United States v. Jose Ortega-Gutierrez

FILED
NOT FOR PUBLICATION JUL 08 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10330
Plaintiff - Appellee, D.C. No. 2:13-cr-00087-LKK-1
v.
MEMORANDUM*
JOSE ROBERTO ORTEGA-
GUTIERREZ, a.k.a. Jose Roberto
Gutierrez, a.k.a. Roberto J. Ortega, a.k.a.
Salvador Ortega, a.k.a. Roberto Ortega-
Gutierrez,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Submitted July 6, 2015**
San Francisco, California
Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Jose Roberto Ortega-Gutierrez appeals the district court’s denial of his
motion to suppress. Before the district court, Ortega-Gutierrez did not contest the
facts presented by the government, including the government’s assertion that
Ortega-Gutierrez’s parents voluntarily consented to a search of his bedroom. He
argued only, as a matter of law, that his parents did not have authority to consent to
the search of their entire home. The district court rejected this argument. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and, on this record, we affirm.
Ortega-Gutierrez’s parents—with whom he lived—had apparent authority to
consent to the search of his bedroom. Agent Javier Carbajal, the ICE agent who
conducted the search, believed that Ascencion and Soccoro Ortega had access to
and control over Ortega-Gutierrez’s bedroom, a fact that—if true—would have
given them actual authority to consent to the search. See United States v. Dearing,
9 F.3d 1428, 1429–30 (9th Cir. 1993) (describing the test to determine apparent
authority), disapproved of on other grounds by United States v. Kim, 105 F.3d
1579 (9th Cir. 1997).
It was objectively reasonable for Agent Carbajal to believe this fact because
he knew Ascencion and Soccoro owned the house. And although the first door
through which Ascencion tried to access the bedroom was locked—a fact that
ordinarily militates against a finding of apparent authority—Ascencion then led
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Agent Carbajal to an unlocked door through which the agent ultimately entered the
room. That Ascencion could enter the room through an unlocked door validates
the agent’s belief that he had “joint access or control” over it. United States v.
Matlock, 415 U.S. 164, 171 n.7 (1974); see also United States v. Enslin, 327 F.3d
788, 794 (9th Cir. 2003) (finding actual authority when a resident permitted the
marshals to search her apartment, and the back bedroom the marshals searched was
unlocked). Finally, Ascencion is Ortega-Gutierrez’s father, a fact that reinforces
Agent Carbajal’s belief that Ascencion controlled Ortega-Gutierrez’s room. See
Georgia v. Randolph, 547 U.S. 103, 114 (2006) (noting that a parent usually has
authority to consent to the search of his or her child’s bedroom).
Because the facts available to Agent Carbajal at the time of the search would
“warrant a man of reasonable caution in the belief that the consenting party had
authority over the premises,” the search was valid. Illinois v. Rodriguez, 497 U.S.
177, 188 (1990) (citation omitted) (internal quotation marks omitted).
AFFIRMED.
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