           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    United States v. Gillis                    No. 02-5957
        ELECTRONIC CITATION: 2004 FED App. 0047P (6th Cir.)
                    File Name: 04a0047p.06                                Schmutzer, ASSISTANT UNITED STATES ATTORNEY,
                                                                          Knoxville, Tennessee, for Appellee. ON BRIEF: Paula R.
                                                                          Voss, FEDERAL DEFENDER SERVICES, Knoxville,
UNITED STATES COURT OF APPEALS                                            Tennessee, for Appellant. J. Edgar Schmutzer, ASSISTANT
                                                                          UNITED STATES ATTORNEY, Knoxville, Tennessee, for
                  FOR THE SIXTH CIRCUIT                                   Appellee.
                    _________________
                                                                                             _________________
 UNITED STATES OF AMERICA , X
             Plaintiff-Appellee, -                                                               OPINION
                                   -                                                         _________________
                                   -   No. 02-5957
            v.                     -                                         JULIA SMITH GIBBONS, Circuit Judge. Defendant-
                                    >                                     appellant Gregory Darnell Gillis appeals the district court’s
                                   ,                                      decision denying his motion to suppress evidence obtained as
 GREGORY DARNELL GILLIS,           -
          Defendant-Appellant. -                                          the result of a warrantless search of a residence on
                                                                          November 7, 2001. Police obtained consent to search from
                                  N                                       Gillis’s girlfriend, Shaneska Williams, after she informed
       Appeal from the United States District Court                       them that she had seen Gillis and several others smoking
    for the Eastern District of Tennessee at Knoxville.                   marijuana and cooking crack cocaine inside the house earlier
     No. 01-00164—R. Leon Jordan, District Judge.                         that morning. Police knew that Williams had maintained a
                                                                          separate residence since June 2001, but she showed the
                   Argued: October 22, 2003                               officers a copy of a lease for the house that had her name on
                                                                          it, and she gave them detailed information about where drugs
             Decided and Filed: February 12, 2004                         were hidden on the premises. The search revealed a small
                                                                          amount of marijuana inside the residence, small amounts of
 Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge;                      crack cocaine and marijuana inside Gillis’s car, and 60 grams
              GWIN, District Judge.*                                      of crack cocaine in a wrecked Nissan Maxima parked in the
                                                                          driveway. The district court denied Gillis’s motion to
                      _________________                                   suppress, and Gillis later pled guilty to one count of
                                                                          knowingly and intentionally possessing with intent to
                            COUNSEL                                       distribute fifty grams or more of a mixture and substance that
                                                                          contains cocaine base, in violation of 21 U.S.C. § 841(a)(1)
ARGUED: Paula R. Voss, FEDERAL DEFENDER                                   and (b). For the following reasons, we affirm the judgment of
SERVICES, Knoxville, Tennessee, for Appellant. J. Edgar                   the district court.


    *
     The Ho norable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.

                                  1
No. 02-5957                       United States v. Gillis   3   4     United States v. Gillis                       No. 02-5957

                             I.                                 Williams also had keys to a set of interior wooden doors at
                                                                1500. Gillis had the locks changed on the exterior metal
  On November 7, 2001, Officers Kelly Tanner and Anthony        doors, but Williams told the officers that these doors were
Barnes of the Knoxville Police Department responded to a        broken during a recent break-in and that she was able to gain
domestic disturbance call at 2108 Texas Avenue (“2108”).        access to the residence through them if Gillis did not answer
Upon arrival, they spoke with Shaneska Williams, who told       the door. Williams gave the officers her consent to search the
them that she had gone to a house at 1500 Texas Avenue          premises at 1500.
