In the

United States Court of Appeals

For the Seventh Circuit

No. 07-1654

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RICHARD RYERSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 06 CR 172—John C. Shabaz, Judge.

ARGUED SEPTEMBER 12, 2007—DECIDED SEPTEMBER 18, 2008

Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Defendant Richard Ryerson

challenges his conviction and sentence for possessing a

machine gun in violation of 18 U.S.C. § 922(o). Ryerson

claims the district court improperly denied his motion to

suppress the machine gun, which was found in Ryerson’s

garage after his ex-wife, Jennifer Lawicki, consented to a

warrantless search. Ryerson also contends that the court

improperly enhanced his sentence by two levels for

obstruction of justice.
2 No. 07-1654

Although this is a close case, we are not persuaded by

Ryerson’s arguments. Because of Lawicki’s long-term and

continuing residence in Ryerson’s home, she had authority

to consent to the search and the police acted reasonably

in believing she lived there. The district court also had

ample reason to enhance Ryerson’s sentence for obstruction of justice because he tried to dump the machine

gun before he was caught. Therefore, we affirm

Ryerson’s conviction and sentence.

I. BACKGROUND

On February 8, 2006, Jennifer Lawicki went to the sheriff’s office in Adams County, Wisconsin, to try and regain

custody of her infant daughter. Lawicki explained to the

officers that she lived with her boyfriend Richard Ryerson

and their daughter in a home on Gillette Lane in Adams

County, even though she filed a missing person/runaway

report that listed a different home address on Gale Drive,

also in Adams County. Lawicki was accompanied by

Dave Curley, with whom she was staying at the Gale

Drive residence. Lawicki told the police that Curley was

just a friend and that she was not romantically involved

with him.

Lawicki stated that she had left Gillette Lane three days

earlier after an argument with Ryerson and had returned

to get her daughter and their belongings. She claimed she

could not enter her home because Ryerson (who was

jailed in Adams County because he had traveled to Illinois

in violation of his probation) had changed the locks while

she was away. A sergeant told Lawicki she could break a

window to enter the home so long as she lived there. So
No. 07-1654 3

Lawicki did just that. Jason Krumscheid, an employee

of Ryerson’s entrusted to care for the house, saw the

broken window and reported a burglary to the police.

The next day, the police arranged to interview Lawicki

back at the sheriff’s office regarding the alleged burglary.

Once again accompanied by Curley, Lawicki repeatedly

told Investigators Mark Bitsky and Todd Laudert that she

lived at Gillette Lane. She also said that Ryerson sold

drugs and stored weapons at Gillette Lane, including a

submachine gun that she had allegedly seen two months

earlier under the back porch. Bitsky asked Lawicki if the

police could search the home for contraband. After consenting, she signed a permission to search form.

The police followed Lawicki and Curley to Gillette

Lane. The officers summoned Jason Krumscheid, who

willingly let Lawicki and the police enter the home. Little

did they know that Ryerson had called Krumscheid from

jail earlier that evening, expressing concern that Lawicki

might plant something because she “has access to the

house” and noting that “[a]nything in that house could be

Jennifer’s also.” He asked, “What’s to stop her from

going in there and planting cocaine or something all over

my house?” Additionally, Ryerson mentioned that Lawicki

had a restraining order preventing him from coming

within 100 feet of her. He also directed Krumscheid to

get rid of “a little rapid fire BB gun” stashed in the

garage drywall, along with some jewelry that Lawicki had

allegedly hidden there.

Before entering, Lawicki correctly anticipated and

warned the police about a “vicious cat” inside the house.

She said that the house was in Ryerson’s name, but that she
4 No. 07-1654

had bought the property with him and lived there with

their baby. Lawicki also went to the basement to retrieve

some business records for the Dells Cab Company, a

taxicab company that Ryerson and Lawicki co-owned and

ran from Gillette Lane. The house also contained Lawicki’s

and her baby’s personal items, including clothes and toys.

The officers further found a pellet gun, ammunition, a

digital scale with white powdery residue, and a pack of

rolling papers. They did not find a machine gun or any

drugs.

