Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 04 CR 76-Allen Sharp,Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge.
ARGUED SEPTEMBER 21, 2007
Before EASTERBROOK, Chief Judge, and KANNE and ROVNER, Circuit Judges.
In this successive appeal, Daniel Groves challenges the district court's denial of his Motion to Suppress Evidence, claiming that the ammunition which provided the basis for his conviction under 18 U.S.C. § 922(g)(1) was recovered from his apartment during an illegal search, in violation of the Fourth Amendment. In the first appeal, we remanded to the district court for various factual determinations and renewed consideration in light of the then-recent Supreme Court decision in Georgia v. Randolph, 547 U.S. 103 (2006). Subsequently, the district court again denied Groves' Motion to Suppress. We affirm.
The facts are set forth in detail in United States v. Groves, 470 F.3d 311 (7th Cir. 2006) ("Groves I") and we repeat only those necessary to the resolution of this appeal. On July 5, 2004, South Bend, Indiana police officers responded to a report of gun shots from a resident of the house across the street from Daniel Groves' apartment. When questioned by the responding officers, Groves admitted to living at the address in question, to being a convicted felon and to shooting off fireworks, but denied having a gun. Groves also vigorously denied the officers' request for permission to search his apartment. This request to search was reiterated after the officers found three spent shotgun shells on the ground and again Groves unequivocally refused to consent.
Corporal James Taylor, one of the officers who responded to the 911 call on July 5, asked Task Force Agent Lucas Battani of the South Bend Police Department to investigate the incident. Agent Battani applied for a warrant to search Groves' apartment, but a federal magistrate denied the application. In the early afternoon of July 21, 2004, at a time they knew Groves was scheduled to be at work but his girlfriend was likely to be present, Agent Battani, along with two other law enforcement officers, went to Groves' apartment. Shaunta Foster, Groves' girlfriend, answered the door and stepped outside to speak with the three officers. Battani and Foster told somewhat different versions of that conversation, both of which are recounted at length in Groves I. See 470 F.3d at 316-17. Ultimately, Foster signed a consent form and the agents searched the apartment, recovering five .22 caliber bullets from a drawer in Groves' nightstand. Groves was arrested and charged with being a felon in possession of a firearm and being a felon in possession of ammunition. Groves moved to suppress the ammunition found during the July 21 search, arguing that Foster had neither the actual nor the apparent authority to consent to the search. The district court held a hearing at which both Battani and Foster testified. Foster asserted that she told Battani that she did not live at Groves' apartment but was a frequent visitor. Battani testified that Foster admitted that she had moved into Groves' apartment approximately five months earlier. Foster testified that when she refused to sign the consent, Battani told her he would take her downtown and take her daughter to Child Protective Services and that she signed the consent only because of Battani's threats to remove her daughter. Battani denied ever threatening Foster with the removal of her child.
The district court denied the motion to suppress in a cursory order, concluding that Foster had apparent authority to consent to the search of Groves' apartment, that she did consent, and that Battani did not coerce Foster or make threats about her daughter which would have rendered Foster's consent involuntary. United States v. Groves, No. 3:04cr0076 (N.D. Ind. Nov. 8, 2004). A jury convicted Groves on both counts and the court sentenced Groves to forty-one months' imprisonment. Groves appealed his conviction and sentence, contending, inter alia, that the district court erred when it denied his Motion to Suppress the evidence obtained during the July 21, 2004 warrantless search. In Groves I, we reversed the conviction on the gun possession charge and remanded on the suppression issue. We directed the district court to address three issues on remand:
(1) whether Foster had apparent or actual authority to consent to the search of Groves' apartment; (2) whether Georgia v. Randolph affected the suppression claim; and (3) whether Foster voluntarily consented to the search. On remand, the district court issued an order attending to each of our concerns and setting forth findings of fact. United States v. Groves, No. 3:04cr0076, 2007 WL 171916 (N.D. Ind. Jan. 17, 2007) ("Groves II"). The court again denied Groves' Motion to Suppress, and Groves again appeals.
