United States v. Cos

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
August 21, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AM ERICA,

Plaintiff-Appellant,

v. No. 06-2187

JOSE A NTO NIO CO S,

Defendant-Appellee.

A PPEA L FR OM TH E U NITED STA TES D ISTR IC T C OU RT FO R TH E
D ISTR IC T O F N EW M EX IC O
(D.C. No. CR 05-1619 JB)

David M . W alsh, Assistant United States Attorney for the District of New M exico
(David Iglesias, United States Attorney), with him on the briefs, for the Plaintiff-
Appellant.

M argaret A. Katze, Assistant Federal Public Defender, Albuquerque, New M exico,
for the Defendant-Appellee.

Before H EN RY, A ND ER SO N, and GORSUCH, Circuit Judges.

H EN RY , Circuit Judge.
 A federal grand jury indicted Jose Antonio Cos on one count of being a

felon in possession of a firearm, a violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). In response, M r. Cos filed a motion to suppress the primary evidence in

the case, a gun found in the bedroom of his apartment during a June 29, 2005

search by Albuquerque police officers. M r. Cos contended that Feather Ricker, a

nineteen-year-old friend, whom he had left in his apartment with three young

children, lacked actual or apparent authority to consent to the search. The district

court agreed, granting M r. Cos’s motion and then denying the government’s

motion to reconsider, which argued that the evidence should be admitted pursuant

to the good faith exception to the exclusionary rule.

The government now appeals. Examining the evidence in the light most

favorable to M r. Cos and accepting the district court’s factual findings because

they are not clearly erroneous, see United States v. Nielson, 415 F.3d 1195, 1198

(10th Cir. 2005), we conclude that M r. Cos’s friend lacked actual or apparent

authority to consent to the search and that the good faith exception to the

exclusionary rule is inapplicable. W e therefore affirm the district court’s rulings.

I. BACKGROUND

A. The Search of M r. Cos’s Apartment

On June 3, 2005, Albuquerque police received a report from Krista Shepard

that M r. Cos, her ex-boyfriend, had confronted her outside her apartment,

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brandished a knife, and threatened to kill her and her new roommate. She told M r.

Cos that she would call the police, and he fled.

Based on M s. Shepard’s statement, Albuquerque Police Detective Chase

M ayhew obtained an arrest w arrant for M r. Cos. Detective M ayhew attempted to

contact M r. Cos by telephone but was unsuccessful. On June 29, 2005, more than

three weeks after receipt of M s. Shepard’s report, seven Albuquerque police

officers arrived at M r. Cos’s apartment at approximately 3:00 p.m. to serve the

arrest warrant. Feather Ricker, M r. Cos’s nineteen-year-old friend, answered the

door.

M s. Ricker testified at the hearing on the motion to suppress that she had

known M r. Cos for about a month, that they were “[r]eally good friends” w ho were

“[j]ust getting to know each other,” and that they would “go out sometimes.”

Aplt’s App. vol. II, at 250. She also testified that she never had a key to M r.

Cos’s apartment, that she was not living there, that she did not pay the rent, and

that her name w as not on the lease. Before June 29, 2005, M s. Ricker had been

alone in the apartment once or twice, when M r. Cos went to the store, and she had

spent the night there on two or three occasions. However, she did not keep any of

her personal belongings in the apartment. M s. Ricker added that she lived at

another apartment complex and that M r. Cos did not help her financially.

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 Earlier that day, M s. Ricker had asked M r. Cos for permission to bring her

four-year-old nephew and two other young children to the apartment so that they

could use the swimming pool there. M r. Cos had agreed: he picked up M s. Ricker

and the children, drove them to his apartment, and left. M s. Ricker and the

children had been alone in the apartment for about forty minutes when the officers

arrived.

W hen M s. Ricker answered the door to M r. Cos’s apartment on June 29, the

following conversation ensued:

[Albuquerque
Police Officer
Paul Pryde]: Are you guys the only ones at home?

[M s. Ricker]: Yeah, me and my kids.

[Officer Pryde]: Is Jose here?

[M s. Ricker]: Jose, no.

[Officer Pryde]: Has he ever been here?

[M s. Ricker]: Like earlier today, yeah, but . . . . ”

[Officer Pryde]: Can we take a look?

[M s. Ricker]: Yeah, go for it.

Aplt’s App. vol. I, at 42 (M em O p. and Order, quoting Transcript of Taped

Interview, at 1). Before entering, the A lbuquerque police officers did not ask M s.

Ricker w ho she was or w hat relationship she had to M r. Cos or his apartment.

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 After the officers entered, they noticed that M s. Ricker was cooking ground

beef on the stove in the kitchen. Two children were watching a movie, and a third

child came out from the bedroom. According to Sergeant John Guilmette, the

third child kept looking back tow ards the bedroom. W hen she started to return

there, Sergeant Guilmette stopped her. Believing that someone else was in the

bedroom, he drew his weapon and entered. He and other officers then searched

the bedroom and the bathroom. Under the bed, Sergeant Guilmette found a gun

and a holster. He announced the discovery to the other officers and decided to

request a search warrant.

The officers proceeded to contact the apartment complex’s management to

determine whose name was on the lease. They learned that M r. Cos’s name w as

the only one listed.

Next, Detective M ayhew asked M s. Ricker a series of questions: if she

lived in the apartment, if M r. Cos had left her in charge, and if M r. Cos had

allowed her to stay there. M s. Ricker described M r. Cos as her ex-boyfriend and

told Detective M ayhew that, on June 29, she “just came to visit.” A plt’s A pp. vol.

I, at 44. She added that she was “[n]ot in charge. [M r. Cos] said he was gonna go

get us . . . .” Id. Additionally, she denied that M r. Cos had allowed her and the

children to stay in the apartment, stating, “W e just came to come, you know,

swimming.” Id. After confirming that M r. Cos knew that M s. Ricker was in the

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apartment while M r. Cos was out, Detective M ayhew declared: “That makes you

the agent of this property.” Id. M s. Ricker replied, “Uhuh.” Id.

Two hours after the police first knocked on the door, M s. Ricker and the

children left the apartment. Detective M ayhew also left, seeking to obtain a search

warrant. Later that afternoon, Detective M ayhew returned with the w arrant. M r.

Cos arrived at about the same time, and the officers arrested him.

The police officers searched M r. Cos’s apartment and found $500 and a

scale. They also interview ed M r. Cos. He told them that he had been dating a girl

that lived with him, whom he had known for about thirty-five days. Later, during

the same interview , M r. Cos stated that the girlfriend had been living at his

apartment for approximately three months and had a key to his apartment. During

the interview, neither M r. Cos nor the officers mentioned M s. Ricker by name, and

the government does not now contend that M s. Ricker was the girlfriend to whom

M r. C os referred.

B. The District Court Proceedings

In July 2005, a federal grand jury charged M r. Cos w ith being a felon in

possession of a firearm, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In

response, M r. Cos moved to suppress the evidence found during the search of the

apartment. The district court conducted a hearing and then granted M r. Cos’s

motion.

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 The court first rejected the government’s contention that the arrest w arrant

authorized the police officers’ initial entry into the apartment. The court

concluded that the officers lacked a reasonable belief that M r. Cos w as present in

the apartment when M s. Ricker answered the door. Notably, the United States

does not challenge that conclusion on appeal.

The court also concluded that M s. Ricker lacked actual authority to consent

to the search under either standard set forth in the controlling Tenth Circuit

precedent: (a) “mutual use of [the apartment] by virtue of joint access,” or (b)

“control for most purposes over it.” United States v. Rith, 164 F.3d 1323, 1329

(10th Cir. 1999). Under the first standard, mutual use by virtue of joint access, the

court noted M s. Ricker’s testimony that (1) she did not have a key to M r. Cos’s

apartment; (2) she could thus not enter the apartment without his consent; (3) she

had to ask permission for the children to come over; and (4) she did not leave any

of her personal belongings at the apartment when she left. “The facts indicate that

she was more like an occasional visitor whom [M r.] Cos allowed to visit, rather

than one who asserted a right to access the property jointly with [M r.] Cos.”

Aplt’s App. vol. I, at 62. As to the second standard for actual authority, control

over the apartment, the district court observed that M s. Ricker had only known M r.

Cos for thirty-five days, that she did not pay rent, and that she did not have her

name on the lease. Also, M s. Ricker and M r. Cos did not have the kind of

relationship from which control could be presumed.

