United States v. Goins, George L. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3185
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GEORGE L. GOINS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05-CR-04-C—Barbara B. Crabb, Chief Judge.
____________
ARGUED JANUARY 12, 2006—DECIDED FEBRUARY 9, 2006
____________
Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
FLAUM, Chief Judge. On December 8, 2004, Kalina
Bratton called the police after an argument with her
boyfriend, George Goins. She claimed that Goins had
assaulted her, and she asked for a police escort into his
home so that she could gather her belongings safely. She
also told the police that she had found what she believed to
be crack cocaine in Goins’ apartment and that he had a gun
in the apartment. She claimed that she lived at Goins’
apartment, so the police entered and searched the apart-
2 No. 05-3185
ment based on her consent. They found crack cocaine in a
coat pocket and a gun case in the location that Bratton had
described. An officer opened the gun case and discovered a
handgun inside.
Goins claimed that the search was unconstitutional and
that the evidence from it should be suppressed. The district
court ruled against Goins on this claim, finding that
Bratton had apparent authority to consent to a search of
the apartment and that although the officer’s opening the
gun case was unconstitutional, the gun should not be
excluded under the inevitable discovery doctrine. Goins
appeals that ruling.
For the following reasons, we now affirm.
I. Background
Late in the evening on Dec. 8, 2004, in the city of La-
Crosse, Wisconsin, Kalina Bratton telephoned the police to
complain that she had just been verbally abused and kicked
in the backside by her boyfriend, George Goins. Officer
Jacob Jansky was dispatched to investigate. Jansky met
with Bratton in the parking lot of a townhome complex on
Caledonia Street. She told Jansky that Goins had kicked
her and she was scared of Goins, so she wanted a police
escort while she went into his home to retrieve her belong-
ings. Jansky took Bratton to a subpolice station nearby to
finish their conversation, because it was cold outside and he
wished to make Bratton more comfortable.
At the substation, Bratton told Jansky that she had been
dating Goins for approximately five months. She stated that
she actually lived with her children in an apartment on the
900 block of Winneshiek Road, several miles away, but had
been living with Goins at 1024 Caledonia Street on-and-off
for several months. Bratton had a key to Goins’ home. She
reported that she performed household chores for Goins
No. 05-3185 3
such as cleaning, cooking, and doing laundry. Bratton
claimed that she had clothing and household items at 1024
Caledonia and wished to get them that evening because she
intended to move out.
Bratton then volunteered that Goins kept drugs and a
handgun in his house. As Jansky began to inquire further
into these allegations, Bratton asked to speak to Investiga-
tor Marion Byerson, naming him by name. Byerson was a
veteran drug investigator with the LaCrosse Police Depart-
ment.
The patrol officers called Byerson at home. Byerson
already knew Goins, both personally and professionally. He
did not recall having met Bratton before, but he later
testified that he might have known who she was. Byerson
asked the officers to put Bratton on the telephone so that he
could talk with her.
Bratton told Byerson that after Goins yelled at her and
kicked her, he left 1024 Caledonia while she stayed behind
to clean up. She claimed that she lifted the mattress in the
bedroom where she slept with Goins and saw a large
quantity of cocaine in a plastic bag. She reported that Goins
kept a handgun in a black case that was under the couch.
Byerson believed that Goins was a convicted felon based on
his knowledge of Goins’ criminal history.
Bratton repeated her connection to 1024 Caledonia to
Byerson: she had a key to the apartment, she had been
staying with Goins for several months, and she did various
household chores, including laundry, cooking, and straight-
ening up.
Bratton’s name was not on the property’s lease and she
did not pay rent. The magistrate judge wrote that he
surmised that the police inferred both facts that evening.
The judge also wrote that Byerson nevertheless “saw an
opportunity to conduct a consent search of 1024 Caledonia.”
4 No. 05-3185
Byerson directed Jansky to take Bratton back to 1024
Caledonia so she could collect her belongings, and indicated
to Jansky that he would meet them there. Byerson also
called Sergeant Jaholsky of the drug unit and directed him
to go to the residence.
Three patrol officers took Bratton to 1024 Caledonia,
where she unlocked the door with her key and allowed the
officers in. They performed a protective sweep of the
residence and determined that no one was home. Byerson
and Jaholsky arrived and spoke with Bratton, double-
checking her connection to 1024 Caledonia. Bratton showed
Byerson her key, repeated that she had personal belongings
in the house, and showed some of the belongings to him.
She repeated that she cooked for Goins and that she had
free rein of the house except for the attic, which Goins
visited with his friends but would not allow Bratton to
enter. She claimed that she was in the process of arranging
to have her mail delivered to Goins’ residence. She con-
firmed that she had her own apartment, but in response to
Byerson’s questions, repeated her claim that she had been
staying with Goins for several months and would return to
her own apartment only for essentials.
