                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       October 10, 2013

                                                                         Elisabeth A. Shumaker
                                    TENTH CIRCUIT                            Clerk of Court



 VERA BARRERA,

        Plaintiff - Appellant,                               No. 13-3162
                                                 (D.C. No. 6:12-CV-01376-CM-GLR)
 v.                                                          (D. Kansas)

 GREGORY KROSKEY,

        Defendant - Appellee.


                                 ORDER AND JUDGMENT*


Before HARTZ, O’BRIEN and GORSUCH, Circuit Judges.


       Vera Barrera filed a complaint under 42 U.S.C. § 1983 alleging that

Officer Gregory Kroskey of the Goodland, Kansas, police department violated the Fourth

Amendment by searching her apartment without a warrant. The United States District

Court for the District of Kansas granted summary judgment for Kroskey, concluding that

Barrera’s adult daughter consented to the search. On appeal Barrera contends that her

        *After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties= request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). This order and judgment
is not binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
daughter lacked actual authority to consent and that her consent was coerced. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

       The facts are undisputed. On June 2, 2012, Kroskey was investigating a theft

of some tools from a garage where Barrera’s daughter, Ana Ledesma, had recently been

working. Kroskey’s investigation led him to Barrera’s apartment, where he had been told

Ledesma lived. When Kroskey arrived, Ledesma emerged and the two briefly discussed

the theft. When he asked if he could search the apartment, she said that the apartment

was Barrera’s but that she lived there too. Kroskey responded that he did not need

Barrera’s permission if Ledesma gave permission. Ledesma said, “[O]kay,” R. at 91, or

“OK. Go on in,” id. at 92, and Kroskey entered the apartment.

       Unbeknown to Kroskey, Barrera had been in the bedroom of the apartment

the entire time. She discovered him toward the back of the apartment and asked what he

was doing there. He said he was searching Ledesma’s apartment. Barrera responded that

the apartment was hers, not Ledesma’s, and she asked Kroskey to leave, which he did.

       Although Ledesma’s name was not on the lease, Ledesma had been living with her

mother for two or three months before the incident, received mail at the apartment, kept

her clothes there, had a key, paid some form of rent, and had never been told that there

was any part of the apartment she could not enter. Kroskey did not threaten either

woman during the encounter, and Ledesma testified that Kroskey’s conduct toward her

in the past had always been professional and appropriate.


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       The district court concluded that no reasonable jury could find that Ledesma

lacked actual authority and no reasonable jury could find that Ledesma’s consent was

involuntary. We agree.

       “We review the district court’s grant of summary judgment de novo, applying the

same standards that the district court should have applied.” Merrifield v. Bd. of Cnty.

Comm’rs, 654 F.3d 1073, 1077 (10th Cir. 2011) (internal quotation marks omitted).

Summary judgment is appropriate if the pleadings and the record establish that there is no

genuine issue of material fact and that the moving party is entitled to judgment as a

matter of law. See Fed. R. Civ. P. 56(a).

       Although the Fourth Amendment generally prohibits warrantless searches of

homes, a warrantless search is valid if the owner or a third party with actual or apparent

authority voluntarily consents. See United States v. Bass, 661 F.3d 1299, 1303 (10th Cir.

2011). Whether a third party has actual authority depends on whether the third party had

either “mutual use of the property by virtue of joint access,” or “control for most

purposes over it.” United States v. Cos, 498 F.3d 1115, 1125 (10th Cir. 2007) (internal

quotation marks omitted).

       Barrera argues that Ledesma did not have actual authority to consent to the search

because only Barrera’s name is on the lease. The argument has no merit. Authority to

consent to a search is “broader than the rights accorded by property law.” Georgia v.

Randolph, 547 U.S. 103, 110 (2006). A person who has no technical property interest

may still have actual authority to consent to a search by virtue of joint access to or control
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over the property. See id. This rule is based on the common understanding that

co-occupants generally assume the risk that other co-occupants might allow the police to

enter. See id. at 110–11. In light of this common understanding, police have no duty

to “eliminate the possibility of atypical arrangements, in the absence of reason to doubt

that the regular scheme was in place.” Id. at 112.

       Because Ledesma lived in the apartment, received mail there, had a key, paid

some form of rent, and had never been told that there was any part of the apartment she

could not enter, she had joint access to the property and hence actual authority to consent

to the search. Nothing in the record suggests that Kroskey should have doubted that the

women had an ordinary co-occupant relationship. Having obtained consent from

Ledesma, Kroskey had no obligation to seek out Barrera and determine whether she also

consented.

       Of course, Ledesma’s consent to the search was valid only if it was voluntary.

See Bass, 661 F.3d at 1303. Whether consent was voluntary is a question of fact to be

determined by the totality of the circumstances. See United States v. Silva-Arzeta, 602

F.3d 1208, 1214 (10th Cir. 2010). The inquiry centers on whether there was duress or

coercion arising from, among other things, “physical mistreatment, use of violence or

threats of violence, promises or inducements, deception or trickery.” Id. (internal

quotation marks omitted).

       Barrera contends that the district court erred by requiring her to prove lack of

consent. But even if Kroskey bore that burden, summary judgment was appropriate
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because there is no dispute of fact, and nothing in the record suggests coercion or

deception. Kroskey’s statement that he did not need Barrera’s consent if he had

Ledesma’s consent was not deceptive because it did not mischaracterize the law. And as

soon as Kroskey encountered Barrera and she told him to leave, he did. Cf. Randolph,

547 U.S. at 106 (consent of one occupant can be overridden by the refusal to consent of a

physically present co-occupant).

       We AFFIRM the judgment below.

                                          ENTERED FOR THE COURT



                                          Harris L Hartz
                                          Circuit Judge




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