08-1269-cr United States v. Lopez

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 --------

4 August Term, 2008

5 (Argued: October 17, 2008 Decided: November 13, 2008) 6 7 Docket No. 08-1269-cr 8 -----------------------------------------------------------X 9 UNITED STATES OF AMERICA, 10 11 Appellee, 12 13 - v. - 14 15 ALBERT LOPEZ, 16 17 Defendant-Appellant. 18 -----------------------------------------------------------X 19 Before: McLAUGHLIN, LEVAL, and POOLER, Circuit Judges.

20 Appeal from a judgment of the United States District Court

21 for the District of Connecticut (Underhill, J.), convicting

22 defendant, after a guilty plea, of possession of a firearm by a

23 convicted felon.

24 AFFIRMED.

25 JAMES R. SMART, Assistant United 26 States Attorney, for Nora R. 27 Dannehy, United States Attorney for 28 the District of Connecticut, 29 Bridgeport, Connecticut (Sandra S. 30 Glover, on the brief), for 31 Appellee. 32 33 CHARLES F. WILLSON, Nevins & Nevins 34 LLP, East Hartford, Connecticut, 35 for Defendant-Appellant. 1 McLAUGHLIN, Circuit Judge:

2 Albert Lopez appeals from a judgment of conviction entered

3 on March 5, 2008. He had pled guilty in the United States

4 District Court for the District of Connecticut (Underhill, J.) to

5 one count of possession of a firearm by a convicted felon. He

6 was sentenced principally to 47 months’ imprisonment.

7 On appeal, Lopez contests the denial of his pretrial motion

8 to suppress a firearm seized during a search by United States

9 marshals. His live-in girlfriend had consented to the search.

10 He contends that her consent was ineffective as to him because he

11 was present in the house and the marshals did not request his

12 consent.

13 We agree with the district court that the marshals had no

14 obligation to get Lopez’s consent. Accordingly, we affirm.

15 BACKGROUND

16 In July 2006, Albert Lopez, a convicted felon, violated the

17 terms of his supervised release by failing a drug test.

18 In October 2006, U.S. marshals arrested Lopez on the first

19 floor of his house pursuant to an arrest warrant. Having

20 handcuffed Lopez, who was wearing only shorts, one of the

21 marshals then escorted Lopez’s girlfriend to their second-floor

2 1 bedroom to get clothes for Lopez. Lopez did not object to this

2 procedure.

3 In the bedroom, the marshal saw narcotics and drug

4 paraphernalia on the night stand. He got consent from Lopez’s

5 girlfriend to search the bedroom, and he summoned another marshal

6 upstairs to witness the consent and to assist with the search.

7 The marshals never asked Lopez, who remained downstairs during

8 the search, for consent to search the bedroom. A loaded .357

9 handgun was found under a pillow on the bed.

10 In March 2007, Lopez was indicted for possession of a

11 firearm by a convicted felon in violation of

922(g)(1) and 924(a)(2) and for possession of a firearm by an

13 unlawful user of a controlled substance in violation of 18 U.S.C.

14 §§ 922(g)(3) and 924(a)(2).

15 Lopez moved to suppress the gun, arguing that,

16 notwithstanding the consent of the girlfriend, the search of the

17 bedroom was unreasonable because he did not consent to it. After

18 a hearing, the district court denied the motion to suppress,

19 finding that the consent of Lopez’s girlfriend was sufficient to

20 justify the search in light of Lopez’s failure to object.

21 Reserving the right to appeal the denial of his motion to

22 suppress, Lopez pled guilty to possession of a firearm by a

23 convicted felon.

3 1 In March 2008, the district court sentenced Lopez to 47

2 months’ imprisonment.

3 Lopez now appeals the denial of his motion to suppress. For

4 the reasons that follow, we affirm.

5 DISCUSSION

6 Lopez argues that the warrantless search of his bedroom

7 without his consent was unreasonable under Georgia v. Randolph,

8

(2006). We disagree.

9 When considering a district court’s ruling on a suppression

10 motion, we review factual findings for clear error and legal

11 determinations de novo. United States v. Rommy,

,

12 128 (2d Cir. 2007).