Byerson telephoned the district attorney’s office to ask for
assistance in obtaining a search warrant for Goins’ apart-
ment. The Assistant District Attorney (ADA) that Byerson
spoke with advised the officers that they did not need a
search warrant because Bratton had provided valid consent
to search.
The officers searched the apartment. Byerson went
directly to the living room, looked under the couch, and
found a gun case where Bratton had indicated it would be.
Based on his training and familiarity with firearms,
Byerson recognized the gun case for what it was. He opened
it and found a handgun inside.
No. 05-3185 5
The drugs that Bratton reported seeing in the main
bedroom under the mattress were not there. In the bed-
room, Byerson found several sandwich baggies rolled in a
manner commonly used to hold marijuana, but all the
baggies were empty. There was a couch at the foot of the
bed with a shirt laying on it. When Byerson picked up the
shirt, a bag of marijuana fell out.
Jansky searched an open closet located at the confluence
of the hallway, the living room, and a door leading to a
balcony. The closet was full of men’s clothing. Janksy did
not see anything in the closet that appeared to be women’s
clothing. (Jansky also had not seen women’s clothing or
grooming items when searching other rooms, chests of
drawers, and closets.) Janksy methodically patted down the
pockets of the hanging garments in the closet. While patting
the pockets of a jacket, he felt a lump the size of an apple
that sounded “plasticky” when he patted it. Jansky was
aware that Byerson had found a bag of marijuana in the
bedroom. Based on that information, as well as his experi-
ence with previous pat-downs, Jansky assumed that he was
feeling the package of drugs that Bratton had described
earlier. Jansky pulled the suspicious item out of the coat
pocket and found that it was a bag of cocaine base wrapped
in a napkin.
Meanwhile, Bratton retrieved property that she claimed
was hers: a plastic garbage bag full of clothing at the top of
the stairs, two sauce pans from the kitchen, a hair dryer
from the bathroom, and a back massager draped over the
back of a chair in the living room. In their search of the
residence, the officers did not find any other female cloth-
ing, toiletries, mail addressed to Bratton, or other effects.
There was no washer or dryer at 1024 Caledonia.
The police left Goins’ residence before he returned. He
was later charged with possession of cocaine base and being
a felon in possession of a firearm. He moved to suppress the
6 No. 05-3185
drugs and the gun on Fourth Amendment grounds. Magis-
trate Judge Crocker recommended that the district court
deny the motion. He reasoned that Bratton had apparent
authority to consent to the search, because the officers could
reasonably have believed that she had actual authority to
authorize their search.1 The magistrate judge further
concluded that the “plain feel” doctrine allowed Jansky to
remove the drugs from the coat pocket, since he realized
what they were from his experience with pat-downs.
The magistrate judge found, however, that Bratton did
not have actual or apparent authority to authorize opening
the gun case. He ruled that Byerson was within constitu-
tional bounds when he looked under the couch, because that
was where Bratton had told him the gun was. It was also
legitimate for him to conclude that the gun was evidence of
a crime, since he knew of Goins’ criminal background.
Therefore, the magistrate judge found, the gun should not
be excluded under the inevitable discovery doctrine, because
Byerson could have seized the unopened case and inevitably
would have obtained a warrant to open it.
The district court adopted the magistrate judge’s recom-
mended findings. Goins now appeals.
1
Bratton did not testify at the suppression hearing. For that
reason, the magistrate judge felt that the government had failed
to show that she had actual authority to consent to a search of the
apartment. However, he stated explicitly that it was possible that
she had actual authority as well as apparent authority to autho-
rize the search.
No. 05-3185 7
II. Discussion
A. Apparent authority to search the home
Goins claims that the government did not establish that
Bratton had apparent authority to consent to the search. He
claims that a reasonable person, given the information that
the officers possessed, would not have believed that Bratton
had the authority to consent to a search. He notes that
under Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990),
and Montville v. Lewis, 87 F.3d 900, 903 (7th Cir. 1996), law
enforcement officers have a duty to inquire further as to a
third party’s authority to consent to a search, if the sur-
rounding circumstances make that person’s authority
questionable. Goins points out questions that the police
could have asked, but did not, such as whether Bratton
received the key from Goins himself. Goins also claims that
the police should have been suspicious of Bratton’s story of
living at 1024 Caledonia because (1) she admitted that she
had a residence elsewhere, (2) there was no mail in her
name in the home, (3) there were no children’s toys and
little female clothing in the home, and (4) there was no
laundry machine in the home, which Goins believes indi-
cates that Bratton could not have done his laundry as she
claimed.
The government emphasizes that it was not necessary for
the agents to believe that Bratton had an ownership interest
in the property, but merely that she had “mutual use” of the
property. United States v. Aghedo, 159 F.3d 308, 310-11
(7th Cir. 1998) (holding that an apartment owner who
entered the defendant’s room to clean and store personal
items had actual authority to consent to search the room,
because her “access and control of the room in question”
gave the defendant a reduced expectation of privacy). Thus,
the government argues, if it was reasonable to believe
Bratton’s claims, it was reasonable to believe that Bratton
had actual authority to search. We agree.
