                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-2214
UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,
                              v.

TIMOTHY BROWN, JR.,
                                        Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
               for the Southern District of Illinois.
         No. 01-CR-30123—Michael J. Reagan, Judge.
                        ____________
    ARGUED FEBRUARY 20, 2003—DECIDED MAY 2, 2003
                   ____________


  Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. Timothy Brown, Jr. was
convicted of possessing cocaine base and cocaine hydrochlo-
ride with the intent to distribute, within one thousand
feet of public housing. On appeal, Brown challenges the
district court’s denial of his motion for judgment of acquit-
tal, arguing that there was not sufficient evidence to con-
vict him of possession of the drugs seized at his apartment.
He also argues that the court erred by denying his motion
to suppress the drugs and other evidence that were seized
pursuant to an invalid consent, and by permitting the
government to introduce evidence of drugs seized from
another residence. We reject those arguments and affirm.
2                                                 No. 02-2214

                     I. BACKGROUND
  In July 2001, law enforcement agents were attempting
to execute state arrest warrants for Brown as part of a
fugitive task force. On July 17, 2001, the agents received
an anonymous tip that Brown was living at an apartment
on Brinson Street in East St. Louis, Illinois.1 After enter-
ing the apartment to arrest Brown, the agents found money,
crack cocaine, marijuana, a gun, and four individuals in
the home, but not Brown. Three days later, the same
anonymous tipster called the agents and told them Brown
was now living at an apartment on Lincoln Street. The
agents went to the Lincoln apartment building and deter-
mined that someone was in Brown’s apartment when a
plastic bag containing crack cocaine was thrown from his
window and landed near an agent’s foot. Seconds later, an
agent saw an unidentified male in the window of the
apartment holding a gun. Believing that Brown was inside,
the agents forcibly entered the apartment and arrested
Brown. While some agents were arresting Brown, others
conducted a protective sweep of the apartment and found
Seneca Hobson and Cortez Straughter in one of the bed-
rooms, a bag containing crack cocaine on a bedroom win-
dow sill, and a handgun under “a large pile of clothes.”
  After the apartment was secured, a deputy marshal
called an Assistant United States Attorney (AUSA) for
guidance on searching the apartment and was told to
get consent from the apartment leaseholder, Stephon


1
  The agents later learned that Brown may have moved from
Brinson Street sometime between July 9, 2001, and July 18, 2001.
The record, however, contains conflicting evidence as to whether
and when Brown moved from this residence. Brown maintains
that he moved out of the apartment on July 9, 2001, and Brown’s
landlord, Mr. Andrew Thomure, testified that he did not learn
that Brown may have moved out until approximately July 18,
2001.
No. 02-2214                                              3

Lowery. Deputy Davis drove to Lowery’s place of employ-
ment and when he informed Lowery that Brown had been
arrested at the Lincoln apartment, Lowery explained that
he (Lowery) did not live there and that his only connec-
tion with the apartment was that he had leased it as a
favor to Brown. Lowery told the deputy that he paid the
rent with money that Brown had given him and when
the landlord gave him the keys, he gave them to Brown.
After this conversation, Lowery signed a consent to search
form and the deputy, rather than contacting the AUSA,
called the agents and directed them to search the apart-
ment. The agents then seized approximately 143.8 grams
of cocaine base, 246.1 grams of cocaine hydrochloride,
baking soda (a substance often used to make crack cocaine),
and nearly $5,000 from common areas of the apartment.
  Deputy Davis reported the findings to the AUSA, who,
after learning of Lowery’s relationship to the apartment
and concluding that the consent was probably invalid,
ordered the agents to stop the search. The deputy returned
to the office where, under the supervision of the AUSA, he
applied for and obtained a warrant to search the apart-
ment. The affidavit in support of the search warrant
application did not contain any information regarding the
evidence seized during the “invalid” consent search. After
the warrant was approved, the agents conducted another
search of the apartment but found no additional evidence.
  At trial, the district court denied Brown’s motion to
suppress the evidence seized at the Lincoln apartment and
pursuant to Federal Rule of Evidence 404(b) permitted the
government to use the evidence obtained at the Brinson
apartment. At the close of evidence, the district court
denied Brown’s motion for judgment of acquittal. Brown
was convicted by a jury and now appeals the district
court’s rulings.
4                                                No. 02-2214

