FILED
NOT FOR PUBLICATION
DEC 27 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10496
Plaintiff-Appellee, D.C. No. 2:15-cr-00035-RFB-
CWH-1
v.
FRANK CHAVEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware, II, District Judge, Presiding
Argued and submitted October 21, 2016
San Francisco, California
Before: HAWKINS and CALLAHAN, Circuit Judges, and SOTO,** District
Judge.
Defendant Frank Chavez was convicted of being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). He appeals from the
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
The Honorable James Alan Soto, United States District Judge for the District
of Arizona, sitting by designation.
District Court’s partial denial of his motion to suppress. Defendant primarily argues
on appeal that the District Court improperly found that a third party, who was visiting
the house where Defendant was residing, had apparent authority to consent to police
officers' entry into the house and living room where Defendant was found in
possession of a firearm.
A district court's denial of a motion to suppress is reviewed de novo. See
United States v. Arreguin, 735 F.3d 1168, 1174 (9th Cir. 2013).1 A district court's
factual findings are reviewed for clear error, and its credibility determinations based
on testimony are given special deference. See id. Whether a person has actual or
apparent authority to consent to a search is a mixed question of law and fact that is
reviewed de novo. See id.
“The Fourth Amendment provides that the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated.” Id. “A warrantless search of a house is per se unreasonable and
absent exigency or consent, warrantless entry into the home is impermissible under
the Fourth Amendment.” United States v. Reid, 226 F.3d 1020, 1025 (9th Cir. 2000).
1
Unless otherwise noted, internal quotes and citations have been omitted when
quoting authority in this Memorandum Disposition.
2
“Evidence that is recovered following an illegal entry into a home is inadmissible and
must be suppressed.” Id.
Consent to search is a recognized exception to the Fourth Amendment’s
protection. See Arreguin, 735 F.3d at 1174. However, the “existence of consent to
a search is not lightly to be inferred . . . .” Reid, 226 F.3d at 1025.
The government has the burden of establishing the effectiveness of a
third party's consent. It can do so in three ways. First, the government
can come forward with persuasive evidence of both shared use and joint
access to or control over a searched area, which would demonstrate
actual authority to consent. Second, it can show that the owner of the
property to be searched has expressly authorized a third party to give
consent to the search. Finally, it may establish consent by means of the
apparent authority doctrine.
United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1994).2
Before the District Court and on appeal, the Government did not argue that there
was valid consent in this case based on express authorization or actual authority.
Rather, the Government only argued that there was valid consent based on apparent
authority, and the District Court likewise only found valid consent based on apparent
authority. We hold that the District Court erred in its determination as to apparent
authority.
2
Welch was overruled on other grounds in United States v. Kim, 105 F.3d 1579
(9th Cir. 1997).
3
“Under the apparent authority doctrine, a search is valid if the government
proves that the officers who conducted it reasonably believed that the person from
whom they obtained consent had the actual authority to grant that consent.” Welch, 4
F.3d at 764; see also Arreguin, 735 F.3d at 1175 (“Apparent authority is measured by
an objective standard of reasonableness, and requires an examination of the . . .
surrounding circumstances.”). Actual authority exists if one has shared use and joint
access to or control over a searched area. See Welch, 4 F.3d at 764; Arreguin, 735 F.3d
at 1174. Apparent authority is applicable only if the facts believed by the officers to
be true would justify the search as a matter of law. See Welch, 4 F.3d at 764. “A
mistaken belief as to the law, no matter how reasonable, is not sufficient.” Id. at 765.
The “government has the burden of establishing apparent authority to consent to each
specific area searched, not just authority to consent to a generalized search of the
residence.” Arreguin, 735 F.3d at 1175. “In assessing whether an officer’s belief was
objectively reasonable, the court considers the facts available to the officer at the
moment” of the officer’s warrantless entry into a home or relevant search of an area.
Id. (emphasis in the original).
In this case, the officers’ warrantless entry into the home where Defendant was
residing was based on the consent of a third party (Sandra Rentfro) who was visiting
the home. For apparent authority to exist, the officers had to have an objectively
4
reasonable basis to believe that Ms. Rentfro had actual authority to consent to entry
into the home and living room. Actual authority would exist if Ms. Rentfro had shared
use and joint access or control over the home and living room.