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 Next, the court held that M s. Ricker lacked apparent authority. Because the

officers did not ask M s. Ricker about her relationship to the apartment or to M r.

Cos before asking for permission to search, the court said, they did not have a

reasonable belief that M s. Ricker had the authority to consent to the search. See

United States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1230 (10th Cir. 1998)

(discussing the standard for apparent authority).

The government filed three motions to reconsider, arguing in part that, in

light of the good faith exception to the exclusionary rule, the evidence should not

be suppressed. The district court rejected that argument as well, applying circuit

precedent holding that “the ‘good-faith exception applies only narrowly, and

ordinarily only where an officer relies, in an objectively reasonable manner, on a

mistake made by someone other than the officer.’” Aplt’s App. vol. I, at 158

(quoting United States v. Herrera, 444 F.3d 1238, 1249 (10th Cir. 2006)). Here,

the court concluded, the mistake at issue— relying on M s. Ricker’s consent when

she lacked actual or apparent authority— was made by the officers rather than by

another party (e.g., a judicial officer issuing a w arrant).

II. D ISC USSIO N

On appeal, the government challenges the district court’s grant of M r. Cos’s

motion to suppress, arguing that M s. Ricker had both actual and apparent authority

to consent to the search of the apartment. In the alternative, the government

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maintains that the district court erred in refusing to apply the good-faith exception

to the exclusionary rule. As noted above, we view the record in the light most

favorable to M r. Cos and accept the district court’s factual findings unless clearly

erroneous. Nielson, 415 F.3d at 1198. However, we examine de novo the ultimate

legal questions at issue: whether an officer’s conduct violated the Fourth

Amendment and whether the good faith exception applies. See United States v.

Trotter, 483 F.3d 694, 698 (10th Cir. 2007) (reviewing de novo whether a third

party had actual or apparent authority); United States v. Danhauer, 229 F.3d 1002,

1005 (10th Cir. 2000) (reviewing de novo whether the good-faith exception

applies).

A. Appellate Jurisdiction

Before addressing the merits, we must first consider whether we have

jurisdiction over this appeal. The jurisdictional question concerns the date that the

government filed its notice of appeal, June 29, 2006. As we have noted, before

filing this notice, the government filed three unsuccessful motions to reconsider

the district court’s April 25, 2005 order granting M r. Cos’s motion to suppress.

Under 18 U.S.C. § 3731, which governs interlocutory appeals by the United

States in criminal cases, the government must file a notice of appeal within thirty

days of the decision from which it appeals. However, a timely motion for

reconsideration tolls the thirty-day period until the district court rules upon that

motion. See United States v. Ibarra, 502 U.S. 1, 6-7 (1991). Generally, the thirty-

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day period is not tolled by a successive motion for reconsideration that raises the

same issue as the first motion. United States v. Cardall, 773 F.2d 1128, 1130

(10th Cir. 1985); United States v. M arsh, 700 F.2d 1322, 1324-28 (10th Cir. 1983).

“The reasoning behind the general rule is that the opposite interpretation would

permit unlimited extensions of time to appeal. One party could theoretically

postpone indefinitely the appeal of his adversary by filing motions for

reconsideration, and the adverse party might die before having to pay off the

judgment.” Id. at 700 F.2d at 1326.

Here, M r. Cos contends that we lack jurisdiction over this appeal because

the government did not file its notice of appeal until June 29, 2006, which was

m ore than thirty days after the district court denied the government’s first two

motions to reconsider. The government responds that the district court did not

finally rule on its motions to reconsider until June 9, 2006. Because it filed its

notice of appeal within thirty days of that later date, the government argues, its

appeal is timely.

In analyzing this issue, we begin by summarizing the sequence of events

following the district court’s A pril 25, 2006 order granting M r. Cos’s motion to

suppress. On April 26, 2006, the government filed its first motion to reconsider,

arguing that M s. Ricker had both actual and apparent authority to consent to the

search. On the same day, M r. Cos filed a motion to strike the government’s

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motion to reconsider, arguing that the government was improperly seeking to

reargue its opposition to the motion to suppress.

On M ay 1, 2006, the government filed a supplemental motion to reconsider

in which it: (a) contested the district court’s finding that the officers did not know

that children were in M r. Cos’s apartment until the officers entered; (b) argued

that M s. Ricker had apparent authority; and (c) argued, for the first time, that the

motion to suppress should be denied pursuant to the good-faith exception to the

exclusionary rule.

On M ay 4, 2006, the district court entered an order denying M r. Cos’s

motion to strike the government’s first motion to reconsider. The court explained

that, “[t]here is no doubt that the M otion to Reconsider complicates matters, but it

is not clear that it will significantly prolong this case or be inconsistent with

judicial economy. If anything, correcting a mistake now will save the parties the

time and expense of doing so at the appellate level.” Aplt’s App. vol. I, at 86.

Subsequently, on M ay 17, 2006, the district court entered an order granting

in part and denying in part the government’s first and supplemental motions to

reconsider. The court found that “the police knew, before Feather Ricker gave

consent for the police to search [M r. Cos’s] apartment, that there were children in

the apartment.” Id. at 89. However, the court reaffirmed its previous conclusion

that M s. Ricker lacked actual or apparent authority.

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 As to the government’s argument regarding the good-faith exception to the

exclusionary rule, the court began its discussion by stating in a heading that “[t]he

court will not address the good-faith exception.” Id. at 114. It explained that the

government had not raised this issue in its initial brief opposing the motion to

suppress or at the evidentiary hearing on the motion. “To consider such an

argument at this late date, especially when the United States fails to explain in its

supplemental motion why the exception applies to this case, would be unfair to

[M r.] Cos and promote a waste of judicial resources in allowing parties a second

chance to argue that which they should have raised the first time.” Aplt’s App.

vol. I, at 114-15.

Nevertheless, the court added that it “d[id] not see, on its own, without the

benefit of any argument from the United States, why the good-faith exception

would apply in this case.” Id. at 115; see also id. at 116 (stating that “the mistake

that led the police officers into [M r.] Cos’[s] apartment . . . was one that they, not

a neutral third party like a magistrate made”). Thus, the court concluded, “the

good faith exception does not seem to apply in this case.” Id. at 116. However,

the court then stated, “If the United States truly believes that the good-faith

exception may save the evidence from exclusion, it may file a motion setting forth

its reasons with more particularity and specificity.” Id.

The government quickly followed the district court’s suggestion, filing a

third motion to consider on the following day, M ay 18, 2006. On June 9, 2006,

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the court entered an order denying the government’s third motion to reconsider.

On June 14, 2006, the court issued an opinion setting forth its reasoning in more

detail. A s noted above, the government filed its notice of appeal on June 29, 2006.

In light of these extensive proceedings on reconsideration, we must decide

whether the thirty-day time to appeal under 18 U.S.C. § 3731 ran from the district

court’s M ay 17, 2006 order denying the government’s first two motions to

reconsider, as M s. Cos contends, or whether, as the government contends, the

thirty-day period began to run on June 9, 2006, when the court denied the

government’s third motion.

Under the particular circumstances at issue here, we agree with the

government that the thirty-day period began to run on the later date. Our

conclusion is based upon the language in the district court’s M ay 17, 2006 order,

which stated that the court would not consider the good-faith exception, then

expressed only a tentative view on the issue (i.e. that “the good faith exception

does not seem to apply in this case”), and invited the government to file a motion

“setting forth its reasons [supporting application of the good-faith exception] w ith

more particularity and specificity.” Id. (emphasis added). That language suggests

that the district court had not finally adjudicated the government’s supplemental

motion to reconsider insofar as it concerned the good-faith issue. See S. Ute

Indian Tribe v. Amoco Prod. Co., 2 F.3d 1023, 1029 (10th Cir. 1993) (concluding

that an order was not final because “the court itself viewed [the order] as

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preliminary rather than final”); cf. United States v. Karo, 710 F.2d 1433, 1436

(10th Cir. 1983) (holding that the time for filing a notice of appeal ran from the

entry of a written order rather than a preceding oral ruling and reasoning that

“[t]he time allowed for appeal begins to run when the trial judge acts in a manner

which clearly indicates his intention that the act shall be the final one in the case”)

(internal quotation marks and alterations omitted), rev’d on other grounds, 468

U.S. 705 (1984). As a result, the government’s third motion for reconsideration,

filed at the court’s express invitation and raising the issue identified by the court,

is distinguishable from the successive motions that we have deemed not to toll the

time for filing a notice of appeal. See, e.g., M arsh, 700 F.2d at 1324-28 (holding

that the defendant was “not entitled to two motions for rehearing,” and that, as a

result, the second motion did not toll the time for filing a notice of appeal).

