United States v. Timothy Richards , 741 F.3d 843 ( 2014 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 12-3763
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    TIMOTHY L. RICHARDS,
    Defendant-Appellant.
    Appeal from the United States District Court for the
    Northern District of Indiana, Fort Wayne Division.
    No. 1:10-cr-00006-TLS-1 — Theresa L. Springmann, Judge.
    ARGUED OCTOBER 31, 2013 — DECIDED JANUARY 31, 2014
    Before BAUER, MANION, and ROVNER, Circuit Judges.
    BAUER, Circuit Judge. Timothy L. Richards (“Richards”) was
    charged in a four-count indictment with (1) possession of a
    controlled substance with intent to distribute, (2) maintaining
    a residence or place for the purpose of using and distributing
    controlled substances, (3) possession of a firearm in further-
    ance of a drug trafficking crime, and (4) being a felon in
    possession of a firearm. Prior to trial, the district court denied
    Richards’ first and second motions to suppress evidence that
    2                                                         No. 12-3763
    the police seized without a search warrant at the time of his
    arrest. After trial, a jury convicted Richards of all four charges.
    Richards now appeals the district court’s decisions to allow
    the government to introduce the seized evidence and raises
    two issues. First, Richards argues that the district court erred
    when it found that Edward Rawls (“Rawls”) had the mental
    capacity to consent to the warrantless search of his home.
    Second, Richards argues that the district court erred when it
    found that (1) Rawls had apparent authority to consent, and
    even if Rawls did not have the requisite authority to consent,
    (2) exigent circumstances validated the warrantless search of
    a bedroom Richards used in Rawls’ house. For the following
    reasons, we find no error.
    I. BACKGROUND
    On December 8, 2009, Fort Wayne Police Department
    Officers Phillip Ealing and Dale Llewellyn attempted to
    execute an arrest warrant for Paul Wilson (“Wilson”). While in
    uniform and on patrol, the officers talked to several individu-
    als who said they had seen Wilson frequently enter and leave
    a particular residence on the corner of Jefferson Boulevard and
    Hanna Street. When the officers arrived at the described house,
    Officer Llewellyn knocked on the door. An individual named
    “Diaz” opened the door and invited the officers inside to speak
    with the homeowner, Rawls.1 The officers did not have a
    1
    Rawls is the uncle of Richards. At the time of the incident, Rawls was
    eighty-six years old; an advanced age, but not one that requires a mental
    test to be considered reasonably reliable.
    No. 12-3763                                                     3
    search warrant for the residence or an arrest warrant for
    anyone other than Wilson.
    The officers went inside to talk with Rawls and noticed that
    there were several people in the house. The officers asked
    Rawls if Wilson was present. Rawls told the officers that he
    was not, but gave them permission to look around the house
    to confirm. The officers encountered several people as they
    walked through the house, but Wilson was not one of them.
    When they entered the kitchen, the officers smelled the
    strong odor of burnt marijuana. Richards and another man sat
    at the kitchen table. Officer Ealing testified that he saw what he
    thought was a rock of crack cocaine on a plate next to a
    microwave oven. Officer Llewellyn testified that he saw a
    marijuana cigarette, a small amount of marijuana, drug
    paraphernalia, and plastic baggies on the kitchen table. All of
    these items were in plain view.
    Officer Llewellyn told Richards to stand up so that he could
    conduct a protective pat down for weapons, but Richards
    refused. The verbal confrontation escalated into a physical
    struggle between the two; at one point, Officer Ealing used
    pepper spray to subdue Richards. The officers then handcuffed
    Richards and lifted him to his feet. When they did so, a
    handgun fell from his waistband onto the floor. Officer Ealing
    also discovered a knife sticking out of Richards’ back pocket.
    After the altercation with Richards, the officers called
    for backup and conducted a protective sweep of the house.
    Officer Llewellyn entered the west bedroom that Richards
    stayed in when he visited his uncle. The door frame had a hasp
    and padlock, but the door was unlocked at the time Officer
    4                                                    No. 12-3763
    Llewellyn entered the room. Once inside, he saw an open
    briefcase on the bed containing what he believed to be cocaine.
    After the officers finished the sweep, backup arrived.
    Officer Llewellyn and Detective Shane Pulver asked Rawls if
    he would give written consent to search his home. Before
    giving him the consent form, Detective Pulver read Rawls his
    Miranda rights. Rawls was never handcuffed or detained.
