United States v. Ryerson, No. 07-1654 (7th Cir. 09/18/2008)
Defendant Richard Ryerson challenges his conviction and sentence for possessing a machine gun in violation of 18 U.S.C. § 922(o). Ryerson claims the district court improperly denied his motion to suppress the machine gun, which was found in Ryerson's garage after his ex-wife, Jennifer Lawicki, consented to a warrantless search.
Although this is a close case, we are not persuaded by Ryerson's arguments. Because of Lawicki's long-term and continuing residence in Ryerson's home, she had authority to consent to the search and the police acted reasonably in believing she lived there.
Lawicki told Investigators Mark Bitsky and Todd Laudert that she lived at Gillette Lane. She also said that Ryerson sold drugs and stored weapons at Gillette Lane, including a submachine gun that she had allegedly seen two months earlier under the back porch. Bitsky asked Lawicki if the police could search the home for contraband. After consenting, she signed a permission to search form.
The officers summoned Jason Krumscheid, who willingly let Lawicki and the police enter the home. Little did they know that Ryerson had called Krumscheid from jail earlier that evening, expressing concern that Lawicki might plant something because she "has access to the house" and noting that "[a]nything in that house could be Jennifer's also." He also directed Krumscheid to get rid of "a little rapid fire BB gun" stashed in the garage drywall, along with some jewelry that Lawicki had allegedly hidden there.
Before entering, Lawicki correctly anticipated and warned the police about a "vicious cat" inside the house. She said that the house was in Ryerson's name, but that she had bought the property with him and lived there with their baby. Lawicki also went to the basement to retrieve some business records for the Dells Cab Company, a taxicab company that Ryerson and Lawicki co-owned and ran from Gillette Lane. The house also contained Lawicki's and her baby's personal items, including clothes and toys. The officers further found a pellet gun, ammunition, a digital scale with white powdery residue, and a pack of rolling papers. They did not find a machine gun or any drugs.
The next morning, Bitsky listened to the jail's recording of Ryerson and Krumscheid's conversation from the previous evening. Lawicki signed another permission to search form and accompanied the officers into the garage. Lawicki did not object when they used a thermal imager to search for "dead spots" in the wall. In a second dead spot, the police recovered a Thompson submachine gun.
After his indictment, Ryerson moved to suppress the machine gun as the fruit of an illegal search. At an evidentiary hearing before a magistrate judge, Lawicki (who had since remarried Ryerson) testified that she did not believe she had legal authority to consent to the searches.
Ryerson's Motion to Suppress was Properly Denied
Although a third party generally cannot consent to a warrantless search of another's home, there is an exception when the government can show by a preponderance of the evidence that the third party "possessed common authority over, or other sufficient relationship to, the premises or effects sought to be inspected." United States v. Brown, 328 F.3d 352, 356 (7th Cir. 2003). This "actual authority" does not depend on property law distinctions but instead rests on whether there is "mutual use of the property by persons generally having joint access or control for most purposes." Matlock, 415 U.S. at 171 n.7.
We agree with the government that Lawicki had actual authority to consent to both searches. Lawicki was Ryerson's ex-wife and then-current girlfriend (and now-current wife). As the officers noticed, Lawicki left many of her and her baby's belongings in the home. See United States v. Goins, 437 F.3d 644, 647-49 (7th Cir. 2006) (keeping clothing or personal belongings at a residence suggests authority to consent).
Moreover, Lawicki remained connected to the home through her co-ownership of the Dells Cab Company.
Ryerson claims, however, that he revoked Lawicki's actual authority after she "moved out." In his taped conversation with Krumscheid, Ryerson admitted that Lawicki continued to have "access to the house" and noted that "[a]nything in that house could be Jennifer's also." By opening his home to Lawicki, Ryerson assumed the risk that she might consent to a search because "[o]ne who shares a house or room or auto with another understands that the partner may invite strangers-that his privacy is not absolute, but contingent in large measure on the decisions of another." United States v. Chaidez, 919 F.2d 1193, 1202 (7th Cir. 1990).
Although Ryerson now claims that he revoked Lawicki's authority, the fact remains that he allowed Lawicki to live there, with their child, for the ten months preceding the search.
But what about the locks? If Ryerson changed them, perhaps he was trying to rid himself of the risk that Lawicki would return. The magistrate judge and district court never resolved whether the locks had been changed, presumably because the record was so muddled on this issue. Contrary to what Lawicki had told the police on February 8, she was adamant at the evidentiary hearing that she could not enter the house because she had not taken the keys, not because the locks were changed. So the record does not suggest that Ryerson limited Lawicki's access to the home in this manner.
Ryerson also twists this argument a bit and claims his note and comments to the jail sergeant amounted to an objection under Georgia v. Randolph, 547 U.S. 103 (2006), that invalidated Lawicki's consent. Id. at 122-23 (a physically present inhabitant may successfully object to a search over the consent of a co-habitant). Ryerson admits it's a stretch to apply Randolph since he was not present during either search, but he suggests Randolph should still apply because his absence was due to the "state," which had jailed him on a probation hold. Even if this were a tenable argument, and Ryerson's note and comments amounted to an objection, nothing in the record suggests the "state" arrested Ryerson to prevent him from objecting while the police searched his house.
In addition to actual authority, the second search (which is when the police found the gun) was lawful on the basis of "apparent authority." Such authority exists when the facts available to an officer at the time of a search would allow a person of reasonable caution to believe that the consenting party had authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990). Ryerson's note to the jail sergeant also had no impact on Lawicki's apparent authority because Investigator Bitsky did not read the note before the second search. Contrary to Ryerson's claims, there is no evidence that this was "willful ignorance," and at any rate, the note does not suggest Lawicki lacked the ability to consent to a search.
The judgment of the district court is AFFIRMED.
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