Our conclusion that the M ay 17 order did not finally adjudicate the

government’s supplemental motion to reconsider (as to the good-faith issue) is

supported by the principle that “[f]inality is determined on the basis of pragmatic,

not needlessly rigid pro form a, analysis.” Fiataruolo v. United States, 8 F.3d 930,

937 (2d Cir. 1993). Applying that principle, courts have held that, when it is not

clear that a district court order has resolved an issue, the time for filing a notice of

appeal runs from the subsequent order that unambiguously does so. See, e.g.,

O’Connor v. M idw est Pipe Fabrications, Inc., 972 F.2d 1204, 1208-09 (10th Cir.

1992) (concluding that “we do not deem [a district court order] to be final for

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purposes of appeal because further proceedings on the merits of [an issue] were

plainly contemplated and the [appellants] were not clearly informed that the

litigation on [the issue] had ended with nothing else remaining for court action”);

Taylor v. Continental Group Change in Control Severance Pay Plan, 933 F.2d

1227, 1231 n.2 (3d Cir. 1991) (holding that when an order “was inadequate to

inform defendant of the proper avenue of appeal,” the time for filing the notice of

appeal ran from a subsequent order that “rectified” “this confusion”). Here, at

best, the M ay 17 order is ambiguous on the key question of whether it finally

resolves the good-faith argument advanced by the government in its supplemental

motion to reconsider. Absent “some clear and unequivocal manifestation by the

trial court of its belief that the decision made, so far as it is concerned, is the end

of the case,” Fiataruolo, 8 F.3d at 937, we do not believe that M ay 17 order

started the clock running against the government.

Our conclusion is also supported by considerations of judicial economy.

Because the district court indicated that it was open to further consideration of the

government’s argument regarding the good-faith exception, the government’s

filing of the invited motion, without first filing a notice of appeal, allowed the

issue to be fully developed by the district court before it was raised on appeal. Cf.

Cardall, 773 F.2d at 1330-31 (concluding that when the district judge suggested

that the government file a second motion for reconsideration based on a recent

Supreme Court decision and defer filing an appeal, the second motion for

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reconsideration tolled the time for filing a notice of appeal and stating that: “[the

district court’s] perception of judicial economy correctly indicated the wise course

of deferring an appeal until [it] had time to reconsider the issue so that this court

could properly review the matter in its full context”). Further and quite

importantly, the government did not tarry, acting on the court’s invitation to file a

third reconsideration motion the very next day, and thus minimizing delay.

As both the dissent and M r. Cos observe, the Supreme Court’s recent

decision in Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007) informs us that

“timely filing of a notice of appeal in a civil case is a jurisdictional

requirement[,]” and “[the courts] ha[ve] no authority to create equitable exceptions

to jurisdictional requirements.” 1 In Bowles, the Court held that “the Court of

Appeals lacked jurisdiction to entertain an appeal filed outside the 14-day window

allowed by [28 U.S.C. § 2107] but within the longer period granted by the District

Court.” Id. at 2363. Here, however, the question is not whether the district court

had authority to extend the thirty-day period for filing notice of appeal under 18

U.S.C. § 3731, but rather whether that period began to run on M ay 17, 2006 or

June 9, 2006. Bowles does not address the question, and, for the reasons stated

above, we conclude that time for filing the notice of appeal did not begin to run

1
M r. Cos submitted a Fed. R. App. P. 28(j) letter informing the court of the
Bowles decision.

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until June 9, 2006, when the district court finally ruled on the government’s good-

faith argument and denied its third motion to reconsider. 2

W e therefore conclude that the government’s appeal is timely, and we

proceed to the merits of the case.

B. M erits

A warrantless search of a suspect’s home is per se unreasonable under the

Fourth Amendment unless the government can show that it falls within “one of a

2
Admittedly, the oft-filed “motion for reconsideration” has dubious
parameters. M any district courts vigorously disfavor these motions. Judge
W ayne Alley has “note[d] with dismay the alarming practice and regularity with
which motions to reconsider are filed after a decision unfavorable to a party’s
case” and asked whether “there [is] some misapprehension widely held in the bar
that our court, in ruling on a motion after it is fully briefed, is just hitting a
fungo[.]” See Wayne E. Alley, Letter and Attached Order, 62 O KLA . B. J. 108,
109 (1991). “M any of the motions,” Judge Alley continues, “have as their tenor:
‘Aw come one, give us a break,’ or ‘You ruled against us so ipso facto you were
wrong,’ or ‘You just didn’t understand the issue,’ or its variant ‘You are just so
stupid that you didn’t understand the issue.’” Id.
Nevertheless, courts sometimes grant reconsideration motions, and
sometimes reconsider reconsideration motions. See, e.g., Jensen v. Snellings
636 F. Supp. 1305, 1307 (E.D. La. 1986) (granting a second motion to
reconsider), aff’d in part and rev’d in part on other grounds, 841 F.2d 600 (5th
Cir. 1988). Here, we believe that the district court’s invitation to the government
indicated that it had not finally decided the issue, and that, although the court
suggested that the government had a tough row to hoe, the government could
continue to pursue the good-faith exception argument.
The dissent eloquently (and equitably) advances the other view. W e agree
that “the parties generally get only one bite at the [motion for reconsideration]
apple.” Dissent at 5 (quoting Charles L.M . v. NE. Indep Sch. Dist., 884 F.2d 869,
871 (5th Cir. 1989)) (emphasis added). In our view, this case is one of the
exceptions that probes that rule. Had the district court indicated, in its M ay 17
order, that it had finally decided the good faith issue, this would be a different
case.

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carefully defined set of exceptions.” Coolidge v. New Hampshire, 403 U.S. 443,

474 (1971). That general principle reflects a central value of the Fourth

Amendment: “a man’s home is his castle [to the point that t]he poorest man may in

his cottage bid defiance to all the forces of the Crown.” Georgia v. Randolph, 126

S. Ct. 1515, 1524 (2006) (alternations in original) (internal quotation marks

omitted). “W e have . . . lived our whole national history with an understanding of

[that adage].” Id.; see also W ilson v. Layne, 526 U.S. 603, 610 (1999) (noting the

“centuries-old principle of respect for the privacy of the home”). This court has

often affirmed that view. See, e.g., United States v. M cCullough, 457 F.3d 1150,

1163 (10th Cir. 2006) (“‘It is a basic principle of Fourth Amendment law that

searches and seizures inside a home without a w arrant are presumptively

unreasonable.’”) (quoting Payton v. New York, 445 U.S. 573, 586 (1980)); United

States v. Hatfield, 333 F.3d 1189, 1196 (10th Cir. 2003) (stating that “privacy in

the interior of a home and its curtilage are at the core of what the Fourth

Amendment protects”); United States v. W aupekenay, 973 F.2d 1533, 1536 (10th

Cir. 1992) (observing that the defendant had “a heightened expectation of privacy

when he was w ithin his trailer” because “[a]t the very core of the Fourth

Amendment stands the right of a man to retreat into his own home”) (alternations

and internal quotation marks omitted).

Consensual searches constitute one exception to the warrant requirement.

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States v. Kimoana,

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383 F.3d 1215, 1221 (10th Cir. 2004). Consent may be obtained from the

individual whose property is searched, or in certain instances, from a third party

who possesses either actual authority or apparent authority to consent to the search.

See United States v. M atlock, 415 U.S. 164, 169-72 (1974) (discussing actual

authority); Illinois v. Rodriguez, 497 U.S. 177, 186-89 (1990) (discussing apparent

authority); Kimoana, 383 F.3d at 1220-1223 (applying both doctrines). The

government has the burden of proving that the consenting party had such authority.

See United States v. M cAlpine, 919 F.2d 1461, 1463 (10th Cir. 1990) (actual

authority); Kimoana, 383 F.3d at 1222 (apparent authority).

Here, the government maintains that M s. Ricker had both actual and apparent

authority to consent to the search of M r. Cos’s apartment. W e consider each

argument in turn.

