violation of 8 U.S.C.
§ 1326(a) (2000).
On appeal, Cazun asserts that the entry and search violated his
Fourth Amendment rights because the agents did not determine
whether the person who allowed them to enter the apartment had
authority to do so.
UNITED STATES v. CAZUN 3
The Government can justify a warrantless search by showing per-
mission to search by "a third party who 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 (1974).
Authority to consent arises from mutual use of the property by those
with joint access or control, so that a cohabitant would recognize the
risk that another might allow a common area to be searched. Trulock
v. Freeh, 275 F.3d 391, 403 (4th Cir. 2001).
The Fourth Amendment is not "violated when officers enter with-
out a warrant because they reasonably (though erroneously) believe
that the person who has consented to their entry is a resident of the
premises." Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). "[W]hat
is at issue when a claim of apparent consent is raised is not whether
the right to be free of searches has been waived, but whether the right
to be free of unreasonable searches has been violated." Id. at 187. See
United States v. Kinney, 953 F.2d 863, 866-67 (4th Cir. 1992)
(regarding apparent authority to consent to search of locked closet).
Under Rodriguez, a court must assess whether the facts available
to the agents at the time would justify a reasonable person to believe
the consenting party had authority to allow entry. We conclude that
the district court was not clearly erroneous in accepting the facts as
presented by the Government. These facts justified a reasonable per-
son to rely on the apparent authority of the individual at the door to
allow entry into the apartment.
Accordingly, we conclude that the district court did not err in deny-
ing Cazun’s motion to suppress. We affirm Cazun’s conviction and
sentence. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED