United States v. Ryerson, Richard ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1654
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ICHARD R YERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06 CR 172—John C. Shabaz, Judge.
A RGUED S EPTEMBER 12, 2007—D ECIDED S EPTEMBER 18, 2008
Before P OSNER, FLAUM, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Defendant Richard Ryerson
challenges his conviction and sentence for possessing a
machine gun in violation of 18 U.S.C. § 922(o). Ryerson
claims the district court improperly denied his motion to
suppress the machine gun, which was found in Ryerson’s
garage after his ex-wife, Jennifer Lawicki, consented to a
warrantless search. Ryerson also contends that the court
improperly enhanced his sentence by two levels for
obstruction of justice.
2 No. 07-1654
Although this is a close case, we are not persuaded by
Ryerson’s arguments. Because of Lawicki’s long-term and
continuing residence in Ryerson’s home, she had authority
to consent to the search and the police acted reasonably
in believing she lived there. The district court also had
ample reason to enhance Ryerson’s sentence for obstruc-
tion of justice because he tried to dump the machine
gun before he was caught. Therefore, we affirm
Ryerson’s conviction and sentence.
I. BACKGROUND
On February 8, 2006, Jennifer Lawicki went to the sher-
iff’s office in Adams County, Wisconsin, to try and regain
custody of her infant daughter. Lawicki explained to the
officers that she lived with her boyfriend Richard Ryerson
and their daughter in a home on Gillette Lane in Adams
County, even though she filed a missing person/runaway
report that listed a different home address on Gale Drive,
also in Adams County. Lawicki was accompanied by
Dave Curley, with whom she was staying at the Gale
Drive residence. Lawicki told the police that Curley was
just a friend and that she was not romantically involved
with him.
Lawicki stated that she had left Gillette Lane three days
earlier after an argument with Ryerson and had returned
to get her daughter and their belongings. She claimed she
could not enter her home because Ryerson (who was
jailed in Adams County because he had traveled to Illinois
in violation of his probation) had changed the locks while
she was away. A sergeant told Lawicki she could break a
window to enter the home so long as she lived there. So
No. 07-1654 3
Lawicki did just that. Jason Krumscheid, an employee
of Ryerson’s entrusted to care for the house, saw the
broken window and reported a burglary to the police.
The next day, the police arranged to interview Lawicki
back at the sheriff’s office regarding the alleged burglary.
Once again accompanied by Curley, Lawicki repeatedly
told Investigators Mark Bitsky and Todd Laudert that she
lived at Gillette Lane. She also said that Ryerson sold
drugs and stored weapons at Gillette Lane, including a
submachine gun that she had allegedly seen two months
earlier under the back porch. Bitsky asked Lawicki if the
police could search the home for contraband. After con-
senting, she signed a permission to search form.
The police followed Lawicki and Curley to Gillette
Lane. The officers summoned Jason Krumscheid, who
willingly let Lawicki and the police enter the home. Little
did they know that Ryerson had called Krumscheid from
jail earlier that evening, expressing concern that Lawicki
might plant something because she “has access to the
house” and noting that “[a]nything in that house could be
Jennifer’s also.” He asked, “What’s to stop her from
going in there and planting cocaine or something all over
my house?” Additionally, Ryerson mentioned that Lawicki
had a restraining order preventing him from coming
within 100 feet of her. He also directed Krumscheid to
get rid of “a little rapid fire BB gun” stashed in the
garage drywall, along with some jewelry that Lawicki had
allegedly hidden there.
Before entering, Lawicki correctly anticipated and
warned the police about a “vicious cat” inside the house.
She said that the house was in Ryerson’s name, but that she
4 No. 07-1654
had bought the property with him and lived there with
their baby. Lawicki also went to the basement to retrieve
some business records for the Dells Cab Company, a
taxicab company that Ryerson and Lawicki co-owned and
ran from Gillette Lane. The house also contained Lawicki’s
and her baby’s personal items, including clothes and toys.
The officers further found a pellet gun, ammunition, a
digital scale with white powdery residue, and a pack of
rolling papers. They did not find a machine gun or any
drugs.
Meanwhile at Adams County jail, Ryerson complained of
a heart condition. Although it turned out he was merely
agitated, Ryerson was fretting that Lawicki had “broken
into” his home and was planting evidence there. He
handed a jail sergeant a note that read:
Dear Sargent, my name is Richard Ryerson, my x
wife took my baby to an undisclosed location out
of state and told me I would never see her, so
I crossed Ill boarded without permission; that why
Im her; while I was in here she broke in the house
I took lots of stuff. The House is in my name I just
bought it.
We have been divorest for 3 years, she dosn’t have
any name on the house, it is souly mine, she just
stays with me as girl friend now. MY PO Jill Ed-
ward and I our concern of her planting eleagl
things in the House, my cab Drive stays At my
resdence while Im in her. My X girlfriend is sit out
in front of my drive way with her know boyfriend
he is a Drug Dealer and I think when they broke
No. 07-1654 5
in last knight they put some thing in my house or
they want to go back in and do somthing to night.
Please may I talk to you ASAP
Rick Ryerson
Dells Cab Co
CEO
The record does not indicate whether the jail sergeant
read the note before handing it to Investigator Bitsky after
he returned from the search. Bitsky did not read the
note until after the relevant events had occurred in this
case.
The next morning, Bitsky listened to the jail’s recording
of Ryerson and Krumscheid’s conversation from the
previous evening. Bitsky recognized that an illegal
weapon still might be hidden in the garage drywall and
asked Lawicki to meet him at Gillette Lane. She signed
another permission to search form and accompanied the
officers into the garage. Lawicki did not object when they
used a thermal imager to search for “dead spots” in the
wall. In a second dead spot, the police recovered a Thomp-
son submachine gun.
After his indictment, Ryerson moved to suppress the
machine gun as the fruit of an illegal search. At an eviden-
tiary hearing before a magistrate judge, Lawicki (who had
since remarried Ryerson) testified that she did not believe
she had legal authority to consent to the searches. The
magistrate judge did not buy her testimony and recom-
mended the district court deny Ryerson’s motion. Ryerson
then pled guilty, preserving his right to challenge the
6 No. 07-1654
denial of his motion to suppress. The district court
adopted the magistrate’s recommendation and sentenced
Ryerson to 48 months in prison, imposing a two-level
enhancement for obstruction of justice.
II. ANALYSIS
A. Ryerson’s motion to suppress was properly denied.
Ryerson claims the police violated his Fourth Amend-
ment rights when they searched his home on February 9,
2006, and searched his garage the next day. The govern-
ment successfully argued before the magistrate judge and
the district court that Lawicki’s consent justified both of
these warrantless searches. We review the district court’s
factual findings for clear error and questions of law
de novo. United States v. Mendoza, 438 F.3d 792, 795 (7th
Cir. 2006).
Although a third party generally cannot consent to a
warrantless search of another’s home, there is an exception
when the government can show by a preponderance of the
evidence that the third party “possessed common authority
over, or other sufficient relationship to, the premises or
effects sought to be inspected.” United States v. Brown, 328
F.3d 352, 356 (7th Cir. 2003) (quoting United States v.
Matlock, 415 U.S. 164, 171 (1974)) (internal quotation
marks omitted). This “actual authority” does not depend
on property law distinctions but instead rests on whether
there is “mutual use of the property by persons generally
having joint access or control for most purposes.” Matlock,
415 U.S. at 171 n.7; see also United States v. Denberg, 212
F.3d 987, 991 (7th Cir. 2000).
No. 07-1654 7
We agree with the government that Lawicki had actual
authority to consent to both searches. Lawicki was
Ryerson’s ex-wife and then-current girlfriend (and now-
current wife). Although Lawicki was staying with Curley
at the time of the search, she told the police that her
relationship with him was not romantic (even though
she later referred to him as her “boyfriend” at the sup-
pression hearing). At any rate, she had lived at Gillette
Lane with Ryerson and their infant daughter for ten
months before the search, a significant period of time. See
Denberg, 212 F.3d at 991 (having one’s children live at a
residence suggests authority to consent). Ryerson does not
claim that he kicked her out of the house; rather, she
appears to have left on her own accord after a tiff with
him. And although Lawicki claimed at the evidentiary
hearing that she had not intended to return, she only
took an overnight bag when she left. Even if she was
moving out, she had not yet done so at the time of the
search. As the officers noticed, Lawicki left many of her
and her baby’s belongings in the home. See United States
v. Goins, 437 F.3d 644, 647-49 (7th Cir. 2006) (keeping
clothing or personal belongings at a residence suggests
authority to consent).
