### In the



# United States Court of Appeals For the Seventh Circuit

No. 12-3763

U NI T E D S TAT E SOF A M E RI C A , Plaintiff-Appellee,

v.

T I MOTHY L. R I C HAR D S , Defen dant-Appellant.
Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the Nor thern Distri ct o f Indi ana, Fo rt Wayne Divisi on. No. 1: 10 -cr- 00 00 6- TLS- 1 — Theresa L. Sp ringma nn, Judg e.
A RGU E D O C TOB E R 31, 2013

— D E C I D E D J ANU AR Y 31, 2014

Before B AU E R

, M AN I ON

, and R OVN E R

, Circ uit Judges. B AU E R , Cir cui t Judge

. Ti mothy L. Ri chards (“Ri chards”) w as ch a r g e d in a four -count indi ctment wi th (1) possess i on of a contro lled sub stance wi th intent to di strib ute, ( 2) maintaining a resi dence or place for the purpose of using and dis tr ibuting contro lled sub stances, (3) possess i on of a fir e arm in further

a nce of a drug tr affi cking cri me, and (4) being a felo n in possess i on of a fi rear m. Pri or to trial, the di stric t c ourt deni ed Ri chards’ fi rst and second motions to supp res s e v idence that2 No. 12-3763
the poli ce sei zed wi thout a search w arr ant at the tim e of hi s
arr est. After tr i al, a jury convic ted Ri chards of all four charges. Ri chards now appeals the di stric t court’s deci si ons to allow the government to intro duce the sei zed evidenc e and rais es tw o i ssu es. First, Ri chards arg ues that the di stric t court err ed when i t foun d t hat Edw ard Rawls (“Rawls ”) had the mental capac i ty to consent to th e w arr antless search of hi s home. Second, Ri chards arg ues that the di strict court err ed when i t found that (1) Rawls had apparent authority to consent, and
e ven if Rawls di d not hav e the requis i te authority to consent, (2) exigent ci r cumstances v ali dated the w arr antless search of

a be d ro om Ri chards used in Rawls’ house. For the following reasons, w e find no err or
.

I. BACKGRO UND On December 8, 2009, For t W ayne P olic e Department Offi cers Phi lli p Ealing and Da l e Llewellyn atte mpted to execute an arr est w arr ant for P aul Wi lson (“Wi lson”). Whi le in uni form an d on p atr ol, the offi cers talked to sev eral indi vidu

als who sai d they had seen Wi lson frequently enter and leav e
a particu lar resi dence on the corner of Jefferson Boulev ard and Hanna St reet

. When the offi cers arr i v ed at the described house, Offi cer L lewellyn knocked on the doo r . An indi vidu al named “Di az” opened the door and invited the offi cers insi de to speak wi th the homeowner

, Rawls. The offi cers di d not hav e a

1

Ra wl s i s the uncle of Richards. At the time of the i ncid ent, Ra wls was 1 ei ghty-six years ol d; an adv anced age, b ut no t one tha t requir es a menta l test to b e co nside red reasonab l y rel i ab l e.No. 12-3763 3
search w arr ant for the resi de nc e o r an arr est w arr ant for any one ot her than W i lson. The offi cers w ent insi de to talk wi th Rawls and notic ed that there w ere sev eral people in t he ho use. The offi cers asked Rawls i f Wi lson w as present. Rawls told the offi cers that he

w as not, bu t gav e them permi ssi on to look aro und the house to confi rm. The offi cers e ncountered sev eral people as they

w alked thr ough the house, but Wi lson w as not one o f them. When they enter ed the kitch en, the offi cers smelled the stro ng odor of burnt mari juana. Ri chards and another man sat at the kitch en table. Offi cer Ealing testifi ed that he saw what he thought w as a ro ck of cra ck co caine on a plate next to a mi crow av e ov en. Offi cer Llewellyn testifi ed that he saw a mari juana cig aret te, a small amount of mari juana, drug paraphernalia, and plasti c baggi es on the kitchen table. All of these i tems were in plain view

. Offi cer Llew ellyn told Ri chards to stand up so that he could conduc t a prot ecti ve p a t down for w eapons, but Ri chards refused. The v erbal co nfrontat i on escalated into a physi cal strugg le betw een the tw o; at one point, O ff i cer Ealing used pepper spray to sub due Ri chards. The offi cers then h an d cu ffed Ri chards and lifted hi m to hi s feet. When they di d so, a handgun fell from hi s w ai stband onto the floor