    Officer Llewellyn then gave Rawls time to read the consent
    form on his own and read portions of the form aloud to Rawls
    as well. Officer Llewellyn informed Rawls of his right to refuse
    consent and his right to seek legal counsel. Rawls told the
    officers that he understood his rights and willingly signed the
    consent form on the officers’ first request to do so.
    Throughout their interaction with Rawls, the officers did
    not notice anything unusual about his behavior. Officer Ealing
    was a member of the Fort Wayne Crisis Intervention Team and
    had received specialized training on how to identify people
    who suffer from mental illnesses. Neither officer observed
    signs that Rawls was experiencing any kind of dementia or
    confusion. Additionally, neither officer noticed any slurred
    speech, detected the smell of alcohol on Rawls’ breath or
    discerned an indication that Rawls was intoxicated.
    Richards was arrested and charged with (1) possession of
    a controlled substance with intent to distribute, in violation of
    
    21 U.S.C. § 841
    (a)(1); (2) maintaining a residence or place for
    the purpose of using and distributing controlled substances, in
    violation of 
    21 U.S.C. § 856
    (a)(1); (3) possession of a firearm in
    furtherance of a drug trafficking crime, in violation of 
    18 U.S.C. § 924
    (c); and (4) possession of a firearm having previously been
    No. 12-3763                                                   5
    convicted of a felony offense, in violation of 
    18 U.S.C. § 922
    (g)(1).
    In July 2010, Richards filed a motion to suppress evidence
    seized by police during his warrantless arrest. After an
    evidentiary hearing, the district court found that Rawls
    voluntarily provided valid consent for the police to search his
    residence and denied Richards’ motion. In February 2011,
    Richards filed a second motion to suppress, arguing that Rawls
    lacked authority to consent to a search of the bedroom that
    Richards used when he stayed with Rawls. After an eviden-
    tiary hearing, the district court denied Richards’ second motion
    to suppress on two separate grounds. First, the court found
    that Rawls had apparent authority to consent to the search of
    the bedroom. The court also found that exigent circumstances
    justified the officers’ protective sweep of the bedroom. After a
    jury convicted Richards of all four counts, the court sentenced
    him to a total term of 180 months in prison followed by six
    years of supervised release.
    II. DISCUSSION
    When reviewing a district court’s denial of a motion to
    suppress, we review legal conclusions de novo. United States v.
    Huddleston, 
    593 F.3d 596
    , 600 (7th Cir. 2010). We review the
    district court’s factual findings for clear error and will only
    reverse if the findings leave this Court with a “definite and
    firm conviction that a mistake has been made.” United States v.
    Tilmon, 
    19 F.3d 1221
    , 1224 (7th Cir. 1994). Mixed questions of
    law and fact are reviewed de novo. United States v. Gevedon, 
    214 F.3d 807
    , 810 (7th Cir. 2000).
    6                                                    No. 12-3763
    A. Richards’ First Motion to Suppress
    Richards argues that the district court erroneously found
    that Rawls had the requisite mental capacity to freely and
    voluntarily consent to the officers’ search of his home. Whether
    an individual’s consent to a search was voluntary is a factual
    determination, which we review for clear error. United States
    v. Johnson, 
    495 F.3d 536
    , 541 (7th Cir. 2007). Relying on testi-
    mony from the suppression hearing, Richards argues that
    Rawls was incapable of consenting to the officers’ search
    because his advanced age of eighty-six years left him a
    confused old man who was out of touch with reality. We
    disagree.
    Our analysis begins with the presumption that warrantless
    searches or arrests within a home are unreasonable and violate
    the Fourth Amendment. Payton v. New York, 
    445 U.S. 573
    , 576
    (1980); Johnson v. United States, 
    333 U.S. 10
    , 14 (1948). However,
    warrantless searches or arrests are constitutionally permissible
    when a “narrowly proscribed” exception exists. United States
    v. Bell, 
    500 F.3d 609
    , 612 (7th Cir. 2007). One such exception
    exists when “an authorized individual voluntarily consents to
    the search.” United States v. Duran, 
    957 F.2d 499
    , 501 (7th Cir.
