                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 07-1217
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,
                                 v.

DANIEL GROVES, SR.,
                                              Defendant-Appellant.
                          ____________
             Appeal from the United States District Court
      for the Northern District of Indiana, South Bend Division.
                 No. 04 CR 76—Allen Sharp, Judge.
                          ____________
     ARGUED SEPTEMBER 21, 2007—DECIDED JUNE 27, 2008
                          ____________


 Before EASTERBROOK, Chief Judge, and KANNE and
ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. In this successive appeal, Daniel
Groves challenges the district court’s denial of his
Motion to Suppress Evidence, claiming that the ammuni-
tion which provided the basis for his conviction under
18 U.S.C. § 922(g)(1) was recovered from his apartment
during an illegal search, in violation of the Fourth Amend-
ment. In the first appeal, we remanded to the district
court for various factual determinations and renewed
consideration in light of the then-recent Supreme Court
decision in Georgia v. Randolph, 547 U.S. 103 (2006). Subse-
2                                                 No. 07-1217

quently, the district court again denied Groves’ Motion
to Suppress. We affirm.
  The facts are set forth in detail in United States v. Groves,
470 F.3d 311 (7th Cir. 2006) (“Groves I”) and we repeat
only those necessary to the resolution of this appeal. On
July 5, 2004, South Bend, Indiana police officers responded
to a report of gun shots from a resident of the house
across the street from Daniel Groves’ apartment. When
questioned by the responding officers, Groves admitted
to living at the address in question, to being a convicted
felon and to shooting off fireworks, but denied having
a gun. Groves also vigorously denied the officers’ request
for permission to search his apartment. This request to
search was reiterated after the officers found three spent
shotgun shells on the ground and again Groves unequivo-
cally refused to consent.
  Corporal James Taylor, one of the officers who
responded to the 911 call on July 5, asked Task Force
Agent Lucas Battani of the South Bend Police Depart-
ment to investigate the incident. Agent Battani applied
for a warrant to search Groves’ apartment, but a federal
magistrate denied the application. In the early afternoon
of July 21, 2004, at a time they knew Groves was sched-
uled to be at work but his girlfriend was likely to be
present, Agent Battani, along with two other law enforce-
ment officers, went to Groves’ apartment. Shaunta Foster,
Groves’ girlfriend, answered the door and stepped out-
side to speak with the three officers. Battani and Foster
told somewhat different versions of that conversation,
both of which are recounted at length in Groves I. See 470
F.3d at 316-17. Ultimately, Foster signed a consent form
and the agents searched the apartment, recovering five .22
caliber bullets from a drawer in Groves’ nightstand. Groves
No. 07-1217                                             3

was arrested and charged with being a felon in possession
of a firearm and being a felon in possession of ammuni-
tion. Groves moved to suppress the ammunition found
during the July 21 search, arguing that Foster had neither
the actual nor the apparent authority to consent to the
search. The district court held a hearing at which both
Battani and Foster testified. Foster asserted that she
told Battani that she did not live at Groves’ apartment
but was a frequent visitor. Battani testified that Foster
admitted that she had moved into Groves’ apartment
approximately five months earlier. Foster testified that
when she refused to sign the consent, Battani told her he
would take her downtown and take her daughter to
Child Protective Services and that she signed the con-
sent only because of Battani’s threats to remove her
daughter. Battani denied ever threatening Foster with
the removal of her child.
  The district court denied the motion to suppress in
a cursory order, concluding that Foster had apparent
authority to consent to the search of Groves’ apartment,
that she did consent, and that Battani did not coerce
Foster or make threats about her daughter which would
have rendered Foster’s consent involuntary. United States
v. Groves, No. 3:04cr0076 (N.D. Ind. Nov. 8, 2004). A
jury convicted Groves on both counts and the court
sentenced Groves to forty-one months’ imprisonment.
Groves appealed his conviction and sentence, contending,
inter alia, that the district court erred when it denied
his Motion to Suppress the evidence obtained during
the July 21, 2004 warrantless search. In Groves I, we re-
versed the conviction on the gun possession charge and
remanded on the suppression issue. We directed the
district court to address three issues on remand:
4                                                 No. 07-1217