Meanwhile at Adams County jail, Ryerson complained of

a heart condition. Although it turned out he was merely

agitated, Ryerson was fretting that Lawicki had “broken

into” his home and was planting evidence there. He

handed a jail sergeant a note that read:

Dear Sargent, my name is Richard Ryerson, my x

wife took my baby to an undisclosed location out

of state and told me I would never see her, so

I crossed Ill boarded without permission; that why

Im her; while I was in here she broke in the house

I took lots of stuff. The House is in my name I just

bought it.

We have been divorest for 3 years, she dosn’t have

any name on the house, it is souly mine, she just

stays with me as girl friend now. MY PO Jill Edward and I our concern of her planting eleagl

things in the House, my cab Drive stays At my

resdence while Im in her. My X girlfriend is sit out

in front of my drive way with her know boyfriend

he is a Drug Dealer and I think when they broke
No. 07-1654 5

in last knight they put some thing in my house or

they want to go back in and do somthing to night.

Please may I talk to you ASAP

Rick Ryerson

Dells Cab Co

CEO

The record does not indicate whether the jail sergeant

read the note before handing it to Investigator Bitsky after

he returned from the search. Bitsky did not read the

note until after the relevant events had occurred in this

case.

The next morning, Bitsky listened to the jail’s recording

of Ryerson and Krumscheid’s conversation from the

previous evening. Bitsky recognized that an illegal

weapon still might be hidden in the garage drywall and

asked Lawicki to meet him at Gillette Lane. She signed

another permission to search form and accompanied the

officers into the garage. Lawicki did not object when they

used a thermal imager to search for “dead spots” in the

wall. In a second dead spot, the police recovered a Thompson submachine gun.

After his indictment, Ryerson moved to suppress the

machine gun as the fruit of an illegal search. At an evidentiary hearing before a magistrate judge, Lawicki (who had

since remarried Ryerson) testified that she did not believe

she had legal authority to consent to the searches. The

magistrate judge did not buy her testimony and recommended the district court deny Ryerson’s motion. Ryerson

then pled guilty, preserving his right to challenge the
6 No. 07-1654

denial of his motion to suppress. The district court

adopted the magistrate’s recommendation and sentenced

Ryerson to 48 months in prison, imposing a two-level

enhancement for obstruction of justice.

II. ANALYSIS

A. Ryerson’s motion to suppress was properly denied.

Ryerson claims the police violated his Fourth Amendment rights when they searched his home on February 9,

2006, and searched his garage the next day. The government successfully argued before the magistrate judge and

the district court that Lawicki’s consent justified both of

these warrantless searches. We review the district court’s

factual findings for clear error and questions of law

de novo. United States v. Mendoza, 438 F.3d 792, 795 (7th

Cir. 2006).

Although a third party generally cannot consent to a

warrantless search of another’s home, there is an exception

when the government can show by a preponderance of the

evidence that the third party “possessed common authority

over, or other sufficient relationship to, the premises or

effects sought to be inspected.” United States v. Brown, 328

F.3d 352, 356 (7th Cir. 2003) (quoting United States v.

Matlock, 415 U.S. 164, 171 (1974)) (internal quotation

marks omitted). This “actual authority” does not depend

on property law distinctions but instead rests on whether

there is “mutual use of the property by persons generally

having joint access or control for most purposes.” Matlock,

415 U.S. at 171 n.7; see also United States v. Denberg, 212

F.3d 987, 991 (7th Cir. 2000).
No. 07-1654 7

We agree with the government that Lawicki had actual

authority to consent to both searches. Lawicki was

Ryerson’s ex-wife and then-current girlfriend (and nowcurrent wife). Although Lawicki was staying with Curley

at the time of the search, she told the police that her

relationship with him was not romantic (even though

she later referred to him as her “boyfriend” at the suppression hearing). At any rate, she had lived at Gillette

Lane with Ryerson and their infant daughter for ten

months before the search, a significant period of time. See

Denberg, 212 F.3d at 991 (having one’s children live at a

residence suggests authority to consent). Ryerson does not

claim that he kicked her out of the house; rather, she

appears to have left on her own accord after a tiff with

him. And although Lawicki claimed at the evidentiary

hearing that she had not intended to return, she only

took an overnight bag when she left. Even if she was

moving out, she had not yet done so at the time of the

search. As the officers noticed, Lawicki left many of her

and her baby’s belongings in the home. See United States

v. Goins, 437 F.3d 644, 647-49 (7th Cir. 2006) (keeping

clothing or personal belongings at a residence suggests

authority to consent).

