                                  _____________

                             Nos. 95-3187/3259
                               _____________


United States of America,              *
                                       *
     Appellee/Cross-Appellant,         *
                                       *   Appeal and Cross-Appeal from the
     v.                                *   United States District Court for
                                       *   the Northern District of Iowa.
Larry Risse,                           *
                                       *
     Appellant/Cross-Appellee.         *

                                  ____________

                   Submitted:      February 13, 1996

                         Filed:    May 6, 1996
                                  ____________

Before MAGILL, HEANEY, and MURPHY, Circuit Judges.

                                  _____________

MAGILL, Circuit Judge.


     Larry Risse appeals the district court's1 determination that officers
of the Black Hawk County, Iowa, sheriff's department lawfully entered
Risse's home, either on their own authority or because Risse consented to
the entry, thus validating the officers' seizure of evidence later used at
trial against Risse.     The government cross-appeals the district court's
downward departure at sentencing based on Risse's diminished capacity
caused by posttraumatic stress disorder.      We affirm on both issues.




     1
      The Honorable Michael J. Melloy, Chief Judge, United States
District Court for the Northern District of Iowa, adopting the
report and recommendation of the Honorable John A. Jarvey, Chief
United States Magistrate Judge for the Northern District of Iowa.
                                         I.


     On February 11, 1992, deputy sheriff Larry Wessels and officer
Richard Knief went to Risse's home at 3029 Huntington Road in Waterloo,
Iowa, to execute an arrest warrant for Sandra Rhoads, Risse's girlfriend,
for a controlled substance felony offense.          The officers did not have an
arrest warrant for Risse, nor did they have a search warrant for the
Huntington Road residence.


     When Risse opened the door to the residence, Wessels and Knief asked
him if Rhoads was present.    Risse motioned toward Rhoads and stated, "She's
standing right there."   Officer Wessels saw her through the open door and
immediately recognized her.    Wessels stepped into the house and pronounced
her under arrest.


     Wessels and Knief moved into the dining room to wait for Rhoads while
she put on her coat and shoes.    While there, both officers observed a small
marijuana pipe and some marijuana inside an open buffet drawer in the
dining room.    In an attempt to conceal the pipe, Risse struggled with
officers, and he was arrested for interference with official acts and for
possession of the marijuana.    Based on their observations in Risse's home,
the officers obtained a search warrant for the residence.             During the
course of the search, they seized more marijuana, marijuana paraphernalia,
several guns, two scales, and $1,197.15 in cash.


     Risse moved to suppress this evidence, contending that the entry into
his home without a search warrant violated his Fourth Amendment rights and
that the later search warrant was invalid.      The government contended that
the arrest warrant for Rhoads provided the officers with authority to enter
the Huntington Road residence or, alternatively, that Risse consented to
the entry.


     At   the   suppression   hearing,    officer   Wessels   testified   that   he
believed that Rhoads lived at the Huntington Road residence.




                                     -2-
Wessels testified that he contacted Rhoads at the Huntington Road residence
in   January 1992, in order to discuss a possible plea agreement in
connection with a controlled substance offense.        Later, when asked where
she could be contacted, Rhoads responded that "she was staying with Larry
Risse and that we could contact her at that location if we needed."
Testimony of Officer Wessels, Tr. of Hr'g on Motion to Suppress, at 68.
A confidential informant corroborated this information, telling Wessels
that "Sandra [Rhoads] was living with Larry Risse."      Id. at 86.   Due to his
extensive   experience     with   this   informant,   Wessels   considered   this
information reliable.    Finally, just before effecting the arrest, Wessels
contacted Rhoads at the Huntington Road residence, ensuring that she was
in fact present at that address.


