U.S. v. Kimoana

• Decision Date: 15 September 2004
• Docket Number: No. 03-4023.,03-4023.
• Citation: 383 F.3d 1215
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fonua KIMOANA, also known as Siong Fonua Vailea, also known as Sione Moungloa, also known as Fokisi Kimoana, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

383 F.3d 1215

UNITED STATES of America, Plaintiff-Appellee, v. Fonua KIMOANA, also known as Siong Fonua Vailea, also known as Sione Moungloa, also known as Fokisi Kimoana, Defendant-Appellant.

No. 03-4023.

United States Court of Appeals, Tenth Circuit.

September 15, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Benjamin A. Hamilton, Salt Lake City, UT, for Defendant-Appellant.

Michele M. Christiansen, Assistant United States Attorney (Paul M. Warner, United States Attorney for the District of Utah, with her on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Before EBEL, ANDERSON, and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

Defendant Fonua Kimoana ("Defendant") was convicted under 18 U.S.C. § 922(g) as a felon in possession of a firearm. He now challenges the district court's refusal to suppress the firearm as evidence. We hold that the entry and resultant search were justified by consent given by "Nick," a third party with both actual and apparent authority. Alternatively, once the officers' initial entry into the room was justified by Nick's consent, the subsequent search was justified by voluntary consent given by Patelo Vake. Accordingly, we exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

BACKGROUND¹

On March 12, 2002, Officer Robert Miner was sitting in his car after having cleared an alarm drop at a business near a Days Inn in Midvale, Utah. A man approached Officer Miner, and looked suspicious because he was "jittery, looking around and appeared to be very nervous." The man turned out to be Nitokalisi Fonua ("Nick"),² who told Officer Miner that he had stolen a white GMC Blazer that was parked nearby. Nick led Officer Miner to the car, and the officer noticed a sawed-off shotgun in the back seat with markings that looked gang-related. Nick told Officer Miner that he was staying in a room at the Days Inn that he was sharing with his "cousins" (meaning people he knows from the streets). The registered renter of this room turned out to be Defendant. Nick said that he did not care if the officer searched the room for the vehicle key. In response to Officer Miner's request whether he could use Nick's room key to enter the room if nobody answered the door, Nick again said that he did not care.

Officer Miner called other officers to the scene and filled them in on the details above. He gave Nick's motel key to Officer Mohr, Sargeant Kent Jarvis, and Officer Scott Nesbitt. Officer Miner stayed with Nick while the other officers knocked on the door of the motel room to retrieve the car key. As the district court explained, the officers "had their weapons drawn because they suspected that the people in the room may be gang members and that there may be other weapons in addition to the sawed-off shotgun already found." Additionally, Officer Nesbitt believed that the other people in the motel room may be accomplices to Nick's vehicle theft.

In response to the officers' knock, Patelo Vake opened the door. Defendant was also in the room, but did not prevent Vake from answering the knock on the door. As the door opened, Officer Nesbitt saw a woman on the bed pointing an unidentified black object at the wall.³ At that point, the officers ordered the three people in the room to show their hands, and they conducted a pat down search of the occupants to check for weapons. As soon as the officers concluded that no weapons posed a threat to their personal safety, they holstered their guns.

While the officers were in the room, Officer Miner advised them via radio that he had found a 9mm shell casing inside the stolen Blazer, and that the occupants of the room may be involved in a drive-by shooting and may have more weapons. Officer Nesbitt asked Vake for consent to search the room for weapons. The district court found Officer Nesbitt's testimony credible when he described the atmosphere in the room as "calm" at this point. Immediately after the first request, Vake gave the officers his consent to search the room. After obtaining Vake's consent, the officers searched the room and found a long-barreled revolver under the mattress.