Moreover, Lawicki remained connected to the home
through her co-ownership of the Dells Cab Company.
There is no evidence that Lawicki had quit her managerial
role or sold her stake in the company before the search. So
Lawicki still had a right to access the company records
kept in the basement of the house. Cf. Wis. Stat. § 178.16
(2007) (“[P]artnership books shall be kept, subject to any
agreement between the partners, at the principal place of
8 No. 07-1654
business of the partnership, and every partner shall at
all times have access to and may inspect and copy any
of them.”); Wis. Stat. § 183.0405(2) (2007) (“[A] member
may . . . inspect and copy during ordinary business hours
any limited liability company record required to be kept [at
its principal place of business]”). This right of access, by
itself, would not have given Lawicki the power to
consent to entry into the home. But combined with
Lawicki’s long-term and continuing residence at Gillette
Lane, we conclude Lawicki had a sufficient relationship to
the home to have actual authority to permit the searches.
See United States v. Trzaska, 859 F.2d 1118, 1120 (2d Cir.
1988) (wife who had recently moved out of an apartment
but still kept a key and stored personal belongings
there maintained mutual use); United States v. Crouthers,
669 F.2d 635, 643 (10th Cir. 1982) (wife who testified she
had moved out of an apartment still had actual authority
to consent because she had not “abandoned” the apart-
ment and there was a lack of evidence on the extent to
which she had moved out).1
1
Jason Krumscheid’s consent is an alternate (and even stron-
ger) basis to justify the first search on February 9. Ryerson had
given Krumscheid the keys to the house and asked him to take
care of the premises. That authorized Krumscheid to consent to
a search, which is precisely what he did by letting the police
enter the house. See United States v. Jones, 335 F.3d 527, 531 (6th
Cir. 2003) (“A caretaker left in charge of a home for several
weeks, for example, might have authority to permit entry, while
a worker who is present on a more limited basis would not.”).
(continued...)
No. 07-1654 9
Ryerson claims, however, that he revoked Lawicki’s
actual authority after she “moved out.” But the record
suggests no such thing. Although Ryerson stated in his
note to the jail sergeant that the house was “souly [sic]
mine” and expressed concern that Lawicki might plant
evidence in the house, he also admitted that “she just
stays with me as girl friend [sic] now.” If anything, this
suggests Ryerson still considered Lawicki a lawful co-
habitant at the time of the searches. Similarly, in his taped
conversation with Krumscheid, Ryerson admitted that
Lawicki continued to have “access to the house” and noted
that “[a]nything in that house could be Jennifer’s also.” By
opening his home to Lawicki, Ryerson assumed the risk
that she might consent to a search because “[o]ne who
shares a house or room or auto with another under-
stands that the partner may invite strangers—that his
privacy is not absolute, but contingent in large measure
on the decisions of another.” United States v. Chaidez, 919
F.2d 1193, 1202 (7th Cir. 1990). That risk remained so long
as Lawicki continued to access, use, or control the prop-
erty. See Matlock, 415 U.S. at 171 n.7.
Although Ryerson now claims that he revoked Lawicki’s
authority, the fact remains that he allowed Lawicki to
live there, with their child, for the ten months preceding
the search. At the time of the search, Lawicki continued to
(...continued)
But the government somehow overlooked this argument—it
was only raised by us at oral argument—so the argument
was waived. See United States v. Dabney, 498 F.3d 455, 460 (7th
Cir. 2007).
10 No. 07-1654
use the property to store her personal belongings and
records for her co-owned business. So Ryerson assumed
the risk that Lawicki would return, as she did. Indeed,
it’s possible that this is exactly what he wanted, since
Ryerson later remarried Lawicki.
