In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3763

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TIMOTHY L. RICHARDS,

Defendant-Appellant.

Appeal from the United States District Court for the 

Northern District of Indiana, Fort Wayne Division.

No. 1:10-cr-00006-TLS-1 — Theresa L. Springmann, Judge.

ARGUED OCTOBER 31, 2013 — DECIDED JANUARY 31, 2014

Before BAUER, MANION, and ROVNER, Circuit Judges.

BAUER, Circuit Judge. Timothy L. Richards (“Richards”) was

charged in a four-count indictment with (1) possession of a

controlled substance with intent to distribute, (2) maintaining

a residence or place for the purpose of using and distributing

controlled substances, (3) possession of a firearm in furtherance of a drug trafficking crime, and (4) being a felon in

possession of a firearm. Prior to trial, the district court denied

Richards’ first and second motions to suppress evidence that
2 No. 12-3763

the police seized without a search warrant at the time of his

arrest. After trial, a jury convicted Richards of all four charges.

Richards now appeals the district court’s decisions to allow

the government to introduce the seized evidence and raises

two issues. First, Richards argues that the district court erred

when it found that Edward Rawls (“Rawls”) had the mental

capacity to consent to the warrantless search of his home.

Second, Richards argues that the district court erred when it

found that (1) Rawls had apparent authority to consent, and

even if Rawls did not have the requisite authority to consent,

(2) exigent circumstances validated the warrantless search of

a bedroom Richards used in Rawls’ house. For the following

reasons, we find no error.

I. BACKGROUND

On December 8, 2009, Fort Wayne Police Department

Officers Phillip Ealing and Dale Llewellyn attempted to

execute an arrest warrant for Paul Wilson (“Wilson”). While in

uniform and on patrol, the officers talked to several individuals who said they had seen Wilson frequently enter and leave

a particular residence on the corner of Jefferson Boulevard and

Hanna Street. When the officers arrived at the described house,

Officer Llewellyn knocked on the door. An individual named

“Diaz” opened the door and invited the officers inside to speak

with the homeowner, Rawls. The officers did not have a

1

Rawls is the uncle of Richards. At the time of the incident, Rawls was

1

eighty-six years old; an advanced age, but not one that requires a mental

test to be considered reasonably reliable.
No. 12-3763 3

search warrant for the residence or an arrest warrant for

anyone other than Wilson. 

The officers went inside to talk with Rawls and noticed that

there were several people in the house. The officers asked

Rawls if Wilson was present. Rawls told the officers that he

was not, but gave them permission to look around the house

to confirm. The officers encountered several people as they

walked through the house, but Wilson was not one of them.

When they entered the kitchen, the officers smelled the

strong odor of burnt marijuana. Richards and another man sat

at the kitchen table. Officer Ealing testified that he saw what he

thought was a rock of crack cocaine on a plate next to a

microwave oven. Officer Llewellyn testified that he saw a

marijuana cigarette, a small amount of marijuana, drug

paraphernalia, and plastic baggies on the kitchen table. All of

these items were in plain view.

Officer Llewellyn told Richards to stand up so that he could

conduct a protective pat down for weapons, but Richards

refused. The verbal confrontation escalated into a physical

struggle between the two; at one point, Officer Ealing used

pepper spray to subdue Richards. The officers then handcuffed

Richards and lifted him to his feet. When they did so, a

handgun fell from his waistband onto the floor. Officer Ealing

also discovered a knife sticking out of Richards’ back pocket. 

After the altercation with Richards, the officers called

for backup and conducted a protective sweep of the house.

Officer Llewellyn entered the west bedroom that Richards

stayed in when he visited his uncle. The doorframe had a hasp

and padlock, but the door was unlocked at the time Officer
4 No. 12-3763

Llewellyn entered the room. Once inside, he saw an open

briefcase on the bed containing what he believed to be cocaine.

After the officers finished the sweep, backup arrived.

