Appeal from the United States District Court for the Western District of Wisconsin. No. 06 CR 172-John C. Shabaz, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge
ARGUED SEPTEMBER 12, 2007
Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
Defendant Richard Ryerson challenges his conviction and sentence for possessing a machine gun in violation of 18 U.S.C. § 922(o). Ryerson claims the district court improperly denied his motion to suppress the machine gun, which was found in Ryerson's garage after his ex-wife, Jennifer Lawicki, consented to a warrantless search. Ryerson also contends that the court improperly enhanced his sentence by two levels for obstruction of justice.
Although this is a close case, we are not persuaded by Ryerson's arguments. Because of Lawicki's long-term and continuing residence in Ryerson's home, she had authority to consent to the search and the police acted reasonably in believing she lived there. The district court also had ample reason to enhance Ryerson's sentence for obstruction of justice because he tried to dump the machine gun before he was caught. Therefore, we affirm Ryerson's conviction and sentence.
On February 8, 2006, Jennifer Lawicki went to the sheriff's office in Adams County, Wisconsin, to try and regain custody of her infant daughter. Lawicki explained to the officers that she lived with her boyfriend Richard Ryerson and their daughter in a home on Gillette Lane in Adams County, even though she filed a missing person/runaway report that listed a different home address on Gale Drive, also in Adams County. Lawicki was accompanied by Dave Curley, with whom she was staying at the Gale Drive residence. Lawicki told the police that Curley was just a friend and that she was not romantically involved with him.
Lawicki stated that she had left Gillette Lane three days earlier after an argument with Ryerson and had returned to get her daughter and their belongings. She claimed she could not enter her home because Ryerson (who was jailed in Adams County because he had traveled to Illinois in violation of his probation) had changed the locks while she was away. A sergeant told Lawicki she could break a window to enter the home so long as she lived there. So Lawicki did just that. Jason Krumscheid, an employee of Ryerson's entrusted to care for the house, saw the broken window and reported a burglary to the police.
The next day, the police arranged to interview Lawicki back at the sheriff's office regarding the alleged burglary. Once again accompanied by Curley, Lawicki repeatedly told Investigators Mark Bitsky and Todd Laudert that she lived at Gillette Lane. She also said that Ryerson sold drugs and stored weapons at Gillette Lane, including a submachine gun that she had allegedly seen two months earlier under the back porch. Bitsky asked Lawicki if the police could search the home for contraband. After consenting, she signed a permission to search form.
The police followed Lawicki and Curley to Gillette Lane. The officers summoned Jason Krumscheid, who willingly let Lawicki and the police enter the home. Little did they know that Ryerson had called Krumscheid from jail earlier that evening, expressing concern that Lawicki might plant something because she "has access to the house" and noting that "[a]nything in that house could be Jennifer's also." He asked, "What's to stop her from going in there and planting cocaine or something all over my house?" Additionally, Ryerson mentioned that Lawicki had a restraining order preventing him from coming within 100 feet of her. He also directed Krumscheid to get rid of "a little rapid fire BB gun" stashed in the garage drywall, along with some jewelry that Lawicki had allegedly hidden there.
Before entering, Lawicki correctly anticipated and warned the police about a "vicious cat" inside the house. She said that the house was in Ryerson's name, but that she had bought the property with him and lived there with their baby. Lawicki also went to the basement to retrieve some business records for the Dells Cab Company, a taxicab company that Ryerson and Lawicki co-owned and ran from Gillette Lane. The house also contained Lawicki's and her baby's personal items, including clothes and toys. The officers further found a pellet gun, ammunition, a digital scale with white powdery residue, and a pack of rolling papers. They did not find a machine gun or any drugs.
Meanwhile at Adams County jail, Ryerson complained of a heart condition. Although it turned out he was merely agitated, Ryerson was fretting that Lawicki had "broken into" his home and was planting evidence there. He handed a jail sergeant a note that read:
Dear Sargent, my name is Richard Ryerson, my x wife took my baby to an undisclosed location out of state and told me I would never see her, so I crossed Ill boarded without permission; that why Im her; while I was in here she broke in the house I took lots of stuff. The House is in my name I just bought it.
We have been divorest for 3 years, she dosn't have any name on the house, it is souly mine, she just stays with me as girl friend now. MY PO Jill Ed-ward and I our concern of her planting eleagl things in the House, my cab Drive stays At my resdence while Im in her. My X girlfriend is sit out in front of my drive way with her know boyfriend he is a Drug Dealer and I think when they broke ...