At the moment the officers entered the home based solely on Ms. Rentfro’s
consent, the officers knew that: (1) Ms. Rentfro did not own the home, (2) Ms. Rentfro
did not reside at the home, (3) Ms. Rentfro’s adult son (Raymond Fletcher) owned the
home and resided at the home with his roommate (Defendant), (4) Ms. Rentfro had
come in from out of town to visit with her son for his birthday, and (5) the owner and
residents of the home (Mr. Fletcher and Defendant) were present inside the home.
At the moment the officers entered the home based solely on Ms. Rentfro’s
consent, they did not know any of the following regarding Ms. Rentfro’s connection
to the home: (1) whether she had a key to the home, (2) whether she could enter and
leave the home at will, (3) how often she was alone in the home, (4) whether she was
left in charge of the home when the other residents were not home, (5) the frequency
of her visits to the home, (6) what rooms she routinely used and accessed when she
visited, (7) whether she invited other guests into the home, or (8) whether she could
invite guests into the home without the permission of the residents and what areas of
the home would these other guests be permitted.
5
Despite the circumstances before them prior to their entry into the home, the
officers never asked to speak to the owner or other resident of the home. Rather, they
proceeded into the home based solely on the consent of a third party that they knew did
not own or reside at the home, and that they knew had come in from out of town to
visit her adult son that owned the home in question.
In light of the foregoing, the officers did not have an objectively reasonable basis
to believe that Ms. Rentfro had shared use and joint access to or control over the home
and living room. Therefore, Ms. Rentfro did not have apparent authority to consent to
their entry into the home and living room under the particular circumstances of this
case.3
As all subsequently found evidence must be suppressed under the fruit of the
poisonous tree doctrine as there was no apparent authority to enter the home and living
room, we do not address Defendant's alternative grounds for appeal (i.e., that the
officers exceeded the scope of Ms. Rentfro's consent to search and they did not have
reasonable suspicion or probable cause to search and arrest Defendant). See United
States v. Redlightning, 624 F.3d 1090, 1102 (9th Cir. 2010).
3
While we recognize the special familial relationship between a parent and
child, and this is certainly a factor that is weighed in assessing consent, the officers
in this specific case did not have an objectively reasonable basis to conclude that Ms.
Rentfro had apparent authority.
6
REVERSED.
7
FILED
USA v. Frank Chavez, No. 15-10496
DEC 27 2016
CALLAHAN, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The apparent authority doctrine requires that a police officer reasonably
believe that a person consenting to a search has “shared use and joint access to or
control over a searched area.” United States v. Welch, 4 F.3d 761, 764–65 (9th Cir.
1993) (emphasis omitted). The inquiry turns on “an examination of the actual
consent as well as the surrounding circumstances.” United States v. Arreguin, 735
F.3d 1168, 1175 (9th Cir. 2013) (internal quotation marks omitted). Because I find
that Officers Christina Alfonsi and James O’Leary had an objectively reasonable
belief that Ms. Sandra Rentfro had authority to consent to a search of a common
area within her son’s residence, I respectfully dissent.
It is reasonable for an officer to infer that a resident’s guest would have at
least “joint access” to common areas such as an entryway, kitchen, and living
room. See United States v. Ladell, 127 F.3d 622, 624 (7th Cir. 1997) (“Third-party
consents to search the property of another are based on a reduced expectation of
privacy in the premises or things shared with another.”). Officers Alfonsi and
O’Leary knew several facts when Rentfro, the mother of the owner of the
residence, Raymond Fletcher, allowed them entry into the residence: (1) Rentfro
had reported a domestic disturbance involving Chavez within the residence, (2)
Chavez possessed a firearm the location of which was unknown, (3) Rentfro
emerged from the residence to greet the officers, (4) Rentfro was staying with her
son at his residence, and (5) the living room (where the search occurred and where
Chavez was located) was visible from the entryway. From these facts the officers
could reasonably infer that Rentfro had joint access to the entryway and living
room, both of which were common areas that comprised a continuous and
unobstructed living space. That Rentfro is a family member of the owner’s, and
was visiting from Indiana, only bolsters this conclusion.
The majority makes much of what the officers did not know, see Maj. Op. at
5, but this merely distracts from the operative inquiry. Our case law does not
require, for example, knowledge of whether a third-party can “enter and leave the
home at will,” the “frequency of [the third-party’s] visits to the home,” “how often
[the third-party] was alone in the home,”“whether [the third-party] invited other
guests into the home,” and on and on. Cf. id. This grab-bag of factors may be
helpful in some instances, but the majority cites no authority suggesting that
satisfying any or all of them is determinative, let alone necessary.
