USA. v. Gevedon

• Decision Date: 25 May 2000
• Docket Number: No. 99-1897,99-1897
• Citation: 214 F.3d 807
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIAM R. GEVEDON, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 807

214 F.3d 807 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIAM R. GEVEDON, Defendant-Appellant.

No. 99-1897

In the United States Court of Appeals For the Seventh Circuit

Argued January 21, 2000

Decided May 25, 2000

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 96-0139-CR-T/F--John D. Tinder, Judge.

Before Bauer, Ripple and Kanne, Circuit Judges.

Bauer, Circuit Judge.

William R. Gevedon ("William") was found guilty by a jury in the Southern District of Indiana of seven counts of federal firearms violations. He was sentenced to 115 months imprisonment, followed by a three year term of supervised release, and ordered to pay a $7,000.00 fine and a $350.00 special assessment. He appeals, claiming that his estranged wife who no longer lived in the marital home did not have the actual or apparent authority to consent to a search of the home and thus the District Court erred in denying his motions to suppress the weapons taken from his house. He also appeals the District Court's finding that he was a "prohibited person" under the sentencing guidelines and the resulting two level increase in his base offense level. We affirm the District Court.

I. BACKGROUND

Jackie Kirkwood Gevedon ("Jackie") and William Gevedon married in 1982. Shortly afterward they bought a home at 2385 East U.S. 40,¹ Greenfield, Indiana. Both Jackie's and William's names were on the deed. William ran a motor vehicle repair business from the detached two-car garage behind the house. It was in the attic of this garage/shop that the weapons that are the subject of this case were found. Jackie assisted the business by doing some of the book work, errands, calling customers, and getting parts. Most of Jackie's work was done from the house, but she did occasionally go to the garage/shop to conduct business or take food and snacks out to William and the others. Although William would later dispute this, Jackie had full access to the garage/shop.

Trouble developed in the marriage and in June, 1995 Jackie moved out, leaving most of her belongings behind. One month later she filed for divorce. Her return to the marital home in July to collect some of her clothing was without incident, but the animosity between Jackie and William grew and by October, when Jackie went back to the house again, she found that the locks had been changed, forcing her to break into the house and the garage/shop.

The record provides little information about what happened during the next three months, other than the closing of William's auto repair business in late 1995. William Gevedon also disappeared, fleeing the state law charges that were pending against him. His whereabouts were unknown.

Sheriff's deputies, armed with a search warrant, forced their way into the home and garage on January 6, 1996 and searched them. The house was vacant. The deputies called Jackie, ostensibly to check on her safety. William claims that this was just a ploy to gain her cooperation for the searches yet to come.

A few weeks after the warrant search, Jackie, accompanied by members of the Sheriff's Department, returned to the house to secure it. She had new locks put on both the house and the garage, had a door to the house replaced and a door to the garage/shop boarded up. While there, the police conducted what would be the first of three searches consented to by Jackie. The police told Jackie the searches were necessary because "sources" informed them that William was in possession of illegal firearms. Weapons were found in the house, but not removed.

On January 25, 1996, Jackie obtained a temporary restraining order from the Hancock Superior Court in her divorce proceedings, restraining William from coming on or about "the parties real estate at 2385 East Main Street in Greenfield, Indiana 46140." The order also granted Jackie "sole possession of said real estate until further Order of [the] Court." That order was renewed on February 8, 1996 and William was again restrained from coming onto the couples' real estate at 2385 East Main Street and Jackie was again granted sole possession of the property.

The third search, conducted on February 6, 1996, resulted in the discovery of the weapons in the attic of the garage/ shop. It is this search that William contests since the weapons found in the attic constitute the bulk of the charges against him. Prior to the search, the deputies called Jackie, informed her of the need to search the premises again and arranged for her to meet them at the house. Once there, Jackie said she thought there were guns somewhere in the garage/shop and she wanted it searched until they were found. She also asked that they be removed. Jackie volunteered that William had once told her that if he had any problems or had to hide weapons, one place he would put them was the attic. Jackie then signed a "Form to Consent to Search," remained on the premises during the search and watched as the guns were removed from the garage attic.

