United States v. Ruiz ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-30516
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00210-AJB
ABEL IKE RUIZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
September 16, 2005—Portland, Oregon
Filed November 7, 2005
Before: Raymond C. Fisher, Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould
15189
UNITED STATES v. RUIZ 15191
COUNSEL
Matthew McHenry, Portland, Oregon, for defendant-appellant
Abel Ike Ruiz.
15192 UNITED STATES v. RUIZ
Stephen F. Peifer, Assistant United States Attorney, Portland,
Oregon, for plaintiff-appellee United States of America.
OPINION
GOULD, Circuit Judge:
Abel Ike Ruiz pled guilty to being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). Pursuant to
his conditional plea agreement, Ruiz challenges the district
court’s denial, after hearing, of his motion to suppress evi-
dence found in a trailer home. He argues that the district court
erred in determining that a resident of the home, Charles Bos-
well, had the authority to consent to the warrantless search of
a gun case found in the home, that the search of the gun case
cannot be justified under the exigent circumstances or single-
purpose container exceptions, and that all evidence obtained
as a result of the allegedly illegal search is inadmissible. We
hold that Boswell had apparent authority to consent to the
search of the gun case, and we affirm.
I
On February 20, 2003, three Portland police officers
accompanied Multnomah County parole officer David Upton
to a trailer home in Portland, Oregon. They were looking for
Bruce Lagrew, a parolee under Upton’s supervision, because
Upton had received anonymous tips that Lagrew possessed
firearms in violation of state and federal law and the condi-
tions of his parole.
Upton knocked on the door of the trailer and Boswell
answered. Upton identified himself, explained that Lagrew
had listed the trailer as his residence, and asked Boswell for
consent to enter the trailer and look for Lagrew. Boswell is
Lagrew’s uncle,1 and he told Upton that he had been living in
1
Boswell testified that Lagrew’s mother was his sister.
UNITED STATES v. RUIZ 15193
the trailer along with Lagrew’s mother for about a year. It is
unclear whether the other officers overheard this exchange,
but Officer Graham testified at the suppression hearing that at
the time of the search it was his understanding that Boswell
lived at the trailer. Although Boswell told Upton that Lagrew
was not in the trailer home and that Lagrew no longer lived
there, Boswell consented to Upton and the officers entering
the trailer to verify that Lagrew was not present.
Upon entering the trailer, Upton and the officers saw a
man, later identified as Ruiz, sleeping on a pull-out bed in the
living room. Upton and Boswell went to the back of the
trailer, while Officers Chamberlin, Graham, and Martin
stayed near the entrance. Officers Chamberlin and Martin
talked with Ruiz, who gave them his name and acknowledged
that he was a felon who was recently off parole. Officer
Chamberlin left the trailer to run background checks on Ruiz
and Boswell. While Officer Chamberlin was outside, Officer
Graham noticed a triangular, cloth case in plain view on a
shelf in the living room above the foot of Ruiz’s bed. The
case was at Officer Graham’s eye level, and he testified at the
suppression hearing that he immediately recognized it as a
gun case.
At about this time, Boswell and Upton returned to the liv-
ing room, where Ruiz was still present. Officer Graham asked
Boswell whether there was a gun in the case, and Boswell
responded that he did not know. Officer Graham then asked
Boswell if he could look in the case, and Boswell said “sure.”
Officer Graham testified that the case “felt heavy, like there
was a gun inside.” He found a .22 caliber semiautomatic
handgun inside the case. He took the case outside to make
sure the gun was unloaded.
Officer Chamberlin saw Officer Graham exiting the trailer
with the .22 caliber handgun after he himself had confirmed
that Ruiz was a felon. Once inside, Officer Chamberlin
noticed a leather jacket hanging near Ruiz. Officer Chamber-
15194 UNITED STATES v. RUIZ
lin was concerned for officer safety because Ruiz was a felon
and a gun had been found close to the bed where Ruiz was
lying. Officer Chamberlin asked Ruiz whether the jacket was
his and requested consent to search it. Ruiz replied “Yeah, it’s
my jacket. Go ahead.”
Officer Chamberlin searched the jacket, found a speed
loader containing ammunition for a .38 caliber revolver, and
then arrested Ruiz with the help of Officer Martin. Officer
Martin searched the bed on which Ruiz was lying and found
a .38 caliber handgun under the pillow. Officer Chamberlin
advised Ruiz of his rights, and Ruiz admitted that he owned
the .38 caliber handgun and the speed loader.