The majority relies on Arreguin and Welch, but those cases actually support
a finding of apparent authority here. In Arreguin, the officers knew “virtually
nothing” about the third-party who opened the door to the residence and consented
to a search, yet proceeded to investigate a private bedroom anyway. 735 F.3d at
-2-
1176. Here, by contrast, the officers did know Rentfro’s relationship to the owner
of the house and searched only a common area to which she clearly had use and
access.
Similarly, Welch makes clear the distinction between consent to search
common rather than private areas of a residence. Welch involved a party’s consent
to search a car and purse located within the vehicle on suspicion that they
contained counterfeit money. 4 F.3d at 762–63. The consenting party, McGee,
was traveling in the rental car with his girlfriend, Welch. Id. at 765. At the time of
consent, the officers knew three things: (1) Welch was McGee’s girlfriend, (2)
Welch had traveled with McGee in the rental car, and (3) the purse belonged to a
woman. Id. The officers searched both the car and purse, the latter of which
contained counterfeit money. Id. at 762–63. The court upheld the search of the car
but suppressed the contents of the purse. Id. at 764–65. The court reasoned that
McGee had authority to authorize the search of the car because he and Welch had
“joint access to and mutual use of it.” Id. at 764. But the officers lacked a
reasonable belief that he had a similar interest in the purse. Id. at 765. Unlike the
car, “Welch had a reasonable expectation of privacy in the contents of her purse.”
Id. at 764.
-3-
Just as McGee had authority to consent to a search of the rental car in Welch,
so, too, Officers Alfonsi and O’Leary reasonably concluded that Rentfro had
authority to consent to a search of her son’s living room. The officers did not
expand the search beyond common areas of the home into rooms where the owner
or another resident might have a reasonable expectation of privacy—the ills
identified in Welch and Arreguin.
The officers also confined their search to the scope of Rentfro’s consent.
“The scope of a search is generally defined by its expressed object.” Florida v.
Jimeno, 500 U.S. 248, 251 (1991). Here, the object of the officers’ search was
Chavez on suspicion of theft. It was therefore reasonable for O’Leary to enter the
living room where Chavez was located to investigate the allegation. Moreover,
neither Rentfro nor her son—who had emerged from the back of the
residence—objected to O’Leary’s entry into the living room, further indicating that
O’Leary acted within the scope of Rentfro’s consent.
O’Leary’s subsequent pat-down search of Chavez was also reasonable.1
“We review for clear error a district court’s determination of the voluntariness of a
1
Because the majority concludes that Rentfro lacked apparent authority
to authorize a search of the residence, it does not analyze the district court’s
finding that the officers conducted a valid pat-down search of Mr. Chavez’s
person.
-4-
defendant’s consent to a search.” United States v. Brown, 563 F.3d 410, 414 (9th
Cir. 2009) (internal quotation marks omitted). O’Leary testified that he asked
Chavez, “[d]o you mind if I pat you down for weapons?”2 Chavez answered “yes,”
but then immediately complied with a “consensual pat down” and continued to
answer O’Leary’s questions. The district court committed no error—let alone clear
error—in finding that Chavez consented to the search.
As the pat-down progressed to the back of Chavez’s waistband, O’Leary
testified that Chavez “pulled forward, releasing his hands from my grip,” and
“hunched forward” in what could reasonably be characterized as an aggressive
stance. The officers then placed Chavez in handcuffs.
Chavez claims that the officers placed him under arrest when they
handcuffed him. He argues that the officers lacked probable cause to do so
because, at the time he was handcuffed, the officers lacked specific information
about a criminal offense. But placing Chavez in handcuffs did not convert a
permissible investigatory stop into an unconstitutional arrest. A “brief but
complete restriction of liberty, if not excessive under the circumstances, is
permissible during a Terry stop and does not necessarily convert the stop into an
2
O’Leary subsequently testified that he could not recall the exact
phrasing of his question—i.e., whether he asked if Chavez minded if he conducted
a pat-down or if he could conduct a pat-down.
-5-
arrest.” United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982). The
detention here was reasonable to protect the officers’ safety after Chavez took an
aggressive stance. Accordingly, the district court properly concluded that
handcuffing Chavez did not amount to an arrest.
I respectfully dissent.
-6-