But what about the locks? If Ryerson changed them,
perhaps he was trying to rid himself of the risk that
Lawicki would return. The magistrate judge and district
court never resolved whether the locks had been changed,
presumably because the record was so muddled on this
issue. Contrary to what Lawicki had told the police on
February 8, she was adamant at the evidentiary hearing
that she could not enter the house because she had not
taken the keys, not because the locks were changed. So the
record does not suggest that Ryerson limited Lawicki’s
access to the home in this manner.
Ryerson also twists this argument a bit and claims his
note and comments to the jail sergeant amounted to an
objection under Georgia v. Randolph, 547 U.S. 103 (2006),
that invalidated Lawicki’s consent. Id. at 122-23 (a physi-
cally present inhabitant may successfully object to a
search over the consent of a co-habitant). Ryerson admits
it’s a stretch to apply Randolph since he was not present
during either search, but he suggests Randolph should
still apply because his absence was due to the “state,”
which had jailed him on a probation hold. Even if this
were a tenable argument, and Ryerson’s note and com-
ments amounted to an objection, nothing in the record
suggests the “state” arrested Ryerson to prevent him
from objecting while the police searched his house.
No. 07-1654 11
Indeed, the police officers decided to search the home
only after they had spoken to Lawicki, which occurred
after Ryerson had already been jailed. See id. at 121 (noting
that a non-present objector does not does not benefit
under the Randolph rule “[s]o long as there is no evidence
that the police have removed the potentially objecting
tenant from the entrance for the sake of avoiding a possible
objection”); see also United States v. Henderson, No. 07-1014,
2008 WL 3009968, at *1 (7th Cir. Aug. 6, 2008).
In addition to actual authority, the second search (which
is when the police found the gun) was lawful on the basis
of “apparent authority.” Such authority exists when the
facts available to an officer at the time of a search would
allow a person of reasonable caution to believe that the
consenting party had authority over the premises. Illinois
v. Rodriguez, 497 U.S. 177, 188 (1990); Goins, 437 F.3d at
649 (an officer can conduct a search without further
inquiry if, based on facts known to the officer, a rea-
sonably cautious person would believe the third party
had authority to consent). Here, the circumstances preced-
ing the second search suggested Lawicki was a lawful
resident of Gillette Lane. Although Lawicki claimed she
was locked out of the home, Ryerson’s agent Krumscheid
readily allowed the police and Lawicki to enter when they
first searched the premises, which could have suggested
to the police that Krumscheid recognized Lawicki as a
legitimate resident of the house. During the first search, the
police also observed personal items indicating that Lawicki
still used the home. And Lawicki’s prescient warning
about the ferocious kitty demonstrated her intimate
12 No. 07-1654
knowledge of the house. She was even familiar enough
with the basement that she easily located her company’s
business records there. Lawicki’s facility in guiding the
officers through the home, and the evidence indicating that
she still lived there, made it reasonable for the police to
believe she could consent to the second search of the home.
Ryerson’s note to the jail sergeant also had no impact on
Lawicki’s apparent authority because Investigator Bitsky
did not read the note before the second search. Contrary to
Ryerson’s claims, there is no evidence that this was “willful
ignorance,” and at any rate, the note does not suggest
Lawicki lacked the ability to consent to a search. Even
though Ryerson expressed his fear that Lawicki would
plant evidence, he indicated that she lived with him as
his girlfriend, which suggested that she still had a right to
access the house. See United States v. Gillis, 358 F.3d 386,
388, 391 (6th Cir. 2004) (a girlfriend who had removed
her child, been locked out, maintained a second residence,
and had no personal property remaining in the home
still had apparent authority to consent because she had
claimed continued use and demonstrated her detailed
knowledge of the premises).
