U.S. v. Ruiz

• Citation: 428 F.3d 877
• Decision Date: 07 November 2005
• Docket Number: No. 04-30516.,04-30516.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Abel Ike RUIZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

428 F.3d 877

UNITED STATES of America, Plaintiff-Appellee, v. Abel Ike RUIZ, Defendant-Appellant.

No. 04-30516.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 16, 2005.

Filed November 7, 2005.

Matthew McHenry, Law Office of Michael R. Levine, Portland, OR, for defendant-appellant Abel Ike Ruiz.

Stephen F. Peifer, Assistant United States Attorney, Portland, OR, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the District of Oregon; Anna J. Brown, District Judge, Presiding. D.C. No. CR-03-00210-AJB.

Before: FISHER, GOULD, and BEA, Circuit Judges.

GOULD, Circuit Judge:

Abel Ike Ruiz pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Pursuant to his conditional plea agreement, Ruiz challenges the district court's denial, after hearing, of his motion to suppress evidence found in a trailer home. He argues that the district court erred in determining that a resident of the home, Charles Boswell, had the authority to consent to the warrantless search of a gun case found in the home, that the search of the gun case cannot be justified under the exigent circumstances or single-purpose container exceptions, and that all evidence obtained as a result of the allegedly illegal search is inadmissible. We hold that Boswell had apparent authority to consent to the search of the gun case, and we affirm.

I

On February 20, 2003, three Portland police officers accompanied Multnomah County parole officer David Upton to a trailer home in Portland, Oregon. They were looking for Bruce Lagrew, a parolee under Upton's supervision, because Upton had received anonymous tips that Lagrew possessed firearms in violation of state and federal law and the conditions of his parole.

Upton knocked on the door of the trailer and Boswell answered. Upton identified himself, explained that Lagrew had listed the trailer as his residence, and asked Boswell for consent to enter the trailer and look for Lagrew. Boswell is Lagrew's uncle,¹ and he told Upton that he had been living in the trailer along with Lagrew's mother for about a year. It is unclear whether the other officers overheard this exchange, but Officer Graham testified at the suppression hearing that at the time of the search it was his understanding that Boswell lived at the trailer. Although Boswell told Upton that Lagrew was not in the trailer home and that Lagrew no longer lived there, Boswell consented to Upton and the officers entering the trailer to verify that Lagrew was not present.

Upon entering the trailer, Upton and the officers saw a man, later identified as Ruiz, sleeping on a pull-out bed in the living room. Upton and Boswell went to the back of the trailer, while Officers Chamberlin, Graham, and Martin stayed near the entrance. Officers Chamberlin and Martin talked with Ruiz, who gave them his name and acknowledged that he was a felon who was recently off parole. Officer Chamberlin left the trailer to run background checks on Ruiz and Boswell. While Officer Chamberlin was outside, Officer Graham noticed a triangular, cloth case in plain view on a shelf in the living room above the foot of Ruiz's bed. The case was at Officer Graham's eye level, and he testified at the suppression hearing that he immediately recognized it as a gun case.

At about this time, Boswell and Upton returned to the living room, where Ruiz was still present. Officer Graham asked Boswell whether there was a gun in the case, and Boswell responded that he did not know. Officer Graham then asked Boswell if he could look in the case, and Boswell said "sure." Officer Graham testified that the case "felt heavy, like there was a gun inside." He found a .22 caliber semiautomatic handgun inside the case. He took the case outside to make sure the gun was unloaded.

Officer Chamberlin saw Officer Graham exiting the trailer with the .22 caliber handgun after he himself had confirmed that Ruiz was a felon. Once inside, Officer Chamberlin noticed a leather jacket hanging near Ruiz. Officer Chamberlin was concerned for officer safety because Ruiz was a felon and a gun had been found close to the bed where Ruiz was lying. Officer Chamberlin asked Ruiz whether the jacket was his and requested consent to search it. Ruiz replied "Yeah, it's my jacket. Go ahead."

Officer Chamberlin searched the jacket, found a speed loader containing ammunition for a .38 caliber revolver, and then arrested Ruiz with the help of Officer Martin. Officer Martin searched the bed on which Ruiz was lying and found a .38 caliber handgun under the pillow. Officer Chamberlin advised Ruiz of his rights, and Ruiz admitted that he owned the .38 caliber handgun and the speed loader.

Ruiz was charged with knowingly and unlawfully possessing the .22 caliber handgun and/or the .38 caliber handgun in violation of 18 U.S.C. § 922(g)(1). He filed a motion to suppress the evidence against him, asserting that the searches violated his Fourth Amendment rights. The district court denied the motion and Ruiz pled guilty to possessing both firearms, but reserved a right to appeal the district court's denial of his suppression motion. The district court sentenced Ruiz to five years of probation. This timely appeal followed.

II

A district court's denial of a motion to suppress is reviewed de novo, while its factual findings are reviewed for clear error. United States v. Bynum, 362 F.3d 574, 578 (9th Cir.2004). We may affirm a district court's denial of a motion to suppress on any basis supported in the record. United States v. Albers, 136 F.3d 670, 672 (9th Cir.1998). Whether a person has actual or apparent authority to consent to a search is a mixed question of law and fact reviewed de novo. United States v. Kim, 105 F.3d 1579, 1581-82 (9th Cir.1997).

III

A third party's consent to the search of another's belongings is valid if the consenting party has either actual or apparent authority to give consent. United States v. Davis, 332 F.3d 1163, 1169 (9th Cir.2003). "A third party has actual authority to consent to a search of a container if the owner of the container has expressly authorized the third party to give consent or if the third party has mutual use of the container and joint access or control over the container." Id. (quoting United States v. Fultz, 146 F.3d 1102, 1105 (9th Cir.1998)). There is no evidence in the record to show that Ruiz expressly authorized Boswell to consent to the search, and the record is similarly sparse as to whether Boswell had joint access to or control over the container. Assuming that Boswell did not have actual authority to consent to the search, we address whether he had apparent authority to do so.

We have established a three-part test to determine whether a third party has apparent authority to consent to a search:

First, did the searching officer believe some untrue fact that was then used to assess the extent of the consent-giver's use of and access to or control over the area searched? Second, was it under the circumstances objectively reasonable to believe that the fact was true? Finally assuming the truth of the reasonably believed but untrue fact, would the consent-giver have had actual authority?

United States v. Dearing, 9 F.3d 1428, 1429-30 (9th Cir.1993) (citations omitted). Apparent authority is measured by an objective standard of reasonableness, and requires an examination of the actual consent as well as the surrounding circumstances. See id. at 1430 ("Even when the invitation [to search] is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry.") (quoting Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)) (alteration in original). The apparent authority doctrine applies only to reasonable mistakes of fact, not to mistakes of law. United States v. Welch, 4 F.3d 761, 764-65 (9th Cir.1993).

Our task under Dearing is to assess three questions: First, did Officer Graham believe an untrue fact that Boswell had authority over...