U.S. v. McGee

• Decision Date: 24 April 2009
• Docket Number: Docket No. 07-4509-cr.
• Citation: 564 F.3d 136
• Parties: UNITED STATES of America, Appellee v. Kevin McGEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

564 F.3d 136

UNITED STATES of America, Appellee v. Kevin McGEE, Defendant-Appellant.

Docket No. 07-4509-cr.

United States Court of Appeals, Second Circuit.

Submitted: October 15, 2008.

Decided: April 24, 2009.

James P. Vacca, Rochester, N.Y., for Defendant-Appellant.

Monica J. Richards, Assistant United States Attorney for Terrance P. Flynn, United States Attorney for the Western District of New York, Buffalo, N.Y., for Appellee.

Before: LEVAL, KATZMANN, and LIVINGSTON, Circuit Judges.

LEVAL, Circuit Judge:

Defendant Kevin McGee, appeals from a judgment of conviction in the United States District Court for the Western District of New York (Siragusa, J.) after a jury trial finding the defendant guilty of one count of possession of firearms by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). The incriminating evidence was discovered in the course of a warrantless police search of the defendant's home, done with the consent of the defendant's girlfriend, who lived there with him. This occurred as the result of the girlfriend's request of the police that they assist her in removing her possessions. The district court denied the defendant's motion to suppress the evidence by reason of an alleged violation of the Fourth Amendment. The court also denied the defendant's motion to adjourn the jury trial because of the filing of a superseding indictment four days prior to the start of trial. McGee contends that his girlfriend did not have access to his house and therefore had no authority to consent to the search. He further argues that he was prejudiced by the refusal to adjourn trial to permit him to prepare to defend against the superseding indictment. We reject McGee's contentions. The district court properly recognized his girlfriend's authority to consent to the search, and there was no abuse of discretion in the court's denial of the motion to adjourn. We affirm the judgment of conviction.

BACKGROUND

On January 9, 2005, an officer of the City of Rochester Police Department responded to a 911 emergency call from Cassandra Ellison, seeking assistance at 357 First Street. As the officer pulled up to the house, he saw a male running away through the backyard and found Ms. Ellison outside the house. Ellison identified the man who ran away as the defendant, Kevin McGee. She told the officer that she lived with McGee in the house, but intended to leave him and had packed her bags to move out. After she had moved her bags out the door and onto the porch, McGee, in order to prevent her from leaving, had grabbed her bags, put them back in the house, locked the door, and taken away her keys. Ellison asked the officer to break down the door so she could retrieve her belongings. The officer refused, but informed her that as a resident of the location, she could break a window to let herself in, as long as she could show proof that she resided there. Ellison showed the officer a piece of mail addressed to her at that location. She then broke a window in the front door, reached in, and unlocked the door.

Once inside, Ellison informed the officer that she had been in a rush to leave and had not been able to pack all her belongings. She requested that he accompany her while she gathered the remainder of her items because she was afraid McGee might return. While retrieving her clothing from the front closet, Ellison informed the officer that McGee had guns hidden in that closet. The officer asked Ellison twice whether he could check the closet, to which she replied, "[G]o right ahead." The officer and his back-up discovered a rifle, three shotguns, ammunition for a handgun, and a bulletproof vest of the type that is used by the police. The officer seized the items and moved them to his police car.

Ellison then asked the officer to accompany her upstairs to retrieve her belongings from the bedroom. While Ellison was removing personal items from a drawer, the officer saw that there were photographs protruding from under the mattress. He asked Ellison's permission to look at them. Ellison handed them to the officer and told him that the individual pictured holding a gun was McGee. The officer then asked Ellison's permission to take the photographs, to which she replied, "Fine, you can take them."

Following his indictment, which alleged unlawful possession of firearms by a convicted felon on or about January 9, 2005, the day of the search, McGee moved to suppress the evidence found at his house. On March 21, 2007, the district court held a suppression hearing. On the basis of the evidence summarized above, the court concluded that Ellison had authority to consent to the search of 357 First Street and had voluntarily consented to the search. The district court also determined, in the alternative, that based on the circumstances, it was reasonable for the officer to believe that Ellison had authority to consent. The court, accordingly, denied the motion.

Four days before trial was to begin, the government filed a superseding indictment, which expanded the time period in which the alleged illegal possession occurred. The original indictment had charged unlawful possession of firearms "[o]n or about the 9th day of January 2005." On May 10, 2007, after learning that a photo of McGee holding a gun was taken by Ellison and that she had written on it, December 1, 2004, as the date when the photograph was taken, the government obtained a new indictment, which charged that the illegal possession of firearms occurred "[o]n or about and between the 1st day of December 2004 and the 9th day of January 2005." The following day, McGee moved to adjourn the trial date, arguing that the new indictment made a major change in the charges, for which he needed additional time to either move against the superseding indictment and/or to adjust his theory of defense and his witnesses. The court denied this request.

Trial was conducted before a jury, which rendered a guilty verdict. McGee was sentenced to 115 months imprisonment.

DISCUSSION

McGee bases his appeal on two claims: first, that the court erred in the denial of his motion to suppress the items seized from his residence, and second, that the court abused its discretion in denying his motion to adjourn the trial upon the filing of the superseding indictment. Both claims are without merit.

I. Denial of Motion to Suppress

A warrantless police search of a defendant's private premises which would otherwise violate the defendant's rights under the Fourth Amendment is lawful if conducted pursuant to the consent, voluntarily given, of another person who has authority to consent by reason of that person's "common authority over or other sufficient relationship to the premises." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Authority to consent to a search rests on "mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." Id. at 171 n. 7, 94 S.Ct. 988.¹

Even if the person giving consent in fact lacked authority to do so, the consent may nonetheless validate the search if the person reasonably appeared to the police to possess authority to consent to the search. The Supreme Court has explained that apparent authority to give consent "must be judged against an objective standard: would the facts available to the officer at the moment ... warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?" Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (alteration in the original) (internal quotation marks omitted). Thus, effective consent to search the defendant's premises can be communicated to the police by a person who had apparent authority to consent, even if that person in fact lacked actual authority. See Moore v. Andreno, 505 F.3d 203, 209 (2d Cir.2007) (asserting in dictum that effective consent which validates a search may be given by a person who lacks authority to consent if the person reasonably appears to the officers conducting the search to have authority).

McGee contends that, because he locked Ellison out of the house and took away her key (and the police knew this), Ellison had neither actual nor apparent authority to enter the house, or to give the police consent to enter and search it. He contends that Ellison's consent is analogous to the ineffective consent to search given by the girlfriend in Moore. In that case Moore's girlfriend, who lived in his house with him but had no ownership or tenancy interest in it, gave the police consent to enter and search Moore's study after she had cut the lock he had placed on the study door. The police entered the study and there seized contraband upon which basis he was indicted. We ruled that the girlfriend's consent was ineffective. We explained that, as Moore had put a lock on the door of his study, intending to exclude her from entering, and the police knew this, the girlfriend had neither actual nor apparent authority to enter the study, or to consent to entry by the police. Id. at 210-13. McGee argues that Ellison, having been locked out of McGee's house, similarly had neither actual nor apparent authority to enter it or to authorize the police to enter.

In support of the argument, he asserts that Ellison's consent was invalid under what he characterizes as the stringent "rules concerning third-party consent searches" set forth in United States v. Davis, 967 F.2d 84 (2d Cir.1992). In Davis, restating what we had earlier noted in United States v. Gradowski, 502 F.2d 563, 564 (2d Cir.1974), we said that such a person (described as a "third party") validates a search by giving the authorities consent to search "if two...