    1992). The government must prove “by a preponderance of
    evidence that consent was freely and voluntarily given.” United
    States v. Grap, 
    403 F.3d 439
    , 445 (7th Cir. 2005).
    It is uncontested that Rawls, as the homeowner, was
    authorized to consent to the officers’ search of his house. Rawls
    unequivocally consented; when the police asked him if they
    could search the house, he said “search.” The issue remains,
    however, whether Rawls had the mental faculties about him on
    No. 12-3763                                                      7
    December 8, 2009, to freely and voluntarily consent to the
    search.
    Whether a third-party’s consent is voluntarily given to the
    police is a question of fact that depends on the totality of
    circumstances. Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 227
    (1973). To determine whether consent was provided volun-
    tarily, we consider (1) Rawls’ age, education, and intelligence;
    (2) whether Rawls was informed of his constitutional rights;
    (3) whether Rawls was in custody; (4) how long he was
    detained; (5) whether Rawls consented immediately or after
    police made several requests; and (6) whether the police used
    physical coercion. United States v. Strache, 
    202 F.3d 980
    , 985
    (7th Cir. 2000); Schneckloth, 
    412 U.S. at 226
    . We review these
    factors in the light of “objective facts, as presented to a reason-
    able inquirer, that would reasonably put him or her on notice
    that a voluntary consent could not be given.” Grap, 
    403 F.3d at 445
    . Our determination does not depend on a single control-
    ling factor, but carefully considers “all of the surrounding
    circumstances.” Schneckloth, 
    412 U.S. at 226
    .
    Richards attacks Rawls’ capacity to freely and voluntarily
    consent based only on the first factor—age, education, and
    intelligence—because he contends that Rawls was an “old man
    out of touch with reality.” This argument is not persuasive.
    To guide our determination of whether Rawls voluntarily
    consented to the search, we consider the information known to
    the officers when they arrived at Rawls’ house on the day in
    question. It was readily apparent to the officers that Rawls was
    an older gentleman because he clearly had difficulty walking.
    However, nothing occurred to put the officers on notice that
    8                                                            No. 12-3763
    Rawls lacked the intelligence or the capacity to voluntarily
    consent to the search of his home. When Officers Ealing and
    Llewellyn first talked to Rawls, Rawls confirmed that he
    was the homeowner and invited the officers to search for
    Wilson. Rawls was accompanied by two other men during
    this conversation, and neither of them expressed any concerns
    about Rawls’ mental condition. Officer Ealing testified that he
    did not observe any signs of dementia during his interaction
    with Rawls. Officer Llewellyn testified that he did not notice
    any signs that Rawls suffered from mental problems either.
    Rawls did not make any inappropriate comments or act in a
    way that would lead the officers to believe he was confused,
    delusional, or unable to consent. We find nothing that would
    have put a reasonable officer on notice that Rawls’ mental state
    was so impaired that he could not provide voluntary consent
    to the impending warrantless search.
    After Richards’ arrest and the discovery of drugs, the
    officers again conferred with Rawls and asked him to sign a
    written consent form. Detective Pulver then read Rawls his
    Miranda rights and discussed the consent form with him.
    Rawls told Officer Llewellyn that he could read and write.2
    Officer Llewellyn read portions of the consent form to Rawls
    and informed him of his right to an attorney and his right to
    refuse consent. Rawls then signed the consent form. Officer
    Llewellyn and Detective Pulver testified that Rawls did not
    seem confused or disoriented and was aware of the events that
    2
    At the suppression hearing, it was discovered that Rawls was not literate,
    however, Officer Llewellyn had no reason to doubt the veracity of Rawls’
    statement at the time.
    No. 12-3763                                                     9
    were unfolding. The district court found the officers’ impres-
    sions of Rawls “completely credible;” we find no error in the
    district court’s finding.
    Richards relies solely on Rawls’ testimony at the August 18,
    2010, suppression hearing to support his argument. Richards
    contends that Rawls lacked the mental competence to consent
    to a search because (1) his testimony included significant
    factual mistakes about the events on December 8, 2009, and (2)
    he contradicted himself repeatedly as he testified. To the
    contrary, the district court found that Rawls’ testimony
    “largely corroborated the version of events related by
    Llewellyn, Ealing, and Pulver.” Although Rawls’ recollection
    of the events that occurred over eight months prior was not
    impeccable, we find that his testimony was not so garbled as
    to call into question his mental faculties on the day in question.