1. Actual Authority

a. M atlock

The Supreme Court’s decision in M atlock sets forth the test for actual

authority. There, the Court held that a woman who jointly occupied with the

defendant a bedroom in her mother’s house could validly consent to a search of that

bedroom. The Court explained that “when the prosecution seeks to justify a

warrantless search by proof of voluntary consent, it is not limited to proof that

consent was given by the defendant, but may show that permission to search was

obtained from a third party who possessed common authority over or other

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sufficient relationship to the premises or effects sought to be inspected.” M atlock,

415 U.S. at 171. Under M atlock, “common authority” is not based on the law of

property but rather on

mutual use of the property by persons generally having joint
access or control for most purposes, so that it is reasonable
to recognize that any of the cohabitants has the right to
permit inspection in his own right and that the others have
assumed the risk that one of their number m ight permit the
common area to be searched.

Id. at 171 n.7.

That language has led to varying formulations of the standard for

determining a third party’s actual authority to consent to a search. See Rith, 164

F.3d at 1329 & n.1 (discussing the varying approaches adopted by the circuits).

For example, the D.C. Circuit has required proof of both mutual use and joint

access. See id. at 1329-30 (discussing United States v. W hitfield, 939 F.2d 1071,

1074 (D.C. Cir. 1991)). The Second Circuit requires proof of (1) access to the area

searched and (2) common authority over the area, a substantial interest in the area,

or permission to gain access to the area. See id. at 1329 n.1 (discussing United

States v. Davis, 967 F.2d 84, 87 (2d Cir. 1992)). In several cases, the Ninth Circuit

has taken yet another approach, concluding that even if a third party lacked “joint

access or control for most purposes,” M atlock, 415 U.S. at 171 n.7, she or he may

nevertheless validly consent to a search of the defendant’s property if the defendant

“assumed the risk that [the third party] would allow a search of the [property].”

United States v. Kim, 105 F.3d 1579, 1583 (9th Cir. 1997); see also United States

-20-
v. Davis, 332 F.3d 1163, 1170 n.4 (9th Cir. 2003) (explaining that “[w]e have

rarely applied the ‘assumption of risk’ analysis urged by the dissent, and the few

cases in w hich we have done so have involved situations where the person whose

property was searched clearly ceded authority over the property, either partially or

totally, to the consenting third party”). The Seventh Circuit has also followed the

“assumption of the risk” approach on occasion. See United States v. Cook, 530

F.2d 145, 149 (7th Cir. 1976) (stating that “because [the third parties] retained

such broad control over the premises, we must recognize that [the defendant] had

assumed the risk that they might permit others to inspect the premises”).

b. Rith— The Tenth Circuit’s Reading of M atlock

In this circuit, we have read M atlock to establish the following standards for

assessing actual authority to consent to a search of a residence: “(1) mutual use of

the property by virtue of joint access, or (2) control for most purposes over it.”

Rith, 164 F.3d at 1329 (emphasis added). The first of these standards— mutual use

by virtue of joint access— is “a fact-intensive inquiry.” Id. at 1330. W e require the

government to show that “the third party entered the premises or room at will,

without the consent of the subject of the search.” Id.; see, e.g., M cAlpine, 919 F.2d

at 1464 (concluding that a women held in the defendant’s home against her will had

actual authority to consent to a search because she had resided in the home for two

months, regularly slept in the back bedroom where the guns were found and kept

her personal possessions throughout the trailer, thus demonstrating “mutual access .

. . and use [of the entire home] on a daily basis”).

-21-
 In contrast, the second standard— control for most purposes over the

property— is a “normative inquiry dependent upon whether the relationship between

the defendant and the third party is the type which creates a presumption of control

for most purposes over the property by the third party.” Rith, 164 F.3d at 1330. If

the presumption of control is not rebutted, then the third party has actual authority

to consent to a search of the defendant’s property. Id. Parent-child and husband-

wife relationships trigger this presumption, but “a simple co-tenant relationship

does not create a presumption of control and actual access would have to be

shown.” Id.

In applying these principles of actual authority, we must be mindful of the

Supreme Court’s recent observation that: ‘[t]he constant element in the assessing

reasonableness in the consent cases . . . is the great significance given to widely

shared social expectations, which are naturally enough influenced by the law of

property, but not controlled by its rules.” Randolph, 126 S. Ct. at 1521. Thus,

whether the defendant’s reasonable expectation of privacy was infringed by the

third party’s consent to the search is a paramount concern. See M cAlpine, 919

F.2d at 1463 (observing that, “if [actual] authority is established, the person whose

property is searched is unjustified in claiming an expectation of privacy in the

property because that person cannot reasonably believe that the joint user will not,

under certain circumstances, allow a search in her own right”).

c. The government’s arguments

-22-
 Here, the government advances three challenges to the district court’s ruling

that M s. Ricker lacked actual authority to consent to the search of his apartment.

First, invoking a phrase from M atlock, it contends that, by allowing M s. Ricker to

use his apartment, M r. Cos assumed the risk that she would consent to the search.

Second, invoking another phrase from M atlock, the government maintains that M s.

Ricker had “a sufficient relationship” to the apartment to give consent. Finally,

under the alternative standards set forth in Rith, the government contends that M s.

Ricker had both (a) mutual use of the apartment by virtue of joint access; and (b)

control over the apartment for most purposes.

The government’s first two arguments are not supported by the law of this

circuit. As M r. Cos correctly notes, when determining whether a third party has

actual authority to consent to the search of a residence, we do not apply an

independent “assumption of the risk” or “sufficient relationship to the premises”

test. Although those phrases do appear in M atlock and other courts have

occasionally applied those concepts to find actual authority, Rith controls our

reading of M atlock. Under Rith, neither the defendant’s “assumption of the risk”

nor the existence of a “sufficient relationship” between the third party and the

premises frames the inquiry.

W e acknowledge that our recent decision in United States v. Trotter, 483

F.3d 694 (10th Cir. 2007) does employ one of the concepts invoked by the

government— a “sufficient relationship to the premises”— in concluding that a third

party had actual authority to consent to a search. In Trotter, the defendants

-23-
conspired w ith a third party, M r. King, to possess and distribute illegal drugs. As

part of the conspiracy, M r. King, acting under the direction of one of the

defendants and using that defendant’s funds, rented a storage unit in his own name.

The defendants kept the keys to the storage unit, but on numerous occasions they

gave M r. King a key so that he could retrieve drugs and drug paraphernalia from

the unit. Citing a Ninth Circuit decision involving similar facts, United States v.

Kim, 105 F.3d 1579 (9th Cir. 1997), we held that M r. King had actual authority to

consent to a search of the storage unit by the police.

In reaching this conclusion, we reasoned that because M r. King had leased

the storage unit in his own name, “he could at any time have exercised his rights as

lessee to have the storage company open the unit, without [the defendant’s]

knowledge or permission.” Trotter, 483 F.3d at 699. M oreover, the defendants had

“allowed M r. King access to the storage unit when they sent M r. King to the unit to

retrieve and drop off items.” Id. Accordingly, “M r King’s position as a lessee of

the unit and his active participating in renting and using the facility gave him a

‘sufficient relationship to the premises’ to justify the searches based upon his

consent.” Id. (emphasis added).

Despite its application of the “sufficient relationship to the premises”

language from M atlock, our opinion in Trotter does not support a departure from

the standard we announced in Rith for determining actual authority in this case.

M ost importantly, this case, like Rith and unlike Trotter, involves the search of a

home. Given the heightened protection afforded to the home under the Fourth

-24-
Amendment, see e.g., W ilson, 526 U.S. at 610, we are convinced that Rith’s more

precise formulation of the standard applies here.

Applying the Rith standard for actual authority, we are not convinced by the

government’s arguments. The government maintains that M s. Ricker had joint

access to the apartment because she had used it in the past and because, on the day

of the search, M r. Cos had left her alone there. According to the government, the

record also establishes the alternative standard for actual authority— control for

most purposes. As to that standard, the government asserts, M s. Ricker had “an

established personal relationship” with M r. Cos and thus M r. Cos had no

“expectation of exclusive access” to the apartment. Aplt’s Br. at 16-17. For

support, the government observes that M s. Ricker had slept in M r. Cos’s bedroom

on previous occasions and, on the day of the search, had gone through the bedroom

where the gun was found in order to use the bathroom.