. Offi cer Ealing also di scov ered a kni fe sti cking out of Ri chards’ back pocket. After the alter cati on wi th Ri chards, the offi cers called for backup and conduc ted a prot ecti v e sweep o f the house. Offi cer L lew ellyn enter ed the w est bedroo m that Ri chards stay ed in when he vis i ted hi s unc le. The door frame had a hasp and padlock, but the door w as unlocked at the time O ff i cer4 No. 12-3763
Llew ellyn e nt e r e d the ro om. Once insi de, he saw an open bri efcas e on the bed containing what he beli ev ed to be cocaine. After the offi cers fini shed the sweep, backup arr i v ed. Offi cer Llew ellyn and Detecti v e Sha ne Pulv er asked Rawls i f he w ould giv e wri tte n consent to search hi s ho me
. B efore giving hi m the consent form, Detecti v e Pulv er read Rawls h i s Miranda rights. Rawls w as nev er handcuffed or detain ed. Offi cer Llewellyn then gav e Rawls tim e to r e a d the consent form on hi s own and read port i ons of the form aloud to Rawls
as w ell. Offi cer Llew ellyn informed Rawls of hi s right to refuse consent and hi s right to seek l e g a l couns el. Rawls told the offi cers that he understood hi s rights and wi llingly si gned the consent form on the o ffi cers’ fi rst r equest to do so. Throughout their interactio n with Rawls, the offi cers di d not notic e anythin g unus ual about hi s behavi or
. Offi cer Ealing
w as a member of the For t W ayne Cris i s Inter v ention T eam and ha d received speci ali zed tr aining on how to i denti fy peop l e who suffer from mental i llness es. Nei ther o ffic er observ ed si gns that Rawls w as exper i encing any kin d of dementi a or confus i on. Addi tio na l ly , nei ther offi cer notic ed any slurred speech , detected the smell of alcohol on Rawls’ breath or di scerned an indi cati on that R awls w as intox i cated. Ri chards w as arr est e d a nd charged wi th (1) possess i on of

a contro lled sub stance wi th intent to di strib ute, in violati on of 21 U.S.C. § 841(a)( 1); (2) maint a ining a resi dence or place for the purpose of using and di strib uting contro lled sub stances, in violati on of 21 U.S.C. § 856(a)( 1); (3) possess i on of a fi rear m in furtherance of a drug tr affi cking cri me, in violati on of 18 U.S.C. § 924(c) ; and (4) possess i on of a fi rear m havin g prev i ously beenNo. 12-3763 5
convic ted of a felo ny offense, in violati on of 18 U.S.C. § 922(g)(1). In July 2010, Ri chards fi led a motion to suppress evi dence sei zed by poli ce during his w arr antless arr est. After an evidenti ary hearin g, the di stric t court found that Rawls

v oluntarily prov i ded v ali d consent for the poli ce to search hi s resi dence and deni ed Ri chards’ mo t io n. In Februar y 2011, Ri chards fi led a second motion to supp ress, arg uing that Rawls lacked authority to consent to a search of the bedroo m that Ri chards used when he stay ed with R a wl s. After an evidentiary hea rin g, the d i s tr i c t court deni ed Ri chards’ second motion to supp ress on tw o separate gr ounds. First, the court found that Rawls had apparent author i ty t o consent to the search of the bedroo m. The court also found that exigent ci rcums tances justifi ed the offi cers’ prot ecti v e sweep of the bedroo m. After a jury convic ted Ri chards of all four counts, the court sentenced hi m to a t o t al ter m of 180 months in pris on follow ed by si x y ears of supervis ed release.

