USA v. Denberg

• Decision Date: 09 May 2000
• Docket Number: No. 99-2904,99-2904
• Citation: 212 F.3d 987
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEITH D. DENBERG, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 987

212 F.3d 987 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEITH D. DENBERG, Defendant-Appellant.

No. 99-2904

In the United States Court of Appeals For the Seventh Circuit

Argued January 20, 2000

Decided May 9, 2000

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 98 CR 64--Robert L. Miller, Jr., Judge. [Copyrighted Material Omitted]

Before COFFEY, MANION and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

On November 12, 1998, a federal grand jury sitting in the Northern District of Indiana returned a four-count indictment against Keith D. Denberg.¹ After count three was dismissed upon motion of the government, a jury found Denberg guilty of the remaining counts, and the judge sentenced him to 365 months' imprisonment and eight years' supervised release on count two, and 120 months' imprisonment and five years' supervised release on counts one and four; all sentences to run concurrently and concurrent with each other. Denberg was also assessed a $300 special assessment and ordered to enter a drug aftercare treatment program. On appeal, Denberg challenges the authority of the police to enter his home as well as evidence the district court admitted at his trial. We affirm.

I. BACKGROUND

In February 1998, Denberg was living with his girlfriend, Laura Ward, at 29203 U.S. 33 in Elkhart, Indiana, but the relationship appeared to have become quite strained because shortly after midnight on February 23, 1998, police received a 911 call regarding domestic violence at their house. Upon arriving, the police found Laura Ward outside panicked, crying, and clothed in only a nightgown. She also had red marks on her face evidencing the fact that she had been recently struck. Ward told police that Denberg was still inside the house and that he had "battered her" and "grabbed her by the hair and pulled out a large amount of hair from her head." She also told police that her two children were still inside the house and she wanted to get the children out of the house.

A police officer entered the house at 29203 U.S. 33 through an unlocked door, and immediately saw one of Ward's two children (her son) sleeping on a mattress and observed Denberg near a computer talking on the phone with a police dispatcher telling the dispatcher that police were not needed. Denberg, who was dressed in underwear and a t-shirt, told police he had been asleep in bed until the phone rang, and offered to have the officer go down to his bed and touch it to see if it was still warm. While talking to Denberg in the living room, the officer noticed drug paraphernalia and what appeared to be a half-burned marijuana cigarette. The officer then asked Denberg if he wanted to put some clothes on and he replied in the affirmative. Another officer then followed Denberg down to his bedroom area and allowed him to get dressed. While downstairs with Denberg, the officer observed a bag of marijuana (Denberg told the officer that the marijuana was for his personal use) as well as a handgun in plain view on the dresser near the bed. Police also observed a young girl, approximately 4-6 years old (Ward's daughter), and a loaded AK-47 type weapon in plain view within the bedroom where the child was sleeping. Thereafter, police officers escorted Denberg outside and placed him in a police car.

During this time, Ward was being interviewed while waiting in another police car, and while Denberg was in another squad car, she was taken into the house in order that she might get dressed. Officers saw piles of women's clothing near the washer and dryer, which Ward rummaged through to find clothing to put on. While downstairs with Ward, officers observed still another firearm as well as additional drug paraphernalia. Police then asked Ward for permission to search the house and she gave that permission, both orally and in writing.

Upon searching the premises, officers found additional loaded firearms, drug paraphernalia including marijuana bongs, and a gun cabinet. Inside the gun cabinet, the officers discovered a plastic bag filled with more than 57 grams of methamphetamine, more than $8,000 cash, and yet more loaded firearms.

An Elkhart County Drug Task Force detective arrived at the house while officers continued the search pursuant to Ward's consent. Upon questioning by the detective, Ward gave conflicting statements as to how long she had lived in the house, first it was eight months and then she stated it was eight days. Based on Ward's conflicting statements, a decision was made by the supervisor of the Elkhart County Drug Task Force that a warrant to search the house should also be obtained. The search pursuant to Ward's consent was then halted and a search warrant was obtained.

Before trial, Denberg moved to suppress the evidence seized by the government after a warrantless initial search of his residence. The judge, however, denied the motion to suppress, finding that Denberg's girlfriend, Ward, who lived at Denberg's residence, had consented to the search of the property.