(“1500”) earlier that morning. Williams told the officers she
had observed her boyfriend, Gregory Gillis, and several           Tanner and Barnes contacted Officer Gina Pierce with the
others smoking marijuana inside the residence. According to     Organized Crime Unit, who subsequently briefed the officers
Williams, she had an argument with Gillis, and he pushed her    charged with conducting the search. These officers were told
out of the house and locked the door. Williams claimed she      of the locations on the property where Williams said Gillis
had another argument with Gillis back at 2108 later that same   had been hiding drugs, and they were also told that there was
morning. During this argument, Gillis purportedly took $60      an outstanding warrant for a Gregory Gillis. This warrant was
from Williams’s coffee table and slapped her across the face.   actually for Gillis’s father, but at that time the police were not
                                                                aware that two Gregory Gillises lived in the community.
   When the officers arrived, Williams asked them to remove
Gillis from 1500, and she showed them a copy of the lease for     When the investigating team arrived at 1500, they observed
the residence that had her name on it. The officers refused     two people seated in a Caprice Classic parked in the
this request because Gillis’s name was on the lease as well,    driveway. The car’s engine was still running. As Officer
although it turned out that he had been listed only as a        Todd Gilreath approached the vehicle, he noticed the driver
witness. At this point, Williams became angry, and she began    bending down and reaching underneath the steering column.
to tell the police about additional drug activity she had       Gilreath opened the driver’s side door and he immediately
observed recently at 1500. In particular, Williams told the     detected the odor of marijuana. He recognized Gillis as the
officers that she had seen Gillis cooking two pots of crack     man sitting in the driver’s seat and asked him to step out of
cocaine that morning and that he was using the residence to     the vehicle. As he patted Gillis down, Gilreath noticed a
sell large quantities of marijuana, crack, and ecstasy.         bulge in Gillis’s front pocket that turned out to be $1000.
                                                                Gilreath arrested Gillis because he thought there was an
  The police responded by inquiring further into Williams’s     outstanding warrant for his arrest at the time and because he
use and knowledge of the premises. She told the officers she    felt that Gillis had “obviously” been smoking marijuana.
had left 1500 in June 2001 because Gillis had been physically
abusing her and because she felt the residence was unfit for       After reading Gillis his rights, Gilreath asked for his
their baby. However, she also told the officers that she        consent to search the Caprice. Gillis refused. Gilreath
continued to reside at both 1500 and 2108, and she gave the     opened the door to the vehicle anyway and shined his
officers detailed information about where Gillis had drugs      flashlight on the floorboard in the area where he had noticed
hidden on the property. According to Williams, Gillis kept      Gillis reaching immediately before his arrest. He noticed a
drugs hidden inside the kitchen cabinets, in a vanity area in   plastic bag sticking out from underneath the steering column
the bathroom, and inside two cars: a Caprice Classic, and a     and removed it. This bag contained 11.4 grams of crack
wrecked Nissan Maxima that was parked in the driveway.
No. 02-5957                      United States v. Gillis     5    6    United States v. Gillis                     No. 02-5957

cocaine. Gilreath also discovered a small amount of               possessing with intent to distribute fifty grams or more of a
marijuana in the floorboard directly under the driver’s seat.     mixture and substance that contains cocaine base in violation
                                                                  of 21 U.S.C. § 841(a) and (b).
  While Gilreath was conducting his search of the Caprice, a
group of additional officers also on the scene announced their      Gillis filed a motion to suppress all of the evidence
presence and entered the residence through the set of broken      obtained from the search of the premises at 1500 on the
metal doors Williams had told them about. Inside they             grounds that the officers did not have probable cause to
discovered a small amount of marijuana in a kitchen cabinet       conduct the search. In the investigation following Gillis’s
and some postal scales. Outside the residence, Officer Walter     arrest, Williams denied that she ever gave consent to search
Ricketts with the K-9 unit informed Drug Enforcement              the premises at 1500 and said that she thought she was
Administration Agent Stephen Ribolla that his dog had             consenting to a search of the premises at 2108 instead. At the
“alerted” on the wrecked Nissan Maxima that was parked in         suppression hearing, Williams testified that Pierce threw
the driveway directly in front of the Caprice. At the             away her first written statement and told her that she had not
suppression hearing, several officers testified that the Maxima   written it “appropriately.” According to Williams, her
was not capable of being driven. Ribolla testified that the       original statement had described 1500 as her “baby’s father’s
Maxima did not have an engine and that it may not have had        house,” but Pierce told her to rewrite it and to emphasize that
wheels. The windshield and several side windows were also         1500 was her house and not Gillis’s. Williams also testified
missing. The car was unlocked, and spare parts were piled         that after she left the house in June, she took most of her
inside of it. Ribolla described the Maxima as a “shell of a       personal belongings with her to 2108, and that Gillis
vehicle” and counsel for Gillis characterized it as a “storage    thereafter paid the rent at 1500.
