United States v. Shawn Ford

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0258n.06
Case Nos. 19-4175/4176
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
May 27, 2021
) DEBORAH S. HUNT, Clerk
)
UNITED STATES OF AMERICA,
)
) ON APPEAL FROM THE
Plaintiff-Appellee,
) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
v.
) DISTRICT OF OHIO
)
CHARLES ROGERS (19-4175); SHAWN FORD
)
(19-4176),
) OPINION
)
Defendants-Appellants.
)
BEFORE: CLAY, McKEAGUE, and MURPHY, Circuit Judges.
McKEAGUE, Circuit Judge. A string of robberies took place in Cleveland, Ohio, in
March 2018. After the final failed attempt, Charles Rogers and Shawn Ford were arrested and
later convicted for those robberies under the Hobbs Act in violation of 18 U.S.C. § 1951(a) and
for weapons offenses in violation of 18 U.S.C. § 924(c). They jointly appeal the denial of their
motion to suppress evidence recovered from a Chevrolet Equinox Rogers was driving the night of
their arrest. Individually, Ford appeals the denial of his motion to suppress evidence recovered
from his residence and Rogers raises an insufficiency of evidence claim.
Finding no merit in their arguments, we AFFIRM.
Case Nos. 19-4175/4176, United States v. Rogers, et al.
I
A. MetroPCS Robberies
In late March 2018, a series of four robberies took place within a week at MetroPCS stores
in Cleveland, Ohio. Each robbery had the same pattern: two men with masks, guns, and blue latex
gloves would enter the store, demand money, and then drive away. However, the fourth and final
robbery did not go as planned. An off-duty police officer happened to be inside the store at the
time and chased the robbers after they ran out of the store. Instead of stopping, the robbers shot at
the police officer, who fired back and hit their vehicle.
B. Seizure of Rogers and Ford
Shortly after the last robbery occurred, Officer Steven Schmitz overheard on his radio that
a nearby MetroPCS store had been robbed and that an off-duty police officer exchanged gunfire
with the robbers. The dispatcher stated that the robbers had driven off in a gold or tan mid-sized
SUV “resembling a Chevy Equinox” and that there were three people in the vehicle. Then, about
20 minutes after the last robbery occurred and two miles away from the scene, Schmitz passed a
gold SUV, a Chevrolet Equinox, matching the description of the vehicle. He also thought he saw
bullet holes on the driver-side door. The Equinox turned onto Fuller Avenue, and when Schmitz
followed, he saw the SUV parked on the side of the road and two men and one woman walking
away from it.
Schmitz drove up to the individuals, informed them that the police were searching for a
vehicle that matched the Equinox, and asked them to place their hands on the hood of his car. The
individuals were later identified as Charles Rogers, Shawn Ford, and Gloria Rosario. Other
officers quickly arrived on the scene, and Schmitz began speaking to the first man, who said he
didn’t know his social security number and that his name was “Robert” Rogers. Schmitz checked
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with dispatch, who confirmed that “Robert” Rogers had an outstanding arrest warrant. Rogers told
Schmitz that he had been driving the vehicle but also that he was “high on Molly,” so officers
placed Rogers in the back of a patrol car while the investigation continued. After further
questioning regarding his age and identity, “Robert” Rogers revealed that his real name was
Charles Rogers.
Next, other officers began speaking with Ford and Rosario, who gave information that
conflicted with Schmitz’s observations. Ford told one of the officers that he had just come out of
his house, that he only knew Rogers as “Chucky,” that he didn’t know the name of the woman
with them, and that he had just been released from prison for robbery. Rosario claimed that the
Equinox was hers, even though it was registered to her sister, and that it had been parked on the
street and not recently driven. Dispatch confirmed that the Equinox was registered to Savannah
Young, who did not have a valid license, and not Rosario. Shortly thereafter, officers determined
Rosario had outstanding arrest warrants and removed her from the scene.
The officers contacted dispatch, who told them that the two suspects in the robbery were
wearing all black clothing. Officers noticed that despite the cold and rainy weather, Ford and
Rogers were shirtless but wearing jackets. Around this time, they also noticed bullet marks on the
side of the Equinox and latex gloves in plain view. At this point, the officers still believed that
“Robert” Rogers was on the scene and had an outstanding warrant, and knew they were receiving
conflicting information from Rogers and Ford. The officers continued their investigation while
waiting for the off-duty police officer who shot at the suspected robbers to arrive at the scene,
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which occurred about 20 minutes after the stop initially began. He was unable to identify either
Rogers or Ford as the robbers.
At this point, having realized that “Robert” Rogers was Charles Rogers, who did not have
a warrant, the police decided to release Rogers and Ford because they had no arrest warrants and
could not be identified as the robbers. However, Rogers admitted to driving the Equinox without
a license, and so officers decided to write him a citation. Additionally, the officers decided to tow
the vehicle because the registered owner was not present, the registered owner did not have a valid
driver’s license, Rosario had no proof of ownership and had been arrested for outstanding warrants,
and Rogers and Ford both did not have valid driver’s licenses. Pursuant to the Cleveland Police
Department’s towing policy, officers began to inventory the contents of the vehicle before towing
it, which took place while other officers were writing Rogers’s citation. While conducting the
inventory search, officers found latex gloves, a spent shell casing, and suspected narcotics. This
occurred about 35 minutes after the initial stop of Rogers and Ford. Based on the suspected
narcotics, the officers stopped the inventory search to wait for the crime scene unit to arrive and
arrested Rogers and Ford.
C. Search of Ford Residence
Another officer, Lisette Gonzalez, was involved in the MetroPCS robbery investigation
and requested recordings of calls made by Ford from jail after his arrest. On April 3, 2018, Ford
called one of his friends known as “Cellbug” and asked him to take some clothing out of Ford’s
house. Later in the call, Ford told him to “take everything” out of the house. Based on these calls,
the evidence recovered from the Equinox, and other evidence tying Ford to the robberies, officers
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obtained a search warrant for Ford’s residence on April 19, 2018. The residence was two stories,
with one unit per story, and the warrant was for the upstairs unit only.