Moreover, Lawicki remained connected to the home

through her co-ownership of the Dells Cab Company.

There is no evidence that Lawicki had quit her managerial

role or sold her stake in the company before the search. So

Lawicki still had a right to access the company records

kept in the basement of the house. Cf. Wis. Stat. § 178.16

(2007) (“[P]artnership books shall be kept, subject to any

agreement between the partners, at the principal place of
8 No. 07-1654

Jason Krumscheid’s consent is an alternate (and even stron- 1

ger) basis to justify the first search on February 9. Ryerson had

given Krumscheid the keys to the house and asked him to take

care of the premises. That authorized Krumscheid to consent to

a search, which is precisely what he did by letting the police

enter the house. See United States v. Jones, 335 F.3d 527, 531 (6th

Cir. 2003) (“A caretaker left in charge of a home for several

weeks, for example, might have authority to permit entry, while

a worker who is present on a more limited basis would not.”).

(continued...)

business of the partnership, and every partner shall at

all times have access to and may inspect and copy any

of them.”); Wis. Stat. § 183.0405(2) (2007) (“[A] member

may . . . inspect and copy during ordinary business hours

any limited liability company record required to be kept [at

its principal place of business]”). This right of access, by

itself, would not have given Lawicki the power to

consent to entry into the home. But combined with

Lawicki’s long-term and continuing residence at Gillette

Lane, we conclude Lawicki had a sufficient relationship to

the home to have actual authority to permit the searches.

See United States v. Trzaska, 859 F.2d 1118, 1120 (2d Cir.

1988) (wife who had recently moved out of an apartment

but still kept a key and stored personal belongings

there maintained mutual use); United States v. Crouthers,

669 F.2d 635, 643 (10th Cir. 1982) (wife who testified she

had moved out of an apartment still had actual authority

to consent because she had not “abandoned” the apartment and there was a lack of evidence on the extent to

which she had moved out).1
No. 07-1654 9

(...continued)

But the government somehow overlooked this argument—it

was only raised by us at oral argument—so the argument

was waived. See United States v. Dabney, 498 F.3d 455, 460 (7th

Cir. 2007).

Ryerson claims, however, that he revoked Lawicki’s

actual authority after she “moved out.” But the record

suggests no such thing. Although Ryerson stated in his

note to the jail sergeant that the house was “souly [sic]

mine” and expressed concern that Lawicki might plant

evidence in the house, he also admitted that “she just

stays with me as girl friend [sic] now.” If anything, this

suggests Ryerson still considered Lawicki a lawful cohabitant at the time of the searches. Similarly, in his taped

conversation with Krumscheid, Ryerson admitted that

Lawicki continued to have “access to the house” and noted

that “[a]nything in that house could be Jennifer’s also.” By

opening his home to Lawicki, Ryerson assumed the risk

that she might consent to a search because “[o]ne who

shares a house or room or auto with another understands that the partner may invite strangers—that his

privacy is not absolute, but contingent in large measure

on the decisions of another.” United States v. Chaidez, 919

F.2d 1193, 1202 (7th Cir. 1990). That risk remained so long

as Lawicki continued to access, use, or control the property. See Matlock, 415 U.S. at 171 n.7.

Although Ryerson now claims that he revoked Lawicki’s

authority, the fact remains that he allowed Lawicki to

live there, with their child, for the ten months preceding

the search. At the time of the search, Lawicki continued to
10 No. 07-1654

use the property to store her personal belongings and

records for her co-owned business. So Ryerson assumed

the risk that Lawicki would return, as she did. Indeed,

it’s possible that this is exactly what he wanted, since

Ryerson later remarried Lawicki.