II. DISCUSSION When rev i ewing a di stric t court’s deni al of a motion t o supp ress, w e rev i ew legal c onclus i ons de novo
. United States v
. Huddle ston , 593 F .3d 596, 600 (7th C ir

. 2 0 1 0). W e rev i ew the di stric t court’s fa ct ual findings for clear err or and wi ll only
rev erse i f the findings leave t his Court wi th a “defini te and fi rm convic tion that a mi stake has been made.” United States v
. T ilmon , 19 F .3 d 1221, 1224 (7th Ci r
. 1994). Mixed questi ons of law and fact are rev i ew ed de novo
. United States v
. Gevedon , 214 F .3d 807, 810 (7th Ci r . 2000).6 No. 12-3763
A. Ric hards’ First

Motion to Suppress Ri chards arg ues that t he di stric t court err oneously found that Rawls ha d the requis i te mental capac i ty to freely and

v oluntarily consent to the offi c ers’ search of hi s home. Whether

an indi vidu al’ s co ns ent to a search w as v oluntary i s a factual deter minati on, which w e rev i ew for clear err or
. United States
v
. Johnson, 495 F .3d 536, 541 (7th Ci r
. 2007). Rel y ing o n t esti

mony from the supp ressi on hearin g, Ri chards arg ues that Rawls w as inc a p a bl e of consenting to the offi cers’ search becau se hi s adv anced age of ei ghty -si x y ears left hi m a confus ed old man who w as out of touch wi th rea l ity

. W e di sagree. Our analysi s begins wi th the presumpti on that w arr antless searches or arr ests wi thin a home are unreasonable and violate the Four th Amendment. Payton v
. New Y ork , 445 U.S. 573, 576 (1980); Johnson v
. United States , 333 U.S. 10, 14 (1948). How ev er , w arr antless searches or arr ests a re consti tutionally permi ssi ble when a “narro wly proscrib ed” exception exis ts. Uni te d S tates
v
. Bell, 500 F .3d 609, 612 (7th Ci r
. 2007). One such exception exis ts when “an authorized indi vidu al v oluntarily consents to t he search.” United States v
. Duran, 957 F .2d 499, 501 (7 t h C ir

. 1992). The g o ver nment mus t prove “by a preponder ance of evidenc e that consent w as freely an d v olunta rily giv en.” United States v. Grap, 403 F .3d 439, 445 (7th Ci r . 2005). I t i s unc ontested that Rawls, as the homeowner , w a s authorized to consent to the offi cers’ search of hi s house. Rawls unequiv ocally consented ; wh e n the poli ce asked hi m i f they
co uld search the house, he sai d “search.” The i ssu e remain s, how ev er , wheth er Rawls had the mental facu lties about hi m onNo. 12-3763 7
December 8, 2009, to freely and v oluntaril y co nsent to the search. Whether a thi rd-part y’s consent i s v oluntarily giv en to the poli ce i s a questi on of fact that depends o n t he tot ali ty of ci rcums tances. Schn eckloth v
. Bustamonte, 412 U.S. 2 1 8, 227 (1973). T o d e t ermin e whether consent w as prov i ded v oluntar i ly , w e consi der (1) Rawls’ age, educ ation, and intelli gence; (2) whether Rawls w as informed of hi s co nsti tutional rights; (3) whether Rawls w as in cus tody ; (4) how long he w as detain ed; (5) whether R a wl s consented i mmedi ately or after poli ce made sev eral requests; and (6) whether the poli ce used physi cal coerci on. Un ited States v
. Strache, 202 F .3d 980, 985 (7th Ci r
. 2000); Schn eckloth , 412 U.S. at 226. W e rev i ew these factors in the li ght of “objectiv e facts, as presented to a reasonable inqui rer

, that w ould reasonably put hi m or her on not i ce that a v oluntary consent could no t be g i v en.” Grap, 403 F .3d at 445. Our deter minati on does not depend on a single contro ll ing factor

, but carefully consi ders “all of the surrounding ci rcums tances.” Schn eckloth , 412 U.S. at226. Ri chards att acks Rawls’ capac i ty to freely and volun t a rily consent based only on the fi rst facto r

— age, educati on, and intelli gence—becau se he contends that Rawls w as an “old man out o f touch wi th reality .” Thi s argument i s not persuasi v e. T o gui de our deter minati on of whether R a wls v oluntarily consented to the search, w e consi der the information known to the offi cers when they arr i v ed a t R awls ’ house on the day in questi on. It w as readily apparent to the offi cers that Rawls w as
an older gentleman becau se he clearly had di ffi culty w alkin g. How ev er