When officers arrived to search the upstairs unit, they spoke to Ford’s stepfather. He told
the officers that his family owned the upstairs and downstairs unit and lived in both units, and that
Ford sometimes stayed in the downstairs unit. Gonzalez indicated to Ford’s stepfather that she
would obtain a warrant for the downstairs unit, but he agreed to contact Marcella Berry, Ford’s
grandmother, who had keys to the downstairs unit. Once Berry arrived, she confirmed she kept
property in the house, had “24-hour access,” and gave consent to the officers to search the
downstairs. Berry had keys to doors and closets in the unit, which she unlocked for the officers.
Officers seized a firearm that Berry said was hers, as well as ammunition, clothing, and shoes
consistent with the ones used in the robberies.
D. Denial of Motions to Suppress and Conviction
On June 5, 2018, Rogers and Ford were indicted under 18 U.S.C. § 1951(a) for a total of
five counts of conspiracy to commit Hobbs Act robbery and the robberies themselves, as well as
three counts of using, carrying, brandishing and/or discharging a firearm during and in relation to
a crime of violence in violation of 18 U.S.C. § 924(c).
Prior to trial, Rogers and Ford moved to suppress the evidence recovered from the Equinox,
and Ford also moved to suppress the evidence recovered from the search of his residence. The
district court denied both motions. The case proceeded to trial, which lasted six days, and the jury
convicted Rogers and Ford on all counts on July 1, 2019.
This appeal followed.
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II
A. Motion to Suppress Evidence from Arrest
Rogers’s and Ford’s primary claim on appeal concerns the denial of their motion to
suppress evidence from their March 27, 2018 arrest. The Fourth Amendment protects individuals
from “unreasonable searches and seizures.” U.S. Const. amend. IV. “On appeal from the denial
of a motion to suppress, we review the district court’s factual findings for clear error and its legal
conclusions de novo.” United States v. Sweeney, 891 F.3d 232, 235 (6th Cir. 2018). We review
all evidence “in the light most favorable to the government.” United States v. Ickes, 922 F.3d 708,
710 (6th Cir. 2019).
Rogers and Ford make four challenges to the events of March 27: first, they argue that the
police did not have reasonable suspicion to initially stop them; second, that the police arrested
them without probable cause when they handcuffed them and placed them in the back of a police
car; third, that the police were dilatory in their investigation and detained them for too long after
the off-duty police officer failed to identify them as the robbers; and fourth, that the police
conducted an invalid inventory search of the Equinox which revealed suspected narcotics, latex
gloves, and other evidence related to the robberies. We analyze each challenge in turn.
1. Initial Investigatory Stop
Rogers and Ford challenge their initial detention, arguing there was no reasonable
suspicion for Schmitz to stop them. An officer may conduct an investigatory stop with
“reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal
activity.” United States v. Jones, 673 F.3d 497, 502 (6th Cir. 2012) (quoting United States v.
Place, 462 U.S. 696, 702 (1983)). This is known as a Terry stop. See Terry v. Ohio, 392 U.S. 1,
20–21 (1968). The reasonable suspicion standard requires “‘considerably less than proof of
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wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is necessary for
probable cause.” Navarette v. California, 572 U.S. 393, 397 (2014) (quoting United States v.
Sokolow, 490 U.S. 1, 7 (1989)). Based on the “totality of the circumstances of each case” officers
must have “a particularized and objective basis for suspecting legal wrongdoing.” United States
v. Herndon, 501 F.3d 683, 691 (6th Cir. 2007) (quoting United States v. Arvizu, 534 U.S. 266, 273
(2002)).
Here, there was more than enough proof for reasonable suspicion for Schmitz to stop and
question Rogers and Ford. Schmitz knew that a MetroPCS store had been robbed, that an off-duty
police officer exchanged gunfire with the robbers, and that the getaway vehicle was a gold or tan
mid-size SUV “resembling a Chevy Equinox.” About 20 minutes later and only a few miles from
the crime scene, Schmitz passed an Equinox that matched that description with a visible bullet
hole. Schmitz’s decision to stop Rogers and Ford and begin questioning them was proper. See,
e.g., United States v. Hurst, 228 F.3d 751, 757 (6th Cir. 2000) (upholding a Terry stop when an
officer observed a vehicle matching the description of a getaway vehicle close in time and distance
to the robbery); United States v. Craig, 198 F. App’x 459, 463 (6th Cir. 2006) (same).
2. Alleged Arrest
Next, Rogers and Ford argue that by handcuffing them and placing them in police cars, the
police arrested them without probable cause. But these actions did not rise to the level of an arrest
because they did not exceed what is permissible under Terry. Even when conducting Terry stops,
officers are permitted to take reasonable precautions, especially in situations involving suspected
violent offenders. For example, in United States v. Marxen, police knew that the defendant’s
vehicle matched the description of a getaway vehicle in a robbery eleven days earlier and boxed
in his car with multiple police cars, even though the defendant didn’t match the description of the
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robber. 410 F.3d 326, 329–30 (6th Cir. 2005). Immediately once the defendant’s vehicle was
stopped, the officers removed him from his car and placed him in handcuffs, and we held that this
was a permissible detention under Terry. Id. at 332 (holding that “officers may take reasonable
precautions for their own protection” when conducting Terry stops and that “[s]uch reasonable
precautions include drawing and displaying weapons, the immediate removal of the occupants
from the subject vehicle, and placing the occupants in handcuffs”); see also Houston v. Clark Cnty.
Sheriff Deputy John Does 1-5, 174 F.3d 809, 814–15 (6th Cir. 1999) (finding that only reasonable
suspicion was required when officers detained defendants at gunpoint, handcuffed them, and
placed them in patrol cars).
Here, the Equinox matched the description of the robbers’ getaway vehicle, the robbers
had exchanged gunfire with an off-duty police officer, and Rogers and Ford were giving
conflicting and false answers to questions by officers. The officers were able to take reasonable
precautions for their safety, which included handcuffing Rogers and Ford and placing them in the
back of a police car, and those precautions did not elevate the stop to an arrest.
3. Investigation and Detention
Next, Ford and Rogers argue that the officers failed to diligently investigate them before
the off-duty police officer arrived and that they impermissibly extended the stop after the off-duty
police officer failed to identify them as the robbers. Again, we disagree. While conducting a Terry
stop, the police must have “diligently pursued a means of investigation that was likely to confirm
or dispel their suspicions quickly, during which time it was necessary to detain the defendant.”
United States v. Sharpe, 470 U.S. 675, 686 (1985).