                      II. ANALYSIS
A. Sufficiency of the Evidence
  Brown moved for acquittal under Federal Rule of Crimi-
nal Procedure 29(a) claiming the government failed to
present sufficient evidence to support his conviction. We
review the district court’s decision de novo. United States
v. Griffin, 194 F.3d 808, 816 (7th Cir. 1999). The question
we ask here is whether the evidence presented, when
viewed in the light most favorable to the government, could
support any rational trier of fact’s finding of all the essen-
tial elements of the crime beyond a reasonable doubt.
United States v. Williams, 298 F.3d 688, 691-92 (7th Cir.
2002). An appellant “faces a nearly insurmountable hurdle”
when attacking the sufficiency of the evidence used to
convict him at trial because our role is not to weigh evi-
dence or make credibility determinations. United States
v. Pulido, 69 F.3d 192, 205 (7th Cir. 1995). Instead, we
will reverse the district court’s ruling only if the record is
devoid of evidence from which a jury could find guilt be-
yond a reasonable doubt. United States v. Hach, 162 F.3d
937, 942 (7th Cir. 1998).
   To sustain a conviction for possession with the intent
to distribute cocaine base or cocaine hydrochloride, the
government must show beyond a reasonable doubt that
Brown (1) knowingly and intentionally possessed cocaine
base or cocaine hydrochloride; (2) possessed the cocaine
base or cocaine hydrochloride with the intent to distribute
it; and (3) knew that the cocaine base or cocaine hydro-
chloride was a controlled substance. Griffin, 194 F.3d
at 816. Brown argues that the government failed to estab-
lish that he possessed the drugs found in his apartment
and failed to produce any evidence linking him to those
drugs. We disagree. The government need not catch a
defendant red-handed to satisfy the possession require-
ment, rather, it only needs to demonstrate that the defen-
No. 02-2214                                                    5

dant constructively possessed drugs. United States v.
Starks, 309 F.3d 1017, 1022 (7th Cir. 2002). To establish
constructive possession, the government must “establish
a nexus between the accused and the contraband[ ] in or-
der to distinguish the accused from a mere bystander.”
United States v. Richardson, 208 F.3d 626, 632 (7th Cir.
2000).
  Brown’s constructive possession is established by his
“substantial connection to the house.” See Richardson, 208
F.3d at 632; United States v. DiNovo, 523 F.2d 197, 201 (7th
Cir. 1975). Brown, like the defendant in Richardson, lived
at the Lincoln residence where the drugs were found, was
at the residence during the search, and the officers found
his clothes, money, and other belongings in the apartment.
See 208 F.3d at 632. In addition, Stephon Lowery’s state-
ments indicate that Brown was the sole tenant of the
apartment. Since the drugs were found in readily accessible
locations of the apartment that Brown alone was renting,
there is sufficient evidence for the jury to have found
that Brown had the “recognized authority in his criminal
milieu—to possess and determine the disposition of them.”
See Windom, 19 F.3d at 1199; see also Richardson, 208 F.3d
at 632; United States v. Jackson, 51 F.3d 646, 655 (7th Cir.
1995); United States v. Hunte, 196 F.3d 687, 692 (7th Cir.
1995); United States v. Pace, 898 F.2d 1218, 1223, 1246 (7th
Cir. 1990); United States v. Garza-Hernandez, 623 F.2d 496,
502 n.6 (7th Cir. 1980).2


2
   Brown claims that Cortez Straughter, who also was found in the
Lincoln apartment during the protective sweep, “could have had
control over the drugs” because “[l]aw enforcement [agents]
testified that Straughter was in fact a suspect because he had
been living at the apartment” and the agents “had information
that Straughter sold drugs.” While such speculation may be true,
it does not absolve Brown of criminal liability—we have repeat-
                                                   (continued...)
6                                                    No. 02-2214

B. Motion to Suppress Evidence—Lincoln Apartment
  When reviewing an appeal from a district court’s de-
nial of a motion to suppress evidence, we examine the
district court’s findings of facts for clear error and its
conclusions of law de novo. United States v. Lenior, 318 F.3d
725, 728 (7th Cir. 2003). If consent to search is given by
a third party it is incumbent upon the government to
demonstrate by a preponderance of the evidence “that
permission to search was obtained from a third party who
possessed common authority over, or other sufficient
relationship to, the premises or effects sought to be in-
spected.” United States v. Matlock, 415 U.S. 164, 171 (1974);
see also United States v. Basinski, 226 F.3d 829, 834 (7th
Cir. 2000).
  Brown contends that the agents continued to search the
Lincoln apartment without a warrant after they knew, or
reasonably should have known, that they did not have
valid consent to search.3 The government asserts that it
was reasonable for the agents to believe that Lowery had
the authority to consent.4 We agree with Brown. Lowery


2
  (...continued)
edly held that constructive possession can be exclusive or shared
with others. See Starks, 309 F.3d at 1022; Richardson, 208 F.3d
at 632; DiNovo, 523 F.2d at 201.
3
  Brown does not dispute the validity of the protective sweep
which turned up the cocaine outside of the house, the cocaine on
the window sill, and the gun under the large pile of clothing.
4
   The government also contends that “in utilizing Stephon Lowery
as a ‘strawman’ lessee, the defendant assumed the risk that
Lowery might one day assert his legal right of control over the
apartment.” We have previously rejected this argument, United
States v. Chaidez, 919 F.2d 1193, 1201 (7th Cir. 1991), since
“[r]enting a place ‘for’ someone else may create a sublease. A
landlord does not have authority to permit a search of his tenant’s
                                                     (continued...)
No. 02-2214                                                   7