Officer Llewellyn and Detective Shane Pulver asked Rawls if

he would give written consent to search his home. Before

giving him the consent form, Detective Pulver read Rawls his

Miranda rights. Rawls was never handcuffed or detained.

Officer Llewellyn then gave Rawls time to read the consent

form on his own and read portions of the form aloud to Rawls

as well. Officer Llewellyn informed Rawls of his right to refuse

consent and his right to seek legal counsel. Rawls told the

officers that he understood his rights and willingly signed the

consent form on the officers’ first request to do so.

Throughout their interaction with Rawls, the officers did

not notice anything unusual about his behavior. Officer Ealing

was a member of the Fort Wayne Crisis Intervention Team and

had received specialized training on how to identify people

who suffer from mental illnesses. Neither officer observed

signs that Rawls was experiencing any kind of dementia or

confusion. Additionally, neither officer noticed any slurred

speech, detected the smell of alcohol on Rawls’ breath or

discerned an indication that Rawls was intoxicated. 

Richards was arrested and charged with (1) possession of

a controlled substance with intent to distribute, in violation of

21 U.S.C. § 841(a)(1); (2) maintaining a residence or place for

the purpose of using and distributing controlled substances, in

violation of 21 U.S.C. § 856(a)(1); (3) possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c); and (4) possession of a firearm having previously been
No. 12-3763 5

convicted of a felony offense, in violation of 18 U.S.C.

§ 922(g)(1). 

In July 2010, Richards filed a motion to suppress evidence

seized by police during his warrantless arrest. After an

evidentiary hearing, the district court found that Rawls

voluntarily provided valid consent for the police to search his

residence and denied Richards’ motion. In February 2011,

Richards filed a second motion to suppress, arguing that Rawls

lacked authority to consent to a search of the bedroom that

Richards used when he stayed with Rawls. After an evidentiary hearing,thedistrict court denied Richards’ second motion

to suppress on two separate grounds. First, the court found

that Rawls had apparent authority to consent to the search of

the bedroom. The court also found that exigent circumstances

justified the officers’ protective sweep of the bedroom. After a

jury convicted Richards of all four counts, the court sentenced

him to a total term of 180 months in prison followed by six

years of supervised release. 

II. DISCUSSION

When reviewing a district court’s denial of a motion to

suppress, we review legal conclusions de novo. United States v.

Huddleston, 593 F.3d 596, 600 (7th Cir. 2010). We review the

district court’s factual findings for clear error and will only

reverse if the findings leave this Court with a “definite and

firm conviction that a mistake has been made.” United States v.

Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994). Mixed questions of

law and fact are reviewed de novo. United States v. Gevedon, 214

F.3d 807, 810 (7th Cir. 2000).
6 No. 12-3763

A. Richards’ First Motion to Suppress

Richards argues that the district court erroneously found

that Rawls had the requisite mental capacity to freely and

voluntarily consent to the officers’ search of his home. Whether

an individual’s consent to a search was voluntary is a factual

determination, which we review for clear error. United States

v. Johnson, 495 F.3d 536, 541 (7th Cir. 2007). Relying on testimony from the suppression hearing, Richards argues that

Rawls was incapable of consenting to the officers’ search

because his advanced age of eighty-six years left him a

confused old man who was out of touch with reality. We

disagree.

Our analysis begins with the presumption that warrantless

searches or arrests within a home are unreasonable and violate

the Fourth Amendment. Payton v. New York, 445 U.S. 573, 576

(1980); Johnson v. United States, 333 U.S. 10, 14 (1948). However,

warrantless searches or arrests are constitutionally permissible

when a “narrowly proscribed” exception exists. United States

v. Bell, 500 F.3d 609, 612 (7th Cir. 2007). One such exception

exists when “an authorized individual voluntarily consents to

the search.” United States v. Duran, 957 F.2d 499, 501 (7th Cir.

1992). The government must prove “by a preponderance of

evidence that consent was freely andvoluntarily given.” United

States v. Grap, 403 F.3d 439, 445 (7th Cir. 2005).