And that is what the officers did here. After stopping Rogers and Ford, the police engaged
in standard investigative practices, including asking Rogers and Ford for their identification and
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where they were coming from, to which they got conflicting and false responses. After over
10 minutes of questioning, the officers knew that the Equinox matched the description of the car
used in an attempted armed robbery and had a bullet hole in the door, that there were blue latex
gloves in the car, that the three individuals were giving conflicting and false information about
their identities and the Equinox’s location, that both men were shirtless and wearing jackets on a
cold and rainy night, and that Rogers had given a false name, apparently had an outstanding
warrant, admitted he was high, and had driven the Equinox without a license. At this point, it was
reasonable for the officers to continue their investigation by holding Rogers and Ford until the off-
duty police officer arrived, which occurred about 20 minutes after the stop began.
Rogers and Ford claim that as soon as the off-duty police officer failed to identify them,
they should have been released. But the police did not violate the Fourth Amendment in holding
them for 10 or 15 minutes longer to confirm they did not have warrants and begin writing Rogers
a traffic citation. Rogers and Ford correctly note that after the police officer failed to identify them
and the officers confirmed that neither of them had arrest warrants, they decided to release them,
which was about 30 minutes after the stop began. But because Rogers had been driving without a
license, the officers decided to write him a citation and tow the vehicle. While one officer was
writing Rogers’s citation, other officers began the inventory search. These activities justified
extending the duration of the stop, as the purpose had shifted from investigating whether they had
robbed the MetroPCS store to writing Rogers a traffic citation and conducting the inventory search.
Indeed, one officer was still in the process of writing the citation when the suspected narcotics
were found.
We have approved brief detentions in similar cases. See, e.g., United States v. Ellis,
497 F.3d 606, 612–14 (6th Cir. 2007) (finding that an additional 8 minutes of detention after a
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22-minute traffic stop was not unreasonable when the occupants of a car gave dishonest and
conflicting answers to officers); United States v. Perez, 440 F.3d 363, 372–73 (6th Cir. 2006)
(upholding a 90-minute detention when officers were continuously investigating whether
defendants were involved in a drug transaction).
And cases holding a detention unreasonable support the conclusion that the situation here
was different. For example, in United States v. Davis, 430 F.3d 345 (6th Cir. 2005), officers held
a driver for 30 minutes while waiting for a drug sniffing dog, which was a “minimally intrusive”
way of investigating whether Davis’s car contained narcotics. Id. at 355. Once that dog failed to
detect drugs, the officers held the defendant for another hour awaiting a second dog, which we
held was an unreasonable detention because after the first dog sniff, “the officers’ suspicions that
Davis was in possession of narcotics were dispelled.” Id. at 356.
Here, the police were permitted to detain Rogers and Ford while waiting for the off-duty
police officer to arrive, and the key difference between the facts here and Davis is that once the
off-duty police officer failed to identify Rogers and Ford as the robbers, the purpose of the stop
transitioned to writing Rogers a traffic citation and conducting an inventory search of the vehicle
prior to towing it. Rogers and Ford were not being detained or investigated for robbery at that
point, and their brief detention while the traffic citation was being written and the police began
their inventory search was supported by our prior cases and not unreasonable.
4. Inventory Search of Equinox
Finally, Rogers and Ford challenge the inventory search of the Equinox itself, arguing that
the officers failed to comply with their towing policy.1 But “inventory searches are now a well-
1
The government argues that Rogers and Ford lack standing to make this challenge because they cannot show a
legitimate expectation of privacy in the vehicle. See Rakas v. Illinois, 439 U.S. 128, 138–48 (1978). This is not
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defined exception to the warrant requirement of the Fourth Amendment.” Colorado v. Bertine,
479 U.S. 367, 371 (1987). So long as the searches follow an established routine, they are upheld.
See United States v. Lumpkin, 159 F.3d 983, 987 (6th Cir. 1998); see also Florida v. Wells,
495 U.S. 1, 4 (1990). And here, the police complied with their policy, which involved filling out
a tow form and searching specific areas of the vehicle and not others. The officers also had
authority to impound the vehicle under local Cleveland ordinances, which permit towing a vehicle
when it has been operated by someone without a license, and we have held that “[a] vehicle is
lawfully seized and, thus, subject to an inventory search if it is lawfully impounded.” United States
v. Snoddy, 976 F.3d 630, 634 (6th Cir. 2020).
Rogers’s and Ford’s main argument in opposition is that the officers did not strictly follow
all components of their towing policy. In particular, the “safekeeping” portion of the policy states
that “officers shall make a good faith attempt to contact the owner” before towing the vehicle “so
the owner may move the vehicle.” However, the officers on the scene already knew the owner did
not have a valid driver’s license, and there was no one else on the scene who could drive away the
vehicle. Perhaps the officers could have contacted the owner to see if there was someone who
could drive the vehicle, but they were not required to do so under their policy.
Additionally, Ford argues that the “Vehicle/Tow Supplement Form” was not completed
because it failed to note that the reason of the tow was safekeeping, that it did not state there was
notice given to the owner, and that it did not fully document all property in the vehicle. But Ford’s
jurisdictional standing, but instead the ability to show a Fourth Amendment violation. See United States v. Smith, 263
F.3d 571, 581–82 (6th Cir. 2001).
Here, we need not answer the standing question. In cases where we find the search would be constitutional even if
the defendants had standing, we may simply affirm on that basis and avoid ruling on standing. See United States v.
Calhoun, 834 F. App’x 128, 131 (6th Cir. 2020). And because we conclude that the inventory search arguments made
Rogers and Ford are without merit, we forgo a standing analysis.
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arguments are contradicted by the officer’s testimony. The search of the Equinox began as an
inventory search, but after the suspected narcotics were found, the inventory search was halted.
Because there were suspected drugs in the vehicle, a different, more thorough property search
would be conducted, and the officers decided to arrest Rogers and Ford. Therefore, the reason for
the tow was listed as “arrest and process,” not “safekeeping,” and the form did not fully list all
property within the Equinox because the more complete search was to take place later by the crime
scene unit. And, even if there were minor violations of the towing policy, they would not justify
suppression here. See, e.g., United States v. Hockenberry, 730 F.3d 645, 660–61 (6th Cir. 2013)
(upholding an inventory search even though “it appear[ed] that the officers failed to strictly follow
all of the requirements of the Youngstown Police Department’s inventory search policy” because
“the law allows for some flexibility and practical judgment in how such searches are carried out”);
United States v. Mundy, 621 F.3d 283, 287 (3d Cir. 2010) (noting that “failure to follow through
with standard procedures does not necessarily render the search unreasonable”). The officers had
authority to tow the vehicle and did not violate their policy by doing so, and so Rogers and Ford
cannot show a violation of the inventory search exception to the warrant requirement.
