### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 1305

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee,

v.

D IMITRIS T ERRY

, Defendant

‐ Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 11 CR 887

‐ 3

— Ronald A. Guzmán

, Judge

.

____________________

A RGUED O CTOBER 30, 2018

— D ECIDED F EBRUARY 14, 2019

____________________

Before W OOD

, Chief Judge

, and S YKES and B ARRETT

, Circuit

Judges

.

B ARRETT

, Circuit Judge

. Is it reasonable for officers to as

‐

sume that a woman who answers the door in a bathrobe has

authority to consent to a search of a male suspect’s residence?

We hold that the answer is no. The officers could reasonably

assume that the woman had spent the night at the apartment,

but that’s about as far as a bathrobe could take them. Without2 No. 18

‐ 1305

more, it was unreasonable for them to conclude that she and

the suspect shared access to or control over the property.

I.

In February 2012, a team of agents from the Drug Enforce

‐

ment Agency (DEA) executed an arrest warrant for Dimitris

Terry related to his role in a conspiracy to possess and distrib

‐

ute heroin. The agents didn’t want others to know that Terry

had been arrested because they hoped to secure his coopera

‐

tion in the broader investigation; thus, they planned a quick

and quiet arrest. They waited for him to return home from

taking his son to school one morning, arrested him when he

got out of his car, and took him to the DEA’s Chicago field

division for questioning.

A few agents remained behind. Two of them knocked on

the door of Terry’s apartment, and a woman answered, wear

‐ ing a bathrobe and looking sleepy. The agents identified

themselves, explained that they had just arrested Terry, and

asked to come inside. They didn’t ask the woman who she

was, how she was related to Terry, or whether she lived at the

apartment.

Without hesitation, the woman let the agents in, and they

immediately presented her with a consent

‐ to

‐ search form. Af

‐

ter she both read the form and had it read aloud to her, she

signed it, and the search began. Only then, after the search

was underway, did the agents ask the woman who she was.

She identified herself as Ena Carson, the mother of Terry’s

son. She explained that her son lived at Terry’s apartment, but

she did not. Nevertheless, the agents continued the search for

roughly the next hour. They recovered letters addressed toNo. 18

‐ 1305 3

Terry showing proof of residence, four cell phones, and a sus

‐ pected drug ledger.

Meanwhile, two DEA agents conducted a post

‐ arrest in

‐

terview of Terry back at the field office. Before asking any

questions, the agents read Terry his Miranda rights, which

were also spelled out on an advice

‐ of

‐ rights form. The agents

signed the form, but Terry refused to do so. When asked if he

understood his rights, Terry explained that “he was not going

to sign the form or initial it; that, you know, this wasn’t his

first go

‐ around with law enforcement

... but he was willing

to talk.” The agents understood Terry’s statement to mean

that he had prior experience with law enforcement, under

‐

stood his rights, and was knowingly and voluntarily waiving

them by agreeing to talk with the agents. So they wrote “Ver

‐

bal Only” on the advice

‐ of

‐ rights form, indicating that Terry

“gave verbal consent that he understood the form.” Terry

then answered the agents’ questions about the case and made

incriminating statements about his role in the conspiracy to

distribute heroin.

Terry was charged with possession, distribution, and con

‐ spiracy to possess and distribute heroin in violation of 21

U.S.C. §§ 841(a) and 846. He moved to suppress both the evi

‐

dence recovered from the search and his post

‐ arrest state

‐

ments to the agents. First, Terry argued that the search was

unlawful because Carson had neither actual nor apparent au

‐ thority to consent to it—all the agents knew at the time of con

‐

sent was that she answered the door at Terry’s apartment

wearing a bathrobe. Had the agents simply inquired, Terry

said, they would have discovered that Carson did not live at

the apartment. Second, Terry claimed that he had not under

‐

stood that he was waiving his Miranda rights when he4 No. 18

‐ 1305

answered the agents’ questions. Thus, he argued, the waiver

was invalid and his post

‐ arrest statements should be sup

‐ pressed.