    This case is similar to our decision in Grap, 
    403 F.3d at 445
    .
    In Grap, we held that a third-party freely and voluntarily
    consented to a detective’s warrantless search even though she
    suffered from documented mental infirmities. 
    Id.
     The detective
    informed Mrs. Grap that he believed her son, the defendant,
    was storing stolen property in her garage. 
    Id. at 441
    . Before
    searching the garage, the detective had Mrs. Grap sign a
    written consent form. 
    Id.
     The detective observed nothing
    unusual about Mrs. Grap’s behavior that would lead him to
    believe that Mrs. Grap lacked the capacity to consent to the
    search of the garage. 
    Id.
     Based on the detective’s testimony, we
    found that Mrs. Grap’s consent was valid. 
    Id. at 445
    . We noted
    that a person’s mental capacity is only one factor in determin-
    ing whether someone’s consent was voluntary, and that a
    person is not precluded from consenting to a warrantless
    10                                                  No. 12-3763
    search simply because he or she suffers from a mental disease.
    
    Id.
     Our review is aimed at “regulating police conduct,” and to
    achieve that objective, the appropriate standard is what
    objective facts were known to the inquiring officer at the time
    consent was given. 
    Id.
    In Richards’ case, there is no evidence that Rawls suffered
    from a diagnosed mental disability or that officers had any
    reason to believe that he could not consent to the search of his
    home. Three officers testified about their interactions with
    Rawls; each concluded that Rawls appeared to understand
    his rights and be free of mental defects. Officer Ealing was
    specially trained to recognize symptoms of mental illness, and
    he testified that Rawls appeared to have “all his mental
    faculties about him.” Without evidence of aberrant behavior
    from Rawls on December 8, 2009, we conclude that the district
    court’s finding that Rawls was capable of voluntarily consent-
    ing to the officers’ search was not clearly erroneous.
    Richards also contends that Rawls could not voluntarily
    consent to the search on December 8, 2009, because he was too
    intoxicated. But the record lacks any evidence to support this
    contention. Rawls admitted that he drinks beer or wine on
    occasion, but never admitted drinking on the day in question.
    Furthermore, Officers Ealing and Llewellyn detected no signs
    that Rawls was intoxicated. Rawls’ sister, Kathryn, testified
    that Rawls did not appear to be drunk when she arrived at the
    scene later that day. The district court found that “the evidence
    did not support Richards’ contention that his uncle might have
    been so intoxicated on the day in question that he did not
    understand what was happening.” We agree with the district
    court’s conclusion.
    No. 12-3763                                                 11
    Based on objective facts that were known to the officers on
    December 8, 2009, they reasonably concluded that Rawls freely
    and voluntarily consented to the search of his home. Thus, we
    hold that the search of Rawls’ home falls within the consent
    exception to the warrant requirement and affirm the district
    court’s denial of Richards’ first motion to suppress.
    B. Richards’ Second Motion to Suppress
    Having recognized Rawls’ capacity to freely and volun-
    tarily consent, our analysis turns to whether Rawls had the
    authority to consent to a search of the west bedroom. Whether
    Rawls had actual or apparent authority to consent to the search
    is a mixed question of law and fact, which we review de novo.
    Gevedon, 
    214 F.3d at 810
    . The government carries the burden of
    proof by a preponderance of the evidence that the officers
    reasonably believed that Rawls had sufficient authority over
    the west bedroom to consent to its search. United States v.
    Matlock, 
    415 U.S. 164
    , 177, n.14 (1974).
    A defendant assumes the risk that a co-occupant may
    expose a common area of a house to a police search, as long as
    the co-occupant possesses “common authority over or other
    sufficient relationship to the premises or effects sought to be
    inspected.” Matlock, 
    415 U.S. at 171
    . Common authority is not
    based on a property interest, but is a social concept based on
    whether the consenting person had joint access or control of
    the area being searched. 
    Id.
     Because common authority is
    premised on mutual use, an ownership interest in the property
    to be searched does not necessarily suffice as actual authority
    on its own. United States v. Evans, 
    27 F.3d 1219
    , 1229–30 (7th
    Cir. 1994). A houseguest has an expectation of privacy,
    12                                                    No. 12-3763
    Minnesota v. Olson, 
    495 U.S. 91
    , 99 (1990), and the possession of
    a key is a sign of actual authority over a room, United States v.
