                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                     October 14, 2008
                                   TENTH CIRCUIT
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 08-4018
 JEREMY ARRINGTON,                              (D.C. No. 2:05-CR-0500-DB)
                                                          (D. Utah)
          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, EBEL, and HARTZ, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant Jeremy Arrington appeals the district court’s denial of his

motion to suppress evidence. Following the denial of his motion, Arrington


      *
        This order and judgment is not binding precedent, except under the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.
entered a conditional guilty plea to possession of an unregistered sawed-off

shotgun in violation of 26 U.S.C. § 5861(d). Arrington was sentenced to a term

of imprisonment of one year and one day, thirty-six months of supervised release,

a fine of $1000, and a special assessment of $100. Arrington remains on

conditions of release pending this appeal.

      Arrington appeals the district court’s denial of his motion to suppress

evidence obtained from a hotel room search. On appeal, the government agrees

with Arrington and confesses error. We have jurisdiction pursuant to 28 U.S.C. §

1291. We reverse and remand with directions to vacate both Arrington’s

conditional guilty plea, and his conviction.

                                          I.

      On May 2, 2005, Jeremy Arrington contacted his estranged wife Jennifer

Arrington to discuss the possibility of reconciliation. Jeremy visited Jennifer at

her place of employment at the Harmon Building in West Valley City, Utah. The

couple left in Jeremy’s car, with Jeremy’s mother Pansy Arrington sitting in the

back seat. They first stopped at a Jiffy Lube, where Jeremy and Jennifer got out

of the car to have a cigarette. Jennifer told Jeremy that she had “cheated on him,”

Aplee. App. at 10, whereupon Jeremy stabbed himself in the forearm with a

pocketknife. Next, they stopped at the Valley Fair Mall, where Pansy got out of

the car to shop. While Pansy was shopping, Jeremy retrieved a gun from the

trunk and asked Jennifer to shoot him. Jennifer refused. According to Jennifer,

                                         -2-
“[Jeremy] didn’t want to live if we weren’t going to be together.” Id. at 13.

      Finally, they stopped at a La Quinta Inn so that Jeremy and Jennifer could

check into a hotel room and continue their discussion. Neither Jeremy nor

Jennifer had identification to rent a room as required by hotel policy. Pansy

produced her identification, and the room was registered in Pansy’s name.

Jennifer paid sixty dollars cash for the room. Pansy left the hotel before the desk

clerk handed the room key to Jeremy.

      Jeremy wheeled three or four bags on a baggage cart to the room; Jennifer

carried only her purse and cell phone. Jennifer did not intend to stay in the room

long, because she had to return to work. While they were talking in the hotel

room, Jennifer received a call from her father who said he would come to the

hotel to get her. Jeremy held a gun to his head and threatened suicide if Jennifer

left. After approximately twenty minutes in the room, Jennifer left the hotel with

her father and contacted the police from a nearby parking lot.

      Shortly after Jennifer and her father left, Jeremy went to the front desk and

asked that Jennifer’s name be removed from the guest registry. Jeremy then left

the hotel and began walking back toward the Harmon Building. Officer Frank

Venditti and other officers of the West Valley City Police Department intercepted

Jeremy, placed him in handcuffs, patted him down for weapons, confiscated a

pocket knife, and transported him to the hospital for treatment of the self-inflicted

wound on his forearm.

                                         -3-
        Jennifer and her father met with Venditti at the hospital. Jennifer told

Venditti what had occurred during the day. Venditti also spoke with an officer

who had responded several days earlier to a trespass call made by Jennifer asking

that Jeremy be removed from the property of one of her family members.

Venditti decided to book Jeremy on charges of domestic violence stalking based

on the events of the day and the trespass call.

      At Venditti’s request, Jennifer and her father met with him at the La Quinta

Inn so that Venditti could retrieve any weapons from the hotel room. When

Venditti approached the front desk with Jennifer to get a room key, the desk clerk

refused to hand over a key to the room because Jennifer was not a registered

occupant of the room. Jennifer told the desk clerk that she paid for the room, but

the clerk still would not give Jennifer a key. The desk clerk told Venditti that

Jeremy had requested that Jennifer’s name be taken off the room. Venditti

acknowledged that, at this point in time, he no longer believed Jennifer had access

to the room.

      Venditti called his sergeant and requested a warrant for the room. The

sergeant told him they could not get a warrant for the room, but he suggested that

Venditti explain the situation to the desk clerk. Venditti then told the desk clerk

there were likely guns in the room and it was possible that Jeremy would return to

the room in a “few hours” after being booked. Id. at 60. The desk clerk finally

gave Venditti a key, but did not accompany him to the hotel room. Neither

                                          -4-
Venditti nor Jennifer could recall which one of them opened the door to the hotel

room. Venditti found two guns under the bottom drawer of the armoire, one of

which was a sawed-off shotgun with a barrel length of less than eighteen inches.