In considering the district court's denial of Groves' Motion to Suppress, we review questions of law de novo and findings of fact for clear error. United States v. Denberg, 212 F.3d 987, 991 (7th Cir. 2000). A warrantless search does not violate the Fourth Amendment if a person possessing, or reasonably believed to possess, authority over the premises voluntarily consents to the search. Randolph, 547 U.S. at 106. "[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared." United States v. Matlock, 415 U.S. 164, 170 (1974). The rationale for this long-standing rule is that by allowing someone else to exercise actual or apparent authority over one's property, one "is considered to have assumed the risk that the third party might permit access to others, including government agents." United States v. Basinski, 226 F.3d 829, 834 (7th Cir. 2000) (citing Matlock, 415 U.S. at 171 n.7; and United States v. Jensen, 169 F.3d 1044, 1049 (7th Cir. 1999)). Because " 'consent to a search may be obtained [from] any person who has common authority over the property' " (Denberg, 212 F.3d at 991 (quoting United States v. Booker, 981 F.2d 289, 294 (7th Cir. 1992)), the threshold question is whether the consenting individual did, in fact, have actual or apparent authority.
See Basinski, 226 F.3d at 834 ("[t]he key to consent is actual or apparent authority over the area to be searched."). In Groves I, we enumerated several factors which, although by no means a complete list, can inform a determination of actual or apparent authority. We reiterate those factors here, as well as our admonition that "[t]his is certainly not an exhaustive list and we do not mean to suggest that district courts should use this as a checklist of factors in determining actual or apparent authority. Rather, it is offered to show the types of facts that should and could be considered in evaluating the issue of authority to consent to a search" (Groves I, 470 F.3d at 319, n.3):
(1) possession of a key to the premises; (2) a person's admission that she lives at the residence in question; (3) possession of a driver's license listing the residence as the driver's legal address; (4) receiving mail and bills at that residence; (5) keeping clothing at the residence; (6) having one's children reside at that address; (7) keeping personal belongings such as a diary or a pet at that residence; (8) performing household chores at the home; (9) being on the lease for the premises and/or paying rent; and (10) being allowed into the home when the owner is not present.
Id. at 319 (internal citations omitted).
We remanded this issue to the district court because we had questions about the court's conclusion that Foster possessed apparent authority to consent to a search of the premises. See Groves I, 470 F.3d at 319-20. Specifically, we were troubled by the lack of factual findings issued by the district court and determined that "we cannot review the court's conclusion that Foster had authority to consent to the search." Id. at 320. In its ensuing ruling, the district court determined that Foster was a co-occupant of Groves' apartment "who possessed common authority over the residence as well as the ability to consent to a search of that residence." Groves II at *5. In support of this conclusion, the court relied on various facts. For example, the telephone for the residence was registered in Foster's name and paid for by her. Foster had registered her daughter for school using Groves' address. Foster also kept personal belongings including clothing, mail, bills, and even a private stash of marijuana at Groves' apartment. She had a key and unlimited access to the premises. Moreover, Foster regularly cleaned the apartment. Id.*fn1 The court specified which aspects of Foster's testimony and Agent Battani's testimony the court credited in making its factual determinations. See Groves II at *3-*5.
"Because the resolution of a motion to suppress is a fact-specific inquiry, we give deference to credibility determinations of the district court, who had the opportunity to listen to testimony and observe the witnesses at the suppression hearing." United States v. Hendrix, 509 F.3d 362, 373 (7th Cir. 2007). A factual determination is clearly erroneous only if, after considering all of the evidence, we are left with the definite and firm conviction that a mistake has been committed. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985); United States v. Messino, 55 F.3d 1241, 1247 (7th Cir. 1995). Here, we can find no reason to disturb the ...