U.S. v. Rosario

Decision Date12 May 1992
Docket NumberNos. 91-2627,91-2661,s. 91-2627
Citation962 F.2d 733
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Regis ROSARIO and Augusto DeJesus Estrada, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Rodney Cubbie (argued), Office of the U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Anthony Pinelli (argued), Chicago, Ill., Michael T. Norris, and Leon E. Dubinski, Schaumburg, Ill., for defendants-appellants.

Before CUMMINGS and POSNER, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

CUMMINGS, Circuit Judge.

Regis Rosario and Augusto DeJesus Estrada appeal the district court's denial of a motion to quash their arrests, to suppress evidence seized by police officers during the arrests, and to suppress statements made by the defendants. We affirm.

I. BACKGROUND

During the early morning hours of August 18, 1990, a perceptible odor of marijuana wafted out of Room 315 at an Exel Inn in Glendale, Wisconsin. Recognizing this smell, a motel security guard alerted the Glendale Police Department, which dispatched four uniformed law officers to investigate. After meeting briefly with the guard, they checked motel records and determined that Room 315 was registered to one Augusto Estrada. A computer check on Estrada's Illinois driver's license revealed him to be 46 years of age.

All four officers proceeded to Room 315. Officer Daniel Herlache knocked three or four times on the door. Seconds later, a male with Hispanic features, who appeared to be from his mid-twenties to thirty years of age, opened the door about two or three feet. Herlache told the man in the doorway--later identified as Rubin Vilaro 1--that the officers were responding to the reported odor of burning marijuana emanating from the room. The officer then requested permission to enter the room. Whether Vilaro actually said "okay" in response remains a disputed question of fact, but two policemen testified that Vilaro did in quick succession gesture for the officers to enter Room 315, open the door fully, and then step back to allow them in.

Once inside the room, the officers saw Rosario and Estrada seated at a table. On the table in plain view were a rolled five-dollar bill and a white powdery substance resembling cocaine, which analysis later proved it to be. The officers repeated that they were responding to a report of someone smoking marijuana in the room. In response, Rosario explained, "We just got done smoking a joint and we don't have any left." Appellee's Brief, filed Dec. 9, 1991, at 6.

At this point, Herlache requested identification and Estrada complied. Herlache then asked permission to search the room, and Estrada nodded in agreement. During this time, Officer Steven O'Neil 2 conducted a pat-down search of Rosario, whose pockets bulged noticeably. The pat-down and a further search of Rosario's person produced an inhaler containing a white powdery substance lodged at its tip, as well as additional quantities of a matter appearing to be cocaine. Sergeant Dennis Wright, meanwhile, discovered in a dresser drawer both a digital scale and more of the cocaine-like substance.

The officers placed Estrada and Rosario under arrest and transported them to the police department. The next day, after being read the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), both Rosario and Estrada provided statements to the police. Officers Herlache and O'Neil testified that the interviews were conducted entirely in English, in which both men demonstrated their conversance.

Following the indictments of Rosario and Estrada 3, an attorney representing both defendants filed a motion to quash the arrest, suppress evidence, and suppress statements. After an evidentiary hearing, Magistrate Judge Bittner recommended to Judge Stadtmueller that the motions be denied. The judge entered a written decision and order denying the defendants' motion. Both defendants later entered conditional pleas of guilty, preserving their rights under Rule 11(a)(2) of the Federal Rules of Criminal Procedure to appeal the denial of the motion. The defendants each filed timely notices of appeal.

II. ANALYSIS

The only issue in this case is whether the warrantless entry into Room 315 by law enforcement officers violated the Fourth Amendment. If so, the appellants contend, then the evidence seized by the police, the arrests, and the statements made by the appellants prior to and after the search were tainted. Because Vilaro had authority to consent to the entry of the police into the room and did so freely, however, the search, arrest, and seizure of evidence were valid. The district court's decision to deny the motion to suppress the evidence and statements therefore is affirmed.