      In support of its motion, the defense noted that Rhoads maintained
a permanent residence on Knoll Street in Waterloo.      The officers had actual
knowledge of this, because Rhoads was renting the apartment from a deputy
in the sheriff's office.    Further, Wessels testified that Rhoads had given
the Knoll Street address as her residence during a prior arrest.        Finally,
the power, electricity, and phone lines were in Rhoads' name at the Knoll
Street residence and not at the Huntington Road residence, and Rhoads
received all of her mail at Knoll Street.


      The district court denied Risse's motion to suppress, concluding that
Wessels had a reasonable belief that Rhoads resided on Huntington Road.
Given this, the arrest warrant provided the officers with legal authority
to enter the Huntington Road residence and seize the marijuana and pipe,
which were in plain view.         The court further determined that, even if
officers did not have preexisting authority to enter the house, Risse
consented to the entry.


      Risse then entered a conditional plea to (1) use of a firearm during
and in relation to a drug trafficking crime, in violation of




                                         -3-
                                          3
18 U.S.C. § 924(c), and (2) felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g).           In the plea, the defendant reserved the right to
appeal the denial of the motion to suppress.


        At sentencing, the district court determined that Risse's final
adjusted offense level on the felon in possession count was 23 and the
criminal history category was III.                Risse presented evidence that he
suffered from posttraumatic stress disorder resulting from his service in
the Vietnam War, and the court departed downward from the sentencing range
of 57 to 71 months and imposed a sentence of 18 months based upon
"overrepresentation of [defendant's] criminal history and for [defendant's]
diminished capacity."          The court imposed the mandatory minimum sixty-month
consecutive sentence on the § 924(c) count.              Risse appeals the denial of
the motion to suppress and the government cross-appeals the downward
departure.


                                            II.


        Whether the police officers possessed a reasonable belief that Rhoads
resided on Huntington Road "is a mixed question of fact and law.                     The
findings with respect to the historical facts are reviewed under the
clearly erroneous standard; the ultimate conclusion, however, is subject
to de novo review."       United States v. Dixon, 51 F.3d 1376, 1381 (8th Cir.
1995) (quoting United States v. Campbell, 843 F.2d 1089, 1092 (8th Cir.
1988)).


        At issue is whether the arrest warrant for Sandra Rhoads provided the
police       officers   with    legal   authority   to   enter   the   Huntington   Road
residence, thereby validating the seizure of evidence that was in plain
view.    We hold that it did.2



         2
       The government also contended that Risse consented to the
entry into his home. Because we conclude that the arrest warrant
provided officer Wessels with legal authority to enter the
residence, see infra, we need not decide whether Risse's actions in
motioning towards Rhoads constituted consent to the officers' entry
into the home.

                                            -4-
                                             4
     A valid arrest warrant carries with it the implicit but limited
authority to enter the residence of the person named in the warrant in
order to execute that warrant.    See Payton v. New York, 445 U.S. 573, 603
(1980).   However, absent exigent circumstances or consent, an arrest
warrant does not justify entry into a third person's home to search for the
subject of the arrest warrant.     See Steagald v. United States, 451 U.S.
204, 215-16 (1981).


     Thus, "if the suspect is just a guest of the third party, then the
police must obtain a search warrant for the third party's dwelling in order
to use evidence found against the third party."    United States v. Litteral,
910 F.2d 547, 553 (9th Cir. 1990).         However, "if the suspect is a co-
resident of the third party, then Steagald does not apply, and Payton
allows both arrest of the subject of the arrest warrant and use of evidence
found against the third party."    Id.; see also Washington v. Simpson, 806
F.2d 192, 196 (8th Cir. 1986) (when subject of arrest warrant is co-
resident with third party, officers may enter residence of the third party
without search warrant).3


      3
      Undergirding the rule set forth in Litteral and Simpson is
the notion that where a homeowner allows another person to possess
common authority over, or some other significant relationship to,
the premises to be searched, the homeowner is held to have a lower
expectation of privacy in the searched area.     United States v.
Matlock, 415 U.S. 164, 171 (1974).

