### The Honorable Michael J. Melloy, Chief Judge, United States 1 

### District Court for the Northern District of Iowa, adopting th e rep ort and recommendation of the Honorable John A. Jarvey, Chie f United States Magistrate Judge for the Northern District of Iowa. _____________ Nos. 95-3187/3259

_____________ United States of America, * * Appellee/Cross-Appellant, * * Appeal and Cross-Appeal from the v. * United States District Court fo r * the Northern District of Iowa. Larry Risse, * * Appellant/Cross-Appellee. *

____________ Submitted: February 13, 1996 Filed: May 6, 1996

____________ Before MAGILL, HEANEY, and MURPHY, Circuit Judges.

_____________ MAGILL, Circuit Judge.
Larry Risse appeals the district court's determina tion that officers 1 of the Black Hawk County, Iowa, sheriff's department lawfully entere d Risse's home, either on their own authority or because Risse consented to the entry, thus validating the officers' seizure of evidence later used at trial against Risse. The government cross-appeals the district court' s downwar d departure at sentencing based on Risse's diminished capacit y caused by posttraumatic stress disorder. We affirm on both issues.

### -2- I.

On February 11, 1992, deputy sheriff Larry Wessels and office r Richard Knief went to Risse's home at 3029 Huntington Road in Waterloo , Iowa, to execute an a rrest warrant for Sandra Rhoads, Risse's girlfriend, for a controlled substance felony offense. The officers did not have an arrest warrant for Risse, nor did they have a search warrant for th e Huntington Road residence.
When Risse opened the door to the re sidence, Wessels and Knief asked him if Rhoads was present. Risse motioned toward Rhoads and stated, "She' s standing right there. " Officer Wessels saw her through the open door and immediately recognized her. Wessels stepped int o the house and pronounced her under arrest.
Wessels and Knief moved into the dining room to wait for Rhoads while she put on her coat and shoes. While there, both officers observed a smal l marijuana pipe and some marijuana inside an open buffet drawer in th e din ing room. In an attempt to conceal the pipe, Risse struggled wit h officers, and he was arrested for interference with official acts and for possession of the marijuana. Based on their obs ervations in Risse's home, the office rs obtained a search warrant for the residence. During th e course of the search, they seized more marijuana , marijuana paraphernalia, several guns, two scales, and $1,197.15 in cash.
Risse moved to suppress this evidence, contending that the entr y into his home without a search warrant violated his F ourth Amendment rights and that the later search warrant was invalid. The government contended that the arrest warrant for Rhoads provided the officers with authority to ente r the Huntington Road residence or, alternatively, that Risse consented to the entry.

At the suppression hearing, officer Wessels testified that h e believed that Rhoads lived at the Huntington Road residence.

### -3-

Wessels testified that he contacted Rhoads at the Huntington Road residenc e in Janua ry 1992, in order to discuss a possible plea agreement i n connection with a controlled substance offense. Later, when asked where she could be contacte d, Rhoads responded that "she was staying with Larry Risse and that we could contact her at that location if we needed. " Testimony of Officer Wessels, Tr. of Hr'g on Motion to Suppress, at 68

. A con fidential informant corroborated this information, telling Wessel s that "Sandra [Rhoads] was living with Larry Risse." Id. at 86. Due to hi s extens ive experience with this informant, Wessels considered thi s information reliable. Finally, just before effecting the arrest, Wessels contacted Rhoads at the Huntington Road residence, ensuring that she was in fact present at that address.

In suppo rt of its motion, the defense noted that Rhoads maintaine d
a permanent residence on Knoll Street in Waterloo. The officers had actua l knowledge of this, be cause Rhoads was renting the apartment from a deputy in the sheriff's office. Further, Wessels testi fied that Rhoads had given the Knoll Street address as her residence during a prior arrest. Finally, the power, electricit y, and phone lines were in Rhoads' name at the Knoll Street residence and not at the Huntington Road residence, and Rhoad s received all of her mail at Knoll Street.
The district court denied Risse's motion to suppress, concludin g that Wes sels had a reasonable belief that Rhoads resided on Huntington Road

. Given this, the arres t warrant provided the officers with legal authority to enter the Huntington Road residence and seize the marijuana and pipe, whi ch were in plain view. The court further determined that, even i f officer s did not have preexisting authority to enter the house, Riss e consented to the entry.
Risse then entered a conditional ple a to (1) use of a firearm during and in relation to a drug trafficking crime, in violation of

### The government also contended that Risse consented to th e 2 

### entry into his home. Because we conclude that the arrest warrant pr ovided officer Wessels with legal authority to enter th e residence, see infra , we need not decide whether Risse's act ions in motioning towards Rhoads constituted consent to the officers ' entry into the home. -4- 18 U.S.C. § 924(c), and (2) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). In the plea, the defendant reserved the right to appeal the denial of the motion to suppress.

