U.S. v. Cellitti

• Decision Date: 19 October 2004
• Docket Number: No. 03-3777.,03-3777.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph L. CELLITTI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

387 F.3d 618 UNITED STATES of America, Plaintiff-Appellee,
v.
Joseph L. CELLITTI, Defendant-Appellant. No. 03-3777. United States Court of Appeals, Seventh Circuit. Argued May 18, 2004. Decided October 19, 2004.

Appeal from the United States District Court for the Northern District of Illinois, Reinhard, J.

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Michael Iasparro (argued), Rockford, IL, for Plaintiff-Appellee.

Daniel J. Cain, Peter Nolte (argued), Sreenan & Cain, Rockford, IL, for Defendant-Appellant.

Before FLAUM, Chief Judge, and KANNE and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Joseph Cellitti pleaded guilty to possessing a firearm after sustaining a felony conviction, 18 U.S.C. § 922(g)(1), while reserving the right to challenge on appeal the district court's denial of his motion to suppress evidence. We now vacate and remand.

Background

Police in Rockford, Illinois, received a call in the early morning hours of August 13, 2002, that a man with a gun was threatening people on Gilbert Avenue. The first officer to respond, Harold Combs, encountered three people hiding behind a building. One of them, James Singleton, told Officer Combs that he had been walking home when he was confronted by a man later identified as Cellitti. Singleton said that Cellitti had verbally accosted him and then threatened him with a beer bottle. At that point, Singleton told the officer, a white Dodge Neon had turned onto the street and screeched to a halt next to him and Cellitti. A woman, later identified as Cellitti's fiancee, Melissa Bauer ("Melissa"), and her brother, Kevin Bauer ("Kevin"), jumped out of the car; Kevin joined Cellitti in attacking Singleton while Melissa tried to restrain both her brother and fiance. During the commotion Singleton retreated to his apartment, retrieved a kitchen knife, and returned to the street. But he quickly ran for cover, Singleton continued, when he saw Cellitti exit a nearby house at 2215 Kilburn Avenue carrying an assault rifle that Cellitti loaded and pointed at him. The other two people hiding with Singleton—his fiancee and a neighbor—had also witnessed Cellitti's unprovoked assaults, and they provided Officer Combs with similar accounts.

Officer Combs radioed this information to backup officers, who proceeded to 2215 Kilburn Avenue and entered a breeze-way behind the house. The police then shouted for the occupants to come outside. Cellitti, Melissa, Kevin, and two others exited, and the officers handcuffed all of them. After approximately five minutes of calling into the house, officers entered and conducted a protective sweep. They located four additional adults, all of whom they brought outside and handcuffed (there were also two children in the house). The police then lined up the nine adults¹ and brought Singleton over to the group. Singleton immediately identified Cellitti as

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the man who had brandished the rifle and Melissa and Kevin as the occupants of the white Neon. The officers then determined that Melissa owned the house—where she lived with Cellitti—and they obtained her consent to search the house for the rifle. The officers failed to locate a gun in the house, but happened upon a set of keys under a cushion on a sofa in the living room. Officer Combs seized the keys and used them to attempt to unlock a white Dodge Neon that was parked in front of the residence. The keys did not fit the Neon or any of several other cars parked near the house.

Officers transported the nine adults to a police station, where Melissa was placed in a holding cell and handcuffed to a bench. The record is silent about what happened to the other occupants of the house once they arrived at the station. Meanwhile, other officers still at the scene located Melissa's maroon Buick automobile parked two blocks from 2215 Kilburn Avenue and discovered that the keys recovered from the house unlocked the car. The officers did not search the car, but instead towed it to an impound lot. Back at the police station, two detectives spoke with Melissa, and she signed a form consenting to a search of the Buick. After she consented to the search, she was promptly released from custody. Approximately six hours had passed from the time the police initially responded to the call until Melissa signed the consent form. Police searched the Buick and found a loaded Sturm Ruger.223 caliber assault rifle in the trunk.

Discussion

Cellitti acknowledges on appeal that the officers' initial entry into the home was justified by exigent circumstances, see Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), and that their subsequent search of his and Melissa's home was conducted pursuant to Melissa's voluntary consent, see Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). He contends, however, that the officers exceeded the scope of the consent to search the house when they seized the keys from under the sofa cushion, and that Melissa's later consent to the search of the Buick was coerced. In reviewing the district court's denial of Cellitti's motion to suppress evidence, we review legal questions de novo and factual questions for clear error. United States v. Fields, 371 F.3d 910, 914 (7th Cir.2004).

At the outset the government contends that Cellitti cannot challenge the consent search of the Buick because it was Melissa, not Cellitti, who gave that consent. See Rakas v. Illinois, 439 U.S. 128, 139-40, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (Fourth Amendment rights are personal and may not be asserted vicariously). But this argument misses the mark because the relevant inquiry is whether Cellitti's privacy interests in the Buick were violated by the search, and the government conceded both in the district court and in its brief on appeal that he had a legitimate expectation of privacy in that car. See id. at 143, 99 S.Ct. 421 (defendant can claim protection under the Fourth Amendment if he "has a legitimate expectation of privacy in the invaded place"). A third party may give consent to search a place in which both she and the defendant have legitimate expectations of privacy, and the defendant can challenge the validity of the consent given by the third party. See, e.g., United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (defendant challenged roommate's consent to search bedroom); United States v. Basinski, 226 F.3d 829, 834-36 (7th Cir.2000) (defendant challenged friend's consent to search defendant's briefcase); United States v. Jensen,

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169 F.3d 1044, 1048-49...