8 No. 05-3185
Therefore we must ask two questions: (1) whether the
officers should have disbelieved Bratton’s story based on the
information that they possessed; and (2) whether they had
a duty to inquire further before accepting Bratton’s repre-
sentations.
Addressing the latter question first, this was not a case of
officers blindly accepting a person’s claim of authority over
a premises in order to create apparent authority to search.
Several officers questioned Bratton regarding her access to
the apartment, and her answers remained consistent. She
had a key to the apartment, possessions within the apart-
ment, and represented that she lived there on-and-off and
frequently cleaned and did household chores in the home.
She also claimed that she was allowed into Goins’ residence
when he was not home. These representations paint a
believable and reasonably complete picture of Bratton’s
actual authority to search. Byerson’s telephone call to the
ADA further demonstrates the officers’ good faith.
An officer is entitled to conduct a search with-
out further inquiry if “the facts available to the officer at
the moment . . . warrant a man of reasonable caution in the
belief that the consenting party had authority over the
premises.” Rodriguez, 497 U.S. at 188 (quoting Terry v.
Ohio, 392 U.S. 1, 21-22 (1968)) (internal quotation marks
omitted). We believe that the police took sufficient precau-
tions to assure themselves of the truth of Bratton’s state-
ments, and a reasonable person would have believed that
Bratton had authority over 1024 Caledonia. See United
States v. Rodriguez, 888 F.2d 519, 523 (7th Cir. 1989)
(estranged wife who possessed key to locked closet that was
actually the property of her estranged husband had appar-
ent authority to authorize search); see also United States v.
Gillis, 358 F.3d 386 (6th Cir. 2004) (police reasonably relied
on girlfriend’s apparent authority based on her representa-
tions and her detailed description of the interior of her
boyfriend’s home, even though police knew she had her own
No. 05-3185 9
residence in public housing and she did not have a key to
the boyfriend’s home). Consequently, the officers here
fulfilled their obligation to inquire about Bratton’s connec-
tion to 1024 Caledonia. Montville, 87 F.3d at 903.
We also believe that the evidence provided adequate
support for Bratton’s respresentations. Goins’ claims to the
contrary are unavailing. The apartment’s lack of a washing
machine should not have caused the police to disbelieve
that Bratton did Goins’ laundry. The police could reason-
ably assume that Bratton took Goins’ laundry elsewhere,
just as Goins himself would have had to do. More probative
were the pans that Bratton grabbed, indicating that she
had actually cooked at Goins’ apartment. Additionally, the
dearth of children’s toys does little to indicate that Bratton
herself was not at the home often, as the record is unclear
about the age of Bratton’s children and whether other
people assisted in their care. Although Goins makes much
of the fact that no female clothing was hanging in the
closets of the home, Bratton did remove an entire plastic
garbage bag of female clothing from the home. This much
clothing could indicate that Bratton stayed at Goins’ home
regularly.
The officers, then, were entitled to accept Bratton’s
statements as true and could have reasonably believed that
she had actual authority to consent to a search.
B. Inevitable discovery of the gun
Once we have determined that the officers were legally
inside the apartment, the unopened gun case is clearly
within the purview of the constitutional search. Our inquiry
cannot end here, however, for we must determine whether
the gun itself must be suppressed because Byerson opened
the gun case without a warrant or valid consent. The
magistrate judge found that Bratton did not have actual or
10 No. 05-3185
apparent authority to consent to opening the case, and the
government does not contest that finding on appeal. In
order for the gun to be admissible evidence, then, it must
fall under some exception to the exclusionary rule.
The magistrate judge ruled that the gun is admissible
under the inevitable discovery doctrine. In the district
court’s view, Byerson knew that the object he discovered
under the sofa was likely a gun case from his experience as
a police officer; he also knew that the gun likely belonged to
a convicted felon. These factors combined gave him appro-
priate probable cause to obtain a warrant. Byerson would
also have been within his rights to seize the gun case and
its contents until the warrant had been granted. Therefore,
the court ruled, the inevitable discovery doctrine would
excuse Byerson opening the gun case prematurely.
We agree with this analysis. “Whereas the exclusionary
rule deprives the prosecution of evidence tainted by official
wrongdoing and thereby discourages future improprieties,
the inevitable discovery exception to the rule permits the
introduction of evidence that eventually would have been
located had there been no error . . .” United States v. Jones,
72 F.3d 1324, 1330 (7th Cir. 1995). Absent Byerson’s error,
we are confident that the gun would eventually have been
legally discovered. See United States v. Buchanan, 910 F.2d
1571 (7th Cir. 1990) (holding that where probable cause to
obtain a warrant existed and the police inevitably would
have applied for a warrant, the inevitable discovery doc-
trine applied). Exclusion under these circumstances would
be inappropriate.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
denial of defendant’s motion to suppress evidence.
No. 05-3185 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-9-06