A well-established standard of review requires this court to give particular deference to the district court's denial of such a motion unless the decision rendered was clearly erroneous. United States v. Sewell, 942 F.2d 1209, 1211 (7th Cir.1991), certiorari denied, --- U.S. ----, 112 S.Ct. 1567, 118 L.Ed.2d 213 (1992); United States v. Johnson, 910 F.2d 1506, 1508 (7th Cir.1990), certiorari denied, --- U.S. ----, 111 S.Ct. 764, 112 L.Ed.2d 783 (1991). A finding is clearly erroneous " 'when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " United States v. D'Antoni, 856 F.2d 975, 978 (7th Cir.1988) (citation omitted).

A warrantless entry of a home for the purpose of making an arrest or conducting a search ordinarily violates the Fourth Amendment. Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639 (1980); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). The Fourth Amendment's prohibition against unreasonable searches and unreasonable seizures extends beyond "the four walls of the home," United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 to protect the legitimate privacy expectations of the occupant of a hotel or motel. Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966); Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964); United States v. Diaz, 814 F.2d 454, 458 (7th Cir.1987), certiorari denied, 484 U.S. 857, 108 S.Ct. 166, 98 L.Ed.2d 120 (1987).

An exception to the general rule forbidding warrantless invasion, however, permits authorities conducting a search to enter a dwelling without a warrant if they obtain voluntary consent either from the individual whose property is to be searched, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), or from a third party possessing common authority or joint control over the premises. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242. The government bears the burden of proving by a preponderance of the evidence that the consenting third party possessed such authority. Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148 (1990).

A. The police reasonably relied on Vilaro's apparent authority.

The appellants contend that Vilaro lacked both actual and apparent authority to consent to the search of Room 315. Fourth Amendment jurisprudence, however, does not require a third party to possess actual authority in order to consent to a request to enter premises. Moreover, the record fails to support the appellants' conclusion that Vilaro did not exercise apparent authority over the hotel room.

When individuals possessing common authority over an area agree to permit an entry or search, their consent " 'is valid as against the absent, nonconsenting person with whom that authority is shared.' " United States v. Duran, 957 F.2d 499, 503 (7th Cir.1992) (quoting Matlock, 415 U.S. at 170, 94 S.Ct. at 993). In Matlock, the Supreme Court explained that common authority "rests ... on mutual use of the property by persons generally having joint access or control for most purposes." Id. at 171 n. 7, 94 S.Ct. at 993 n. 7.

In Rodriguez, supra, the Court decided an issue it had expressly reserved in Matlock, namely whether apparent authority provides a sufficient basis for consent. The Court affirmed the constitutionality of a warrantless entry consented to by a third party whom the police, at the time of the search, reasonably believed to have common authority over the premises, even though the individual in fact did not possess such authority.

The district court in the instant case correctly based its judgment on the issue of apparent authority. As this court stated in United States v. Klotz, 943 F.2d 707 (7th Cir.1991): "Either actual or apparent authority will do." See also United States v. Chaidez, 919 F.2d 1193, 1201-1202 (7th Cir.1990), certiorari denied sub nom. Chavira v. United States, --- U.S. ----, 111 S.Ct. 2861, 115 L.Ed.2d 1028 (1991). Rodriguez requires nothing more.

To assess whether apparent authority exists, "one must look for indicia of actual authority." United States v. Miller, 800 F.2d 129, 134 (7th Cir.1986). In Rodriguez, the police gained access to Rodriguez' apartment with the assistance of Gail Fischer, a woman who described the apartment as "our[s]", stated that she had clothing and furniture there, unlocked the door with her key, and granted the officers permission to enter. Id. 110 S.Ct. at 2797. Although the Court held that the state ultimately failed to establish Fischer's " 'joint access or control for most purposes' ", id. at 2798, it ruled that her representations nevertheless furnished an adequate basis for the police to believe she had authority to permit the search.

After ignoring Rodriguez altogether in their initial brief, the appellants quote liberally from the decision in the reply brief, but to no avail. Rosario and Estrada contend that compared to the police in Rodriguez, "the...

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