## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-3708

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. * Dennis Wayne Hinkle, Sr., * * * Defendant - Appellant. *

___________ Submitted: May 16, 2006 Filed: August 4, 2006

___________ Before LOKEN, Chief Judge, MELL OY and COLLOTON, Circuit Judges.

___________ MELLOY, Circuit Judge.

Dennis Wayne Hinkle, Sr., was convicted of two counts of being a felon in possession of a firearm, one count of po ssession of an unregis tered short-barrel shotgun, one count of attempt to destroy or conceal a record to impair its availability for use in an official pro ceeding, and one count of attempt to escape from custody.1 The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri

. -2- The district court 1 sentenced Hinkle to 293 months’ imprisonment. Hinkle appeals, challenging the district court’s denial of his motion to suppress evidence obtained in the search of a trailer. He also contends th at the district court erred in finding that his prior conviction for burglary of a comme rcial building qualified as a crime of violence for purposes of sentencing as a car eer offender. For the reasons set forth below, we affirm.

I. Background

In January 2003, Hinkle and Eleonore Gri ffini were cohabitants of a property on Bender Lane in St. Louis County, Miss ouri. Hinkle purchased the property with money he borrowed from Griffini’s estranged husband, William Kuntscher. The property was placed in Griffini’s name. Although Hinkle provided money on rare occasions to pay bills, Griffini was princi pally responsible for paying the taxes and maintaining the property. There was no evidence that Hinkle paid rent.

Each had a separate bedroom in the home. Hinkle’s bedroom was generally open and unlocked. Griffini had access to Hinkle’s room and the drawers in his room. Although Griffini testified that Hinkl e generally did not want Griffini entering his room, Hinkle expected her to enter his room on a regular basis to place his folded laundry on his bed. Hinkle would get angry if Griffini did not do so. Further, Griffini accessed Hinkle’s drawers to put away his socks and to retrieve keys.

On January 13, 2003, the St. L ouis Metropo litan Police Department (“SLMPD”) contacted Griffini . The SLMPD informed Gri ffini that Kuntscher had been murdered. The investigation of the murder quickly focused on Hinkle. As a result, the SLMPD conducted searches of the property on Bender Lane on January 13,2 In his brief, Hinkle challenges the “search ” of the trailer. However, in this case, the SLMPD searched the trailer on at least two occasions, January 16 and 20. It is not clear whether Hinkle challenges one or both of the searches. It is not necessary, however, for us to determin e which search or searches Hinkle is challenging because our analysis is the same . For purposes of this opinion, we will refer to the “search” of the trailer in refe rence to any of the times the police searched the trailer pursuant to Griffini’s consent.
-3- January 16, January 20, and March 20, 2003. Griffini s igned consen t forms authorizing each of the searches of the Bender Lane property. 2

A. January 13 Search

On January 13, the SLMPD asked Griffini to go to the morgue to identify her husband’s remains. During the same convers ation, the SLMPD learned that Griffini owned, and lived in, the Bender Lane pr operty with Hinkle. One of the officers, Detective Don Reynolds, presented Griffi ni with a “Consent to Search” form. Griffini reviewed the form and signed it, thereby granting the SLMPD permission to search the property. The permission to search the Bender Lane property necessarily included consent to search Hinkle’s room. After receiving consent, Reynolds entered Hinkle’s bedroom and located two boxes of .223 caliber ammunition.

B. January 16 Search

On the morning of January 16, 2003, the SLMPD arrested Hinkle for the murder of Kuntscher. After advising Hinkle of his rights, Reynolds began formal booking procedures, including the seizure of Hinkle’s personal property. Hinkle’s personal property included his keys. Hinkle told Reynolds that since he was being arrested, Griffini would need his keys. After booking Hinkle, Reynolds gave Hinkle’s keys to Griffini pursuant to Hinkle's request.-4- Shortly thereafter, Reynolds again asked Griffini for permission to search the property. Griffini stated, both before and after signing a consent to search form, that it would not be a problem for Reynolds to s earch the residence. When Griffini gave Reynolds permission to search, she returned th e keys to him. One of the keys Griffini gave to Reynolds unlocked the padlock on a trailer located on the property. She told the SLMPD where to find extra keys in the house and how to use the locks. She also gave specific instructions as to commands her dogs would obey.