    Rodriguez, 
    888 F.2d 519
    , 522 (7th Cir. 1989).
    It is undeniable that Rawls had a relationship to the west
    bedroom as the homeowner, however, Richards had been
    staying with Rawls approximately three times a week for eight
    months prior to his arrest. Richards alone stayed in the west
    bedroom, and he frequently locked the door with a padlock.
    Rawls did not have a key and had no access to the room unless
    Richards unlocked it. Richards had an expectation of privacy
    in the west bedroom because he was Rawls’ houseguest and he
    alone had access to the room if it was locked. Therefore, we
    conclude that Rawls lacked actual authority to consent to a
    search of the west bedroom.
    Even without actual authority, however, a warrantless
    search may still be permissible if consent is obtained from a
    third-party with apparent authority. Illinois v. Rodriguez, 
    497 U.S. 177
    , 188–89 (1990); United States v. Rosario, 
    962 F.2d 733
    ,
    737 (7th Cir. 1992). When determining whether an individual
    has apparent authority to consent, the court employs an
    objective standard; officers may conduct a search without a
    warrant if they “reasonably (though erroneously) believe” that
    the person consenting had authority over the premises.
    Rodriguez, 
    497 U.S. at 186
    . The touchstone of the inquiry is
    whether the officer reasonably believed that the person had
    authority to consent based on the facts known to him at the
    time. Rodriguez, 
    497 U.S. at 184
    ; United States v. Groves, 
    470 F.3d 311
    , 319 (2006).
    No. 12-3763                                                      13
    Rawls told Officers Ealing and Llewellyn they could look
    around his house to search for Wilson. Rawls did not tell the
    officers to avoid the west bedroom or restrict their search in
    any way. Rawls never informed the officers that he lived with
    anyone else. The padlock on the door to the west bedroom was
    unlocked at the time the officers searched the home. The
    officers were unaware Rawls did not have a key to the padlock.
    Thus, the officers’ belief that Rawls had access to, and likewise,
    the authority over all of the rooms in his house was reasonable.
    It is “unjustifiably impractical to require the police to take
    affirmative steps to confirm the actual authority of a consent-
    ing individual whose authority is apparent. Georgia v. Randolph,
    
    547 U.S. 103
    , 122 (2006) (citing Illinois v. Rodriguez, 
    497 U.S. 177
    (1990)).
    Richards contends that under Randolph, the officers’ un-
    reasonably believed Rawls had authority over the west
    bedroom. He argues that the presence of a padlock on the door
    to the west bedroom placed a duty on the officers to eliminate
    the possibility of an atypical living arrangement. Richards
    suggests that the officers should have asked Rawls why there
    was a padlock on the door before entering. This argument is
    misplaced.
    There is nothing in this case that should have alerted the
    police to an atypical arrangement. Richards did not object to
    the officers’ entry of the west bedroom. Rawls did not seek
    anyone’s approval before letting the officers search the house.
    Rawls did not tell the officers they could not go in the west
    bedroom. None of the other occupants in Rawls’ house told the
    officers that they were not permitted to enter the west bed-
    room. There were no signs posted that the west bedroom was
    14                                                   No. 12-3763
    private or off limits. The door was unlocked at the time of the
    search. Richards never indicated that the padlock was his.
    Based on the facts known to the officers at the time, it was
    reasonable for them to believe that it was Rawls that placed the
    padlock on the door, not Richards. Once Rawls consented to a
    warrantless search, the officers were not required to “take
    affirmative steps to find a potentially objecting co-tenant before
    acting on the permission they already received.” Id. at 122.
    We hold that Rawls’ apparent authority to consent to the
    search of his house was sufficient to permit the officers’
    warrantless search of the west bedroom, so we need not reach
    the issue of whether exigent circumstances justified the
    officers’ search. We find no error in the district court’s denial
    of Richards’ second motion to suppress.
    III. CONCLUSION
    The district court properly denied Richards’ first motion to
    suppress evidence because Rawls validly consented to the
    officers’ warrantless search of his house. The court properly
    denied Richards’ second motion to suppress because Rawls
    had apparent authority to consent to a search of his entire
    home, including the west bedroom. Therefore, the district
    court’s denials of Richards’ motions to suppress
    are AFFIRMED.