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The HONORABLE NANETTE K. LAUGHREY, United States District Judge

for the Western District of Missouri, adopting the Report and Recommendation of the

HONORABLE JOHN T. MAUGHMER, Chief United States Magistrate Judge for the

Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-4170

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Robert W. Elam, Jr., *

*

Defendant - Appellant. *

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Submitted: October 11, 2005

Filed: March 23, 2006

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Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.

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LOKEN, Chief Judge.

Robert W. Elam, Jr. entered a conditional plea of guilty to being a felon in

possession of a firearm and now appeals the district court’s1

 denial of his motion to

suppress. The firearm was found in a locked cabinet in a common closet in the home

where Elam was residing. The principal issue on appeal is whether Kansas City

Police Detective Chad Durbin reasonably believed that a third party -- the lessee of
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the home -- had sufficient “common authority” to consent to a search when she

handed Durbin the key to the locked cabinet. We affirm.

On a snowy February evening, Detective Durbin investigated an anonymous tip

that methamphetamine was being cooked by “Bob” at a Kansas City home owned by

someone named “Squire.” Durbin and several officers went to the home without a

warrant to conduct a “knock and talk.” Martha Squire answered their knock and let

the officers in out of the snow. After Durbin explained the complaint they were

investigating, Squire said she rented rather than owned the home and consented to a

search of the premises. Three others were present in the living room -- Squire’s

brother, John Hunter; Squire’s friend, Jennifer Turner; and Elam. A computer check

revealed an outstanding warrant for Turner for selling narcotics; she was arrested and

taken to the kitchen. Elam and Hunter remained in the living room, eating and

watching television. Squire took Durbin to the basement to look for evidence of

methamphetamine manufacture and anyone who might be hiding there. While in the

basement, Squire signed a written form consenting to a search of “my residence” for

evidence of drug manufacture or trafficking. 

After Durbin returned to the main floor, an officer advised that he had found a

locked filing cabinet in a closet just off the living room, about ten feet from where

Elam was sitting. Squire retrieved a key to the cabinet from a common key rack in the

kitchen and handed it to Durbin in the living room. Squire did not say the cabinet

belonged to someone else, and Elam did not object to the obviously impending search.

In plain view of Elam and Squire, Durbin then unlocked the cabinet. He found the

firearm inside along with documents suggesting it belonged to Elam. After the

firearm was found, Squire and Hunter denied owning the gun, and Squire told Durbin

the cabinet was Elam’s. Elam was arrested. He confessed to being a felon in

possession the next day. In his motion to suppress and on appeal, Elam argues the

firearm and the incriminating statement should be suppressed as fruits of an illegal

warrantless search because Squire did not own either the locked cabinet or its
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contents, and the police intentionally bypassed Elam’s superior privacy interest by

obtaining the key from Squire. 

It is well settled that the Fourth Amendment does not prohibit the warrantless

search of a person’s home or other property if the police have obtained the voluntary

consent of a third party with common authority over the premises or property. See

United States v. Matlock, 415 U.S. 164, 171 (1974). In Illinois v. Rodriguez, 497

U.S. 177 (1990), the Court held that, even if the third party lacked the requisite

common authority, the Fourth Amendment is not violated if the police reasonably

believed the consent was valid. Thus, the critical question in this case is, “would the

facts available to [Detective Durbin] at the time the consent is given warrant a person

of reasonable caution in the belief that the consenting party had authority over the

item to be searched?” United States v. James, 353 F.3d 606, 615 (8th Cir. 2003). This

is a Fourth Amendment reasonableness issue we review de novo. Id. We review the

district court’s underlying findings of fact for clear error. United States v. Adams,

346 F.3d 1165, 1168 (8th Cir. 2003). 

Elam argues that it was unreasonable for Durbin to rely on Squire’s consent and

search the locked cabinet without asking who owned it. We agree with the district

court that Durbin reasonably believed that Squire had the authority to consent to the

search. The cabinet was found in a common closet. When asked, Squire retrieved the

key from a common key rack and handed it to Durbin without warning that the cabinet

or its contents belonged to someone else. Elam remained silent, giving the officers

no reason to believe that he had a superior privacy interest in the cabinet. This is not

a case like James, where the police knew that computer discs belonged to someone

else who had attempted to tell the third party to destroy them. 353 F.3d at 615.

Rather, this case is like United States v. Stapleton, 10 F.3d 582 (8th Cir. 1993), where

the driver of a stopped car consented to a search of the car that yielded a cellular

telephone filled with drugs. Though the telephone in fact belonged to the car’s

passenger, we held that the officers were reasonable in thinking the driver could
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consent to the search because the passenger “remained silent when told of the search

and the object of the search, and he did not indicate that the telephone was his

property and the patrolmen did not have his permission to search it.” 10 F.3d at 584.

Elam argues that Durbin used Squire’s consent to “intentionally bypass” Elam’s

superior privacy interest. As the district court noted, we have acknowledged (but

never invoked) intentional bypass as a narrow exception to the Supreme Court’s third

party consent principles, explaining that “police may not rely on a third party's consent

to intentionally bypass a person who is present, has a superior privacy interest in the

premises, and actively objects to the search.” United States v. Esparza, 162 F.3d 979,

980 (8th Cir. 1998) (emphasis added), citing United States v. Brokaw, 985 F.2d 951,

953 (8th Cir.), cert. denied 510 U.S. 913 (1993). Here, of course, Elam was present

and did not object to the search. 

Elam argues that his failure to object should merely be a factor to consider in

applying the intentional bypass exception, relying on the Ninth Circuit’s decision in

United States v. Impink, 728 F.2d 1228 (9th Cir. 1984). But Impink was decided

before the Supreme Court’s decision in Rodriguez and failed to focus the Fourth

Amendment inquiry on whether the police reasonably believed they had valid consent

to search. When as in this case a third party with apparent authority gives unequivocal

consent, and the defendant is present and fails to disclose a superior privacy interest

and object to the search, there is no intentional bypass. Elam’s silence in these

circumstances made it objectively reasonable for Durbin to conclude either that he had

“all the consent that was constitutionally required” from Squire, or that he had Elam’s

“implied consent.” Stapleton, 10 F.3d at 584. 

Finally, Elam argues that he did not consent to the search of the cabinet and any

implied consent was involuntary given the substantial police presence in the home.

“Voluntariness” in this context is limited to whether a person’s affirmative consent

was the product of police duress or coercion. See Schneckloth v. Bustamonte, 412
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U.S. 218, 227-34 (1973). Durbin relied on Squire’s affirmative consent to search the

cabinet. That consent was indisputably voluntary. Elam’s implied consent is simply

an inference that may be drawn from his silence in the face of the impending search.

As the police did nothing to coerce or even influence that silence, its voluntariness is

not an issue. “[W]hat is at issue when a claim of apparent consent is raised is not

whether the right to be free of searches has been waived, but whether the right to be

free of unreasonable searches has been violated.” Rodriguez, 497 U.S. at 187

(emphasis omitted). 

The judgment of the district court is affirmed. 

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