In the

United States Court of Appeals

For the Seventh Circuit

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No. 07-2077

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TERRY L. REED,

Defendant-Appellant.

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Appeal from the United States District Court 

for the Northern District of Indiana, South Bend Division.

No. 06 CR 75—Robert L. Miller, Jr., Chief Judge. 

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ARGUED FEBRUARY 14, 2008—DECIDED AUGUST 20, 2008

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Before MANION, ROVNER, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge. During interrogation by police,

Terry Reed claimed he had no authority to permit a

search of a dwelling he apparently shared with his girlfriend. After he was arrested on an outstanding warrant,

his girlfriend consented to a search that produced a

weapon and drugs. Reed was convicted by a jury of being

a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1) and being a drug user in possession of a firearm
2 No. 07-2077

in violation of 18 U.S.C. § 922(g)(3). Reed appeals the

district court’s denial of his motion to suppress, claiming

that the search violated the Supreme Court’s holding in

Georgia v. Randolph, 126 S.Ct. 1515 (2006). He also challenges the district court’s rejection of a proposed jury

instruction. We affirm.

I.

On March 27, 2006, while patrolling in an unmarked

police vehicle, Corporal Scott Severns of the South Bend,

Indiana, Police Department spotted a black Cadillac

Escalade driven by Terry Reed. Severns recognized Reed

from an earlier investigation during which undercover

officers had purchased crack cocaine at 4009 Bonfield

Place in South Bend. Severns also knew that Reed had a

suspended driver’s license and an outstanding warrant.

Because he was in an unmarked car, Severns radioed for

a marked car to stop Reed. Corporal Michael Ingle responded to the call and stopped the Escalade. Reed exited

the vehicle and was arrested. During the pat-down of

Reed, Ingle discovered a baggie containing crack cocaine

and over $5,000 in cash in Reed’s pockets.

After reading Reed his Miranda rights, Severns conducted a recorded interview at the scene of the stop.

During the interview, Reed stated that the cocaine that

Ingles found was for Reed’s personal use. Reed also told

Severns that he lived at 1805 Sample Street in South Bend

and that he had multiple prior felony convictions. Severns

told Reed that police had information that Reed had guns

at 4009 Bonfield Place and asked Reed if he lived there.
No. 07-2077 3

Reed responded that he only visited there but he gave his

girlfriend money to pay the rent there. As for the guns,

Reed said that he was not aware of any guns and that

he did not own any guns because of his felony convictions. When Severns inquired whether Reed would sign a

consent to search form for 4009 Bonfield, Reed responded,

“Naw, it’s not my place. I can’t give you permission for

that.” Thereafter, Reed was taken to jail.

While Severns was interviewing Reed, Johanna Foster,

Reed’s girlfriend, drove up to the scene and spoke with the

officers. Severns also conducted a taped interview of

Foster. Foster informed him that she lived at Alonzo

Watson Drive, but stayed with Reed at 4009 Bonfield.

Foster also stated that the lease for 4009 Bonfield was in

both her and Reed’s names. When Severns inquired

whether there were any guns at the residence, Foster

responded that she thought that there were two guns that

belonged to Reed’s friend. When Severns asked Foster if

the police could search the house, Foster responded, “If

I go with them and they promise not to tear it up.” The

police and Foster drove to 4009 Bonfield, and after consulting her sister and an attorney, Foster signed the consent

form.

During the course of the search of 4009 Bonfield, officers

found a Lorcin .380 caliber handgun and a Smith and

Wesson .38 caliber special revolver in the bedroom closet.

Also in the bedroom, the officers located a small amount

of crack cocaine on top of a television set and documents

addressed to Reed (with the Sample Street address). The

officers found a box of .38 special ammunition there as
4 No. 07-2077

well. Tests later revealed that a fingerprint on one of the

guns belonged to Reed.

In a two-count indictment, Reed was charged with

being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1) and being a drug user in possession

of a firearm in violation of 18 U.S.C. § 922(g)(3). Citing

Georgia v. Randolph, 126 S. Ct. 1515 (2006), Reed moved to

suppress the evidence acquired during the search of 4009

Bonfield. After conducting a hearing, the district court

denied Reed’s motion. It concluded that Reed’s case was

distinct from the scenario in Randolph and that consent

to search was validly obtained to search 4009 Bonfield.