B. Search of Ford’s Residence
Ford also appeals the denial of his motion to suppress evidence recovered from his
residence on April 19, 2018. The residence was a two-story home, and Ford has one challenge for
each story, arguing that the upstairs search was based on stale information and that the police did
not get proper consent from his grandmother to conduct the downstairs search. We address each
challenge in turn.
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1. Staleness
“The standard of review for determining the sufficiency of the affidavit ‘is whether the
magistrate had a substantial basis for finding that the affidavit established probable cause to believe
that the evidence would be found at the place cited.’” United States v. Rodriguez-Suazo, 346 F.3d
637, 643 (6th Cir. 2003) (quoting United States v. Davidson, 936 F.3d 856, 859 (6th Cir. 1991)).
When the district court denies a motion to suppress, this Court reviews all evidence in a light most
favorable to the government. United States v. Galloway, 316 F.3d 624, 628 (6th Cir. 2003). Since
the issuing judge’s decision is entitled to great deference, “[t]his circuit has long held that an
issuing magistrate’s discretion should only be reversed if it was arbitrarily exercised.” United
States v. Terry, 522 F.3d 645, 648 (6th Cir. 2008) (quoting United States v. Allen, 211 F.3d 970,
973 (6th Cir. 2000) (en banc)).
While Ford was being held in jail after his arrest, he made phone calls to various
individuals. On April 2, 2018, Ford told a man named “Cellbug” to “take everything” out of Ford’s
residence, and on April 6, 2018, Ford spoke to his sister who told him that she gave “Cellbug”
“everything.” Officer Lisette Gonzalez obtained and listened to these phone calls, among others,
on April 16, 2018. Ford claims that the warrant for the upstairs unit was based on stale evidence
because the search was not conducted until 17 days after Ford’s phone call suggesting he was
planning on disposing of incriminating evidence. He claims that because he told “Cellbug” to
dispose of “everything,” there was no reason to expect anything to be found 17 days later.
A warrant does not contain stale information if the affidavit still contains facts that indicate
“a ‘fair probability’ that evidence of a crime will be located on the premises of the proposed
search.” United States v. Jenkins, 396 F.3d 751, 761 (6th Cir. 2005) (quoting United States v.
Bowling, 900 F.2d 926, 930 (6th Cir. 1990)). “The staleness inquiry is tailored to the specific
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circumstances in each case.” United States v. Abboud, 438 F.3d 554, 572 (6th Cir. 2006). Relevant
factors to consider in evaluating this question include: the amount of time between the events in
the affidavit and the application for the warrant; the nature of the crime; whether the criminal is
nomadic or entrenched; whether the items to be seized are perishable or likely to be kept; and
whether the location to be searched was merely a convenient location or a secure operational base.
Id. at 572–73.
Here, we see no error in the district court’s conclusion that the affidavit was not stale. The
crimes took place over a one-week period, involved firearms, and followed the same general
pattern, suggesting that they involved planning and coordination between the two robbers. The
place to be searched was Ford’s residence, increasing the likelihood that evidence related to the
crime would be found there as there was no indication Ford “move[d] frequently with the hope of
avoiding detection or capture.” See United States v. Goodwin, 552 F. App’x 541, 545 (6th Cir.
2014). The items in the warrant were clothing and firearms, which are durable and nonperishable
(compared to evidence like drugs).
Furthermore, the affidavit set out detailed facts describing the robberies, the getaway
vehicle, and the evidence recovered from the search of the Equinox. It noted that Ford received
mail at the upstairs unit of the home and asked his friend “Cellbug” to get rid of his clothing there.
That information, along with Officer Gonzalez’s statement that robbers frequently keep robbery
proceeds, firearms, and ammunition in their homes, was sufficient to indicate a “fair probability”
that evidence of the robbery would be found in the upstairs unit. See Jenkins, 396 F.3d at 761.
Even if weeks had passed since the phone call with “Cellbug,” the other information in the affidavit
was sufficient to uphold the warrant. See Abboud, 438 F.3d at 572 (“[T]he length of time between
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the events listed in the affidavit and the application for the warrant, while clearly salient, is not
controlling.” (quoting United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998))).
Ford’s arguments to the contrary are unavailing. Ford claims that because the affidavit did
not mention the April 6 phone call where Ford’s sister told Ford that she had given Cellbug
“everything,” it is stale. But an affidavit must be “judged on the adequacy of what it does contain,
not on what it lacks, or on what a critic might say should have been added.” Allen, 211 F.3d at
975 (en banc). Even if Ford’s sister said that she had given Cellbug “everything,” the contents of
the affidavit together more than support the magistrate’s conclusion that there was a substantial
basis to conclude that there was probable cause that evidence of criminal activity would be found
at Ford’s residence.
2. Consent
The police did not have a warrant for the downstairs unit, but instead obtained consent to
search the unit from Ford’s grandmother, Marcella Berry. Ford argues that Berry did not have
authority to consent to that search. “A search pursuant to third-party consent will not violate the
Fourth Amendment so long as the party granting consent had either actual authority or apparent
authority to do so.” United States v. Kimber, 395 F. App’x 237, 243 (6th Cir. 2010) (per curiam).
Actual authority exists if the third party “possesse[s] common authority over or [has an]other
sufficient relationship to the premises . . . sought to be inspected.” United States v. Matlock,
415 U.S. 164, 171 (1974); accord United States v. Moore, 917 F.2d 215, 223 (6th Cir. 1990). One
sufficient relationship is the “mutual use of the property by persons generally having joint access
or control for most purposes,” because a person who shares such access has “assumed the risk that
one of their number might permit the common area to be searched.” Matlock, 415 U.S. at 171 n.7.
Conversely, apparent authority exists if the facts suggest that an officer “of reasonable caution”
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would believe that there was “consent [from a] party [that] had authority over the premises.”
Kimber, 395 F. App’x at 243 (quoting Illinois v. Rodriguez, 497 U.S. 177, 188 (1990)). “A search
consented to by a third party without actual authority over the premises is nonetheless valid if the
officers reasonably could conclude from the facts available that the third party had authority to
consent to the search.” United States v. Gillis, 358 F.3d 386, 390–91 (6th Cir. 2004).