shed.” After Ricketts informed him of the canine alert,
Ribolla searched inside the Maxima and discovered two               The district court overruled Gillis’s motion to suppress.
grocery bags located underneath door panels that were lying       The court concluded that Williams had actual authority to
on the floor of the vehicle. The bags contained sixty grams of    consent to the search of the premises at 1500 and that the
crack cocaine and a digital scale.                                officers could reasonably conclude that the scope of her
                                                                  consent extended to the Maxima because she told them that
   While the search was still being conducted at 1500, Pierce     Gillis kept drugs inside it. The court also found that even if
went to 2108 to speak with Williams and to obtain a written       Williams did not have actual authority to consent to the
statement memorializing her prior oral consent. In her            search, the officers reasonably believed that she had apparent
statement to police, Williams indicated that she also “live[d]    authority to consent because they had a copy of a lease that
at 1500 Texas” and that she had given the police “verbal          had her name on it, they knew she sometimes stayed at 1500
consent to search the house for drugs.”                           with Gillis, and they knew that she had a set of keys to the
                                                                  interior wooden doors. The court also rejected Gillis’s
  After the search, Gillis was taken to the police station. He    argument that Gilreath did not have reasonable suspicion to
waived his Miranda rights and admitted to possessing the          seize him while he was seated in the Caprice and concluded
marijuana and crack cocaine that were found inside the            that Gilreath’s subsequent search of that vehicle was a proper
Caprice, but he denied any knowledge of the drugs found           search incident to arrest under New York v. Belton, 453 U.S.
inside the house or in the Maxima. Gillis was charged in a        454 (1981). On appeal, Gillis argues that the district court
one-count indictment with knowingly and intentionally             erred in denying his motion to suppress because Williams did
No. 02-5957                         United States v. Gillis   7    8       United States v. Gillis                               No. 02-5957

not have actual or apparent authority to consent to a search of    apparent authority to consent to the search. Because we agree
the premises at 1500.                                              with the district court’s decision that Williams had apparent
                                                                   authority, we need not consider whether she also possessed
                              II.                                  actual authority. Gillis argues that it was not reasonable for
                                                                   the officers to believe that “a single mother living in public
   In reviewing a district court’s denial of a motion to           housing was maintaining a second residence on the side, even
suppress evidence, this court reviews the district court’s         though she had no keys, no way to let them in without Mr.
findings of fact for clear error, and its legal conclusions de     Gillis’s permission and no personal property remaining
novo. United States v. Harris, 192 F.3d 580, 584 (6th Cir.         there.” However, the police did not know that Gillis was
1999).                                                             paying the rent for 1500 at the time of the search or that
                                                                   Williams had no personal property remaining there,
   The Fourth Amendment normally prohibits the warrantless         particularly since they had not even been inside the residence
search of an individual’s home. United States v. Haddix, 239       at 1500 yet. The officers did know that Williams had
F.3d 766, 767 (6th Cir. 2001). However, the prohibition does       provided them with detailed information about the premises,
not apply to situations in which voluntary consent has been        including the locations where Gillis had drugs hidden on the
obtained, either from the individual whose property is             property. They also had statements from Williams that she
searched or from a third party who possesses common                continued to reside at 1500 and that she had been at the
authority over the premises. Illinois v. Rodriguez, 497 U.S.       residence earlier that same morning.             Under these
177, 181 (1990). Common authority is not to be implied from        circumstances, the officers had enough information at the
a mere property interest that a third party has in the property,   time of the search to reasonably conclude that Williams had
but from “mutual use . . . by persons generally having joint       apparent authority to consent.1
access or control for most purposes.” United States v.