Reed pleaded guilty to the felon in possession of a

firearm charge, but later withdrew his plea and proceeded

to trial. At trial, Reed testified that he had touched the

guns, but he had thought that they were toys. Reed stated

that he immediately returned the bag in which the guns

were located to the closet shelf once he saw what appeared

to him to be ammunition. Outside of the presence of the

jury, Reed submitted to the district court the following

proposed jury instruction: “The mere presence of a fingerprint on a firearm is insufficient to prove possession of a

firearm beyond a reasonable doubt.” The district court

rejected this submission, concluding that it was “unnecessary and overstatement of the law.” The district court

further noted, that “[c]ounsel are free to argue the issue

of sufficiency without further instruction.” The jury

returned a verdict of guilty on both counts, and Reed was

sentenced to 262 months’ imprisonment. Reed now

appeals the denial of his motion to suppress and the

district court’s rejection of his proposed jury instruction.
No. 07-2077 5

II.

We review questions of law de novo and findings of fact

for clear error when reviewing a district court’s denial of

a motion to suppress. United States v. Hagenow, 423 F.3d

638, 641-42 (7th Cir. 2005).

Reed contends that the evidence seized during the

search of 4009 Bonfield should be suppressed pursuant to

Georgia v. Randolph, 126 S. Ct. 1515 (2006). In Randolph, the

Supreme Court held that a stated refusal to permit entry

by a physically present co-occupant prevails over the

consent to search by the other co-occupant, rendering the

warrantless search unreasonable and invalid as it affects

the non-consenting co-occupant. 126 S. Ct. at 1519. Both

the defendant in Randolph and his estranged wife were

at the threshold of the residence when police arrived.

The officers first asked Randolph for consent to search;

after he objected, the officers turned to his wife, who

consented. In deciding Randolph, the Court carefully

distinguished and preserved the holdings in two earlier

Supreme Court cases involving challenges to the consent

to search a defendant’s residence. In United States v.

Matlock, 415 U.S. 164 (1974), the defendant was in a squad

car near his dwelling but was not given the opportunity to

object to the search. In Illinois v. Rodriguez, 497 U.S. 177

(1990), the defendant was asleep in the residence but was

not given a chance to object to a search. In both cases the

Court held that consent to search by a co-occupant of the

premises was valid. In Randolph, the Court stated that the

“fine line” it was drawing was this: “if a potential defendant with self-interest in objecting is in fact at the door and
6 No. 07-2077

objects, the co-tenant’s permission does not suffice . . .

whereas the potential objector, nearby but not invited

to take part in the threshold colloquy, loses out.”

Randolph, 126 S. Ct. at 1527. The Court, however, continued

qualifying this “fine line” by stating that it stands “[s]o

long as there is no evidence that the police have removed the potentially objecting tenant from the entrance

for the sake of avoiding a possible objection.” Id.

As the district court properly concluded, Reed’s case

does not fall within the ambit of Randolph. First, Reed

was absent from the residence at the time Foster consented and the search was conducted. Reed’s absence was

a result of a valid arrest, and the police did not execute

the arrest for the purpose of removing Reed from the

area when the police obtained Foster’s consent. See United

States v. Wilburn, 473 F.3d 742, 745 (7th Cir. 2007) (concluding that the case did not fall within the narrow line

of Randolph where the defendant was not physically

present when consent was obtained and he was not

removed “from the area to avoid hearing him invoke an

objection to the search”). See also United States v. DiModica,

468 F.3d 495, 499 (7th Cir. 2006) (concluding that there

was no Fourth Amendment violation where consent to

search was obtained from a wife after her husband was

removed from the home during the course of a valid

arrest); United States v. Parker, 469 F.3d 1074, 1078-79 (7th

Cir. 2006) (holding that the co-tenant’s consent to search

a house was independent of defendant’s arrest). Further,

it is clear from the record that Foster voluntarily consented to the search of 4009 Bonfield, as evinced by her

consultation with her sister and an attorney.
No. 07-2077 7

Moreover, had Reed been standing in the doorway and

refused to consent to a search because it was not his place,

only to be overridden by Foster’s subsequent consent,

we might have a closer question under Randolph. But we

need not answer that question because unlike the defendant in Randolph, Reed was not present at the searched

residence. Reed cites United States v. Ellis, 499 F.3d 686 (7th

Cir. 2007), in support of his position that his statement

was a refusal binding the officers not to search. However,

Reed’s case is distinct from Ellis. The defendant in Ellis

stood at the door and stated a decisive “no” to the officers’

request to search a home before stating that he did not

live in the house. Id. at 688, 690. Reed, however, was away

from the home and responded to Severns’s request to

sign a form giving the officers consent to search “your

place over on Bonfield.” Reed responded, “Naw, it’s not

my place[;] I can’t give you permission for that.” Unlike

the defendant in Ellis, Reed was not present at the threshold of the home. In fact, he was not near the location

when police stopped his car and arrested him. Therefore,

in light of Reed’s absence from 4009 Bonfield, we conclude that the district court did not err in holding that

the suppression of evidence was not warranted under

Randolph.