This Court has recognized that “‘the ultimate question of whether there was consent’ is a
legal conclusion which we review de novo, though underlying factual findings and credibility
determinations are, as always, entitled to deference.” Kimber, 395 F. App’x at 243 (quoting United
States v. Moon, 513 F.3d 527, 536–37 (6th Cir. 2008)). On a suppression motion, “[i]t is the
government’s burden, by a preponderance of the evidence, to show through clear and positive
testimony that . . . valid and voluntary consent to the search was obtained.” United States v.
Davis, 283 F. App’x 370, 373 (6th Cir. 2008) (quoting United States v. Worley, 193 F.3d 380, 385
(6th Cir. 1999)).
Whether Berry had actual authority to consent to the search is a close question, but we need
not answer it because Berry had apparent authority. If an officer reasonably believes that a third
party had “joint access or control for most purposes,” that consent is valid under apparent authority
even if it turns out as a factual matter that the party did not have that type of joint access or control.
United States v. Penney, 576 F.3d 297, 307 (6th Cir. 2009) (quoting Rodriguez, 497 U.S. at 181).
And here, the facts known to the officers at the time of the search were sufficient for an officer of
reasonable caution to conclude that Berry had that level of access or control.
After the officers began the search of the upstairs unit, Officer Gonzalez spoke to a resident
of the building named Steward, who said he was Ford’s stepfather. Steward said that Ford lived
in the downstairs unit and that Ford’s grandmother, Berry, also lived in the downstairs unit with
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him and had a key. Steward also explained that the downstairs unit was “basically her house” and
that Berry would “usually be down there,” but because Steward’s sister-in-law was in a “situation,”
Berry was taking care of his sister-in-law’s children in another home. The other members of the
family called Berry to have her come over and let the officers into the unit. Once Berry arrived,
Gonzalez began asking her about her relationship to the downstairs unit. When officers asked if
Berry lived in the unit, she said “yes and no,” but told officers that her personal property was in
the home, that she had keys to the home, and that she had “access in and out.” She also confirmed
that she had recently changed the locks on the doors and that she went to the unit “every now and
again.”
These facts were sufficient for a reasonable officer to conclude that Berry had “joint access
or control for most purposes” and so could consent to the search.2 In analyzing whether a third
party has apparent authority to consent to a search, “no one fact . . . is determinative.” United
States v. Hudson, 405 F.3d 425, 442 (6th Cir. 2005). We have looked to factors such as whether
the third party has keys, whether the third party has more than “limited” access to the home,
whether the third party maintains property in the home, whether the third party lives in the home,
whether the third party accesses the home when the primary owner is not present, and whose name
appears on the lease. Penney, 576 F.3d at 307–08; Gillis, 358 F.3d at 390–91; United States v.
Jenkins, 92 F.3d 430, 436–37 (6th Cir. 1996); see also United States v. Ayoub, 498 F.3d 532, 539
2
Information found during the course of a search can help confirm a good-faith belief in apparent authority. Penney,
576 F.3d at 307–08 (“Once at the residence with Bowman, officers observed further evidence that she was not a mere
overnight guest at [the defendant’s] house.”). Here, as Berry was escorting the officers, she confirmed she regularly
came over to water her plants, discussed the substantial amount of personal property she kept in the home, and
confirmed that “everything” in certain locked closets was hers, including a firearm. These statements, along with the
clear familiarity with the home that Berry displayed, helped cure the ambiguity (if any) that existed regarding her
access and control of the home.
17
Case Nos. 19-4175/4176, United States v. Rogers, et al.
(6th Cir. 2007) (noting that “mere handymen, landlords, hotel staff, or former tenants” would “lack
common authority over [a] residence” when they only have keys and limited access).
While the district court cited United States v. Hudson, 405 F.3d 425, 442 (6th Cir. 2005),
to suggest that the inquiry is limited to whether the “police could reasonably conclude that the
party consenting to the search lived at the premises,” our cases confirm the inquiry is broader than
that. See, e.g., Ayoub, 498 F.3d at 539 (finding apparent authority even though the third party did
not live at the home because she “had actual control of the house . . . and had a key” to the
residence). Indeed, when first articulating the doctrine of apparent authority, the Supreme Court
discussed a past case and recognized that circumstances could exist that would allow police to
believe that a hotel clerk “had general access to or control” over a person’s hotel room sufficient
to provide apparent authority to officers. Rodriguez, 497 U.S. at 187–88 (finding that in that
specific case, because the police “knew that the room was rented and exclusively occupied by the
defendant,” apparent authority could not be found). Therefore, if a hotel clerk could conceivably
have authority over a hotel room in certain circumstances, then living at the residence cannot be a
requirement. Instead, the key question is whether, after considering all facts known to the
officers, they could reasonably conclude that a third party has “common authority” over the
residence—even if later discovered facts show that the third party lacked that authority. Gillis,
358 F.3d at 390–91.
While we have not confronted a situation exactly like this one before, we have found
apparent authority in similar situations. See, e.g., Ayoub, 498 F.3d at 539 (finding apparent
authority even though the third party did not live at the home because she “had actual control of
the house . . . and had a key” to the residence); Penney, 576 F.3d at 308 (finding that the defendant’s
girlfriend had apparent authority to consent to a search of his house, even though she didn’t live
18
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there, because she had property inside the home, took care of things around the home, and had
access to the house); Gillis, 358 F.3d at 390-91 (finding the defendant’s girlfriend had apparent
authority even though she no longer lived at the residence and did not have keys because she
maintained access and visited the home from time to time); cf. United States v. Tatman, 397
F. App’x 152, 167 (6th Cir. 2010) (finding no apparent authority where the police knew that the
third party “did not live in the house, had no right to be in the house, and had no authority to let”
the police into the house, as well as knowledge that the third party “no longer had any possessions
in the house”). These cases illustrate the contextual, fact-specific inquiry that aims to determine
whether a third party has access to the residence sufficient for police to conclude that they could
validly consent to a search.
And here, the police could reasonably make that conclusion about Berry. When asked
directly whether she lived in the unit, Berry was equivocal, telling officers “yes and no.” But the
police had heard multiple times from Steward that the unit was “her house” and Berry went on to
confirm that she had keys to the unit, recently changed the locks on the doors, accessed the home
to water her plants, and kept personal property in the home. Further, we have recognized that
“cohabitation need not be uninterrupted to support a reasonable belief in common authority.”