13 Although warrantless searches “are per se unreasonable under

14 the Fourth Amendment,” Katz v. United States,

, 357

15 (1967), those searches are permissible when a person with “common

16 authority” over the area to be searched voluntarily consents,

17 Illinois v. Rodriguez,

(1990). In Randolph,

18 the Supreme Court held that when law enforcement officers conduct

19 a search, authorized by one co-occupant, over the express

20 objection of another co-occupant, any further search would be

21 unreasonable as to the objecting co-occupant.1

-

1 In United States v. Lopez,

(2d Cir. 2004), we observed in dictum that “even where the defendant has already refused consent — the officers may nonetheless rely on consent 4 1 23. In so holding, the Supreme Court carefully distinguished and

2 preserved its earlier holdings in United States v. Matlock, 415

(1974), and Rodriguez, two prior cases where the Court

4 upheld searches conducted with the consent of the defendant’s co-

5 occupant. See Randolph,

.

6 In Matlock, the defendant was arrested in his front yard and

7 was moved to a nearby squad car while police officers obtained

8 consent to search his residence from a woman with whom he lived.

9 415 U.S. at 166. In Rodriguez, the defendant was asleep inside

10 the residence, and the officers obtained consent from his

11 girlfriend, whom the police reasonably believed also lived at the

12 premises.

. In both cases, law enforcement

13 officers did not give the defendants an opportunity to object to

14 the searches.

15 To reconcile its holding in Randolph with Matlock and

16 Rodriguez, the Supreme Court “dr[ew] a fine line,” reasoning as

17 follows. If one co-occupant of a premises consents to search

18 while the other objects, the search would be unreasonable as to

19 the co-occupant who objected. On the other hand, having obtained

20 the consent of one co-occupant, the officers are under no

21 obligation to inquire of the other occupant whether he consents,

from a third party.” Id. at 481. It is certainly questionable whether that proposition is valid after Randolph. 5 1 even when the other occupant is present at the premises when the

2 consent is given. Randolph,

. This rule is

3 subject to a limitation: the police must not have removed the

4 occupant for the purpose of avoiding a possible objection.

5 at 122.

6 Randolph also added in dictum that law enforcement officers

7 need not “take affirmative steps to find a potentially objecting

8 co-tenant before acting on the permission they had already

9 received” from another tenant.

According to the Court,

10 requiring police to seek consent from potential objectors would

11 “needlessly limit the capacity of police to respond to ostensibly

12 legitimate opportunities in the field” and turn every co-tenant

13 case “into a test about the adequacy of the police's efforts to

14 consult with a potential objector.”

15 Applying these standards, we find that the search of Lopez’s

16 bedroom was reasonable. Lopez concedes that his live-in

17 girlfriend voluntarily consented to the search of their bedroom

18 and that Lopez did not object to the search. In addition, there

19 is no indication that the marshals removed Lopez for the purpose

20 of avoiding his potential objection. See

. To the

21 contrary, the evidence shows that, after being arrested, Lopez

22 remained inside the house during the entire search. Nor is there

23 any contention that the officers separated Lopez from his

6 1 girlfriend in order to conceal from him that they would ask her

2 for consent.

3 The fact that the marshals did not ask Lopez for his consent

4 does not render the search unreasonable. Randolph indicates that

5 law enforcement officers are under no affirmative obligation to

6 request consent from a potentially objecting co-occupant before

7 acting on permission they received from another occupant.

at

8 122. As the Supreme Court noted, a contrary rule would prove

9 needlessly time-consuming and impractical. See

10 Lopez maintains that the rule we now adopt does not apply

11 here because the marshals were not required to “find” Lopez to

12 obtain his consent. Rather, the marshals could have asked him

13 for permission merely by calling down the stairs or contacting

14 their colleagues downstairs by radio. We reject this argument.

15 The Supreme Court upheld the searches in Matlock and Rodriguez

16 notwithstanding that the potentially objecting co-occupants were

17 readily accessible to law enforcement officers. The Matlock

18 defendant was in a squad car near the residence, 415 U.S. at 166,

19 and the Rodriguez defendant was asleep in another room,

at 180. Randolph specifically confirmed that these cases remain

21 sound law. See Randolph,

. Thus, the ease with

22 which law enforcement officers might seek the defendant’s

23 permission to search when a co-occupant has already consented is

7 1 simply irrelevant. Accordingly, Lopez’s contention that he was

2 far more accessible to the law enforcement officers than were the

3 Matlock and Rodriguez defendants is unavailing.

4 In short, we hold that the marshals had no duty to ask Lopez

5 whether he consented to the search, no matter how easy or

6 convenient it might have been to do so. Rather, the onus was on

7 Lopez to object to the search. Because he did not object, his

8 girlfriend’s consent was valid, and the search was reasonable.

9 The district court did not err in denying Lopez’s motion to

10 suppress.

11 CONCLUSION

12 For the foregoing reasons, we AFFIRM the judgment of the

13 district court.

8