U.S. v. Cos

• Decision Date: 21 August 2007
• Docket Number: No. 06-2187.,06-2187.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jose Antonio COS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

498 F.3d 1115

UNITED STATES of America, Plaintiff-Appellant, v. Jose Antonio COS, Defendant-Appellee.

No. 06-2187.

United States Court of Appeals, Tenth Circuit.

August 21, 2007.

David M. Walsh, Assistant United States Attorney for the District of New Mexico (David Iglesias, United States Attorney), with him on the briefs, for the Plaintiff-Appellant.

Margaret A. Katze, Assistant Federal Public Defender, Albuquerque, New Mexico, for the Defendant-Appellee.

Before HENRY, ANDERSON, and GORSUCH, Circuit Judges.

HENRY, Circuit Judge.

A federal grand jury indicted Jose Antonio Cos on one count of being a felon in possession of a firearm, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In response, Mr. Cos filed a motion to suppress the primary evidence in the case, a gun found in the bedroom of his apartment during a June 29, 2005 search by Albuquerque police officers. Mr. Cos contended that Feather Ricker, a nineteen-year-old friend, whom he had left in his apartment with three young children, lacked actual or apparent authority to consent to the search. The district court agreed, granting Mr. Cos's motion and then denying the government's motion to reconsider, which argued that the evidence should be admitted pursuant to the good faith exception to the exclusionary rule.

The government now appeals. Examining the evidence in the light most favorable to Mr. Cos and accepting the district court's factual findings because they are not clearly erroneous, see United States v. Nielson, 415 F.3d 1195, 1198 (10th Cir. 2005), we conclude that Mr. Cos's friend lacked actual or apparent authority to consent to the search and that the good faith exception to the exclusionary rule is inapplicable. We therefore affirm the district court's rulings.

I. BACKGROUND

A. The Search of Mr. Cos's Apartment

On June 3, 2005, Albuquerque police received a report from Krista Shepard that Mr. Cos, her ex-boyfriend, had confronted her outside her apartment, brandished a knife, and threatened to kill her and her new roommate. She told Mr. Cos that she would call the police, and he fled.

Based on Ms. Shepard's statement, Albuquerque Police Detective Chase Mayhew obtained an arrest warrant for Mr. Cos. Detective Mayhew attempted to contact Mr. Cos by telephone but was unsuccessful. On June 29, 2005, more than three weeks after receipt of Ms. Shepard's report, seven Albuquerque police officers arrived at Mr. Cos's apartment at approximately 3:00 p.m. to serve the arrest warrant. Feather Ricker, Mr. Cos's nineteen-year-old friend, answered the door.

Ms. Ricker testified at the hearing on the motion to suppress that she had known Mr. Cos for about a month, that they were "[r]eally good friends" who were "[j]ust getting to know each other," and that they would "go out sometimes." Aplt's App. vol. II, at 250. She also testified that she never had a key to Mr. Cos's apartment, that she was not living there, that she did not pay the rent, and that her name was not on the lease. Before June 29, 2005, Ms. Ricker had been alone in the apartment once or twice, when Mr. Cos went to the store, and she had spent the night there on two or three occasions. However, she did not keep any of her personal belongings in the apartment. Ms. Ricker added that she lived at another apartment complex and that Mr. Cos did not help her financially.

Earlier that day, Ms. Ricker had asked Mr. Cos for permission to bring her four-year-old nephew and two other young children to the apartment so that they could use the swimming pool there. Mr. Cos had agreed: he picked up Ms. Ricker and the children, drove them to his apartment, and left. Ms. Ricker and the children had been alone in the apartment for about forty minutes when the officers arrived.

When Ms. Ricker answered the door to Mr. Cos's apartment on June 29, the following conversation ensued:

[Albuquerque Police Officer Paul Pryde]: Are you guys the only ones at home?

[Ms. Ricker]: Yeah, me and my kids.

[Officer Pryde]: Is Jose here?

[Ms. Ricker]: Jose, no.

[Officer Pryde]: Has he ever been here?

[Ms. Ricker]: Like earlier today, yeah, but...."

[Officer Pryde]: Can we take a look?

[Ms. Ricker]: Yeah, go for it.

Aplt's App. vol. I, at 42 (Mem Op. and Order, quoting Transcript of Taped Interview, at 1). Before entering, the Albuquerque police officers did not ask Ms. Ricker who she was or what relationship she had to Mr. Cos or his apartment.