After an evidentiary hearing at which the agents and Terry

testified, the district court denied both motions. As to the first,

the court determined that it was reasonable for the agents to

assume that Carson lived at the residence and had authority

to consent to the search because (1) she was permitted to be

home when Terry was not; (2) her son resided at the apart

‐

ment; (3) the bathrobe “indicated she was more than a mere

temporary guest”; and (4) she consented to the search without

hesitation.

On the second motion, the court found Terry’s testimony

that he did not know that his statements could be used against

him “simply not credible” given his many encounters with

law enforcement—he has been arrested at least seventeen

times since he turned eighteen—as well as his level of educa

‐

tion and success in business. The court thought that this was

strong evidence that Terry understood his rights. And be

‐

cause he understood his rights, the court concluded that

Terry’s answers to the agents’ questions provided “a clear

and unequivocal waiver of his right to remain silent.”

After a bench trial, the district court found Terry guilty

and sentenced him to 168 months’ imprisonment. Terry asks

us to vacate his conviction on the ground that the district

court erroneously denied his motions to suppress.

II.

In reviewing a district court’s denial of a motion to sup

‐

press, we review the district court’s legal conclusions de novo

and its underlying factual determinations for clear error.No. 18

‐ 1305 5

United States v. Richards

, 741 F.3d 843, 847 (7th Cir. 2014). We

give “special deference to the district court’s credibility deter

‐

minations because the resolution of a motion to suppress is

almost always a fact

‐ specific inquiry, and it is the district

court which heard the testimony and observed the witnesses

at the suppression hearing.” United States v. Burnside

, 588 F.3d

511, 517 (7th Cir. 2009).

A.

As a rule, the Fourth Amendment requires the govern

‐

ment to get a warrant before searching someone’s property.

U.S. C ONST

. amend. IV; see also United States v. Basinski

, 226

F.3d 829, 833 (7th Cir. 2000). But the warrant requirement is

subject to several “carefully defined” exceptions. See Coolidge

v. New Hampshire

, 403 U.S. 443, 474 (1971). One is consent from

a person with actual or apparent authority to give it. Basinski

,

226 F.3d at 833–34. When a person allows a third party to ex

‐

ercise authority over his property, he “assume[s] the risk that

the third party might permit access to others, including gov

‐

ernment agents.” Id. at 834 (citing United States v. Matlock

, 415

U.S. 164, 171 n.7 (1974)).

The government does not claim that Carson had actual au

‐ thority to consent to the search of Terry’s apartment. The dis

‐

pute is about whether she had apparent authority, which ex

‐

ists when “the facts available to the officer at the moment

...

‘warrant a man of reasonable caution in the belief’ that the

consenting party had authority over the premises,” even if the

person actually had no such authority. Illinois v. Rodriguez

, 497

U.S. 177, 188 (1990) (alteration in original) (citation omitted).

An officer might reasonably believe that a third party has au

‐ thority over certain property if the third party appears to have

“joint access or control for most purposes.” United States v.6 No. 18

‐ 1305

Ryerson

, 545 F.3d 483, 487 (7th Cir. 2008) (quoting Matlock

, 415

U.S. at 171 n.7).

To determine whether the officers’ belief was reasonable,

we consider “what the officers knew at the time they sought con

‐

sent

, not facts that came to light after the search began.” United

States v. Alexander

, 573 F.3d 465, 474 (7th Cir. 2009) (emphasis

added). If the officers did not know enough to reasonably

conclude that the third party had authority over the premises,

they had “a duty to inquire further” before they could rely on

her consent to the search. United States v. Goins

, 437 F.3d 644,

648 (7th Cir. 2006). As one treatise puts it: “sometimes the

facts known by the police cry out for further inquiry, and

when this is the case it is not reasonable for the police to pro

‐

ceed on the theory that ‘ignorance is bliss.’” 4 W AYNE R.

L A F AVE

, S EARCH AND S EIZURE § 8.3(g) (5th ed. 2018).

When the search began, the agents had four facts: Terry

left Carson alone in the apartment for about forty

‐ five

minutes, Carson was wearing a bathrobe, she appeared

sleepy, and she consented to the search without hesitation.

