U.S. v. Rodriguez

• Decision Date: 01 November 1989
• Docket Number: No. 88-2952,88-2952
• Citation: 888 F.2d 519
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 519

888 F.2d 519

UNITED STATES of America, Plaintiff-Appellee, v. Miguel RODRIGUEZ, Defendant-Appellant.

No. 88-2952.

United States Court of Appeals Seventh Circuit.

Argued Sept. 13, 1989.

Decided Nov. 1, 1989.

Thomas M. Durkin and Robert S. Rivkin, Asst. U.S. Attys., Office of the U.S. Atty., Chicago, Ill., for the U.S., plaintiff-appellee.

Kenneth L. Cunniff, Chicago, Ill., for Miguel Rodriguez, defendant-appellant.

Before EASTERBROOK and MANION, Circuit Judges, and GRANT, Senior District Judge. ^*

EASTERBROOK, Circuit Judge.

Miguel Rodriguez, a janitor working (and living) in a union hall, sold drugs as a sideline. Agents intercepted one of his couriers, who agreed to return the shipment on a pretext. The courier met Rodriguez at the door of the union hall; Rodriguez took the drug; the agents swooped in and arrested him. A team remaining at the union hall corralled Rodriguez's wife who let them into the janitors' quarters, where the agents found drugs, money, and records. A group of agents questioned Rodriguez, who made some incriminating statements; after his appearance before a magistrate and the appointment of counsel, Rodriguez made still more incriminating statements to agents of the FBI in the absence of counsel.

I

After a bench trial, this evidence produced a conviction on six counts of possessing cocaine and marijuana with intent to distribute, and of conspiring to do so, in violation of 21 U.S.C. Secs. 841(a)(1) and 846. The district judge sentenced Rodriguez under the Sentencing Guidelines to nine years' imprisonment, followed by five years' probation and then ten years' supervised release. Rodriguez's principal arguments on appeal concern the seizures and statements that supplied the principal evidence against him. The judge referred the motion to suppress to Magistrate Balog, who held a three-day evidentiary hearing and, on the basis of proposed findings of fact, recommended that the court deny the motions. Judge Aspen adopted Magistrate Balog's report. Rodriguez contests the conclusions of that report and raises a preliminary contention that because the district judge adopted the magistrate's report, the court of appeals must review both findings of fact and conclusions of law de novo.

The argument for de novo appellate review is that the magistrate, not accorded the tenure and salary guarantees of Article III, cannot make binding decisions. An Article III judge must review de novo any contested findings of fact and proposed conclusions of law. 28 U.S.C. Sec. 636(b)(1)(C). See United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); cf. Gomez v. United States, --- U.S. ----, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). When the district judge abdicates to the magistrate, the argument runs, the appellate judges must supply the necessary de novo review. The Fifth Circuit adopted that view, United States v. Herbst, 641 F.2d 1161, 1167 (5th Cir.1981), and the Eleventh Circuit took it over by inheritance, United States v. McKennon, 814 F.2d 1539, 1543 n. 6 (11th Cir.1987). Without recognizing the conflict, we took the contrary position in United States v. Hardin, 710 F.2d 1231, 1235-36 (7th Cir.1983). See also United States v. Thompson, 876 F.2d 1381, 1383 (8th Cir.1989) (using deferential review). Rodriguez wants us to abandon Hardin and adopt Herbst, but we think the approach of Hardin sound.

Rodriguez is entitled by statute to de novo review of the subject. Under Raddatz the court may provide this on the record compiled by the magistrate. Rodriguez treats adoption of the magistrate's report as a sign that he has not received his due. Yet we see no reason to infer abdication from adoption. On occasion this court affirms a judgment on the basis of the district court's opinion. Affirming by adoption does not imply that we have neglected our duties; it means, rather, that after independent review we came to the same conclusions as the district judge for the reasons that judge gave, rendering further explanation otiose. When the district judge, after reviewing the record in the light of the objections to the report, reaches the magistrate's conclusions for the magistrate's reasons, it makes sense to adopt the report, sparing everyone another round of paper.