After the officers entered, they noticed that Ms. Ricker was cooking ground beef on the stove in the kitchen. Two children were watching a movie, and a third child came out from the bedroom. According to Sergeant John Guilmette, the third child kept looking back towards the bedroom. When she started to return there, Sergeant Guilmette stopped her. Believing that someone else was in the bedroom, he drew his weapon and entered. He and other officers then searched the bedroom and the bathroom. Under the bed, Sergeant Guilmette found a gun and a holster. He announced the discovery to the other officers and decided to request a search warrant.

The officers proceeded to contact the apartment complex's management to determine whose name was on the lease. They learned that Mr. Cos's name was the only one listed.

Next, Detective Mayhew asked Ms. Ricker a series of questions: if she lived in the apartment, if Mr. Cos had left her in charge, and if Mr. Cos had allowed her to stay there. Ms. Ricker described Mr. Cos as her ex-boyfriend and told Detective Mayhew that, on June 29, she "just came to visit." Aplt's App. vol. I, at 44. She added that she was "[n]ot in charge. [Mr. Cos] said he was gonna go get us...." Id. Additionally, she denied that Mr. Cos had allowed her and the children to stay in the apartment, stating, "We just came to come, you know, swimming." Id. After confirming that Mr. Cos knew that Ms. Ricker was in the apartment while Mr. Cos was out, Detective Mayhew declared: "That makes you the agent of this property." Id. Ms. Ricker replied, "Uhuh." Id.

Two hours after the police first knocked on the door, Ms. Ricker and the children left the apartment. Detective Mayhew also left, seeking to obtain a search warrant. Later that afternoon, Detective Mayhew returned with the warrant. Mr. Cos arrived at about the same time, and the officers arrested him.

The police officers searched Mr. Cos's apartment and found $500 and a scale. They also interviewed Mr. Cos. He told them that he had been dating a girl that lived with him, whom he had known for about thirty-five days. Later, during the same interview, Mr. Cos stated that the girlfriend had been living at his apartment for approximately three months and had a key to his apartment. During the interview, neither Mr. Cos nor the officers mentioned Ms. Ricker by name, and the government does not now contend that Ms. Ricker was the girlfriend to whom Mr. Cos referred.

B. The District Court Proceedings

In July 2005, a federal grand jury charged Mr. Cos with being a felon in possession of a firearm, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In response, Mr. Cos moved to suppress the evidence found during the search of the apartment. The district court conducted a hearing and then granted Mr. Cos's motion.

The court first rejected the government's contention that the arrest warrant authorized the police officers' initial entry into the apartment. The court concluded that the officers lacked a reasonable belief that Mr. Cos was present in the apartment when Ms. Ricker answered the door. Notably, the United States does not challenge that conclusion on appeal.

The court also concluded that Ms. Ricker lacked actual authority to consent to the search under either standard set forth in the controlling Tenth Circuit precedent: (a) "mutual use of [the apartment] by virtue of joint access," or (b) "control for most purposes over it." United States v. Rith, 164 F.3d 1323, 1329 (10th Cir.1999). Under the first standard, mutual use by virtue of joint access, the court noted Ms. Ricker's testimony that (1) she did not have a key to Mr. Cos's apartment; (2) she could thus not enter the apartment without his consent; (3) she had to ask permission for the children to come over; and (4) she did not leave any of her personal belongings at the apartment when she left. "The facts indicate that she was more like an occasional visitor whom [Mr.] Cos allowed to visit, rather than one who asserted a right to access the property jointly with [Mr.] Cos." Aplt's App. vol. I, at 62. As to the second standard for actual authority, control over the apartment, the district court observed that Ms. Ricker had only known Mr. Cos for thirty-five days, that she did not pay rent, and that she did not have her name on the lease. Also, Ms. Ricker and Mr. Cos did not have the kind of relationship from which control could be presumed.

Next, the court held that Ms. Ricker lacked apparent authority. Because the officers did not ask Ms. Ricker about her relationship to the apartment or to Mr. Cos before asking for permission to search, the court said, they did not have a reasonable belief that Ms. Ricker had the authority to consent to the search. See United States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1230 (10th Cir.1998) (discussing the standard for apparent authority).

The government filed three motions to reconsider, arguing in part that, in light of the good faith exception to the exclusionary rule, the evidence should not be suppressed. The district court rejected that argument as well, applying circuit precedent holding that "the `good-faith exception applies only narrowly, and ordinarily only where an officer relies, in an objectively reasonable manner, on a mistake made by someone other than the officer.'" Aplt's App. vol. I, at 158 (quoting United States v. Herrera, 444 F.3d 1238, 1249 (10th Cir.2006)). Here, the court concluded, the mistake at issue—relying on Ms. Ricker's consent when she lacked actual or apparent...