At sentencing, the district court determined that Risse's fina l adjusted offense level on the felon in possession count was 23 and th e crim inal history category was III. Risse presented evidence that h e suffered from posttra umatic stress disorder resulting from his service in the Vietnam War, and the court departed downwardfrom the sentencing range of 57 to 71 months and imposed a sentence of 18 months based upo n "overrepresentation of [defendant's] criminal history and for [defendant's ] diminished capacity." The court imposed the man datory minimum sixty-month consecutive sentence on the § 924(c) count. Risse appeals the denial of the mo tion to suppress and the government cross-appeals the downwar d departure.

II.
Whether the police officers possessed a reasonable belief that Rhoads resided o n Huntington Road "is a mixed question of fact and law. Th e find ings with respect to the historical facts are reviewed under th e clearlyerroneous standard; the ultimate conclusion, however, is subject to de novo review." United States v. Dixon , 51 F.3d 1376, 1381 (8th Cir. 1995) (quoting United States v. Campbell , 843 F.2d 1089, 1092 (8th Cir

. 1988)).
At issue is whether the arrest warrant for Sandra Rhoads provid ed the police officers with legal authority to enter the Huntington Roa d
res idence, thereby validating the seizure of evidence that was in plai n view. We hold that it did. 2

### Undergirding the rule set forth in Litteral and Simpson i s 3 

### the notion that where a homeow ner allows another person to possess common authority over, or some other significant relationship to, the premises to be searched, t he homeowner is held to have a lower expectation of privacy in the searched area. United States v

. Matlock , 415 U.S. 164, 171 (1974). This lowered expectation of privacy results from the "mutual use of the property by persons generally having joint access o r cont rol for most purposes"; therefore, "it is reasonable t o recognize that any one of the co-inhabitants has the right t o permi t the inspection in his own right and that the others hav e assumed the risk that one of their number might permit the common area to be searched." Id. at 171 n.7. There is no reasonable expectation of privacy in such a situat ion because the person's privacy "[is] contingent in larg e measure on the decisions of another. Decisions of either perso n define the extent of the privacy involved, a principle that does not depend on whether the stranger welcomed into the house turn s out to be an agent or another drug dealer." United States v

. Chaidez , 919 F.2d 1193, 1202 (7th Cir. 1990), cert. denied , 50 2 U.S. 872 (1991); see also J.L. Foti Constr. Co. v. Donovan , 78 6 -5- A valid a rrest warrant carries with it the implicit but limite d authority to enter the residence of the person named in the warrant i n order to execute that warrant. See Payton v. New York , 445 U.S. 573, 603 (1980)
. However, absent exigent circumstances or consent, an arres t warrant does not justify entry into a third person's home to search for th e subject o f the arrest warrant. See Steagald v. United States , 451 U.S
. 204, 215-16 (1981).
Thus, "if the suspect is just a guest of the third party, then th e police must obtain a search warrant for the third party's dwelling in orde r to use evidence found against the third party." United States v. Litteral , 910 F.2d 547, 553 (9th Cir. 1990). However, "if the suspect is a co

resident o f the third party, then Steagald does not apply, and Payto n allows both arrest of the subject of the arrest warrant and use of evidenc e found against the thi rd party." Id. ; see also Washington v. Simpson , 806 F.2d 1 92, 196 (8th Cir. 1986) (when subject of arrest warrant is co

resident with third party, officers may enter re sidence of the third party without search warrant). 3

### F.2d 714, 717 (6th Cir. 1986) (because the "joint occupant assumes

the risk of his co-occupant exposing their common private areas to such a search . . . there is no reasonable expectation of privacy to be protected"). Although Matlock is a third-party-consent-to-search case, we fi nd its reasoning equally applicable in the Steagald context
. Where the subject of the arrest warrant is merely a guest of th e homeowner, there is no "common authority" over the premises to be searched, and thus "[i]t is un likely [the homeowner's] expectation [of pr ivacy] was lowered substantially." Perez v. Simmons , 88 4 F.2d 1136, 1140 (9th Cir. 1989), modified at 900 F.2d 213 (9 th Cir. 1990), corrected at 998 F.2d 775 (9th Cir. 1993); see also id. at 1141 ("The Fourth Amendment's protection against unreasonabl e searches in a person's home is not diminished by the mere presence of a guest in the home."). To protect the homeowner's privac y interest, a search warrant is needed to enter the house. Where, however, the third party is not a guest but rather is a joint occupant of the residence, then the homeowner should b e deemed to have limited her exp ectation of privacy in the premises. Because the "capacity to claim the protection of the Fourt h Amendment depends not upon a property right in the invaded plac e but upon whether the person who claims the protection of th e Ame ndment has a legitimate expectation of privacy in the invade d place," Rakas v. Illinois , 439 U.S. 128, 143 (1978), the homeowner in such a situation has voluntarily limited her Fourth Amendmen t protection. See Illinois v. Rodriguez , 497 U.S. 177, 190 (1990 ) (Mar shall, J., dissenting) (citations omitted) (noting that co

occupant has "voluntarily limit[ed] his expectation of privacy by allowing others to exercise authority over his possessions . .