Based on the weapons seized from his home and garage, William was charged with seven counts of federal firearms violations. Counts 1 through 3 were for knowingly receiving and possessing unregistered silencers that had no serial number, in violation of 26 U.S.C. sec.sec. 5861(d) and 5871. Counts 4 though 6 were for knowingly receiving and possessing two machine guns and one submachine gun, two of which had no serial numbers, in violation of 18 U.S.C. sec.sec. 922(o) and 924(a)(2). Count 7 was for knowingly receiving and possessing an unregistered grenade launcher that had no serial number, in violation of 26 U.S.C. sec.sec. 5861(d) and 5871.

William Gevedon, sometimes pro se, sometimes through counsel, filed a multitude of pre-trial motions, including six motions to suppress. Three of the suppression motions denied by the District Court were related to the searches of the residence and garage. These motions are the focus of William's appeal.

After a four day trial, William was convicted on all seven counts. The Presentence Report ("PSR") recommended that William's base offense level be 20 (instead of 18) because William possessed the silencers and machine gun while he was a fugitive and subject to a charge punishable by imprisonment for more than one year. After hearing argument, the District Court found that William was a "prohibited person" under U.S.S.G. sec.2K2.1(a)(4), both because he had been a fugitive in constructive possession of the prohibited weapons, and because he possessed the weapons while under a charge punishable by imprisonment of more than one year. The court also departed upward two levels on the basis that William's criminal history was understated by his criminal history score, and added enhancements for obstruction of justice because William was a fugitive, because his offense involved 5 - 7 weapons, because at least one of the weapons was a destructive device, and because at least one of the machine guns had an obliterated serial number. The total offense level was 28. William was sentenced to 115 months imprisonment, 3 years supervised release, a fine of $7,000 and a special assessment of $350.

II. DISCUSSION

A. Motions To Suppress

The District Court denied all of William's motions to suppress the weapons, finding that Jackie Gevedon had both actual and apparent authority to consent to the searches and that her consent was voluntary. The first two of those motions were denied on the briefs. A suppression hearing was, however, held before the court ruled on the third motion. We review the District Court's findings of fact for clear error, while reviewing conclusions of law and mixed questions of law and fact de novo. United States v. Duguay, 93 F.3d 346, 349-50 (7th Cir. 1996) (citation omitted). The question of whether Jackie had actual or apparent authority to consent to the searches is a mixed question of law and fact and is therefore reviewed de novo. United States v. Ladell, 127 F.3d 622, 624 (7th Cir. 1997) (citation omitted).

William Gevedon argues on appeal that his estranged wife had neither the actual nor the apparent authority to consent to the weapons searches. The District Court found that she had both. Because we find that Jackie Gevedon had actual authority to consent to the search of the home and garage/shop, we do not address the question of whether she also had apparent authority.²

The Fourth Amendment guarantees citizens the right to be free from unreasonable search and seizure. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). William complains that his rights were violated by the warrantless search of his property and the seizure of his weapons. Law enforcement officers may, however, legally search without a warrant if they obtain voluntary consent from the person whose property is to be searched,Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973), or from someone with actual or apparent authority over the premises. United States v. Aghedo, 159 F.3d 308, 310 (7th Cir. 1998); United States v. Saadeh, 61 F.3d 510, 517 (7th Cir. 1995).

In a case strikingly similar to this one, we examined the issue of whether a wife has the authority to consent to a search of the martial property, including portions that she does not regularly enter or occupy, and concluded that she does. United States v. Duran, 957 F.2d 499, 505 (7th Cir. 1992) ("a spouse presumptively has authority to consent to a search of all areas of the homestead"). However, we tempered that rule with a caveat that "the nonconsenting spouse may rebut this presumption only by showing that the consenting spouse was denied access to the particular area searched." Id. William Gevedon seizes upon this nar row exception, as he must if he is to prevail, and tries to squeeze his cause into it by claiming that he denied Jackie access to the garage attic where the weapons...