Ruiz was charged with knowingly and unlawfully possess-
ing the .22 caliber handgun and/or the .38 caliber handgun in
violation of 18 U.S.C. § 922(g)(1). He filed a motion to sup-
press the evidence against him, asserting that the searches vio-
lated his Fourth Amendment rights. The district court denied
the motion and Ruiz pled guilty to possessing both firearms,
but reserved a right to appeal the district court’s denial of his
suppression motion. The district court sentenced Ruiz to five
years of probation. This timely appeal followed.
II
A district court’s denial of a motion to suppress is reviewed
de novo, while its factual findings are reviewed for clear
error. United States v. Bynum, 362 F.3d 574, 578 (9th Cir.
2004). We may affirm a district court’s denial of a motion to
suppress on any basis supported in the record. United States
v. Albers, 136 F.3d 670, 672 (9th Cir. 1998). Whether a per-
son has actual or apparent authority to consent to a search is
a mixed question of law and fact reviewed de novo. United
States v. Kim, 105 F.3d 1579, 1581-82 (9th Cir. 1997).
III
[1] A third party’s consent to the search of another’s
belongings is valid if the consenting party has either actual or
UNITED STATES v. RUIZ 15195
apparent authority to give consent. United States v. Davis, 332
F.3d 1163, 1169 (9th Cir. 2003). “A third party has actual
authority to consent to a search of a container if the owner of
the container has expressly authorized the third party to give
consent or if the third party has mutual use of the container
and joint access or control over the container.” Id. (quoting
United States v. Fultz, 146 F.3d 1102, 1105 (9th Cir. 1998)).
There is no evidence in the record to show that Ruiz expressly
authorized Boswell to consent to the search, and the record is
similarly sparse as to whether Boswell had joint access to or
control over the container. Assuming that Boswell did not
have actual authority to consent to the search, we address
whether he had apparent authority to do so.
[2] We have established a three-part test to determine
whether a third party has apparent authority to consent to a
search:
First, did the searching officer believe some untrue
fact that was then used to assess the extent of the
consent-giver’s use of and access to or control over
the area searched? Second, was it under the circum-
stances objectively reasonable to believe that the fact
was true? Finally, assuming the truth of the reason-
ably believed but untrue fact, would the consent-
giver have had actual authority?
United States v. Dearing, 9 F.3d 1428, 1429-30 (9th Cir.
1993) (citations omitted). Apparent authority is measured by
an objective standard of reasonableness, and requires an
examination of the actual consent as well as the surrounding
circumstances. See id. at 1430 (“Even when the invitation [to
search] is accompanied by an explicit assertion that the person
lives there, the surrounding circumstances could conceivably
be such that a reasonable person would doubt its truth and not
act upon it without further inquiry.”) (quoting Illinois v.
Rodriguez, 497 U.S. 177, 188 (1990)) (alteration in original).
The apparent authority doctrine applies only to reasonable
15196 UNITED STATES v. RUIZ
mistakes of fact, not to mistakes of law. United States v.
Welch, 4 F.3d 761, 764-65 (9th Cir. 1993).
Our task under Dearing is to assess three questions: First,
did Officer Graham believe an untrue fact that Boswell had
authority over the container? Second, if so, was Officer Gra-
ham’s belief that Boswell had access to or control over the
container objectively reasonable under the circumstances?
Third, if it is assumed to be true that Boswell had access to
or control over the container, would that have given him
actual authority to consent to its search?
[3] It is evident from the record that Officer Graham
assumed that Boswell had at least joint control over the gun
case on the shelf of the trailer’s living room. When Officer
Graham decided to search the gun case, he knew: (1) Boswell
lived in the trailer, (2) Ruiz was sleeping in the trailer when
the officers arrived, (3) the gun case was on a shelf in the liv-
ing room, (4) Boswell said he did not know if a gun was in
the case, and (5) Boswell consented to a search of the case.
When Officer Graham inquired whether there was a gun in
the case, Boswell took it upon himself to respond to the ques-
tion. Officer Graham’s question to Boswell asking for consent
to search implies that he believed Boswell had access to or
control over the case. We therefore conclude that Officer Gra-
ham believed that Boswell had control of or authority over the
case, satisfying the first part of the Dearing test.