. and to that extent [has limited] his Fourth Amendmen t protections"). -6- Under Payton , officers executing an arrest warrant must have a

" reas onable belief that the suspect resides at the place to be entere d

. . . and [have] reason to believe that the suspect is present" at the tim e the war rant is executed. United States v. Lauter , 57 F.3d 212, 215 (2 d Cir. 1995 ); see also United States v. Magluta , 44 F.3d 1530, 1535 (11t h Cir.) (same), cert. denied , 116 S. Ct. 189 (1995); Perez v. Simmons , 998 F.2 d 775, 776 (9th Cir. 1993) (same). As indicated, the officers ' assessment need not in fact be correct; rather, they need only "reasonably believe" that

### -7-

the suspect resides at the dwelling to be searched and is currently presen t at the dwelling. See Magluta , 44 F.3d at 1533-36; Bratton v. Toboz , 764 F. Supp. 965, 972 (M.D. Pa. 1991) ("Toboz's belief that Lowery was residin g at the Westport home, although not in fact correct, was reasonable.").

Much evidence exists to support the officers' belief that Rhoad s resid ed on Huntington Road. Rhoads herself told officers that she wa s "staying with" Risse and that officers could contact her at Risse's home. Off icer Wessels testified that he interpreted the use of the colloquia l term "staying with" to mean that Rhoads was in f act living with Risse, and the district court credited this testimony. This assessment was further bolstered by a confid ential informant considered reliable by Wessels, who told Wessels that "Sandra [Rhoads] was living wi th Larry Risse." Finally, while police officers twice successfully contacted Rhoads at the Huntingto n Road residence, they were unable to contact her when they called upon her at the Kno ll Street address, suggesting that Rhoads was living at th e Huntington Road residence.

Based on the evidence presented, it is clear that Wessels' belie f that Rhoads resided on Huntington Road was, as a matter of law, reasonable , and thus the officers could enter the residence armed only with an arrest warrant f or Rhoads. See Simpson , 806 F.2d at 196 (suspect "resided" a t hou se when she stayed there two to four nights per week, kept certai n personal belongings t here, and gave that address as residence when booked by po lice); see also Lauter , 57 F.3d at 215-16 (entry permissible whe n police received tip from confidential informant that suspect residing in
new apartment); Bratton , 764 F. Supp. at 972 ("[T]he volume of anonymous tips and the fact of Karen Bratton's close relationship with the Lowerys rendered [the belief that Lowery resided with Bratton] reasonable.").
In so holding, we reject Risse's contention that, because the

### -8-

off icers knew, or should have known, that Rhoads maintained a permanen t
res idence on Knoll Street, they could not have reasonably believed tha t Rhoads resided on Hun tington Road. We have found no authority to support Risse's implicit assumption that a person can have only one residence for Fourth Amendment purposes. Rather, when evaluat ing Risse's expectation of privacy in his home, we are guided by the principle that, so long as Rhoad s possesses common authority over, or some other significant relationship to , the Huntington Road residence, see supra note 3, that dwelling "ca n certainly be considered [her] 'home' for Fourth Amendment purposes, even if the premises are owned by a third party and others are living there, an d
even i f [Rhoads] concurrently maintains a residence elsewhere as well. " Steagald , 451 U.S. at 230-31 (Rehnquist, J., dissenting).

Officer Wessels also possessed a reasonable belief that Rhoads wa s present at the Huntington Road residence when he executed the warrant

. Shortl y before he approached the residence, officer Wessels called th e house t o confirm that Rhoads was in fact present. This goes far beyon d what is needed to satisfy this requirement. See , e.g. , Lauter , 57 F.3d at 215 (b elief that suspect currently present at dwelling was reasonabl e because officer knew that suspect was unemployed and typically slept late)

. Because Wessels possessed a reasonab le belief that Rhoads resided at Huntingto n Road and that Rhoads was present at the time the warrant wa s executed, Wessels possessed legal authority to enter the residence pursuan t to the valid arrest w arrant. Thus, the seizure of evidence in plain view
was val id, and the resulting search warrant was supported by probabl e cause.

III.
The government cross-appeals the dis trict court's downward departure at sentencing based on diminished capacity. This Court

### Risse has also moved to have his 18 U.S.C. § 924(c ) 4 

### convic tion dismissed due to problems with the indictment. Thi s argument was raised for the fi rst time thirty-four days after oral argument. We reject the motion because it was not timely filed. -9- will affirm a downward departure if: (1) the circumstances on which th e district court based its decision to depart are sufficient as a matter of law to justify a departure; (2) the factual find ings of the district court
were not clearly erroneous; and (3) the degree of departure was reasonable , giving due deference to the district court. See United States v. Groene , 998 F.2d 604, 607 (8th Cir. 1993), cert. denied , 114 S. Ct. 881 (1994).

The distr ict court had legal authority to depart in this case under U.S.S.G. § 5K2.13, p.s. (1994) (diminished capacity). Because the distric t court's factual findings were not clearly erroneous and the degree o f departure is reasonable, we affirm the departure.

IV.

Because o fficers Wessels and Knief had legal authority based on the arrest warrant to enter the Risse residence, thereby validating the seizur e of evid ence in plain view, and because the district court permissibl y departed downward at sentencing, the district court is affirmed. 4

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.