
USCA1 Opinion

	




          February 18, 1994     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-2076                                                UNITED STATES,                                      Appellee,                                          v.                                  GARY CHIRICHIELLO,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ___________________               Michael C. Shklar on brief for appellant.               _________________               Paul  M. Gagnon,  United States  Attorney,  Gary V.  Milano,               _______________                             _______________          Assistant  United  States  Attorney,  and  David   A.  Vicinanzo,                                                     _____________________          Assistant United States Attorney, on brief for appellee.                                  __________________                                  __________________                 Per  Curiam.   Appellant Gary  Chirichiello appeals  the                 ___________            denial  by  the district  court  of  his motion  to  suppress            evidence  which  led  to  his  indictment  for  manufacturing            marijuana  in  violation  of  21 U.S.C.     841(a)(1).    The            evidence was  seized pursuant to  a warrant which  itself was            based  on  information  acquired during  a  prior warrantless            search of a  residence in Landaff, New Hampshire.   The prior            search was  undertaken by a  New Hampshire state  trooper who            was admitted to the residence  by an informant who claimed to            have   been  helping  Chirichiello   grow  marijuana  in  the            residence.  Chirichiello  later pled guilty but  reserved his            right  to appeal the  denial of his  motion to suppress.   We            affirm.                                      Discussion                                      Discussion                 The  court  supportably   made  the  following   factual            findings.   In July  1992, New Hampshire  State Trooper Susan            Forey  was told  by  an informant,  Robert  Anthony, who  had            previously provided Forey with reliable information, that  he            could  bring  her to  a  residence  where  he was  an  active            participant  in a  conspiracy to  grow  marijuana along  with            Chirichiello and  two other  individuals.   Anthony indicated            that his role was to provide advice as to the growing  of the            plants and to care for them on a regular  basis.  He told the            trooper that the plants were  kept on the second floor behind            a door  secured by  a combination lock.   Anthony  told Forey                                         -2-            that,  although he  did  not  reside in  the  house,1 he  had            access to and use  of the kitchen and  bathroom on a  regular            basis.  He also indicated that he had access to the marijuana            plants on the second floor  and had an ongoing involvement in            tending  the  plants,  which  included  caring  for  them  in            Chirichiello's absence.  While he did not have his own key to            the residence,  Anthony said that  he had access to  a common            key kept above  the door and that he knew  the combination of            the lock to the second floor.                     Upon arriving at the residence, Forey  made observations            which  supported  the  accuracy  of  Anthony's   information.            Anthony then  retrieved the key  and opened the door.   After            giving Forey a brief tour of the premises, during which Forey            observed manuals on how to grow marijuana, Anthony led her to            the  second  floor  where he  unlocked  the  combination lock            behind which  the marijuana  was being grown.   Based  on her            observations,  Forey  obtained  a  search  warrant   for  the            premises.                   A party with common authority over a premise may consent            to its  search.  United States v.  Matlock, 415 U.S. 164, 170                             _____________     _______            (1974).  Common authority exists where there is                                             ____________________            1.  Anthony claimed that  he slept in a tent  in the backyard            because he did not  want to be caught in the  house where the            marijuana was  being grown.   He had previously lived  in the            house.                                         -3-                 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                 [them]  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.            Id.  at  171 n.7.    Even  if  a  party lacks  actual  common            __            authority to consent to a search, the search is lawful if the            officer  conducting the search  reasonably believed, based on            the  totality of the circumstances, that the consenting party            did have  common authority.  Illinois v.  Rodriguez, 497 U.S.                                         ________     _________            177, 185-86 (1990).  In the instant case,  the district court            found that,  based on  the totality  of these  circumstances,            Forey had reason to believe that Anthony had common authority            over  the  residence  in  general and  the  growing  rooms in            particular.   We find no  clear error in  this finding.   See                                                                      ___            United States v. Mancini, 8 F.3d 104, 107 (1st Cir. 1993) (in            _____________    _______            reviewing the district court's suppression order, findings of            fact, including mixed findings of fact and law, upheld absent            clear error) (citing cases).                 Forey  could reasonably  have  concluded that  Anthony's            regular use of  the cooking and bath facilities  of the house            authorized  him to enter and make use  of the common areas of            the  house in general.   Moreover,  she could  have concluded                                         -4-            reasonably  that, as  a  coconspirator  who  had  an  ongoing            involvement  in tending the plants, Anthony was authorized to            enter and to make  use of the second floor area  in which the            marijuana  was   being  grown.2     These  conclusions   were            confirmed  by  Anthony's  ready  access  to  the  key to  the            residence and his knowledge of the combination of the lock on            the door  behind which  the marijuana was  being grown.   The            totality of  these circumstances  is sufficient  to establish            that Chirichiello had forfeited any reasonable expectation of            privacy in these  areas and, thus, that Anthony  had apparent            authority to  consent to  the search.   Cf. United  States v.                                                    __  ______________            Buettner-Janusch, 646  F.2d 759,  765-66  (2d Cir.)  (student            ________________            assistant who  was authorized  to enter  and use  professor's            laboratory  had common authority to consent to search), cert.                                                                    ____            denied, 454 U.S.  830 (1981); United States v. Cepulonis, 530            ______                        _____________    _________            F.2d  238, 244 (1st  Cir.) (participant in  robbery had joint            control  over property  locker  in which  he  and others  had            placed gun), cert. denied, 426 U.S. 908 (1976); United States                         ____  ______                       _____________            v. Murphy, 506  F.2d 529, 530 (9th Cir.  1974) (employee, who               ______            was given key to warehouse only when required to perform work            on premises, had sufficient control to consent to search).                 Since there is no allegation that any of the information            used in obtaining  the warrant was secured  from observations                                            ____________________            2.  There is no contention that the second floor was used for            any purpose other than the growing of marijuana.                                         -5-            other than those made in the common areas of the house  or on            the second floor, i.e, no allegation that any information was                              ___            obtained  from the  search of  areas  in which  others had  a            reasonable expectation of privacy, the suppression motion was            properly  denied.  See Rodriguez, 497  U.S. at 188-89 (search                               ___ _________            valid if  consenting party  had apparent  authority over  the            area searched).                 Affirmed.                 ________                                         -6-