                                         II.

      When reviewing a district court’s denial of a motion to suppress, we accept

the district court’s factual findings unless clearly erroneous and view the evidence

in the light most favorable to the government. United States v. Kimoana, 383

F.3d 1215, 1220 (10th Cir. 2004). The ultimate determination of reasonableness

under the Fourth Amendment is a question of law reviewed de novo. Id. In the

present case, the parties concede that there are no facts in dispute, and that the

only issue presented by Arrington on appeal is whether the district court erred as

a matter of law in concluding Jennifer Arrington had actual authority to consent

to search of the hotel room where the sawed-off shotgun was found.

      Hotel room guests possess a reasonable expectation of privacy protected by

the Fourth Amendment prohibition against unreasonable searches and seizures.

Id. at 1221 (citing Stoner v. California, 376 U.S. 483, 489-90 (1964)). In the

absence of a search warrant, a lawful search of the premises may be conducted

with voluntary consent from the individual whose property is searched or a third

party with actual authority or apparent authority to consent to the search. United

States v. Cos, 498 F.3d 1115, 1124 (10th Cir. 2007).

      Arrington argues on appeal that Jennifer lacked actual authority to consent

                                         -5-
to a search of the hotel room. 1 Neither party appeals the district court’s

conclusions that Jennifer did not have apparent authority to consent to a search

and that there were no exigent circumstances concerning public safety which

would have justified the search.

      A third party has actual authority to consent to a warrantless search if she

has either “(1) mutual use of the property by virtue of joint access, or (2) control

for most purposes over it.” United States v. Rith, 164 F.3d 1323, 1329 (10th Cir.

1999). The first test for assessing actual authority, mutual use by virtue of joint

access, “is a fact-intensive inquiry.” Id. at 1329-30. The second test, control for

most purposes, “is a normative inquiry dependent upon whether the relationship

between the defendant and the third party is the type which creates a presumption

of control for most purposes over the property by the third party.” Id. at 1330. A

husband-wife relationship triggers the presumption of control for most purposes,

but it may be rebutted by facts showing a prior understanding that one spouse, in

this case Jennifer, must have the permission of the other spouse, in this case

Jeremy, to enter the property. See id. at 1331.

      The district court found that Jennifer had actual authority to consent to a

search of the hotel room. The court reasoned that



      1
        Although neither party argues that the desk clerk had authority to consent
to the search of the motel room, that argument would be foreclosed by Stoner v.
California, 376 U.S. at 488.

                                          -6-
             the Arringtons stand in virtually the same position as joint
             occupants of the room. The room was rented for a mutual
             and limited purpose.        Check-in was accomplished
             mutually. The single key, while in the actual physical
             possession of Defendant, was distributed in their joint
             presence for the purpose of allowing them mutual access
             to the room. Both took personal belongings into the room.
             They entered together and remained in the room together
             until Jennifer left to meet her father. Shortly thereafter
             Defendant also left—although he did leave bags and
             firearms in the room. The fact that Defendant maintained
             the single key issued to the couple is not persuasive.

Aplt. App. at 22-23 (Doc. 30 at 8-9). Additionally, the court discounted Jeremy’s

request that the desk clerk remove Jennifer’s name from the guest registry

because Jeremy had no authority to request that names be added to or deleted

from the guest registry. Pansy, the only registered occupant of the room, was the

only person with authority to add or delete names on the registry. Aplt. App. at

23 (Doc. 30 at 9 n.14).

      Applying the Rith standards, we disagree with the district court’s

conclusion that Jennifer had actual authority to consent to a search of the hotel

room. First, Jennifer did not have mutual use of the property by virtue of joint

access. Jennifer spent a total of twenty minutes in the room with Jeremy.

Jennifer did not have a key, did not leave any personal belongings in the room,

and did not plan to spend the night there. The desk clerk refused to let her enter

the room until Venditti intervened. Jennifer did not have access to the hotel

room, joint or otherwise.


                                         -7-
        Second, Jennifer did not have control for most purposes over the property.

While a husband-wife relationship does raise the presumption of control for most

purposes, that presumption is rebutted by the facts in this case. Jeremy and

Jennifer were estranged. Jeremy stabbed himself and threatened suicide after

Jennifer admitted that she was unfaithful. Jeremy requested that Jennifer’s name

be removed from the room’s guest registry. Although still legally married, the

couple did not have the close relationship that would allow a presumption that

Jennifer controlled the room and its contents. Under either Rith standard,

Jennifer Arrington did not have actual authority to consent to a search of the hotel

room.

        We REVERSE the district court’s judgment and REMAND with directions

to vacate both Arrington’s conditional guilty plea, and his conviction.

                                               Entered for the Court



                                               Mary Beck Briscoe
                                               Circuit Judge




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