Reed also challenges the district court’s rejection of one

of his proposed jury instructions, arguing that the rejection

denied him a fair trial. “We review a district court’s

decision not to instruct the jury on a theory of defense de

novo.” United States v. Hendricks, 319 F.3d 993, 1004 (7th

Cir. 2003). Considering the jury instructions as a whole, a

defendant is not entitled to a specific instruction if a jury
8 No. 07-2077

was adequately instructed on a defendant’s theory of

defense. United States v. Given, 164 F.3d 389, 394 (7th Cir.

1999).

The proposed instruction the district court rejected

stated, “The mere presence of a fingerprint on a firearm

is insufficient to prove possession of a firearm beyond a

reasonable doubt.” The district court submitted to the

jury the instruction that the government must prove,

among other things, that Reed knowingly possessed a

firearm, and that:

The word “knowingly” means that the defendant

realized what he was doing and was aware of the

nature of his conduct and did not act through ignorance, mistake or accident. Knowledge may be proved

by the defendant’s conduct and by all the facts and

circumstances surrounding the case.

Possession of an object is the ability to control it.

Possession may exist even when a person is not in

physical contact with the object, but knowingly has

the power and intention to exercise direction and

control over it, either directly or through others.

(Emphasis added.)

We conclude that viewing the instructions as a whole, the

district court did not err in denying Reed’s request for

the specific instruction. The provided instruction clearly

sets forth that possession must be knowing and that

possession is not achieved by accident. Thus, the instruction given encompassed Reed’s theory of the case that he

accidentally came in contact with the guns. Furthermore,
No. 07-2077 9

the district court permitted Reed’s counsel to assert his

theory regarding sufficiency during closing argument.

Reed’s attorney took advantage of this opportunity by

stating that Reed was not charged with touching a firearm and asserted that Reed coming in contact with the

guns was an accident caused by Reed’s mistaken belief

that the gun was a toy. Accordingly, the district court

did not err in rejecting Reed’s proposed jury instruction.

III.

The police officers’ search of 4009 Bonfield did not

violate the principles set forth in Randolph, and therefore

the district court properly denied Reed’s motion to suppress. Regarding the jury instructions, the district court

did not err in denying Reed’s proposed instruction because the instruction given properly informed the jury of

the controlling law and instructed the jury on Reed’s

theory of defense. Accordingly, we AFFIRM.

ROVNER, Circuit Judge, concurring. I agree both with the

result and the bulk of the reasoning in this majority

opinion. I object only to the statement that a valid arrest

eviscerates a resident’s objection to an officer’s request

to search made while that resident was present on the

property.
10 No. 07-2077

In my recent dissent in United States v. Henderson, No. 07-

1014, 2008 WL 3009968 (7th Cir. Aug. 6, 2008) (Rovner, J.,

dissenting), I argued that “where the police are responsible

for the objecting tenant’s removal from the premises, his

objection ought to be treated as a continuing one that

trumps his co-tenant’s consent and so precludes a search of

the premises unless and until the police obtain a warrant.”

Id. at *10. My conclusion rested on the essential expectation

of residential privacy protected by the Fourth Amendment,

and specifically, on the social expectations paradigm

upon which the Supreme Court relied in its decision in

Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515 (2006).

“Only in a Hobbesian world,” I wrote, “would one

person’s obligation to another [to obey the command to

keep out] be limited to what the other is present and able

to enforce.” Henderson, 2008 WL 3009968, at *11 (Rovner, J.,

dissenting)

On the flip side of this theory, once a tenant chooses to

share access to the premises with another person and then

leaves the premises voluntarily, that resident assumes

the risk that a co-tenant may admit an objectionable

person into the residence. Henderson, 2008 WL 3009968,

at *11 (Rovner, J., dissenting). Under this reasoning, a

court must consider not whether the resident was removed

pursuant to a valid arrest, but whether the objecting

resident was removed involuntarily or whether he abandoned the premises of his own volition. In this case,

however, we need not be bothered with such a determination. Reed was never removed from the premises, nor was

he present at the address when he said “Naw, it’s not my

place. I can’t give you permission for that.” He was sitting

in his car on the side of the road. He was not, therefore, a
No. 07-2077 11

present and objecting tenant. Consequently, in sustaining

the search, I would go no further than noting that

Reed was absent from the premises when his girlfriend,

who was present at the residence and had authority to

consent, gave the okay for the search.

8-20-08