The government’s argument regarding the first alternative Rith

inquiry— mutual use of the property by virtue of joint access— completely ignores

our statement that the government must show that the third party “entered the

premises or room [that was subjected to the search] at will, without the consent of

the subject of the search.” Rith, 164 F.3d at 1330 (emphasis added). Here, M s.

Ricker testified at the evidentiary hearing that she did not have a key to the

apartment, and the district court expressly found that “the United States has not

established that [M s.] Ricker had, in fact, a key to the apartment.” A plt’s A pp. vol.

I, at 62. M oreover, M s. Ricker also testified that she could not enter the apartment

-25-
without M r. Cos’s consent and that she had to ask for his consent to invite other

people over, like the children who came to the apartment to swim on the day of the

search. Thus, like the district court, we conclude that M s. Ricker could not enter

the apartment without M r. Cos’s consent.

M oreover, as the district court also observed, there are additional facts

indicating that M s. Ricker “was more like an occasional visitor whom [M r.] Cos

allowed to visit, rather than one who asserted a right to access the property jointly

with [M r.] Cos.” Id. M s. Ricker did not leave her personal belongings in the

apartment, but instead took them with her when she left, indicating that she could

not come and go as she pleased. Further, she had only been alone in the apartment

on two occasions before the day of the search, and each occasion was only for a

brief period. M s. Ricker’s limited access to the apartment is therefore insufficient

to demonstrate actual authority under the first Rith inquiry. See United States v.

W arner, 843 F.2d 401, 403 (9th Cir. 1988) (affirming the district court’s finding

that a landlord lacked actual authority to consent to a search of a tenant’s property

because “at best, the landlord had permission to enter the property for the limited

purpose of making specified repairs and occasionally mowing the lawn”); United

States v. Corral, 339 F. Supp. 2d 781, 791-92 (W .D. Tex. 2004) (holding that a

part-time housekeeper lacked actual authority to consent to a search of the

defendant’s residence because she “enjoyed only limited access to the residence,”

“was present for specific and limited purposes only,” did not have a key, and never

let others into the house nor had permission to do so); see also United States v.

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Salimonu, 182 F.3d 63, 76 (1st Cir. 1999) (Lipez, J., dissenting) (concluding, on an

issue not reached by the majority, that a third party who had permission to enter the

defendant’s apartment solely for the purpose of facilitating the move of his

possessions into storage lacked actual authority to consent to search of the

apartment because “[a]ccess to the apartment for that limited purpose cannot be

reconciled with the joint access or control for most purposes which is required for

valid consent”).

As to the second Rith inquiry— control over the apartment for most

purposes— the government’s argument is similarly unconvincing. The relationship

between M s. Ricker and M r. Cos, who had dated for a short time and were friends

(having “an established personal relationship,” in the government’s words), is not

the equivalent of the relationships we recognized in Rith as establishing a

presumption of control: those between parent and child and husband and wife.

Rith, 164 F.3d at 1330. If, as we stated in Rith, co-tenant relationships do not

establish a presumption that each party has control over the property for most

purposes, we fail to see how this particular personal relationship should create such

a presumption. See id.

Finally, the government’s argument in support of M s. Ricker’s alleged

control over the apartment is untethered to any persuasive account of “widely

shared social expectations” or reasonable expectations of privacy that would

support the view that, in the absence of a valid warrant or exigent circumstances,

M r. Cos somehow forfeited his right to exclude the government’s entry into his

-27-
home by leaving M s. Ricker alone there for forty minutes before the officers

arrived. Randolph, 126 S. Ct. at 1521; M cAlpine, 919 F.2d at 1463.

2. Apparent Authority

The government also challenges the district court’s conclusion that M s.

Ricker lacked apparent authority to consent to the search. Even when actual

authority is lacking, a third party has apparent authority to consent to a search if a

police officer reasonably, but erroneously, believes that the third party has actual

authority to consent. Randolph, 126 S. Ct. at 1520; Rodriguez, 497 U.S. at 181;

United States v. Andrus, 483 F.3d 711, 716 (10th Cir. 2007). The apparent

authority inquiry is an objective one: we must determine whether “the facts

available to the officer at the moment . . . warrant a m an of reasonable caution [to

believe] that the consenting authority had authority over the premises[.]”

Rodriguez, 497 U.S. at 188 (internal quotation marks and citations omitted); see

also Gutierrez-H ermosillo, 142 F.3d at 1230 (stating that the inquiry is objective).

In light our formulation in Rith, a third party has apparent authority if the officer

has a reasonable belief that the third party has “(1) mutual use of the property by

virtue of joint access, or (2) control for most purposes over it.” See Rith, 164 F.3d

at 1329.

Importantly, “w here an officer is presented with ambiguous facts related to

authority, he or she has a duty to investigate further before relying on the consent.”

Kimoana, 383 F.3d at 1222 (10th Cir. 2004). Thus, the government cannot meet its

burden of demonstrating a third party’s apparent authority “if agents, faced with an

-28-
ambiguous situation, nevertheless proceed without making further inquiry.” Id.

(internal quotation marks and citation omitted). As Professor LaFave w rites,

“sometimes the facts known by the police cry out for further inquiry, and when this

is the case it is not reasonable for the police to proceed on the theory that

‘ignorance is bliss.’” 4 W ayne R. LaFave, S EARCH AND S EIZURE § 8.3(g) at 180

(4th ed. 2004); see also id. at 177 (stating that “under a sound application of the

apparent authority rule the police must be required to make reasonable inquiries

when they find themselves in ambiguous circumstances”).

Here, the government contends that because M s. Ricker answered the door of

M r. Cos’s apartment at three o’clock in the afternoon and because the officers

realized that children were there, the officers reasonably believed that M s. Ricker

had the authority to consent to the search. The government invokes the following

passage from the Supreme Court’s decision in Randolph, which refers to the

Court’s earlier decision in M atlock:

M atlock accordingly not only holds that a solitary
co-inhabitant may sometimes consent to a search of shared
premises, but stands for the proposition that the
reasonableness of such a search is in significant part a
function of commonly held understanding about the
authority that co-inhabitants may exercise in ways that
affect each other’s interests.

M atlock’s example of common understanding is
readily apparent. W hen someone comes to the door of a
domestic dwelling with a baby at her hip, as M rs. Graff did,
she shows that she belongs there, and that fact standing
alone is enough to tell a law enforcement officer or any
other visitor that if she occupies the place along w ith others,
she probably lives there subject to the assumption tenants

-29-
 usually make about their common authority when they share
quarters. They understand that any one of them may admit
visitors, with the consequence that a guest obnoxious to one
may nevertheless be admitted in his absence by another.

Randolph, 126 S. Ct. at 1521 (emphasis added). The government also cites

Commonwealth v. Hughes, 836 A.2d. 893, 901 (Pa. 2003). There, the Pennsylvania

Supreme Court held that three teenage girls standing on an outside porch of the

defendant-parolee’s residence had apparent authority to consent to a search of that

residence.

Again, we agree with the district court’s thorough analysis rejecting the

government’s contentions. Even if accompanied by young children, a third party’s

mere presence on the premises to be searched is not sufficient to establish that a

man of reasonable caution would believe that she had “mutual use of the property

by virtue of joint access, or . . . control for most purposes over it.” See Rith, 164

F.3d at 1329. Instead, the government must offer some additional evidence to

support a claim of apparent authority.

That conclusion follows from our apparent authority decisions. For example,

we recently held that a defendant’s father had apparent authority to consent to the

search of a computer located in the defendant’s bedroom. Andrus, 483 F.3d at 721.

W e reasoned that the officers knew that the defendant’s father owned the home and

lived there with family members; that the father paid the internet and cable bill;

that even though the computer was located in the defendant’s bedroom, the

defendant’s father had access to the room at will; and finally, that “the officers saw

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the computer in plain view on the desk in [the defendant’s] room and it appeared

available for use by other household members.” Id. Similarly, in Kimoana, we

based our holding that a third party had apparent authority to consent to the search

of a motel room on the fact that a police officer knew that the third party had a key

to the room and that he had told the officer that he had stayed there with his

cousins. And in Guiterrez-Hermosillo, 142 F.3d at 1231, we concluded that the

defendant’s fourteen-year-old daughter, who answered the door of a motel room,

had apparent authority to consent to the search of a motel room because border

patrol agents had questioned the defendant on the previous day and knew that he

and his daughter w ere traveling together.