That afternoon, using the keys provide d by Griffini, the SLMPD entered the trailer located next to the house on the prope rty. The officers recovered the following items: 1) a brown rifle case that contai ned a Sturm Ruger & Company .223 caliber, semi-automatic rifle and four magazines for that rifle with approximately thirty rounds of ammunition; 2) a black nylon gy m bag that contained a J. Stevens 16 gauge single shot shotgun, seven boxes of amm unition, ammunition cartridges, shotgun shells, a “slapper” (a leather handled objectused for self-defense), three documents from Best-Shot shooting supply relating to the purchase of a firearm by a “Jim Messenger,” and documents related to the title of a vehicle; and 3) a crowbar.

C. January 20 Search

The SLMPD contacted Griffini again on January 20, 2003, with the intent of showing her the firearms seized during the investigation. Griffini, voluntarily and without solicitation, showed Reynolds and another detective a hard file cabinet and a black nylon gym bag. At that time, the detectives again asked for permission to search. The detectives obtained a consent to search the property and an additional consent to search the trailer. Griffini he lped the detectives locate additional firearms in the residence. She told them that Hinkle had been known to tape firearms under drawers. She unlocked the trailer and a llowed officers to search it a second time. The detectives searched the trailer for the murder weapon, firearms, and any other evidence. While the detectives were searching the trailer, Griffini directed them to-5- a FIE .380 caliber Super Titan firearm rolled up in a piece of carpet near a dishwasher.

D. March 20, 2003

Griffini voluntarily consented to a fourth search of the property on March 20, 2003. The detectives searched the property witha metal detector in an effort to locate any firearms that might be buried.

On May 13, 2004, Hinkle was charged withthree counts of felon in possession of a firearm and onecount of po ssession of an unregistered short barrel shotgun. Following his indictment, Hinkle told Griffini to conceal or destroy a Durable Power of Attorney that named Griffini as Hinkle’s attorney-in-fact. On June 24, 2004, a superceding indictment was filed, adding a charge of attempt to destroy or conceal a record with the intent to impair its ava ilability for use in an official proceeding.

Hinkle filed a motion to suppress the evidence from the trailer. On July 26-27, a magistrate judge conducted an evidentiaryhearing related to Hinkle’s motion to suppress. Before the magistrate judge c ould rule on the motion to suppress, Hinkle’s actions further complicated the legal pro ceedings. On July 27, Deputy Nick Conrad of the St. Genevieve County Sheriff’s Department discovered evidence of an attempt to escape by Hinkle. Deputy Conrad found a bar in a window that had been partially cut through and concealed by to othpaste. Lt. Chris Joggerst, the jail administrator, later searched one of Hinkle’s notepads a nd discovered a hand-drawn map of the area around the St. Genevieve County Jail and th e name and address of “Bill Smelser.” Jail records indicate that a William Smelser was incarcerated in the same cell block as Hinkle.

On September 30, 2004, a second superced ing indictment was filed, adding a charge of attempt to escape from custody. On October 29, 2004, the magistrate judge-6- held an evidentiary hearing on the issues raised by the charge of attempted escape. On December 20, 2004, the magistrate judge recommended denial of the defendant’s motion to suppress. The district court adopted the ma gistrate judge’s recommendation.

At trial, Hinkle objected to the search of the trailer, arguing that it was his property and that Griffini did not have the authority to consent to his search. The district court denied his motion. Hinkl e was convicted on all counts and sentenced to 293 months. On appeal, Hinkle renews hi s challenge to the search of the trailer. He also contends that the court erred in finding that his prior conviction for burglary of a commercial building qualified as a crime of violence for sentencing as a career offender.

II. Analysis

A. Motion to Suppress Evidence from the Trailer

Hinkle alleges that the district court e rred in denying his motion to suppress the evidence of firearms found in his locked trailer. “We review the denial of a motion to suppress de novo but review underlying f actual determinations for clear error, giving ‘due weight’ to the inferences of the district court and law enforcement officials.” United States v. Replogle , 301 F.3d 937, 938 (8th Cir. 2002) (quoting United States v. Wheat , 278 F.3d 722, 725-26 (8th Cir. 2001)).