     This lowered expectation of privacy results from the "mutual
use of the property by persons generally having joint access or
control for most purposes"; therefore, "it is reasonable to
recognize that any one of the co-inhabitants 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.

     There is no reasonable expectation of privacy in such a
situation because the person's privacy "[is] contingent in large
measure on the decisions of another. Decisions of either person
define the extent of the privacy involved, a principle that does
not depend on whether the stranger welcomed into the house turns
out to be an agent or another drug dealer."     United States v.
Chaidez, 919 F.2d 1193, 1202 (7th Cir. 1990), cert. denied, 502
U.S. 872 (1991); see also J.L. Foti Constr. Co. v. Donovan, 786

                                     -5-
                                      5
     Under Payton, officers executing an arrest warrant must have a
"reasonable belief that the suspect resides at the place to be entered
. . . and [have] reason to believe that the suspect is present" at the time
the warrant is executed.   United States v. Lauter, 57 F.3d 212, 215 (2d
Cir. 1995); see also United States v. Magluta, 44 F.3d 1530, 1535 (11th
Cir.) (same), cert. denied, 116 S. Ct. 189 (1995); Perez v. Simmons, 998
F.2d 775, 776 (9th Cir. 1993) (same).        As indicated, the officers'
assessment need not in fact be correct; rather, they need only "reasonably
believe" that




F.2d 714, 717 (6th Cir. 1986) (because the "joint occupant assumes
the risk of his co-occupant exposing their common private areas to
such a search . . . there is no reasonable expectation of privacy
to be protected").

     Although Matlock is a third-party-consent-to-search case, we
find its reasoning equally applicable in the Steagald context.
Where the subject of the arrest warrant is merely a guest of the
homeowner, there is no "common authority" over the premises to be
searched, and thus "[i]t is unlikely [the homeowner's] expectation
[of privacy] was lowered substantially." Perez v. Simmons, 884
F.2d 1136, 1140 (9th Cir. 1989), modified at 900 F.2d 213 (9th Cir.
1990), corrected at 998 F.2d 775 (9th Cir. 1993); see also id. at
1141 ("The Fourth Amendment's protection against unreasonable
searches in a person's home is not diminished by the mere presence
of a guest in the home.").     To protect the homeowner's privacy
interest, a search warrant is needed to enter the house.

     Where, however, the third party is not a guest but rather is
a joint occupant of the residence, then the homeowner should be
deemed to have limited her expectation of privacy in the premises.
Because the "capacity to claim the protection of the Fourth
Amendment depends not upon a property right in the invaded place
but upon whether the person who claims the protection of the
Amendment has a legitimate expectation of privacy in the invaded
place," Rakas v. Illinois, 439 U.S. 128, 143 (1978), the homeowner
in such a situation has voluntarily limited her Fourth Amendment
protection. See Illinois v. Rodriguez, 497 U.S. 177, 190 (1990)
(Marshall, J., dissenting) (citations omitted) (noting that co-
occupant has "voluntarily limit[ed] his expectation of privacy by
allowing others to exercise authority over his possessions . . .
and to    that   extent   [has  limited]   his  Fourth   Amendment
protections").

                                   -6-
                                    6
the suspect resides at the dwelling to be searched and is currently present
at the dwelling.   See Magluta, 44 F.3d at 1533-36; Bratton v. Toboz, 764
F. Supp. 965, 972 (M.D. Pa. 1991) ("Toboz's belief that Lowery was residing
at the Westport home, although not in fact correct, was reasonable.").


     Much evidence exists to support the officers' belief that Rhoads
resided on Huntington Road.    Rhoads herself told officers that she was
"staying with" Risse and that officers could contact her at Risse's home.
Officer Wessels testified that he interpreted the use of the colloquial
term "staying with" to mean that Rhoads was in fact living with Risse, and
the district court credited this testimony.   This assessment was further
bolstered by a confidential informant considered reliable by Wessels, who
told Wessels that "Sandra [Rhoads] was living with Larry Risse."   Finally,
while police officers twice successfully contacted Rhoads at the Huntington
Road residence, they were unable to contact her when they called upon her
at the Knoll Street address, suggesting that Rhoads was living at the
Huntington Road residence.