Penney, 576 F.3d at 308. These factors, taken together, suggested that Berry had more than
“limited access” to the residence and instead possessed the “common authority” sufficient for an
officer of reasonable caution to believe she could consent to the search. See Gillis, 358 F.3d at
390.
C. Insufficiency of Evidence
Finally, Rogers appeals the denial of his motion for acquittal, arguing that the government
presented insufficient evidence of his identity at trial. Proving insufficiency of evidence is a high
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bar, as Rogers bears the burden of showing that no “rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v. Maya, 966 F.3d 493,
498 (6th Cir. 2020) (quoting Musacchio v. United States, 136 S. Ct. 709, 715 (2016)). That is,
if “any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt,” the verdict must be upheld. See United States v. Paulus, 894 F.3d 267, 274
(6th Cir. 2018) (quoting United States v. Persaud, 866 F.3d 371, 380 (6th Cir. 2017)).
Rogers cannot meet his burden, as the evidence presented against Rogers at trial was
substantial. It included GPS tracking information showing Rogers at the scene of the first robbery,
social media videos showing Rogers wearing a distinctive sweatshirt that a witness saw one of the
robbers wearing, testimony from Rosario indicating that she lent the Equinox to Rogers and that
he came back a few hours later with a lot of cash in small bills, and testimony from Rosario stating
that the pants and shoes one of the robbers was wearing in a surveillance video belonged to Rogers.
This, along with the evidence recovered from the Equinox and Rosario’s testimony that the
Equinox didn’t have bullet holes, latex gloves, or shell casings inside of it when she lent it to
Rogers, are more than sufficient to uphold Rogers’s conviction.
Rogers’s two arguments against this conclusion are that the government failed to present
any direct eyewitnesses that could identify him and that his DNA was not found on the evidence
recovered from the Equinox or at the stores. We note that “this Court has never held that
eyewitness evidence is needed to secure a conviction,” and requiring eyewitnesses for masked
criminals would be a difficult task indeed. See United States v. Parks, 278 F. App’x 527, 536 (6th
Cir. 2008). Rogers simply fails to grapple with the substantial circumstantial evidence against
him. For example, Rogers’s DNA was found on the sweatshirt that matched the sweatshirt one of
20
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the robbers was wearing. In sum, Rogers has failed to show that no rational trier of fact could have
found him guilty based on the evidence presented at trial.
III
Accordingly, we AFFIRM the judgment of the district court.
21
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CLAY, Circuit Judge, concurring in part and dissenting in part. The majority correctly
affirms the district court’s denial of Defendants’ motions to suppress evidence obtained from a
search of a Chevrolet Equinox the night of their arrest and Defendant Charles Rogers’ challenge
to the sufficiency of the evidence supporting his convictions. Defendant Shawn Ford’s claim that
the search warrant for the upstairs unit in his home was based on stale information was also
properly denied. I write separately to disagree with the majority’s conclusion that Ford’s
grandmother, who told police that she did not reside in his downstairs apartment, had apparent
authority to authorize its search.
BACKGROUND
Police executed a search warrant at Ford’s home on April 19, 2018. The warrant authorized
the search of the “upstairs” unit of a “two-story, two-family residential dwelling . . . .” (Search
Warrant, R. 36-2, Page ID #298.)
When the police arrived at the home, they were met by a man named Broderick Steward
who claimed that he and his wife owned the entire building. Before officers received any consent
to search the downstairs apartment, however, they learned from county records that a man named
Michael Reeder was the owner of the house. When the police arrived, the downstairs apartment
was locked. Steward explained to officers that his mother-in-law, Marcella Berry, had been staying
in the downstairs apartment, but that she was currently staying at another home to watch her
grandchildren due to his wife’s sister’s incarceration. When asked by an officer about who lived
in the household, Steward listed a number of individuals, but did not mention Berry, stating “that’s
it.” (Bauhof Body Camera Recording, R. 143, Ex. D1, 05:44–05:52.) Steward further explained
that he was using Berry’s absence as an opportunity to remodel and that the downstairs apartment
was kept locked.
22
Case Nos. 19-4175/4176, United States v. Rogers, et al.
Detective Lisette Gonzalez, the primary investigator of the robberies, informed Steward
that police had a search warrant for the upstairs unit. She further explained that police could obtain
a search warrant for the downstairs unit. Steward interjected and explained that he could call his
wife to have the downstairs unit unlocked and answered affirmatively when Detective Gonzalez
asked him if he would consent to a search of the downstairs apartment. While Detective Gonzalez
was on the phone with Steward’s wife, Steward offered that he could call his mother-in-law for
the keys to the downstairs unit so that police would not have to break down the door. When
Detective Gonzalez asked Steward who lived downstairs, he answered that Ford normally stayed
downstairs and the apartment had been empty since Ford had been incarcerated. Steward explained
again that, while his mother-in-law had stayed in the downstairs apartment previously, she was
currently elsewhere, taking care of her grandchildren.
A short time later, Detective Gonzalez prepared a consent to search form for the downstairs
unit for Steward to sign. After reviewing the form, Steward explained that he did not think it was
appropriate for him to sign it, and that they should wait for his mother-in-law. In light of the
consent issues with Steward, Detective Gonzalez began the process of obtaining a search warrant
for the downstairs unit by calling a prosecutor.
Before that process was completed, Ford’s grandmother, Marcella Berry, arrived at the
house. When Detective Gonzalez asked Berry whether she lived “here,” Berry responded, “Yea
and no.” (Gonzalez Body Camera Recording, R. 143, Ex. E., 18:10–18:20.) After Detective
Gonzalez repeated the question, Berry repeated her answer, explaining that she had not been living
at the apartment for six months. Detective Gonzalez said that there could be issues with Berry
signing the consent form because she had not lived at the apartment for six months. Detective
Gonzalez then asked if Berry had property in the downstairs unit, and Berry answered that she had
23
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plants and property there, that she “comes here every now and again” and that she had just changed
the locks. (Id. at 19:33–19:44.) Berry then confirmed that she did not own the house, but suggested
she was in the process of purchasing it.1
After this exchange, Detective Gonzalez determined that Berry had authority to consent to
a search of the downstairs unit and prepared the consent to search form for Berry. As Detective
Gonzalez was explaining the form to Berry, Gonzalez received a call from the prosecutor whose
help she had requested in obtaining a second search warrant, but she told him that the warrant
would not be necessary because “we have a family member that has property in the downstairs
unit inside, and she has keys to the downstairs, so she’s going to give us consent. So it doesn’t
look like I’ll need the warrant.” (Id. at 21:50–22:16.) Berry then led the police into the downstairs
apartment. Once inside the apartment, Berry unlocked a couple of closets, which she said contained
her property, including a firearm, but she was unable to identify Ford’s room.