Undeterred by the denial of his motion to suppress, Denberg went to trial and, on March 22, 1999, Denberg filed a motion in limine to exclude testimony of two witnesses, Adam Motheral and Charles Eutsey, regarding "other acts" in connection with his prior methamphetamine deals (not charged in the indictment) between him and the two men.² The district court denied his motion in limine, concluding that the evidence was admissible under Rule 404(b).

II. ISSUES

Denberg challenges: 1) the denial of his motion to suppress, arguing that the police were without the authority to conduct the warrantless search of his home; and 2) the district court's decision to admit evidence of prior drug transactions between him and Motheral and Eutsey, arguing that the narcotics transactions between himself and Motheral and Eutsey were not charged in the indictment, and thus any evidence concerning those transactions was erroneously admitted.

III. ANALYSIS

A. Motion To Suppress

1. Standard of Review

In reviewing the district court's denial of the motion to suppress, we review questions of law de novo and review factual findings for clear error. See United States v. Strache, 202 F.3d 980, 984 (7th Cir. 2000). A factual finding is clearly erroneous "when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made." United States v. Gravens, 129 F.3d 974, 978 (7th Cir. 1997), cert. denied, 118 S. Ct. 1333 (1998). Because the resolution of a motion to suppress is fact-specific, we accord special deference to the trial court, which heard the testimony and had the opportunity to observe the witnesses at the suppression hearing. Id. (citing United States v. Stribling, 94 F.3d 321, 323 (7th Cir. 1996)).

2. Validity of the Consent to Search

Denberg asserts that the search of his home was unlawful and that the evidence seized should therefore be suppressed because Ward did not have authority to consent to a search of the premises because she did not, in fact, live there.³

"Although the Fourth Amendment generally prohibits searches and seizures performed without a warrant, there is an exception when someone with actual or apparent authority consents to the search or seizure." United States v. Aghedo, 159 F.3d 308, 310 (7th Cir. 1998). "[T]he consent of one who possesses common authority over [the] premises . . . is valid as against the absent, nonconsenting person with whom that authority is shared." United States v. Matlock, 415 U.S. 164, 170 (1974); see also United States v. Rosario, 962 F.2d 733, 736 (7th Cir. 1992); United States v. Duran, 957 F.2d 499, 503 (7th Cir. 1992). The Supreme Court explained in Matlock that common authority "rests . . . on the mutual use of the property by persons generally having joint access or control for most purposes." Matlock, 415 U.S. at 171 n. 7. Furthermore, "[u]nder the Fourth Amendment, consent to a search may be obtained [from] any person who has common authority over the property." United States v. Booker, 981 F.2d 289, 294 (7th Cir. 1992). Additionally, the government has the burden of establishing that Ward had the required common authority to consent to a search. See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990).

The district court did not commit clear error in determining that Ward had actual authority to consent to the search by the officers because, contrary to Denberg's contentions, we are convinced that there is sufficient evidence in the record that Ward lived in the home.

Initially, Ward told officers she lived on the premises and she signed a sworn affidavit on the morning of February 23, 1998, stating that she lived at 29203 U.S. 33 in Elkhart, Indiana. Additionally, Ward's driver's license indicated that 29203 U.S. 33 was her legal residence. Furthermore, Ward received mail and bills at the 29203 U.S. 33 residence. Ward also paid rent, along with Denberg, at times for the 29203 U.S. 33 home. Her clothing, two children, the children's toys, her diary, as well as her cat were all in the home on February 23, 1998. See Aghedo, 159 F.3d at 310 (storage of clothing can be relevant to the question of actual authority).

Not only did Ward tell the police that she lived at the home, but Denberg initially informed police officers that he and Ward had been living together since June or July 1997 and that they had been living at the 29203 U.S. 33 residence since August 1997. It is interesting to note that when the police informed Denberg that Ward would give them consent to search the residence, Denberg did not object. See id. (The failure to object to a party giving consent undercuts any later assertion that the party did not have adequate authority to give consent.); United States v. Saadeh, 61 F.3d 510, 518 (7th Cir. 1995) (same).

Given the information previously referred to herein, we...