It was also reasonable for the officers to believe that
Lawicki’s written consent extended to the garage given
that the consent form authorized the police to search the
“residence (or other real property)” at Gillette Lane. See
United States v. Evans, 27 F.3d 1219, 1231 (7th Cir. 1994)
(finding that a general consent form to search the whole
premises covered the garage). And Lawicki knew the
police would search the garage since that is what they told
No. 07-1654 13
her they would search. See United States v. Hines, 387 F.3d
690, 695 (8th Cir. 2004) (measuring scope of consent by
objective reasonableness). That the police used a thermal
imager during the search does not negate Lawicki’s
consent since she was present and did not object to its
use. See Evans, 27 F.3d at 1231 (finding adequate
consent where an owner did not protest when the police
began to search the garage).
Instead of countering this evidence, Ryerson asks us to
plod through a series of ten factors from our decision in
United States v. Groves 2 to determine whether apparent
authority exists. But Groves did not create a ten-factor
test—indeed, a test with that many variables would allow
a court to justify virtually any outcome. Groves merely
collected some relevant factors from previous cases and
emphasized that the decision did “not mean to suggest
that district courts should use this as a checklist of factors
in determining actual or apparent authority.” Id. at 509
2
530 F.3d 506, 509-10 (7th Cir. 2008) (“(1) possession of a key to
the premises; (2) a person’s admission that she lives at the
residence in question; (3) possession of a driver’s license listing
the residence as the driver’s legal address; (4) receiving mail
and bills at that residence; (5) keeping clothing at the residence;
(6) having one’s children reside at that address; (7) keeping
personal belongings such as a diary or a pet at that residence;
(8) performing household chores at the home; (9) being on the
lease for the premises and/or paying rent; and (10) being
allowed into the home when the owner is not present” (quoting
United States v. Groves, 470 F.3d 311, 319 (7th Cir. 2006) (citations
omitted)) (internal quotation marks omitted)).
14 No. 07-1654
(quoting United States v. Groves, 470 F.3d 311, 319 n.3
(7th Cir. 2006)) (internal quotation marks omitted). At
any rate, the district court found that at least four of the
Groves factors (2, 5, 6 and 7) were present here and Ryerson
has not demonstrated that those factors do not establish
apparent authority.
B. There was no clear error for the obstruction of
justice enhancement.
A district court may increase a defendant’s offense level
if he “willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with
respect to the investigation, prosecution, or sentencing
of the instant offense of conviction.” United States Sen-
tencing Commission Guidelines Manual (U.S.S.G.) § 3C1.1
(2006). This conduct includes “destroying or concealing
or directing or procuring another person to destroy or
conceal evidence that is material to an official investiga-
tion or judicial proceeding.” Id. cmt. n.4(d). We review
the district court’s factual finding for clear error. United
States v. Davis, 442 F.3d 1003, 1008-09 (7th Cir. 2006).
Ryerson asked Krumscheid to dispose of the machine
gun hidden in the garage drywall. Ryerson claims he was
merely “seeking to dispossess himself of contraband . . .
consistent with the purpose of the law—to cease unlawful
activity.” He characterizes his actions very charitably. The
district court was justified in reaching another con-
clusion: Ryerson was trying to dump the gun before he
got caught. If Ryerson were serious about surren-
dering the gun, he would have told a police officer at the
No. 07-1654 15
jail. Instead he wrote a misleading note about how Lawicki
might try to plant evidence that he himself had hidden.
It is hardly credible that Ryerson suddenly repented for
his illegal conduct right around the time he learned his
house might be searched.
Ryerson also cites to various cases to argue that an
obstruction of justice enhancement cannot apply here. But
those cases involve either false statements (U.S.S.G. § 3C1.1
cmt. n.4(g); United States v. Kroledge, 201 F.3d 900, 905-08
(7th Cir. 2000)) or concealment of evidence contemporane-
ous with arrest (U.S.S.G. § 3C1.1 cmt. n.4(d); United States
v. Perry, 991 F.2d 304, 311-12 (6th Cir. 1993); United States
v. Savard, 964 F.2d 1075, 1079 (11th Cir. 1992)), which are
circumstances that are materially different from the
present case. Ryerson’s directive to Krumscheid to get
rid of the gun is precisely the kind of conduct that the
obstruction of justice enhancement was intended to deter.
III. CONCLUSION
The judgment of the district court is A FFIRMED.
9-18-08