Decisions from other circuits support the view that the government must

offer more evidence than the third party’s presence on the premises. For example,

the Ninth Circuit has rejected the argument that “[a third party] had apparent

authority to consent because he answ ered the front door and appeared to be alone in

the apartment.” United States v. Reid, 226 F.3d 1020, 1025 (9th Cir. 2000).

Other courts have also made it clear that, in ambiguous circumstances,

officers must seek additional information in order to determine w hether the third

party has authority to consent to a search. For example, in U nited States v. Goins,

437 F.3d 644, 649 (7th Cir. 2006), the Seventh Circuit explained that officers had

not “blindly accept[ed] [the defendant’s girlfriend’s] claim of authority over a

premises in order to create apparent authority to search.” Instead, upon questioning

the girlfriend, the officers learned that she “had a key to the apartment [and]

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possessions within the apartment[.]” Id. The girlfriend also “represented that she

lived there on-and-off and frequently cleaned and did household chores in the

home.” Id. Similarly, in United States v. M eada, 408 F.3d 14, 21 (1st Cir. 2005),

the First Circuit explained that “officers were not merely acting on an

unsubstantiated hunch that [the defendant’s girlfriend] had joint access to the

apartment.” Instead, before they entered the apartment, the defendant’s girlfriend

had told the officers that she kept several personal possessions there and that she

could enter in the defendant’s absence. See also United States v. Hudson, 405 F.3d

425, 442-43 (6th Cir. 2005) (holding that a third party had apparent authority to

consent to a search of a home w here the defendant lived because “the officers

reasonably believed that [the third party] and [the defendant] were romantically

involved and had a child; [the third party and the defendant] and the child lived

with [the defendant’s grandmother] . . . ; and [the third party] had a key to the

home”); Harajli v. Huron Twp, 365 F.3d 501, 506 (6th Cir. 2004) (concluding that

a third party had apparent authority to consent to the search of a house when she

had lived there “in the recent past” and possessed a garage door opener, which she

used to gain access to the house).

Here, in contrast, the officers who arrived at M r. Cos’s apartment on June

29, 2005, had no information about his living arrangements. Thus, when they

encountered M s. Ricker at the front door, they did not know who she was or what

relationship she had to M r. Cos or to the residence. As the district court reasoned,

when an officer knocks on the door of an apartment at three o’clock in the

-32-
afternoon, the person who answers the knock could be a repairman, a visitor, or a

neighbor watering the plants or feeding the pets. It was possible that M s. Ricker

was living there, but alternative explanations for her presence in the apartment

were also plausible. M oreover, the fact that she told the officers that she was there

with “my kids” does not resolve the ambiguity. For example, as the district court

observed, the children could have belonged to a neighbor or a visiting non-resident

relative. Thus, in many plausible scenarios, M s. Ricker may well not have had

either “mutual use of the property by virtue of joint access or . . . control for most

purposes over it.” See Rith, 164 F.3d at 1329.

The police officers who encountered M s. Ricker at the door of M r. Cos’s

apartment were therefore confronted with “an ambiguous situation.” Kimoana, 383

F.3d at 1223. Because they “nevertheless proceed[ed] without making further

inquiry,” id., the government cannot meet its burden of establishing that “the facts .

. . warrant[ed] a man of reasonable caution [to believe] that [M s. Ricker] had

authority over [M r. Cos’s apartment].” Rodriguez, 497 U.S. at 188.

Additionally, we disagree with the government that the Supreme Court’s

observations in Randolph are applicable here. Importantly, Randolph is not an

apparent authority case. Instead, the decision involves “a straightforward

application of the rule that a physically present inhabitant’s express refusal of

consent to a police search is dispositive as to him, regardless of the consent of a

fellow occupant.” 126 S. Ct. at 1528. As noted above, Randolph describes the

consenting third party in M atlock as “someone [who] comes to the door of a

-33-
domestic dwelling with a baby at her hip.” Id. at 1521. However, that description

does not purport to create a bright-line rule about the circumstances establishing

apparent authority, as the government suggests. Instead, the Supreme Court

explains that “if [the woman coming to the door with baby on her hip] occupies the

place along with others, she probably lives there.” Id. (emphasis added). Randolph

thus addresses the “commonly held understanding about the authority that co-

inhabitants may exercise in ways that affect each other’s interests.” Id. (emphasis

added). H ere, M r. Cos and M s. Ricker w ere not co-inhabitants.

In addition, unlike M s. Ricker, the consenting third party discussed in this

section of the Randolph opinion told the police that she lived in bedroom where the

contraband was found before the police searched that location. See M atlock, 415

U.S. at 175 (stating that “M rs. Graf responded to inquiry at the time of the search

that she and [the defendant] occupied the east bedroom together” and that “[a] few

minutes later, having led the officers to the bedroom, she stated that she and [the

defendant] shared the one dresser in the room”) (emphasis added). Thus, neither

Randolph nor M atlock suggests that M s. Ricker’s being in M r. Cos’s apartment

with children is sufficient to establish apparent authority.

The one other authority on which the government relies, the Pennsylvania

Supreme Court’s decision in Hughes, is also distinguishable. The defendant there

was on parole when the search of the approved parole residence occurred. The

Hughes court acknowledged that “a parolee has a diminished expectation of

privacy[,] and the Fourth Amendment protections of a parolee are more limited

-34-
than the protections afforded the average citizen.” H ughes, 836 A.2d at 899. M ore

importantly, we are not bound by Hughes, and, to the extent that it is inconsistent

with our cases regarding actual and apparent authority, we decline to follow it.

W e therefore conclude that M s. Ricker lacked apparent authority to consent

to the search of M r. Cos’s apartment.

3. Good-Faith Exception

Finally, the government argues that the district court erred in refusing to

apply the good-faith exception to the exclusionary rule. Citing the district court’s

observation that “there is no reason to doubt the police officers’ good faith,” A plt’s

App. vol. I, at 116, the government maintains that even if this court concludes that

the search of M r. Cos’s apartment violated the Fourth A mendment because M s.

Ricker lacked authority to consent, the evidence discovered there should still not be

suppressed.

In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court “adopted a

good-faith exception and specifically applied that exception where ‘an officer

acting with objective good faith has obtained a search warrant from a judge or

magistrate and acted within its scope,’ even though the search warrant was later

declared invalid.” H errera, 444 F.3d at 1249 (quoting Leon, 468 U.S. at 920). In

this circuit, we have concluded that “Leon’s good faith exception applies only

narrowly, and ordinarily only when an officer relies, in an objectively reasonable

manner, on a mistake made by someone other than the officer.” Id.

-35-
 Thus, in Herrera, we declined to apply the good faith exception when a state

trooper conducted a random, warrantless inspection of a truck based on the

officer’s mistaken belief that the truck was a commercial vehicle subject to such

inspections under state law. W e did so despite the fact that the trooper was

mistaken by only one pound in believing that the defendant’s truck w as a

comm ercial vehicle subject to the state regulatory scheme. Id. at 1246; see also id.

at 1254 (noting that “the officer’s mistaken good-faith factual belief (not shared by

the person being searched) that the vehicle being searched was a commercial

vehicle subject to an administrative search”) (emphasis in original).

Sim ilarly, in U nited States v. Scales, 903 F.2d 765 (10th Cir. 1990), we

declined to apply the good faith exception when officers seized a suitcase without a

warrant. In our view, Leon did not apply “to cases in which the good faith of the

officer cannot be presumptively established by the existence of a warrant valid on

its face.” Id. at 768.

Here, as the district court recognized, the officers’ initial entry into M r.

Cos’s apartment was based neither on a facially valid warrant nor on a mistake

made by someone other than the officers. Instead, the officers proceeded into the

apartment because of their mistaken belief that M s. Ricker had the authority to

consent. In such circumstances, the good faith exception to the exclusionary rule is

inapplicable. 3

3
W e note that in a case not mentioned or argued by the government, the
(continued...)

-36-
 In seeking to avoid this conclusion, the government relies primarily on

United States v. M cClain, 444 F.3d 556 (6th Cir. 2006). There, officers received a

phone call from a neighbor indicating that the owners of a nearby house had moved

out several w eeks earlier and that there was a light on that had not been on before.