, noth ing occurred to put the offi cers on notic e that8 No. 12-3763
Rawls lacke d the intelli gence or the capac i ty to v oluntarily consent to t he search of hi s home. When Offi cers Ealing and Llew ell y n fi rst talked to Rawls, Rawls confi rmed that he

w as the homeowner and invited the offi cers to search for Wi lson. R a wls w as accompani ed by tw o other men during thi s conv ersation, and nei ther of them expr essed any concerns about Rawls’ mental condi tion. Offi cer Ealing testifi ed that he di d not observ e any si gns of dementi a during hi s interaction wi t h Rawls. Offi cer Llewellyn testifi ed that he di d not notic e any si gns that Rawls suffered fr o m mental problems ei ther

. R a wls di d not make any inappropr i ate comments or act in a
w ay that w ould lead the offi cers to beli ev e he w as confus ed, d e l us io nal, o r unabl e to consent. W e find no thing that w oul d hav e put a reasonable offi cer on notic e that Rawls’ mental state
w as so i mpai red that he could not prov i de v oluntary consent to t he i mpending w arr antless s earch. After Ri chards’ arr est and t he d isc ov ery of drugs, the offi cers again conferre d wi th Rawls and asked hi m to si gn a wri tte n co nsent form. Detecti v e Pulv er then read Rawls hi s Miranda rights and di sc us sed the consent form wi th hi m. Rawls told O ff ice r Llew ellyn that he could read and wri te. 2 Offi cer Llew ellyn read port i ons of the consent form to R a wls and informed hi m of hi s right to an a t t o r ne y a nd hi s right to
r e fus e consent. Rawls then si gned the consent form. Offi cer Llew ellyn and Det e ct i v e Pulv er testifi ed that Rawls di d not
seem confus ed or di soriented and w as aw are of the ev ents that

At the suppressi on hearing, i t was di scovered tha t Ra wls was not l i terate, 2 however, Off i cer Ll ewel l yn ha d no reason to do ub t the veracity o f Rawls’ statem ent at the time.No. 12-3763 9

w ere unfolding. The di stric t court found the offi cers’ i mpressi ons of Rawls “completely credible;” w e fin d no err or in the di stric t court ’s finding. Ri chards relies solely on Rawls’ testim ony at the August 18, 2010, supp ressi on hearin g to supp or t hi s ar gument. R ich a rds contends that Rawls lacked the mental competence to consent to a search becau se (1) his testim ony inclu ded si gni fi cant factual mi stakes about the ev ents on December 8, 2009, and (2) he co nt r a di cted hi mself repeat edly as he testifi ed. T o the contrar y , the di stric t court found that Rawls’ testim ony “large ly corr obor ated the v ersi on of ev ents r e l a t ed by Llew ellyn, Ealing, and Pulv er .” Although Rawls’ recollection of t he e v ents that occurred ov er ei ght months prior w as not i mpe ccable, w e find that hi s testim ony w as not so garbled as to call into questi on hi s mental facu lties on the day in questi on. Thi s case i s si mi lar to our dec i si on in Grap, 403 F .3d at 445. In Grap , w e held that a t hir d -party freely and v oluntarily consented to a detectiv e’s w arr antless search ev en though she suffered from documented mental infi rmi ties

. Id. The detectiv e informed Mr s. Grap that he beli ev ed her son, t he d e fe ndant,

w a s stor ing stolen proper ty in her gar age. Id

. at 441. Before searching the gar age, t he detectiv e had Mr s. Grap si gn a wri tte n consent form. Id

. The detectiv e obse r ved nothin g
unus ual about Mr s. Grap’s behavi or that w ould lead hi m to beli ev e that Mr s. Grap lack e d the capac i ty to consent to the search of the gar age. Id. Based on the detectiv e’s testim ony , w e found that Mr s. Grap’s consent w as v ali d. Id. at 445. W e noted that a person’s mental capac i ty i s only one factor in deter mining whether so me o ne’s consent w as v oluntary , and that a person i s not precluded from consenting to a w arr antless10 No. 12-3763
search si mply becau se he or she suffers from a mental di sease. Id. Our rev i ew i s ai med at “reg ulating poli ce conduc t,” and to achi ev e that objectiv e, the appropr i ate standard i s what objectiv e facts were known to the inqui ring offi cer at the ti me consent w as gi v en. Id