But what about the locks? If Ryerson changed them,

perhaps he was trying to rid himself of the risk that

Lawicki would return. The magistrate judge and district

court never resolved whether the locks had been changed,

presumably because the record was so muddled on this

issue. Contrary to what Lawicki had told the police on

February 8, she was adamant at the evidentiary hearing

that she could not enter the house because she had not

taken the keys, not because the locks were changed. So the

record does not suggest that Ryerson limited Lawicki’s

access to the home in this manner.

Ryerson also twists this argument a bit and claims his

note and comments to the jail sergeant amounted to an

objection under Georgia v. Randolph, 547 U.S. 103 (2006),

that invalidated Lawicki’s consent. Id. at 122-23 (a physically present inhabitant may successfully object to a

search over the consent of a co-habitant). Ryerson admits

it’s a stretch to apply Randolph since he was not present

during either search, but he suggests Randolph should

still apply because his absence was due to the “state,”

which had jailed him on a probation hold. Even if this

were a tenable argument, and Ryerson’s note and comments amounted to an objection, nothing in the record

suggests the “state” arrested Ryerson to prevent him

from objecting while the police searched his house.
No. 07-1654 11

Indeed, the police officers decided to search the home

only after they had spoken to Lawicki, which occurred

after Ryerson had already been jailed. See id. at 121 (noting

that a non-present objector does not does not benefit

under the Randolph rule “[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”); see also United States v. Henderson, No. 07-1014,

2008 WL 3009968, at *1 (7th Cir. Aug. 6, 2008).

In addition to actual authority, the second search (which

is when the police found the gun) was lawful on the basis

of “apparent authority.” Such authority exists when the

facts available to an officer at the time of a search would

allow a person of reasonable caution to believe that the

consenting party had authority over the premises. Illinois

v. Rodriguez, 497 U.S. 177, 188 (1990); Goins, 437 F.3d at

649 (an officer can conduct a search without further

inquiry if, based on facts known to the officer, a reasonably cautious person would believe the third party

had authority to consent). Here, the circumstances preceding the second search suggested Lawicki was a lawful

resident of Gillette Lane. Although Lawicki claimed she

was locked out of the home, Ryerson’s agent Krumscheid

readily allowed the police and Lawicki to enter when they

first searched the premises, which could have suggested

to the police that Krumscheid recognized Lawicki as a

legitimate resident of the house. During the first search, the

police also observed personal items indicating that Lawicki

still used the home. And Lawicki’s prescient warning

about the ferocious kitty demonstrated her intimate
12 No. 07-1654

knowledge of the house. She was even familiar enough

with the basement that she easily located her company’s

business records there. Lawicki’s facility in guiding the

officers through the home, and the evidence indicating that

she still lived there, made it reasonable for the police to

believe she could consent to the second search of the home.

Ryerson’s note to the jail sergeant also had no impact on

Lawicki’s apparent authority because Investigator Bitsky

did not read the note before the second search. Contrary to

Ryerson’s claims, there is no evidence that this was “willful

ignorance,” and at any rate, the note does not suggest

Lawicki lacked the ability to consent to a search. Even

though Ryerson expressed his fear that Lawicki would

plant evidence, he indicated that she lived with him as

his girlfriend, which suggested that she still had a right to

access the house. See United States v. Gillis, 358 F.3d 386,

388, 391 (6th Cir. 2004) (a girlfriend who had removed

her child, been locked out, maintained a second residence,

and had no personal property remaining in the home

still had apparent authority to consent because she had

claimed continued use and demonstrated her detailed

knowledge of the premises).