informed Deputy Davis that his only connection with the
apartment was that he leased it for Brown as a favor;
Lowery stated that he did not have keys to the apartment,
had not paid any money for the apartment, and did not
keep any belongings there. Common authority requires
“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 co-habitants has
the right to permit the inspection in his own right and
that the others have assumed the risk that one of their
number might permit the common area to be searched.”
Matlock, 415 U.S. at 171 n.7.
  Although it is clear that Lowery could not consent to
the search of Brown’s apartment, this is a hollow victory
for Brown, because we find the evidence seized was prop-
erly admitted under the inevitable discovery doctrine.
This doctrine allows the use of evidence if the government
can show that the information “ultimately or inevitably
would have been discovered by lawful means.” United States
v. Gravens, 129 F.3d 974, 979 (7th Cir. 1997). To demon-
strate that a discovery was truly “inevitable,” the prosecu-
tion must establish that it had probable cause and prove
the existence of “a chain of events that would have led to
a warrant . . . independent of the search.” United States v.
Brown, 64 F.3d 1083, 1085 (7th Cir. 1995); see also, United
States v. Jones, 72 F.3d 1324, 1330 n.8 (7th Cir. 1995).
Because “the inevitable discovery doctrine is not an excep-
tion to be invoked casually,” Gravens, 129 F.3d at 980, we
will apply the doctrine only where is it clear that “the
deterrence rationale of the exclusionary rule has so little
basis that the evidence should be received.” United States


4
  (...continued)
leasehold, and the same holds true for a tenant and his sub-
tenant. Use of and access to the property are the touchstones of
authority.” Id.
8                                                 No. 02-2214

v. Cotnam, 88 F.3d 487, 496 (7th Cir. 1996) (citing Nix, 467
U.S. at 444).
   Brown argues that the district court erred in applying
the inevitable discovery doctrine because but for finding
the drugs and money seized, the agents would not have
sought a warrant. We disagree. This is not a case in which
the government simply disregarded Brown’s constitu-
tional rights and blindly searched his apartment. The
record indicates that the agents went to Brown’s residence
with the purpose of arresting him on outstanding state
warrants, and after arresting him, contacted the U.S.
Attorney’s office to seek guidance on how to proceed with
a search of the apartment. It was only at the direction of
an AUSA that the agents sought and secured Lowery’s
consent to search the apartment. We have no doubt that
if there had been no Lowery from whom to obtain consent,
or if the AUSA had known of the defect in the consent
immediately after Deputy Davis spoke with Lowery
(rather than after the search had concluded), the AUSA
would have instructed the marshals to obtain a search
warrant before beginning the search.
  The exclusionary rule is a sanction that is supposed to
be proportioned to the wrongdoing that it punishes; the
rule should not be used to make the person whose rights
have been violated better off than he would be if no viola-
tion had occurred. United States v. Salgado, 807 F.2d 603,
607 (7th Cir. 1986). We have found that the law enforce-
ment agents were not justified in searching Brown’s
apartment pursuant to Lowery’s consent, but here, as in
Salgado, the agents had more than enough information,
without the evidence uncovered during the invalid consent
search, to obtain a warrant.5 The only mistake these agents


5
   In the search warrant application, the marshals did not men-
tion the evidence that was found during the invalid consent
                                                  (continued...)
No. 02-2214                                                     9

made was driving to Lowery’s place of employment to
secure his consent rather than driving to the courthouse
to obtain a warrant. See id. at 606 (applying inevitable
discovery doctrine where the “information in the agents’
possession that owed nothing to [one of the agents’] search
abundantly established probable cause for obtaining a
warrant . . . the warrant would have been obtained and
executed even if [the agent] had never made his search”).
Because the agents corrected their error shortly after
completing the search, and obtained a search warrant
without disclosing the fruits of that invalid search, we
hold that the inevitable discovery rule applies in this case
and the district court did not err in admitting the evidence.6


5
   (...continued)
search; the application indicated that the agents had informa-
tion from a reliable tipster that Brown lived at the Lincoln
apartment and only mentioned the drugs and gun found during
the protective sweep. Brown asserts that the affidavit supporting
the warrant application should have apprised the magistrate of
the invalid consent search and the evidence seized. We disagree.
First, whether or not there was a consent search is irrelevant to
the determination of probable cause. Second, had the government
done as Brown suggests, any search warrant flowing from such
an affidavit would have been tainted by the illegal search, and
any evidence obtained pursuant to such a warrant would have
been fruit of the poisonous tree.
6
   Brown also contends that the court erred in admitting, under
Federal Rule of Evidence 404(b), evidence seized during the search
of the Brinson apartment. Even if the district court erred in
admitting this evidence, it was harmless error. The admissible
evidence lawfully recovered at the Lincoln apartment was
overwhelming: the search revealed approximately 143.8 grams
of cocaine base, 246.1 grams of cocaine hydrochloride, and nearly
$5,000 in cash. This evidence alone was sufficient to support
Brown’s conviction. See United States v. Brown, 250 F.3d 580,
586 (7th Cir. 2001) (“Error is rendered harmless when it is
                                                    (continued...)
10                                            No. 02-2214

                   III. CONCLUSION
  For the foregoing reasons, we AFFIRM the judgment of
the district court.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




6
  (...continued)
clear beyond a reasonable doubt that a rational jury would
have convicted defendants absent the erroneously admitted
evidence.”).


                   USCA-02-C-0072—5-2-03