Because the magistrate is an impartial judicial officer, it is easier to justify adopting the report than to justify adopting findings of fact and conclusions of law proposed by a party. See Walton v. United Consumers Club, Inc., 786 F.2d 303, 313-14 (7th Cir.1986). Yet when a judge adopts a party's submissions verbatim, appellate review is still deferential. Anderson v. Bessemer City, 470 U.S. 564, 571-73, 105 S.Ct. 1504, 1510-11, 84 L.Ed.2d 518 (1985). Before Anderson a number of appellate courts declined to defer to judicial findings culled from the parties' submissions; perhaps that attitude supplied the impetus for the holding in Herbst. Anderson pulled the rug out from under that position. We therefore reiterate the conclusion of Hardin that the standard of appellate review does not depend on whether a district judge adopted the magistrate's report or wrote a new opinion. The questions central to this case--whether Mrs. Rodriguez consented to a search (and if so the scope of that consent), whether the agents (as opposed to Rodriguez) initiated the questioning, and so on, depend on findings of fact that we review only for clear error; questions of characterization (was the consent "effective"?) also are fact-specific matters reviewed on a deferential standard. United States v. D'Antoni, 856 F.2d 975, 978-79 (7th Cir.1988); United States v. Hawkins, 823 F.2d 1020, 1022 (7th Cir.1987); ¹ United States v. Marin, 761 F.2d 426, 433 (7th Cir.1985). Cf. Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 933-35 (7th Cir.1989) (en banc).

II

Judge Aspen found, by adopting Magistrate Balog's report, that Rodriguez lacked a privacy interest in the janitors' room of the union hall and that at all events his wife gave a valid consent to search. Although Rodriguez vigorously contends (and the prosecutor denies) that he has "standing" to object to the search, this is beside the point now that the Supreme Court has said that the initial inquiry is not standing but the nature of the privacy interest invaded. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The locked janitors' room was not open to the world at large, so Rodriguez had some privacy interest in it. Agents could not have busted into the union hall and broken down the door of the janitors' room without invading some (limited) privacy interests. Given the view we take of Mrs. Rodriguez's consent to enter the room, we need not decide whether Rodriguez had an interest sufficient to withstand a search based on probable cause (as this was) in the absence of a warrant.

The parties agree on these facts: The union hall contains living quarters on the third floor that Rodriguez was entitled to occupy. He had separated from his wife, however, and while Mrs. Rodriguez continued to occupy the apartment Rodriguez sometimes camped out on a cot in the janitors' room in the basement. This room contained boxes full of union records, cleaning equipment, and office supplies as well as Rodriguez's cot and a "desk" made by placing plywood across wooden braces. Another janitor uses the room when Rodriguez is not on duty, and although the room is ordinarily locked, employees of the union may enter it to obtain supplies. Agents tore this room apart. Some items they found on the "desk". They opened a briefcase on which Rodriguez's name was written and found money and documents. On top of a stack of boxes full of records they found a closed, blue box containing marijuana. They moved boxes of union records and found, underneath, some ledgers concealing two closed boxes (marked only with the union's address) containing marijuana. In still a fourth small box--a metal filing box marked "Mike", located inside a box of union records--the agents found coffee cans containing rice and cocaine.

The parties do not agree about Mrs. Rodriguez's role in the agents' entree. Rodriguez contended that Mrs. Rodriguez merely acquiesced in the inevitable and that she lacked actual and apparent authority to consent in light of the couple's separation. Agents testified that Mrs. Rodriguez used her key to unlock the janitors' room (a sign of actual authority, see United States v. Baswell, 792 F.2d 755, 757-59 (8th Cir.1986)) and consented to their search. Although Mrs. Rodriguez refused to sign a consent form, one agent testified that she said: "If you want to go ahead on in, go on in." Other agents testified that Mrs. Rodriguez was "hesitant" and balked at least once, but that when the agents told her that they could obtain a search warrant she said that they could "go ahead and look in the room" or "nodded her head" after repeated requests.

Although this record could have supported a conclusion that Mrs. Rodriguez did not give effective consent, Judge Aspen found that "[h]er only hesitancy was over whether she could consent to the search of the union storage area." Once she resolved that question in her own mind, she approved. This finding is not clearly erroneous.

Mrs. Rodriguez's possession of the key gave her apparent authority to consent. Apparent authority is enough. Just as police may have probable cause to act even though their source was lying, so they may act when the person giving consent had apparent authority. United States v. Miller, 800 F.2d 129, 133 (7th Cir.1986); United States v. Sledge, 650 F.2d 1075, 1077-81 (9th Cir.1981) (Kennedy, J.); United States v. Isom, 588 F.2d 858, 861 (2d Cir.1978); United States v. Peterson, 524 F.2d 167, 180 (4th Cir.1975); cf. United States v. Matlock, 415 U.S. 164, 177 n. 14, 94 S.Ct. 988, 996 n. 14, 39 L.Ed.2d 242 (1974) (reserving the question). The...