It is uncontested that Rawls, as the homeowner, was

authorized to consent to the officers’ search of his house. Rawls

unequivocally consented; when the police asked him if they

could search the house, he said “search.” The issue remains,

however, whether Rawls had the mental faculties about him on
No. 12-3763 7

December 8, 2009, to freely and voluntarily consent to the

search.

Whether a third-party’s consent is voluntarily given to the

police is a question of fact that depends on the totality of

circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227

(1973). To determine whether consent was provided voluntarily, we consider (1) Rawls’ age, education, and intelligence;

(2) whether Rawls was informed of his constitutional rights;

(3) whether Rawls was in custody; (4) how long he was

detained; (5) whether Rawls consented immediately or after

police made several requests; and (6) whether the police used

physical coercion. United States v. Strache, 202 F.3d 980, 985

(7th Cir. 2000); Schneckloth, 412 U.S. at 226. We review these

factors in the light of “objective facts, as presented to a reasonable inquirer, that would reasonably put him or her on notice

that a voluntary consent could not be given.” Grap, 403 F.3d

at 445. Our determination does not depend on a single controlling factor, but carefully considers “all of the surrounding

circumstances.” Schneckloth, 412 U.S. at 226.

Richards attacks Rawls’ capacity to freely and voluntarily

consent based only on the first factor—age, education, and

intelligence—because he contends that Rawls was an “old man

out of touch with reality.” This argument is not persuasive.

To guide our determination of whether Rawls voluntarily

consented to the search, we consider the information known to

the officers when they arrived at Rawls’ house on the day in

question. It was readily apparent to the officers that Rawls was

an older gentleman because he clearly had difficulty walking.

However, nothing occurred to put the officers on notice that
8 No. 12-3763

Rawls lacked the intelligence or the capacity to voluntarily

consent to the search of his home. When Officers Ealing and

Llewellyn first talked to Rawls, Rawls confirmed that he

was the homeowner and invited the officers to search for

Wilson. Rawls was accompanied by two other men during

this conversation, and neither of them expressed any concerns

about Rawls’ mental condition. Officer Ealing testified that he

did not observe any signs of dementia during his interaction

with Rawls. Officer Llewellyn testified that he did not notice

any signs that Rawls suffered from mental problems either.

Rawls did not make any inappropriate comments or act in a

way that would lead the officers to believe he was confused,

delusional, or unable to consent. We find nothing that would

have put a reasonable officer on notice that Rawls’ mental state

was so impaired that he could not provide voluntary consent

to the impending warrantless search.

After Richards’ arrest and the discovery of drugs, the

officers again conferred with Rawls and asked him to sign a

written consent form. Detective Pulver then read Rawls his

Miranda rights and discussed the consent form with him.

Rawls told Officer Llewellyn that he could read and write.2

Officer Llewellyn read portions of the consent form to Rawls

and informed him of his right to an attorney and his right to

refuse consent. Rawls then signed the consent form. Officer

Llewellyn and Detective Pulver testified that Rawls did not

seem confused or disoriented and was aware of the events that

At the suppression hearing, it was discovered that Rawls was not literate, 2

however, Officer Llewellyn had no reason to doubt the veracity of Rawls’

statement at the time.
No. 12-3763 9

were unfolding. The district court found the officers’ impressions of Rawls “completely credible;” we find no error in the

district court’s finding.

Richards relies solely on Rawls’ testimony at the August 18,

2010, suppression hearing to support his argument. Richards

contends that Rawls lacked the mental competence to consent

to a search because (1) his testimony included significant

factual mistakes about the events on December 8, 2009, and (2)

he contradicted himself repeatedly as he testified. To the

contrary, the district court found that Rawls’ testimony

“largely corroborated the version of events related by

Llewellyn, Ealing, and Pulver.” Although Rawls’ recollection

of the events that occurred over eight months prior was not

impeccable, we find that his testimony was not so garbled as

to call into question his mental faculties on the day in question.