DISCUSSION
It is well-established that “[a]n officer with consent needs neither a warrant nor probable
cause to conduct a constitutional search.” United States v. Jenkins, 92 F.3d 430, 436 (6th Cir.
1996). The question that Ford raises on appeal is whether his grandmother, Marcella Berry, had
the proper authority to consent to the search of his downstairs apartment. “We review de novo the
ultimate question whether this authority [to consent to a search] existed . . . .” United States v.
Sheckles, --- F.3d ---, 2021 WL 1712267, at *12 (6th Cir. Apr. 30, 2021). The majority answers in
1
Berry’s intent to purchase the house cannot support a finding that she had the authority to consent to its search, as
the government contends throughout its brief. A third party’s authority to consent to a search of a defendant’s property
is based, in part, on the “right to permit the inspection in his own right . . . .” United States v. Matlock, 415 U.S. 164,
171 n.7 (1974). Someone, like Berry, who claims that she is in the process of purchasing a property does not have any
right in the property, let alone the right to permit a search and may, in fact, never acquire such rights. Nor would it be
fair to say that Ford “ha[s] assumed the risk that” someone who may or may not in the future own the property “might
permit the common area to be searched.” Id.24
Case Nos. 19-4175/4176, United States v. Rogers, et al.
the affirmative, erroneously concluding that Berry had apparent authority to consent to the search,
even though Berry did not live in the downstairs apartment with Ford, and the police knew that
fact at the time of the search.
Two types of third parties may authorize the search of a defendant’s home—those with
actual authority and those with apparent authority. The majority did not answer the question of
whether Berry had actual authority over the downstairs apartment because it concluded she had
apparent authority. “[A] valid consent search requires either actual authority or apparent authority;
it does not require both.” Id. at *13. Berry had neither.
I. Actual Authority to Consent to Search
The doctrine of actual authority was outlined in the Supreme Court’s decision in United
States v. Matlock, 415 U.S. 164 (1974). Even though the majority declines to address Berry’s
actual authority to consent to a search in light of its determination regarding apparent authority,
the opinion relies on broad language from Matlock that a warrantless search is justified when
“permission to search was obtained from a third party who possessed common authority over or
other sufficient relationship to the premises or effects sought to be inspected.” Id. at 171. But in
Matlock, both the facts of the case—the question presented was whether the defendant’s
cohabitating romantic partner could consent to a search of their shared room—and the language of
the decision itself make clear that co-occupancy is the critical factor in determining a third party’s
actual authority to consent to a search. The majority reaches the opposite result only by quoting
portions of a footnote from the Matlock decision. The full quote is presented as follows, with the
section omitted by the majority italicized: Common authority rests on “mutual use of the property
by persons generally having joint access or control for most purposes, so that it is reasonable to
recognize that any of the co-inhabitants has the right to permit the inspection in his own right and
25
Case Nos. 19-4175/4176, United States v. Rogers, et al.
that the others have assumed the risk that one of their number might permit the common area to
be searched.” Id. at 171 n.7 (emphasis added); Majority Op. at 15. As the portion of the footnote
omitted by the majority makes clear, the Supreme Court did not contemplate in Matlock that non-
co-inhabitants would have a relationship to a defendant’s premises so as to be able authorize their
search.
Subsequent decisions of the Supreme Court have confirmed the critical role of co-
occupancy in the actual authority to consent inquiry. The Court’s decision in Fernandez v.
California, 571 U.S. 292 (2014), begins by citing Matlock for the proposition that “[o]ur cases
firmly establish that police officers may search jointly occupied premises if one of the occupants
consents.” Id. at 294 (footnote omitted). In a footnote explaining its use of the term “occupant,”
the Supreme Court clarified, citing in particular the Matlock footnote discussed above, that “[w]e
use the terms ‘occupant,’ ‘resident,’ and ‘tenant’ interchangeably to refer to persons having
‘common authority’ over premises within the meaning of Matlock.” Id. at 294 n.1 (citing Matlock,
415 U.S. at 171 n.7); see also Georgia v. Randolph, 547 U.S. 103, 106 (2006) (“recogni[zing] a
valid warrantless entry and search of premises when police obtain the voluntary consent of an
occupant”).
We have also recognized that authority to consent to a search is only possessed by co-
occupants. For example, in United States v. Johnson, 656 F.3d 375 (6th Cir. 2011), we observed
that one exception to the warrant requirement “is voluntary consent from an individual possessing
authority.” Id. at 377. We clarified “[t]hat person may be the one against whom evidence is sought,
or it may be a co-occupant who shares common authority over the premises.” Id.Any argument that Berry had actual authority to consent to a search of the downstairs
apartment would appear to be foreclosed by the Supreme Court’s decision in Illinois v. Rodriguez,
26
Case Nos. 19-4175/4176, United States v. Rogers, et al.
497 U.S. 177 (1990), where the Court first endorsed the theory of apparent authority to consent to
a search. The reason the issue of apparent authority was squarely before the Court, unlike in
Matlock, 415 U.S. at 177 n.14, was because the third party who consented to the challenged search
so “obviously” did not have actual authority. Rodriguez, 497 U.S. at 182. As with Berry, the record
showed that the woman who had consented to the search in Rodriguez had moved out prior to the
search. Rodriguez, 497 U.S. at 181. The fact she had left “behind some furniture and household
effects,” did not disturb this conclusion. Id. Nor did the fact that she had keys to the apartment. Id.Under Rodriguez, “it is clear” that Berry did not have actual authority to consent to the search of
the downstairs unit. Id.II. Apparent Authority to Consent to Search
If a third party lacks the actual authority to consent to a search, “a warrantless entry is valid
when based upon the consent of a third party whom the police, at the time of the entry, reasonably
believe to possess common authority over the premises, but who in fact does not do so.” Id. at
179.2 Fundamentally, the majority misapprehends the nature of the apparent authority inquiry. It
treats apparent authority as a diluted version of actual authority, when, in fact, its purpose is to
allow law enforcement to reasonably rely on the information at hand, which may turn out to be
false, in determining whether an individual can consent to a search. For example, in Rodriguez,
the third party referred to the apartment that was searched as “‘our’ apartment,” and it was “unclear
whether she indicated that she currently lived at the apartment, or only that she used to live there.”