Finding the front door slightly ajar, the officers entered the house and found

evidence of a marijuana grow ing operation. Based on that discovery, the officers

proceeded to obtain a search warrant, and executed it six weeks later.

The Sixth Circuit held that the officers initial warrantless entry into the

house violated the Fourth Amendment: they lacked probable cause to believe that a

burglary was in progress and there were no other exigent circumstances to justify a

warrantless search. However, the court further held that the officers who executed

3
(...continued)
Supreme Court has held that, when a particular kind of mistake is made by police
officers themselves— a violation of the Fourth Amendment’s knock-and-announce
requirement— the exclusionary rule is not applicable. United States v. Hudson,
126 S. Ct. 2159 (2006). However, in our view , the Supreme Court’s holding is
based on considerations pertaining to the knock-and-announce requirement in
particular rather than to other Fourth Amendment violations. See id. at 2168
(noting “the social costs of applying the exclusionary rule to knock-and-announce
violations” and stating that “the incentive to such violations is minimal to begin
with,” and that “the extant deterrences against [knock-and-announce violations]
are substantial”). Justice Kennedy’s opinion concurring in part and concurring in
the judgment makes this very point, concluding that “the continued operation of
the exclusionary rule is not in doubt” and that “[t]oday’s decision determines only
that in the specific context of the knock and announce requirement, a violation is
not sufficiently related to the later discovery of evidence to justify suppression.”
Id. at 2170 (Kennedy, J., concurring).
Accordingly, for other violations of the Fourth Amendment that are caused
by officers’ mistakes rather that by those of a third party, the good faith exception
ordinarily remains inapplicable. See Herrera, 444 F.3d at 1249.

-37-
the subsequent warrant had acted in good faith because the initial violation was

“close enough to the line of validity to make the executing officers belief in the

validity of the search warrant objectively reasonable.” 444 F.3d at 566 (internal

quotation marks omitted). Applying Leon’s good faith exception, the court

therefore concluded that the evidence obtained pursuant to the warrant should not

have been suppressed.

Although we cannot follow M cClain to the extent that it conflicts with the

law of this circuit, we conclude that it is distinguishable nevertheless. In M cClain,

it was the officers’ belief in the validity of the search warrant that triggered the

application of Leon. The Sixth Circuit explained that “the officers who sought and

executed the search warrants were not the same officers who performed the initial

warrantless search, and [the] warrant affidavit fully disclosed to a neutral and

detached magistrate the circumstances surrounding the initial warrantless search.”

Id. Accordingly, there was nothing more that the officer could have done under the

circumstances to insure that the search would be legal.

Here, the officers had an arrest warrant for M r. Cos. However, the district

court found that the arrest warrant did not justify the officers’ entry into the

apartment. See Aplt’s App. vol. I, at 60 (concluding that “the officers lacked a

reasonable belief that [M r.] Cos would be found within the apartment” and that, as

a result, “the entry into his apartment pursuant to the arrest w arrant w as not valid”).

The government has not challenged this ruling on appeal. Absent the arrest

warrant, the only other basis for the officers’ entry into the apartment was M s.

-38-
Ricker’s response to “go for it.” Aplt’s App. vol. I, at 42. Thus, the government

has not established that the evidence at issue was obtained in good faith reliance on

a warrant.

W e therefore conclude that the district court properly refused to apply the

good-faith exception to the exclusionary rule.

III. C ON CLU SIO N

For the foregoing reasons, we therefore AFFIRM the district court’s order

granting M r. Cos’s motion to suppress.

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06-2187, United States v. Cos

G O RSU CH , J., Circuit Judge, dissenting.

The court today confronts a number of difficult merits questions and resolves

them with great care. I would hold, however, that we lack authority to entertain this

appeal. The Supreme Court has instructed that congressionally imposed deadlines

for filing a timely notice of appeal, like the one before us, are mandatory,

jurisdictional, and not susceptible to equitable tolling. It recently emphasized this

point by dismissing even the appeal of a habeas petitioner who filed a late notice of

appeal in reliance on a federal court’s mistaken calculation of the applicable

deadline. In the case before us, the government urges various (and less persuasive)

equitable reasons for permitting its own untimely notice of appeal. But the

government surely should be held no less accountable to congressionally prescribed

filing deadlines than a habeas petitioner. Accordingly, I respectfully dissent.

I

A handful of background facts are essential. On April 25, 2006, the district

court granted Jose Antonio Cos’s motion to suppress. The next day, the government

filed a motion to reconsider, pursuing, as it had previously, the argument that

Feather Ricker had actual and apparent authority to authorize the government’s

search. Before the district court was able to rule, the government filed, on M ay 1,

2006, a “supplemental motion to reconsider.” In this pleading, the government

raised two new arguments. First, it asked the district court to reconsider the

applicability of United States v. Matlock, 415 U.S. 164 (1974). The district court
had distinguished Matlock from this case on the basis that the officers here did not

know children were in the apartment at the time of their entry. In its motion to

reconsider, the government cited record evidence suggesting the officers did have

such knowledge. Second, the government asked the court – for the first time – to

consider the potential application of the good-faith exception to the exclusionary

rule.

M r. Cos moved to strike the government’s supplemental motion, expressing,

among other things, a concern that the government was trying to extend the time for

filing its notice of appeal unilaterally by introducing new arguments for

reconsideration seriatim. On M ay 4, 2006, the district court denied M r. Cos’s

motion to strike, indicating that “there is no sound reason for the Court not to

consider” the government’s good faith argument; it further indicated that, if the

government was indeed seeking to extend the deadline for its notice of appeal as M r.

Cos charged, it was proceeding “at its own risk.”

Finally, on M ay 17, 2006, the district court ruled on the government’s motion

and supplemental motion to reconsider. The court granted the government’s motion

in part solely to clarify that the officers knew children were present at the time they

entered the apartment and to supplement its distinction of Matlock, thus responding

on the merits to one of the government’s supplemental arguments for

reconsideration. In all other respects, however, the district court expressly denied

the relief sought and held it would not vacate its controlling April 25, 2006, order

granting M r. Cos’s motion to suppress “because the United States has not set forth a

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sufficient ground for taking such a step.” M em. Op. at 8; see also id. at 29 (“The

Court will not vacate its M emorandum and Order granting the motion to suppress.”).

With specific reference to the government’s argument for a good-faith

exception to the application of the exclusionary rule, the district court refused to

entertain it on the basis that it appeared in only two sentences in a supplemental

filing and was not developed by the government: “To consider such an argument at

this late date, especially when the United States fails to explain in its supplemental

motion why the exception applies to this case, would be unfair to Cos and promote a

waste of judicial resources in allowing parties a second chance to argue that which

they should have raised the first time.” Id. at 27-28. Indeed, the district court made

this point very clear, stating in a bolded, capitalized heading: “THE COURT

W ILL N OT A DD RESS TH E G O OD -FA ITH EXC EPTIO N.” Id. at 27. After

holding that it would not rule on the good-faith issue, the district court added its

view that the exception did not “seem to apply” on its own terms anyway and

indicated that “[i]f the United States truly believes that the good-faith exception

may save the evidence from exclusion, it may file a motion setting forth its reasons

with more particularity and specificity.” Id. at 29 (emphasis added).

On M ay 18, 2006, the government filed what it concedes was, and describes

as, a second motion for reconsideration, providing a detailed argument about the

applicability of the good-faith exception. See Gov’t Br. at 4 (“The Second Motion

to Reconsider Raised A New Argument”); id. at 7 (discussing “second motion to

reconsider”). On June 9, 2006, after a hearing, the district court entered an order

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denying the government’s second motion. Twenty days later, on June 29, 2006, the

government filed its notice of appeal.

II

Congress has governed by statute our jurisdiction over appeals taken by the

United States from orders suppressing evidence, providing in pertinent part that

“[t]he appeal in all such cases shall be taken within thirty days after the decision,

judgment or order has been rendered and shall be diligently prosecuted.” 18 U.S.C.