This case is similar to our decision in Grap, 403 F.3d at 445.

In Grap, we held that a third-party freely and voluntarily

consented to a detective’s warrantless search even though she

suffered from documented mental infirmities.Id.The detective

informed Mrs. Grap that he believed her son, the defendant,

was storing stolen property in her garage. Id. at 441. Before

searching the garage, the detective had Mrs. Grap sign a

written consent form. Id. The detective observed nothing

unusual about Mrs. Grap’s behavior that would lead him to

believe that Mrs. Grap lacked the capacity to consent to the

search of the garage. Id. Based on the detective’s testimony, we

found that Mrs. Grap’s consent was valid. Id. at 445. We noted

that a person’s mental capacity is only one factor in determining whether someone’s consent was voluntary, and that a

person is not precluded from consenting to a warrantless
10 No. 12-3763

search simply because he or she suffers from a mental disease.

Id. Our review is aimed at “regulating police conduct,” and to

achieve that objective, the appropriate standard is what

objective facts were known to the inquiring officer at the time

consent was given. Id.

In Richards’ case, there is no evidence that Rawls suffered

from a diagnosed mental disability or that officers had any

reason to believe that he could not consent to the search of his

home. Three officers testified about their interactions with

Rawls; each concluded that Rawls appeared to understand

his rights and be free of mental defects. Officer Ealing was

specially trained to recognize symptoms of mental illness, and

he testified that Rawls appeared to have “all his mental

faculties about him.” Without evidence of aberrant behavior

from Rawls on December 8, 2009, we conclude that the district

court’s finding that Rawls was capable of voluntarily consenting to the officers’ search was not clearly erroneous.

Richards also contends that Rawls could not voluntarily

consent to the search on December 8, 2009, because he was too

intoxicated. But the record lacks any evidence to support this

contention. Rawls admitted that he drinks beer or wine on

occasion, but never admitted drinking on the day in question.

Furthermore, Officers Ealing and Llewellyn detected no signs

that Rawls was intoxicated. Rawls’ sister, Kathryn, testified

that Rawls did not appear to be drunk when she arrived at the

scene laterthat day. The district court found that “the evidence

did not support Richards’ contention that his uncle might have

been so intoxicated on the day in question that he did not

understand what was happening.” We agree with the district

court’s conclusion.
No. 12-3763 11

Based on objective facts that were known to the officers on

December 8, 2009, they reasonably concludedthat Rawls freely

and voluntarily consented to the search of his home. Thus, we

hold that the search of Rawls’ home falls within the consent

exception to the warrant requirement and affirm the district

court’s denial of Richards’ first motion to suppress.

B. Richards’ Second Motion to Suppress

Having recognized Rawls’ capacity to freely and voluntarily consent, our analysis turns to whether Rawls had the

authority to consent to a search of the west bedroom. Whether

Rawls had actual or apparent authority to consent to the search

is a mixed question of law and fact, which we review de novo.

Gevedon, 214 F.3d at 810. The government carries the burden of

proof by a preponderance of the evidence that the officers

reasonably believed that Rawls had sufficient authority over

the west bedroom to consent to its search. United States v.

Matlock, 415 U.S. 164, 177, n.14 (1974).

A defendant assumes the risk that a co-occupant may

expose a common area of a house to a police search, as long as

the co-occupant possesses “common authority over or other

sufficient relationship to the premises or effects sought to be

inspected.” Matlock, 415 U.S. at 171. Common authority is not

based on a property interest, but is a social concept based on

whether the consenting person had joint access or control of

the area being searched. Id. Because common authority is

premised on mutual use, an ownership interest in the property

to be searched does not necessarily suffice as actual authority

on its own. United States v. Evans, 27 F.3d 1219, 1229–30 (7th

Cir. 1994). A houseguest has an expectation of privacy,
12 No. 12-3763

Minnesota v. Olson, 495 U.S. 91, 99 (1990), and the possession of

a key is a sign of actual authority over a room, United States v.

Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989).

It is undeniable that Rawls had a relationship to the west

bedroom as the homeowner, however, Richards had been

staying with Rawls approximately three times a week for eight

months prior to his arrest. Richards alone stayed in the west

bedroom, and he frequently locked the door with a padlock.

Rawls did not have a key and had no access to the room unless

Richards unlocked it. Richards had an expectation of privacy

in the west bedroom because he was Rawls’ houseguest and he

alone had access to the room if it was locked. Therefore, we

conclude that Rawls lacked actual authority to consent to a

search of the west bedroom.

Even without actual authority, however, a warrantless

search may still be permissible if consent is obtained from a

third-party with apparent authority. Illinois v. Rodriguez, 497

U.S. 177, 188–89 (1990); United States v. Rosario, 962 F.2d 733,

737 (7th Cir. 1992). When determining whether an individual

has apparent authority to consent, the court employs an

objective standard; officers may conduct a search without a

warrant if they “reasonably (though erroneously) believe” that

the person consenting had authority over the premises.

Rodriguez, 497 U.S. at 186. The touchstone of the inquiry is

whether the officer reasonably believed that the person had

authority to consent based on the facts known to him at the

time. Rodriguez, 497 U.S. at 184; United States v. Groves, 470 F.3d

311, 319 (2006).
No. 12-3763 13

Rawls told Officers Ealing and Llewellyn they could look

around his house to search for Wilson. Rawls did not tell the

officers to avoid the west bedroom or restrict their search in

any way. Rawls never informed the officers that he lived with

anyone else. The padlock on the doorto the west bedroom was

unlocked at the time the officers searched the home. The

officers were unaware Rawls did not have a key to the padlock.

Thus, the officers’ belief that Rawls had access to, and likewise,

the authority over all of the rooms in his house was reasonable.

It is “unjustifiably impractical to require the police to take

affirmative steps to confirm the actual authority of a consenting individual whose authority is apparent. Georgia v. Randolph,

547 U.S. 103, 122 (2006) (citing Illinois v. Rodriguez, 497 U.S. 177

(1990)).

Richards contends that under Randolph, the officers’ unreasonably believed Rawls had authority over the west

bedroom. He argues that the presence of a padlock on the door

to the west bedroom placed a duty on the officers to eliminate

the possibility of an atypical living arrangement. Richards

suggests that the officers should have asked Rawls why there

was a padlock on the door before entering. This argument is

misplaced. 

There is nothing in this case that should have alerted the

police to an atypical arrangement. Richards did not object to

the officers’ entry of the west bedroom. Rawls did not seek

anyone’s approval before letting the officers search the house.

Rawls did not tell the officers they could not go in the west

bedroom. None of the other occupants in Rawls’ house told the

officers that they were not permitted to enter the west bedroom. There were no signs posted that the west bedroom was
14 No. 12-3763

private or off limits. The door was unlocked at the time of the

search. Richards never indicated that the padlock was his.

Based on the facts known to the officers at the time, it was

reasonable for them to believe that it was Rawls that placed the

padlock on the door, not Richards. Once Rawls consented to a

warrantless search, the officers were not required to “take

affirmative steps to findapotentially objecting co-tenant before

acting on the permission they already received.” Id. at 122.

We hold that Rawls’ apparent authority to consent to the

search of his house was sufficient to permit the officers’

warrantless search of the west bedroom, so we need not reach

the issue of whether exigent circumstances justified the

officers’ search. We find no error in the district court’s denial

of Richards’ second motion to suppress.

III. CONCLUSION 

The district court properly denied Richards’ first motion to

suppress evidence because Rawls validly consented to the

officers’ warrantless search of his house. The court properly

denied Richards’ second motion to suppress because Rawls

had apparent authority to consent to a search of his entire

home, including the west bedroom. Therefore, the district

court’s denials of Richards’ motions to suppress

are AFFIRMED.