     Based on the evidence presented, it is clear that Wessels' belief
that Rhoads resided on Huntington Road was, as a matter of law, reasonable,
and thus the officers could enter the residence armed only with an arrest
warrant for Rhoads.   See Simpson, 806 F.2d at 196 (suspect "resided" at
house when she stayed there two to four nights per week, kept certain
personal belongings there, and gave that address as residence when booked
by police); see also Lauter, 57 F.3d at 215-16 (entry permissible when
police received tip from confidential informant that suspect residing in
new apartment); Bratton, 764 F. Supp. at 972 ("[T]he volume of anonymous
tips and the fact of Karen Bratton's close relationship with the Lowerys
rendered [the belief that Lowery resided with Bratton] reasonable.").


     In so holding, we reject Risse's contention that, because the




                                   -7-
                                    7
officers knew, or should have known, that Rhoads maintained a permanent
residence on Knoll Street, they could not have reasonably believed that
Rhoads resided on Huntington Road.    We have found no authority to support
Risse's implicit assumption that a person can have only one residence for
Fourth Amendment purposes.   Rather, when evaluating Risse's expectation of
privacy in his home, we are guided by the principle that, so long as Rhoads
possesses common authority over, or some other significant relationship to,
the Huntington Road residence, see supra note 3, that dwelling "can
certainly be considered [her] 'home' for Fourth Amendment purposes, even
if the premises are owned by a third party and others are living there, and
even if [Rhoads] concurrently maintains a residence elsewhere as well."
Steagald, 451 U.S. at 230-31 (Rehnquist, J., dissenting).


     Officer Wessels also possessed a reasonable belief that Rhoads was
present at the Huntington Road residence when he executed the warrant.
Shortly before he approached the residence, officer Wessels called the
house to confirm that Rhoads was in fact present.     This goes far beyond
what is needed to satisfy this requirement.   See, e.g., Lauter, 57 F.3d at
215 (belief that suspect currently present at dwelling was reasonable
because officer knew that suspect was unemployed and typically slept late).


     Because Wessels possessed a reasonable belief that Rhoads resided at
Huntington Road and that Rhoads was present at the time the warrant was
executed, Wessels possessed legal authority to enter the residence pursuant
to the valid arrest warrant.   Thus, the seizure of evidence in plain view
was valid, and the resulting search warrant was supported by probable
cause.


                                     III.


     The government cross-appeals the district court's downward departure
at sentencing based on diminished capacity.    This Court




                                     -8-
                                      8
will affirm a downward departure if: (1) the circumstances on which the
district court based its decision to depart are sufficient as a matter of
law to justify a departure; (2) the factual findings of the district court
were not clearly erroneous; and (3) the degree of departure was reasonable,
giving due deference to the district court.   See United States v. Groene,
998 F.2d 604, 607 (8th Cir. 1993), cert. denied, 114 S. Ct. 881 (1994).


     The district court had legal authority to depart in this case under
U.S.S.G. § 5K2.13, p.s. (1994) (diminished capacity).   Because the district
court's factual findings were not clearly erroneous and the degree of
departure is reasonable, we affirm the departure.


                                   IV.


     Because officers Wessels and Knief had legal authority based on the
arrest warrant to enter the Risse residence, thereby validating the seizure
of evidence in plain view, and because the district court permissibly
departed downward at sentencing, the district court is affirmed.4


     A true copy.


             Attest:


                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




         4
         Risse has also moved to have his 18 U.S.C. § 924(c)
conviction dismissed due to problems with the indictment. This
argument was raised for the first time thirty-four days after oral
argument. We reject the motion because it was not timely filed.

                                   -9-
                                    9