They did not know who she was, what her relationship to

Terry was, why she was in the apartment, how long she had

been in the apartment, or whether she lived there. At that

point, the agents did not know that Carson was the mother of

Terry’s child—so it was wrong for the district court to rely on

that fact in evaluating Carson’s apparent authority. See Alex

‐

ander

, 573 F.3d at 474 (explaining that facts that come to light

after a search begins cannot support apparent authority to

consent).

The facts that the agents had made it reasonable for them

to conclude that Carson had spent the night at Terry’s apart

‐

ment. That might have been an indication that she lived withNo. 18

‐ 1305 7

him, but there are multiple other possibilities. She could have

been a one

‐ time guest, a periodic guest, a friend or relative

visiting for a couple of days—or she may have had some other

relationship to Terry. And the existence of so many other

equally plausible possibilities should have prompted the

agents to “inquire further.” See Goins

, 437 F.3d at 648.

But they did not. Instead, they thought that it was safe to

assume that Carson had spent the night in the apartment,

therefore lived in the apartment, therefore had joint access to

or control over the apartment for most purposes, and there

‐

fore had the authority to consent to the search. This kind of

inferential pileup falls short of the reasonableness required by

the Fourth Amendment. See Rodriguez

, 497 U.S. at 188–89. A

bathrobe alone does not clothe someone with apparent au

‐ thority over a residence, even at 10:00 in the morning.

Because the government has failed to demonstrate that an

exception to the warrant requirement applies, the evidence

discovered as a result of the search must be suppressed. See

Basinski

, 226 F.3d at 834.

B.

Terry also argues that the statements that he made in his

post

‐ arrest interview should be suppressed because he did

not knowingly waive his Miranda rights by choosing to speak

with the agents. A defendant’s “statement during a custodial

interrogation is inadmissible at trial unless the prosecution

can establish that the accused ‘in fact knowingly and volun

‐ tarily waived Miranda rights’ when making the statement.”

Berghuis v. Thompkins

, 560 U.S. 370, 382 (2010) (citation and

alteration omitted). Knowing waiver requires “a full aware

‐

ness of both the nature of the right being abandoned and the8 No. 18

‐ 1305

consequences of the decision to abandon it.” Id. (citation omit

‐ ted). Terry notes that he never explicitly waived his right to

remain silent and points to his refusal to sign the advice

‐ of

‐ rights form as evidence that he did not knowingly waive his

Miranda rights. But this argument is squarely foreclosed by

Supreme Court precedent.

In Berghuis v. Thompkins, the defendant refused to sign a

form acknowledging his Miranda rights. He remained largely

silent during questioning that lasted about three hours, but he

ultimately confessed to the crime. Id. at 375–76. The Supreme

Court rejected his Fifth Amendment challenge. It explained

that a knowing waiver can be express or implied, id. at 384,

and that “[a]s a general proposition, the law can presume that

an individual who, with a full understanding of his or her

rights, acts in a manner inconsistent with their exercise has

made a deliberate choice to relinquish the protection those

rights afford,” id. at 385. Consistent with that principle, it con

‐

cluded that the defendant knowingly waived his rights be

‐

cause (1) his understanding of English was sufficient evidence

that he understood the rights that had been presented, id. at

385–86, and (2) the fact that he answered the detective’s ques

‐

tions was a sufficient “course of conduct indicating waiver,”

id. at 386 (citation omitted).

We agree with the district court that Terry’s education, so

‐ phistication, and familiarity with the criminal justice system

provides sufficient evidence that he understood his rights

when the agents read them to him. See id. at 385–86; see also

Burnside

, 588 F.3d at 517. And as in Berghuis

, Terry’s willing

‐

ness to speak with the agents was a “course of conduct indi

‐ cating waiver,” notwithstanding his refusal to sign the ad

‐

vice

‐ of

‐ rights form. 560 U.S. at 386 (citation omitted). Thus,No. 18

‐ 1305 9

the district court correctly concluded that Terry knowingly

waived his right to remain silent and properly denied his mo

‐

tion to suppress.

* * *

The evidence discovered in Terry’s apartment was the

fruit of an unconstitutional search, so the district court should

have granted his motion to suppress it. But the district court

properly denied Terry’s motion to suppress his post

‐ arrest

statements. We therefore REVERSE in part, VACATE the con

‐

viction, and REMAND for proceedings consistent with this

opinion.