Id. Here, the record is clear that Berry told the police she had not lived in the downstairs unit for
half a year.
2
To the extent the majority suggests that information gathered by the police after they enter an apartment can “cure”
a deficient apparent authority determination, that would appear to be foreclosed by Rodriguez’s focus on the officers’
reasonable belief “at the time of entry.” See Majority Op. at 17 n.2.
27
Case Nos. 19-4175/4176, United States v. Rogers, et al.
As the Supreme Court concluded in Rodriguez, “[t]he Constitution is no[t] . . .violated
when officers enter without a warrant because they reasonably (though erroneously) believe that
the person who has consented to their entry is a resident of the premises . . . .” Id. at 186.3 In this
case, the police could not reasonably believe that Berry resided in the premises since she told them
she had not been living there for six months.
Instead of relying on Berry’s clear statement that she did not currently live in the downstairs
apartment, the majority focuses on the prior ambiguous statements by Steward regarding Berry’s
relationship to the unit and Berry’s own equivocal responses to Detective Gonzalez’s inquiries as
to whether she lived in the apartment. However, the majority does not explain why it would have
been reasonable for police to believe that Berry lived in the downstairs unit based on that
information in light of Berry’s subsequent, repeated assertion that she had not lived in the
downstairs unit for six months. Moreover, the police did not actually believe that Berry lived in
the downstairs unit prior to initiating the search. After Berry confirmed to Detective Gonzalez that
she had been living elsewhere for six months, Gonzalez explained that a consent search would be
easier than a warrant, but: “Here’s the problem. You just said you haven’t lived here since last year
in September. So, I mean, there might be an issue with you giving us consent.” (Gonzalez Body
Camera Recording, R. 143, Ex. E, 19:24–19:34.)
As we recognized in United States v. Hudson, 405 F.3d 425 (6th Cir. 2005), “[i]n crafting
this rule of law [i.e., apparent authority], the Supreme Court lent critical weight to whether the
3
The majority cites Rodriguez’s discussion of Stoner v. California, 376 U.S. 483 (1964), following the quoted passage
as supporting the notion that a hotel clerk could have “had general access to or control” to authorize a search of a hotel
room. See Rodriguez, 497 U.S. at 187–88. The majority then reasons “if a hotel clerk could conceivably have apparent
authority over a hotel room in certain circumstances, then living at the residence cannot be a requirement.” Majority
Op. at 18. However, the majority’s analysis is not supported by Rodriguez, which describes as “a preferable” reading
of Stoner that police “could not reasonably have believed that [a hotel clerk] had general access to or control over” an
occupied hotel room. Rodriguez, 497 U.S. at 188.
28
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police could reasonably conclude that the party consenting to the search lived at the premises.” Id.
at 442.4 Accordingly, as held by a prior published opinion of this Court, in determining whether a
person has apparent authority to consent to a search, the question to be answered is whether the
police could have reasonably believed that person resided at the premises. The majority disregards
this precedent, purportedly on the basis of United States v. Ayoub, 498 F.3d 532 (6th Cir. 2007).
See Wright v. Spaulding, 939 F.3d 695, 700 (6th Cir. 2019) (recognizing that the “holding of a
published panel opinion binds all later panels unless overruled or abrogated en banc or by the
Supreme Court”). But Ayoub is not at all applicable since we concluded there that the third party
who had explicitly been granted custody of the premises by the owners and residents of the home
“had actual authority to consent to the search, [so] it is not necessary to consider whether she had
apparent authority.” Ayoub, 498 F.3d at 541.
Even assuming the apparent authority inquiry was not controlled by Hudson nor focused
on residency, reversal of the district court’s denial of Ford’s motion to suppress would still be
required under the majority’s own erroneous standard. According to the majority, “[i]f an officer
reasonably believes that a third party had ‘joint access or control for most purposes,’ that consent
is valid under apparent authority.” Majority Op. at 16 (quoting United States v. Penney, 576 F.3d
297, 307 (6th Cir. 2009)). In this case, Berry told the police that she went to the unit “every now
and again,” that she had some property in the unit, including plants, and that she had recently
changed the locks to protect her property. (Gonzalez Body Camera Recording, R. 143, Ex. E,
19:34–20:07.) Berry’s characterization of the downstairs unit as a place where she stored some
4
The district court recognized this precedent in its suppression order.
29
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personal items and which she occasionally visited to water her plants could not reasonably be
understood as “joint access or control for most purposes.”5
Nor do any of the cases cited by the majority support a finding of apparent authority on
these facts. For example, in United States v. Penney, we found that a romantic partner of the
defendant had apparent authority to authorize a search because she told the police “that although
the couple had broken up six months ago, they had now reconciled and that she had moved back
in the day before.” Penney, 576 F.3d at 307. Penney explained that “cohabitation need not be
uninterrupted to support a reasonable belief in common authority,” as the majority emphasizes,
but that is very different than justifying a belief in common authority based on non-current
cohabitation, as is the case here. Id. at 308. Similarly, in United States v. Gillis, 358 F.3d 386, 391
(6th Cir. 2004), we found that, given the circumstances, it was not unreasonable for police to rely
on the consent of a third party whose name was on the lease and stated she still resided at the unit
to be searched.
CONCLUSION
The majority validates a search conducted pursuant to consent by an individual who did
not live at the premises and whom the police knew was not a resident before they began their
search. There is no justification for that conclusion in the Supreme Court’s or our precedents.
I respectfully dissent from that portion of the majority opinion.
5
Cf. United States v. Hall, 979 F.2d 77, 79–80 (6th Cir. 1992) (per curiam) (finding that storage of personal items
supported holding of common authority in combination with other factors not present in this case, including ownership
of the entire house and all the furniture in the defendant’s room; the fact that the defendant’s room was never locked;
and testimony that there was no agreement that the third-party consenter would not go into the defendant’s room).
30