§ 3731. We have previously held this deadline to be jurisdictional in nature. See

United States v. Martinez, 681 F.2d 1248, 1254 (10th Cir. 1982). 1 It is settled law

that, when a party chooses to file a motion to reconsider, the deadline for filing a

notice of appeal begins to run from the date of the order denying the motion. See

United States v. Ibarra, 502 U.S. 1, 6-7 (1991). But it is equally settled in this

circuit that a second or subsequent motion to reconsider has no effect on this

calculus and will not toll the filing deadline. See United States v. Marsh, 700 F.2d

1322 (10th Cir. 1983). As we have explained, a party “is not entitled to two bites,

so to speak.” Id. at 1324. While the federal rules and longstanding practice

recognize the propriety of an extension of time when an initial motion for

reconsideration is pending, see id. at 1325, “no provision is made for additional

1
Rule 4(b)(4) of the Federal Rules of Appellate Procedure authorizes a district
court to extend the time to file a notice of appeal under certain circumstances.
W hether Rule 4(b)(4) may trump or supplement Section 3731 may be a nice
question, see United States v. Sasser, 971 F.2d 470, 473-75 (10th Cir. 1992), but
it is one we need not address as the government does not contend that the
conditions necessary for application of Rule 4(b)(4) are met here. Id.

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consideration” in cases where a “double effort [i]s plain.” Id. “[S]uccessive tolling

of the appeal period is not allowed.” Id. (quoting United States v. Rothseiden, 680

F.2d 96, 98 (11th Cir. 1982)); accord Glinka v. Maytag Corp., 90 F.3d 72, 74 (2d

Cir. 1996) (citing Marsh and collecting cases from the First, Fifth, Sixth, Seventh,

Eighth, and D.C. Circuits). As our sister circuit has put the point: “The interest of

finality requires that parties generally get only one bite at the [motion for

reconsideration] apple for the purposes of tolling the time for bringing an appeal.”

Charles L.M. v. Ne. Indep. Sch. Dist., 884 F.2d 869, 871 (5th Cir. 1989). 2

Interpreting a similarly worded statute, 28 U.S.C. § 2107(c), which governs

the time to appeal from civil decisions of the district courts, the Supreme Court in

Bowles v. Russell, 127 S. Ct. 2360, 2362 (2007), recently underscored what it means

to recognize such deadlines as “jurisdictional.” After the district court’s denial of

his writ of habeas corpus, Keith Bowles, the inmate-petitioner, had 30 days within

which to file a notice of appeal. M r. Bowles failed to do so but moved to reopen the

period during which he could file his notice of appeal pursuant to Rule 4(a)(6) of the

Federal Rules of Civil Procedure, which, subject to certain conditions, allows

district courts to extend the filing period for 14 days from the day the district court

grants the order to reopen. The district court granted M r. Bowles’s motion, but,

2
Of course, as the court today indicates, district courts are free, if they wish, to
entertain further motions for reconsideration. See M aj. Op. at 17 n.2. The only
question for us is when the time for a notice of appeal begins to run, and it is long
settled that only an initial motion for reconsideration will toll that period;
otherwise, of course, a party might delay appellate review indefinitely simply by
filing motion after motion seeking reconsideration. Id.

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rather than extending the filing period by 14 days, the court gave him 17 days to file

his notice of appeal. In reliance on the district court’s instruction, M r. Bowles took

16 of the 17 days afforded him.

The Supreme Court held M r. Bowles’s appeal untimely, stating that M r.

Bowles’s reliance on an (erroneous) direction of the district court mattered not at

all. The filing day deadline, the Court held, was jurisdictional and mandatory in

nature and no equitable consideration could overcome it – not even reliance on

express, if erroneous, judicial direction. “If rigorous rules like the one applied

today are thought to be inequitable,” the Court held, it is “Congress” and not the

judiciary that “may authorize courts to promulgate” exceptions softening their

effect. Bowles, 127 S. Ct. at 2367.

Applying these principles to the case before us, I would hold the

government’s appeal untimely. The 30-day appellate clock began ticking, to my

mind, on M ay 17, 2006. It was then that the district court denied the government’s

first motion to reconsider as well as its supplemental motion to reconsider. To be

sure, the district court invited the government to file a second motion to reconsider,

but there ought to be no question that the court rejected the government’s first (and

supplemental) motion. The M ay 17, 2006 order, after all, (1) specifically refused to

entertain the government’s good-faith argument; (2) denied reconsideration in

pertinent part; (3) refused to vacate the court’s existing final judgment; (4) invited

the government not to file a supplemental brief on good faith, but a new motion. On

top of all this, (5) the government understood its subsequent, M ay 18 filing

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amounted to just such a successive, second motion for reconsideration, and (6) far

from being assured it was on terra firma like Mr. Bowles, the government was

expressly warned by the district court that it proceeded at its “own risk” with respect

to filing a timely notice of appeal. With the district court’s denial of the

government’s initial (and supplemental) motion for reconsideration, the government

had until June 16, 2006 (at the latest) to file its notice of appeal. Because it did not

do so until June 29, 2006, its appeal is untimely and we are without jurisdiction to

hear it.

In response to all this, the government, unsurprisingly, does not argue that the

court’s M ay 17, 2006 order was only a preliminary or tentative ruling on its initial

and supplemental motions. Rather, the government readily acknowledges that the

district court denied these motions in relevant part and that it was forced to file a

second motion on M ay 18. 3 Before us, the government presses only equitable

3
The cases cited by the court for its conclusion otherwise seem to me
inapplicable. For example, in United States v. Karo, 710 F.2d 1433, 1436 (10th
Cir. 1983), rev’d on other grounds, 468 U.S. 705 (1984), we simply held that an
oral ruling on a motion to suppress was not a final, appealable order when the
district court expressly indicated that a formal, written ruling would be
forthcoming. In S. Ute Indian Tribe v. Amoco Prod. Co., 2 F.3d 1023, 1029 (10th
Cir. 1993), likewise, the district court signed a pre-prepared case management
order but expressly “declared that it was doing so preliminary and would enter a
more detailed written order.” See also Fiataruolo v. United States, 8 F.3d 930,
937 (2d Cir. 1993) (holding that a written judgment for the plaintiff was final
even when the district court had yet to specify a dollar award); O’Connor v.
M idwest Pipe Fabrications, Inc., 972 F.2d 1204, 1208-09 (10th Cir. 1992) (the
district court’s contempt order specified that plaintiffs could discharge the
contempt by meeting certain conditions and expressly indicated that the court
would consider further argument at a later date on that issue); Taylor v. Cont’l
(continued...)

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excuses for its delay in filing a notice of appeal. Specifically, the government (1)

stresses its belief that its second motion for reconsideration raised important new

arguments; (2) notes that it had the permission of the district court to file a second

motion for reconsideration; (3) seeks to assure the court that its successive motion

was not interposed for reasons of delay; and (4) argues that waiting to start the

appellate clock ticking until a final motion for reconsideration can be resolved

facilitates judicial economy by avoiding piecemeal appeals. See Gov’t Br. at 3-9.

None of the government’s equitable arguments may be entirely without

appeal. But each contains obvious weaknesses, 4 and none is remotely as strong as

M r. Bowles’s equitable argument that he had relied on the word of a federal court in

delaying his notice of appeal. Even more to the point, however, the Supreme Court

has unequivocally directed that jurisdictional filing deadlines are not susceptible to

3
(...continued)
Group Change in Control Severance Pay Plan, 933 F.2d 1227, 1231 n.2 (3d Cir.
1991) (holding that the time for appeal does not run from a vacated district court
order). By contrast, even the government does not dispute that the district court
in this case denied its initial (and supplemental) motion to reconsider in relevant
part, thus necessitating a second motion.
4
For example, while the government did raise new points in its M ay 18, 2006,
filing in support of the application of the good-faith exception, there is no reason
why it could not have raised those points much earlier in the proceedings, even
during the pendency of the original motion to suppress. W hile the district court
permitted the government to file yet another motion to reconsider, it firmly
rejected the government’s first and supplemental motions for reconsideration and
had long made clear the government proceeded at its own risk with respect to
noticing a timely appeal. As to judicial economy, one can make arguments both
ways; as the Supreme Court noted in Bowles, a firm 30-day rule encourages
“clarity” for practitioners. Bowles, 127 S. Ct. at 2367.

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alteration based on precisely the sort of equitable considerations that the government

urges on us, explaining that “this Court has no authority to create equitable

exceptions to jurisdictional requirements.” Bowles, 127 S. Ct. at 2366. And

whatever else one might think about this command, it surely must be susceptible to

the Rule of the Goose and Gander and thus apply no less forcefully to the

government than the habeas petitioner. Accordingly, I respectfully dissent.

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