It was also reasonable for the officers to believe that

Lawicki’s written consent extended to the garage given

that the consent form authorized the police to search the

“residence (or other real property)” at Gillette Lane. See

United States v. Evans, 27 F.3d 1219, 1231 (7th Cir. 1994)

(finding that a general consent form to search the whole

premises covered the garage). And Lawicki knew the

police would search the garage since that is what they told
No. 07-1654 13

530 F.3d 506, 509-10 (7th Cir. 2008) (“(1) possession of a key to 2

the premises; (2) a person’s admission that she lives at the

residence in question; (3) possession of a driver’s license listing

the residence as the driver’s legal address; (4) receiving mail

and bills at that residence; (5) keeping clothing at the residence;

(6) having one’s children reside at that address; (7) keeping

personal belongings such as a diary or a pet at that residence;

(8) performing household chores at the home; (9) being on the

lease for the premises and/or paying rent; and (10) being

allowed into the home when the owner is not present” (quoting

United States v. Groves, 470 F.3d 311, 319 (7th Cir. 2006) (citations

omitted)) (internal quotation marks omitted)).

her they would search. See United States v. Hines, 387 F.3d

690, 695 (8th Cir. 2004) (measuring scope of consent by

objective reasonableness). That the police used a thermal

imager during the search does not negate Lawicki’s

consent since she was present and did not object to its

use. See Evans, 27 F.3d at 1231 (finding adequate

consent where an owner did not protest when the police

began to search the garage).

Instead of countering this evidence, Ryerson asks us to

plod through a series of ten factors from our decision in

United States v. Groves to determine whether apparent

2

authority exists. But Groves did not create a ten-factor

test—indeed, a test with that many variables would allow

a court to justify virtually any outcome. Groves merely

collected some relevant factors from previous cases and

emphasized that the decision did “not mean to suggest

that district courts should use this as a checklist of factors

in determining actual or apparent authority.” Id. at 509
14 No. 07-1654

(quoting United States v. Groves, 470 F.3d 311, 319 n.3

(7th Cir. 2006)) (internal quotation marks omitted). At

any rate, the district court found that at least four of the

Groves factors (2, 5, 6 and 7) were present here and Ryerson

has not demonstrated that those factors do not establish

apparent authority.

B. There was no clear error for the obstruction of

justice enhancement.

A district court may increase a defendant’s offense level

if he “willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with

respect to the investigation, prosecution, or sentencing

of the instant offense of conviction.” United States Sentencing Commission Guidelines Manual (U.S.S.G.) § 3C1.1

(2006). This conduct includes “destroying or concealing

or directing or procuring another person to destroy or

conceal evidence that is material to an official investigation or judicial proceeding.” Id. cmt. n.4(d). We review

the district court’s factual finding for clear error. United

States v. Davis, 442 F.3d 1003, 1008-09 (7th Cir. 2006).

Ryerson asked Krumscheid to dispose of the machine

gun hidden in the garage drywall. Ryerson claims he was

merely “seeking to dispossess himself of contraband . . .

consistent with the purpose of the law—to cease unlawful

activity.” He characterizes his actions very charitably. The

district court was justified in reaching another conclusion: Ryerson was trying to dump the gun before he

got caught. If Ryerson were serious about surrendering the gun, he would have told a police officer at the
No. 07-1654 15

jail. Instead he wrote a misleading note about how Lawicki

might try to plant evidence that he himself had hidden.

It is hardly credible that Ryerson suddenly repented for

his illegal conduct right around the time he learned his

house might be searched.

Ryerson also cites to various cases to argue that an

obstruction of justice enhancement cannot apply here. But

those cases involve either false statements (U.S.S.G. § 3C1.1

cmt. n.4(g); United States v. Kroledge, 201 F.3d 900, 905-08

(7th Cir. 2000)) or concealment of evidence contemporaneous with arrest (U.S.S.G. § 3C1.1 cmt. n.4(d); United States

v. Perry, 991 F.2d 304, 311-12 (6th Cir. 1993); United States

v. Savard, 964 F.2d 1075, 1079 (11th Cir. 1992)), which are

circumstances that are materially different from the

present case. Ryerson’s directive to Krumscheid to get

rid of the gun is precisely the kind of conduct that the

obstruction of justice enhancement was intended to deter.

III. CONCLUSION

The judgment of the district court is AFFIRMED.

9-18-08