Matlock, 415 U.S. 164, 172 n.7 (1974). The burden of                  While the officers could reasonably conclude that Williams
establishing that a third party possesses common authority to      had authority to consent to a search of the premises, that does
consent to a search rests with the state. Rodriguez, 497 U.S.      not mean that the scope of her consent necessarily extended
at 181. Even if a third party does not possess actual common       to the Maxima. See United States v. Block, 590 F.2d 535, 541
authority over the area that was searched, the Fourth              (4th Cir. 1978) (“[A]uthority to consent to [a] search of a
Amendment is not violated if the police relied in good faith       general area . . . cannot be thought automatically to extend to
on a third party’s apparent authority to consent to the search.    the interiors of every discrete enclosed space capable of
Id. at 188-89. Apparent authority is judged by an objective        search within the area.”). Guests and co-residents in a house
standard. Id. A search consented to by a third party without       may have privacy interests in specific property which cannot
actual authority over the premises is nonetheless valid if the
officers reasonably could conclude from the facts available
that the third party had authority to consent to the search. Id.       1
                                                                          Gillis does not specifically challenge the search of the Cap rice in his
                                                                   brief, but did so at oral argum ent in resp onse to a question from the p anel.
  The district court concluded that Williams had actual            To the extent he argues that the search of the Caprice was unlawful
authority to consent because her name was on the lease. The        because the officers did not have actual or apparent authority to be on the
court also found that even if Williams did not have actual         premises, we reject this argument. The police relied in good faith on
authority, the officers could reasonably conclude that she had     W illiams’s apparent authority to consent and were lawfully present at the
                                                                   time of the search.
No. 02-5957                       United States v. Gillis    9    10   United States v. Gillis                 No. 02-5957

be waived by a third party’s consent to a general search of the                                  III.
premises. See id. at 541-42.
                                                                    For the foregoing reasons, we affirm the judgment of the
   Before we consider the scope of Williams’s consent,            district court.
however, we must determine whether Gillis had a legitimate
expectation of privacy in the contents of the Maxima. If
Gillis had no such expectation of privacy, then he lacks
standing to challenge the constitutionality of the search, and
the scope of Williams’s consent is irrelevant. See Rakas v.
Illinois, 439 U.S. 128 (1978). In determining whether an
individual has a legitimate expectation of privacy in a
particular area searched, this court considers (1) whether the
defendant exhibited an actual subjective expectation of
privacy, and (2) whether the defendant’s subjective
expectation of privacy is “one that society is prepared to
recognize as reasonable.” United States v. Knox, 839 F.2d
285, 293 (6th Cir. 1988) (quoting United States v. Tolbert,
692 F.2d 1041, 1044 (6th Cir. 1982)).
   In this case, several officers testified to the dilapidated
conditions of the Maxima. The car was unlocked, and the
windshield and several side windows were missing. At least
one person other than Gillis knew that he was hiding drugs
inside of it. If, as Gillis contends, the Maxima was more like
a “storage shed” than like an actual automobile, Gillis took no
reasonable precautions to ensure that the contents of his
storage area remained private. Ribolla testified that anyone
walking down the street could have walked over to the
Maxima and reached inside of it for any purpose. Given the
conditions of the Maxima, we conclude that Gillis did not
have an expectation of privacy in its contents that society
would be prepared to recognize as reasonable. See United
States v. Grecni, 1991 WL 139703, at * 3 (6th Cir. July 30,
1991) (defendant had no reasonable expectation of privacy in
the contents of his vehicle when, in trying to elude police, he
left his car unlocked and unoccupied with the keys in the
ignition). He therefore cannot contest the admissibility of the
evidence obtained from the search of that vehicle.