[4] Assuming that Officer Graham’s belief that Boswell
had control of or authority over the gun case was incorrect,
we next address the crucial issue whether Officer Graham’s
belief was objectively reasonable under the circumstances.
There were several factors that would lead a reasonable offi-
cer to conclude that Boswell had access to or control over the
gun case. Boswell was a long-term resident of the trailer and
the case was in plain view on a living room shelf. When asked
about the contents of the case, Boswell did not disclaim own-
ership of or access to the case, but instead disclaimed knowl-
UNITED STATES v. RUIZ 15197
edge regarding whether a gun was then in it. When Officer
Graham asked if he could search the case, Boswell again did
not disclaim ownership or control over it, and rather gave
explicit and unqualified consent to the search. While none of
these factors standing alone is dispositive, together they sup-
port the conclusion that Graham’s belief that Boswell had
authority over the container was reasonable.
Ruiz argues that Boswell’s response that he did not know
if a gun was in the case compels the contrary conclusion. Ruiz
contends that Officer Graham should have further questioned
Boswell’s authority to consent. But Boswell’s statement could
have had various meanings, and specifically could have meant
that Boswell had control over the case but did not know if a
gun was in it at the time. Or it might have meant that Boswell
was seeking to deter Officer Graham from a search that neces-
sarily would have followed an affirmative answer. We will
not second guess Officer Graham’s judgment that Boswell
had control over the case, because that assessment was “ob-
jectively reasonable” within the meaning of Dearing.
[5] Finally, if Boswell had access to or control over the
container, he would have had actual authority to consent to its
search. There was no suggestion that the consent was coerced,
and Ruiz does not challenge the district court’s determination
that Boswell consented to the search. If Boswell had authority
over the case, whether joint or sole, then he had authority to
consent to its search. We conclude that, based on the state-
ment and surrounding circumstances, Boswell had apparent
authority to consent to the search under the standards that we
derive from Dearing.
Our conclusion that Boswell had apparent authority to
authorize search of the case comports with the most funda-
mental justifications for the apparent authority doctrine. As
explained in a leading treatise: “[I]f it is accepted that the
making of searches by consent should not occupy second-
class status in the hierarchy of law enforcement practices,
15198 UNITED STATES v. RUIZ
then certainly the search should not be undone by reasonable
good-faith mistakes of fact concerning the authority of the
consenting party.” Wayne R. LaFave, Search and Seizure
§ 8.3(g) at 173 (4th ed. 2004) (emphasis in original). See
United States v. Jenkins, 92 F.3d 430, 438 (6th Cir. 1996)
(holding that a driver of a tractor trailer had apparent authority
to consent to a search of a trailer, even though he stated “It’s
not up to me; I don’t own the stuff” before signing a consent
form, when the surrounding circumstances suggested that he
had such authority).
[6] We do not depart from the well-established rule that
authority to consent to a search of property does not necessar-
ily translate into authority to search specific containers. See
Welch, 4 F.3d at 764 (“The shared control of ‘host’ property
does not serve to forfeit the expectation of privacy in contain-
ers within that property.”). However, in the cases in which we
have held that there was not actual or apparent authority for
a third party to consent to a search we have found that there
was some fact that made it unreasonable for the officer to
believe that the third party had authority over the container.
See, e.g., id. at 764-65 (holding that it was unreasonable to
believe that woman’s boyfriend had authority to consent to
the search of her purse, even though he had authority to con-
sent to the search of the car in which it was kept). Here, Bos-
well’s statement that he did not know if a gun was in the case
was not enough to put a reasonable officer on notice that Bos-
well lacked authority to consent to the search under the total
circumstances, including that Boswell was a long-term tenant
of the trailer, that the gun case was visible on a shelf in the
living room, and that Boswell answered questions about the
case without disclaiming control over it.
[7] We hold that Officer Graham’s factual beliefs were
objectively reasonable, and that Boswell had apparent author-
UNITED STATES v. RUIZ 15199
ity to consent to the search of Ruiz’s gun case. The district
court did not err in denying the motion to suppress.2
AFFIRMED.
2
Because we affirm on the ground that apparent authority supported the
consent of Boswell to search, we need not reach the issues whether exi-
gent circumstances justified the challenged search, or whether the single
purpose container exception permitted the search.