. In Richards’ case, there i s no evi dence that Rawls suffered from a di agnosed mental di sabi li ty or that offi cers had any
reason to beli ev e that he could not consent to the search of hi s home. Three offi cers testifi ed about their interactions wi th Ra wl s; each conclu ded that Rawls appeared to understand hi s rights and be fre e o f ment al defects. Offi cer Ealing w as speci ally tr ained to recog ni ze symptoms of mental i llness, and he testifi ed that Rawls appeared to hav e “all hi s ment al facu lties about him. ” Wi thout evidenc e of aberrant behavi or from Rawls on December 8, 2009, w e conclu de that the di stric t court’s finding that Rawls w as capabl e of v oluntarily consenting to the offi cers’ search w as not clearly er ro neous. Ri chards also contends that Rawls could not v oluntarily consent to the search on December 8, 2009, becau se he w as too intox i cated. But the re cord lacks any evidenc e to supportthi s contention. Rawls admi tte d that he drinks beer or wine on occasi on, but nev er admi tte d drinkin g on the day in questi on. Furt hermor e, Offi cers Ealing and Llewellyn detected no si gns that Rawls w as intox i cated. Rawls’ si st er , Kathr yn, testifi ed that Rawls di d not appear to be drunk when she arr i v ed at the
scen e later that day

. The di stric t court found that “the evidenc e di d not supp or t Ri chards’ contention that hi s unc le mi ght hav e been so intox i cated on the day in questi on that he di d not underst and what w as happening.” W e agr ee wi th the di stric t court’s conclus i on.No. 12-3763 11
Based on objectiv e facts that w ere known to the offi cers on December 8, 2009, they reasonably conclu d e d that Rawls freely and v oluntarily consented to the search of hi s home. Thus, w e ho ld that the search of Rawls’ home falls wi thin the co ns e nt exceptio n to the w arr ant requirement and affi rm the di stric t court’s deni al of Ri chards’ fi rst mot i on to supp ress. B. Ric hards’ Second Motion to Suppres s Havin g r e co gni zed Rawls’ capac i ty to freely and v oluntar i ly consent, our analysi s turns to whether Ra wl s ha d the authority to consent to a search of the w est bedroo m. Whether Rawls had actual or apparent authority to consent to the search i s a mixed question o f law and fact, whi ch we rev i ew de novo

. Gevedon , 214 F .3d at 810. The government carries the burden of proo f by a preponder ance of t he evidenc e that the offi cers reasonab l y beli ev ed that Rawls had suffi ci ent authority ov er the w est bedroo m to consent to i ts search. U n ited States v
. Mat lock, 415 U.S. 164, 177, n.14 (1974). A defendant assu mes the ris k t ha t a co-occu pant may expose a common area of a house to a poli ce search, as long as the co-occu pant possess es “common authority ov e r or other suffi ci ent relat i onshi p to the premi ses or effects sought to be inspec ted.” Mat lock, 415 U.S. at 171. Common authority is not based on a proper ty intere st, but i s a soci al co nc e p t based on whet he r t he consenting person had jo int acces s or contro l of the area being searched. Id

. Becaus e common authority i s premi sed on mutual use, an ownershi p intere st in the proper ty to be searched does n ot neces sari ly s uffi ce as ac tual authority
on i ts own. United States v
. Evans , 2 7 F .3d 1219, 1229–30 (7th Ci r
. 1994 ). A ho useguest has an expectat i on of priv acy ,12 No. 12-3763
Minnesota v
. Olson, 495 U.S. 91, 99 (1990), and the possess i on of

a key i s a si gn of actual authority ov er a ro om, United States v
. Rodriguez, 888 F .2d 519, 522 (7th Ci r . 1989). It i s un deni able that Rawls had a relat i onshi p to the w est bedroo m as th e homeowner , how ev er

, Ri chards had been stayin g wi th Rawls approx i mately three tim es a w eek for ei ght months prior to hi s arr est. R i chards alone stay ed in the w est bedroo m, and he frequently locked the door wi th a padlock. Rawls di d not hav e a key and had no acces s to the ro om unles s Ri chards unlocked i t. Ri chards had an expectat i on of priv acy in the w est bedroo m becau se he w as Rawls’ houseguest and he alone had acces s to the ro om i f i t w a s l o cked. Therefore , w e
co nclu de that Rawls lacked actual authority to consent to a search of the w est bedroo m. Ev en wit ho ut actual authority , howev er