On April 17, 2002, Defendant was charged by a federal grand jury with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). Defendant filed a motion to suppress the firearm found in his hotel room on two grounds: (1) the officers' initial entry into the room violated the Fourth Amendment as it was based on consent by a third party (Nick) without actual or apparent authority and it exceeded the scope of Nick's consent to search for the vehicle key, and (2) the officers' subsequent search of the motel room violated the Fourth Amendment because Vake's consent was not "voluntary." The district court denied this motion, and Defendant entered a conditional plea of guilty, preserving his right to challenge the district court's denial of his motion to suppress. Defendant was later sentenced to twenty-seven months in prison, followed by thirty-six months of supervised release. Judgment was entered on January 30, 2003, and Defendant filed a timely notice of appeal from the district court's order on the motion to suppress on January 31, 2003.

DISCUSSION

Standard of Review:

When reviewing a district court's denial of a motion to suppress, we will consider the totality of the circumstances and view the evidence in a light most favorable to the government. United States v. Long, 176 F.3d 1304, 1307 (10th Cir.1999). We will accept the district court's factual findings unless those findings are clearly erroneous. Id. The credibility of witnesses, the weight to be given evidence, and the reasonable inferences drawn from the evidence fall within the province of the district court. Id.; United States v. Broomfield, 201 F.3d 1270, 1273 (10th Cir.2000). The ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewable de novo. Long, 176 F.3d at 1307; United States v. Little, 60 F.3d 708, 712 (10th Cir.1995).

Analysis:

We hold that the officers' entry into the motel room and subsequent search was justified by Nick's consent, as he was a third party with actual and apparent authority, and the officers did not exceed the scope of his consent. Alternatively, once the officers' initial entry into the motel room was justified by Nick's consent, their subsequent search was justified by Vake's voluntary consent.

A. The Officers' Entry and Search of the Motel Room as Justified by Nick's Consent

No party disputes that Nick gave Officer Miner consent to search the motel room. The dispute centers on whether Nick had actual and/or apparent authority to give such consent, and whether the officers acted within the scope of his consent in executing the subsequent search of the room. We answer each question in the affirmative.

1. Nick had actual and apparent authority to consent to the entry and search of the motel room.

Defendant argues that Nick lacked actual or apparent authority to consent to the officers' entry into and search of the motel room. The crux of his argument is that Nick was not the registered renter of the room and that the officers were aware of the ambiguity surrounding who rented the room. As described below, we disagree with Defendant and find that Nick had both actual and apparent authority to consent.

Overnight guests and joint occupants of motel rooms possess reasonable expectations of privacy in the property on which they are staying. Minnesota v. Carter, 525 U.S. 83, 89-90, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); Stoner v. California, 376 U.S. 483, 489-90, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).⁴ The Fourth Amendment generally prohibits the government from making a warrantless entry into a person's residence to search for specific objects. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). This general rule has a few exceptions, however. "[O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). "The [Fourth Amendment] prohibition does not apply ... to situations in which voluntary consent has been obtained, either from the individual whose property is searched or from a third party who possesses common authority over the premises." Rodriguez, 497 U.S. at 181, 110 S.Ct. 2793 (citations omitted).

A third party's consent to search is valid if that person has either the "actual authority" or the "apparent authority" to consent to a search of that property. United States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1230 (10th Cir.1998) (citing Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793). The test for "actual authority" was articulated in United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and interpreted by the Tenth Circuit in United States v. Rith, 164 F.3d 1323, 1329 (10th Cir.1999). In Rith, we stated that "a third party has authority to consent to a search of property if that third party has either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes over it." Id. Therefore, the gravamen of the "actual authority" rule is that it is reasonable to recognize that "any of the co-habitants has the right to permit the inspection in his own right and ... the others have assumed the risk that one of their number might permit the common area to be searched." Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988.

The Supreme Court set forth the test for "apparent authority" in Rodriguez, 497 U.S. at 186-88, 110 S.Ct. 2793. "Rodriguez held that the Fourth Amendment is not violated when officers enter without a warrant when they reasonably, although erroneously, believe that the person who consents to their entry has the authority to consent to this entry." Gutierrez-Hermosillo, 142 F.3d at 1230.⁵ The ...