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” U.S. Const. amend. IV. A s earch conducted pursuant to the consent of a person with the authority to grant consen t may be undertaken by government actors without a warrant or probable cause, and any evidence discovered through that search-7- may be used at trial unless it is otherwise inadmissible. United States v. Matlock , 415 U.S. 164, 170 (1974).

A third party with “common authority” ove r a property, or a third party that a government agent reasonably believes has “common authority” over a property, may voluntarily consent to a search. United States v. Janis , 387 F.3d 682, 686-87 (8th Cir. 2004) (“Common authority is a function of mu tual use, joint access, and control, and is a question of fact.”); see also Matlock , 415 U.S. at 171 n.7. In this case, Griffini, the named property owner and party primarily responsible for the Bender Lane property, had both actual and apparent authority to consent to the searches, including the search of the trailer. United States v. Brokaw , 985 F.2d 951, 954 (8th Cir. 1993) (holding that consent to search a trailer gi ven by the owner of a property on which the trailer was located was sufficient). Beside s being the owner of the property on which the trailer was located, Griffi ni had joint access to the trailer as demonstrated by the facts that Hinkle gave her the keys and th at she knew what the keys were for and how to use the corresponding locks.

Even if Griffini did not have actual au thority, she had apparent authority. At the time consent was given by Griffini, the de tectives were aware that: 1) Griffini was listed as the legal owner of the Bender La ne property; 2) Griffini and Hinkle lived together; 3) Hinkle had instructed Reynolds to give the keys to Griffini; 4) Griffini provided the keys to Reynolds; 5) Griffi ni provided specific information regarding the use of the keys and the locks; 6) Gr iffini gave specific instructions as to commands her dogs would obey; 7) Griffini told the detectives they could search anywhere they wanted and look anywhere they wanted on the property including the trailer; and 8) Griffini had stated to Reynolds that everything was in her name because Hinkle was concerned about going back to prison. This information makes the detectives’ belief that she had au thority to consent reasonable. SeeUnited States v. Oates , 173 F.3d 651, 656-57 (8th Cir. 1999) (holding that officers had sufficient evidence to believe that leaseholder had authority to consent to search of entire-8- property, including the bedroom of the defe ndant who lived rent free). Because the detectives reasonably believed that Griffi ni had common authority over the trailer, and because she consented, the warrantless s earch of the trailer would be valid even if she did not have actual authority. Janis , 387 F.3d at 686. Accordingly, the district court properly denied Hinkle’s motion to suppress the evidence discovered in the search of the trailer.

B. Burglary as a Crime of Violence

Hinkle asserts that the district court e rred in finding that his prior conviction for burglary of a commercial building qualif ied as a crime of violence for purposes of sentencing as a career offender. We revi ew the district court’s factual findings at sentencing for clear error and the districtcourt’s application of the Sentencing Guidelines to the facts de novo. United States v. Mathijssen , 406 F.3d 496, 498 (8th Cir. 2005).

We have previously held that burglary of a commercial building is a crime of violence for purposes of U.S.S.G. § 4B1.2. See, e.g. , United States v. Bell , 445 F.3d 1086, 1088 (8th Cir. 2006); United States v. Mohr , 382 F.3d 857, 860 (8th Cir. 2004); United States v. Blahowski , 324 F.3d 592, 594-95 (8th Cir. 2003); United States v. Sun Bear , 307 F.3d 747, 752 (8th Cir. 2002); United States v. Stevens , 149 F.3d 747, 749 (8th Cir. 1998). Therefore, the district court did not err in finding that his prior conviction for burglary of a commercial bu ilding constituted a crime of violence for sentencing as a career offender.

III. Conclusion

For the foregoing reasons, we affirm the district court’s denial of Hinkle’s motion to suppress and its finding that bur glary of a commercial building qualifies as a crime of violence for sentencing a career offender.

______________________________