, a w arr antless
sear ch ma y sti ll be permi ssi ble i f consent i s obtained from a thi rd-part y wi th apparent authority

. Illinoi s v
. Rodriguez , 497 U.S. 177, 188–89 (1990); United States v
. Rosario , 962 F .2d 733, 737 (7th Ci r
. 1992). When dete r min ing whether an individu al has apparent auth o r it y to consent, the court employs an obj e ct ive standard; offi cers may conduc t a search wi thout a
w arr ant i f they “reasonably (though err oneously) beli ev e” that the person consenting had aut ho r i ty ov er the premi ses. Rodriguez , 49 7 U.S. at 186. The touchstone of the inqui ry i s whether the offi cer reasonably beli ev ed that the person had authority to consent base d o n the facts known to hi m at the tim e. Rodriguez , 497 U.S. at 184 ; United States v
. Groves, 470 F .3d 311, 319 (2006).No. 12-3763 13
R awls told Offi cers Ealing and Llewellyn they could look
aro und hi s house to search for Wi lson. R a wl s d id not tell the offi ce r s t o av oid the w est bedroo m or restr i ct their search in any way
. Rawls nev er informed the offi cers that he li v ed wi th any one else. The padlock on the door to the w est bedroo m w as unlocked at the t ime the offi cers searched the home. The offi cers w ere unaw are Rawls di d not hav e a key to the padlock. Thus, the offi cers’ beli ef that Rawls had acces s to, and li kewi se, the authority ov er all of the ro oms in hi s house w as reasonable. It i s “unjustif ia bl y i mpracti cal to require the poli ce to take affi rmative steps to confi rm the actual autho rity of a consenting indi vidu al whose authority i s a p p a re nt. Geor gia v
. Randolph , 547 U.S. 103, 122 (2006) (ci tin g Illinois v
. Rodriguez , 497 U.S. 177 (1990))

. Ri chards contends that un d e r Randolph , the offi cers’ unreasonably beli ev ed Rawls had authority ov er th e w est bedroo m. He arg ues that the presence of a padlock on the door to the w est bedroo m placed a duty on the offi cers to eli minate the possi

bi li ty of an atypical living a r r a ngement. Ri chards suggests that the offi cers should hav e asked Rawls why there

w as a padlock o n the door before enter ing. Thi s arg ument i s mi splac ed. There i s nothin g in thi s case that should hav e alert ed the poli ce to an atypical arr angement. Ri ch ards di d not object to the office r s’ entry of the w est bedroo m. Rawls di d not seek any one’s approv al before letting the offi cers search the house. Rawls di d not t e l l the offi cers they could not go in the w est bedroo m. None of the other occupan ts in Rawls’ house told the offi cers that they w ere not permi tte d to enter the w est bedro om. There were no si gns posted that the w est bedroo m w as14 No. 12-3763 priv ate or off li mi ts. The door w as unlocked at the t i me of the
se a r ch

. Ri chards nev er indi cated that the padlock w as hi s. Based on the facts known to the offi cer s at the tim e, i t w as reasonable for them to beli ev e that i t w as Rawls that placed the padlock on the door

, not Ri chards. Once Rawls consented to a
w arr antless search, t he offi cers w ere not required to “take affi rmative steps to fin d a p ote nti a l ly ob je c tin g co-tenant before acting on the per mi ssi on they already r ecei v ed.” Id. at 122. W e ho l d t hat Rawls’ apparent authority to consent to the search of hi s house w a s su ff i ci ent to permi t the offi cers’

w arr antless search of the w est bedroo m, so w e need not reach the i ssu e of whether exigent cir cu mstanc es justifi ed the offi cers’ search. W

e find no err or in the di stric t court’s deni al of Richards’ second m otion to suppress.

III. CONCLUSION The di stric t court proper ly deni ed Ri chards’ fi rst motion to supp ress evidenc e becau se Rawls v ali dly consented to the offi cers’ w arr antless search of hi s house. The court proper ly deni ed Ri chards’ second motion to supp ress becau se Rawls had apparent authority to consent to a search of hi s entire home, including the w est bedroo m. Therefore , the di stric t
c o u r t ’ s d e n i a l s o f R i c h a r d s ’ m o t i o n s t o s u p p r e s s are AF FIR MED.