(1) whether Foster had apparent or actual authority to
consent to the search of Groves’ apartment; (2) whether
Georgia v. Randolph affected the suppression claim; and
(3) whether Foster voluntarily consented to the search.
On remand, the district court issued an order attending
to each of our concerns and setting forth findings of fact.
United States v. Groves, No. 3:04cr0076, 2007 WL 171916
(N.D. Ind. Jan. 17, 2007) (“Groves II”). The court again
denied Groves’ Motion to Suppress, and Groves again
appeals.
  In considering the district court’s denial of Groves’
Motion to Suppress, we review questions of law de novo
and findings of fact for clear error. United States v. Denberg,
212 F.3d 987, 991 (7th Cir. 2000). A warrantless search
does not violate the Fourth Amendment if a person pos-
sessing, or reasonably believed to possess, authority
over the premises voluntarily consents to the search.
Randolph, 547 U.S. at 106. “[T]he consent of one who
possesses common authority over premises or effects is
valid as against the absent, non-consenting person with
whom that authority is shared.” United States v. Matlock,
415 U.S. 164, 170 (1974). The rationale for this long-standing
rule is that by allowing someone else to exercise actual or
apparent authority over one’s property, one “is considered
to have assumed the risk that the third party might permit
access to others, including government agents.” United
States v. Basinski, 226 F.3d 829, 834 (7th Cir. 2000) (citing
Matlock, 415 U.S. at 171 n.7; and United States v. Jensen, 169
F.3d 1044, 1049 (7th Cir. 1999)). Because “ ‘consent to a
search may be obtained [from] any person who has com-
mon authority over the property’ ” (Denberg, 212 F.3d at 991
(quoting United States v. Booker, 981 F.2d 289, 294 (7th Cir.
1992)), the threshold question is whether the consenting
individual did, in fact, have actual or apparent authority.
No. 07-1217                                                 5

See Basinski, 226 F.3d at 834 (“[t]he key to consent is actual
or apparent authority over the area to be searched.”). In
Groves I, we enumerated several factors which, although by
no means a complete list, can inform a determination of
actual or apparent authority. We reiterate those factors
here, as well as our admonition that “[t]his is certainly not
an exhaustive list and we do not mean to suggest that
district courts should use this as a checklist of factors in
determining actual or apparent authority. Rather, it is
offered to show the types of facts that should and could be
considered in evaluating the issue of authority to consent
to a search” (Groves I, 470 F.3d at 319, n.3):
    (1) possession of a key to the premises; (2) a person’s
    admission that she lives at the residence in question; (3)
    possession of a driver’s license listing the residence as
    the driver’s legal address; (4) receiving mail and bills
    at that residence; (5) keeping clothing at the residence;
    (6) having one’s children reside at that address; (7)
    keeping personal belongings such as a diary or a pet at
    that residence; (8) performing household chores at the
    home; (9) being on the lease for the premises and/or
    paying rent; and (10) being allowed into the home
    when the owner is not present.
Id. at 319 (internal citations omitted).
  We remanded this issue to the district court because
we had questions about the court’s conclusion that Foster
possessed apparent authority to consent to a search of
the premises. See Groves I, 470 F.3d at 319-20. Specifically,
we were troubled by the lack of factual findings issued
by the district court and determined that “we cannot
review the court’s conclusion that Foster had authority to
consent to the search.” Id. at 320. In its ensuing ruling,
the district court determined that Foster was a co-occupant
of Groves’ apartment “who possessed common authority
6                                                 No. 07-1217

over the residence as well as the ability to consent to a
search of that residence.” Groves II at *5. In support of
this conclusion, the court relied on various facts. For
example, the telephone for the residence was registered
in Foster’s name and paid for by her. Foster had registered
her daughter for school using Groves’ address. Foster
also kept personal belongings including clothing, mail,
bills, and even a private stash of marijuana at Groves’
apartment. She had a key and unlimited access to the
premises. Moreover, Foster regularly cleaned the apart-
ment. Id.1 The court specified which aspects of Foster’s
testimony and Agent Battani’s testimony the court
credited in making its factual determinations. See Groves II
at *3-*5.
   “Because the resolution of a motion to suppress is a fact-
specific inquiry, we give deference to credibility deter-
minations of the district court, who had the opportunity to
listen to testimony and observe the witnesses at the sup-
pression hearing.” United States v. Hendrix, 509 F.3d
362, 373 (7th Cir. 2007). A factual determination is
clearly erroneous only if, after considering all of the
evidence, we are left with the definite and firm conviction
that a mistake has been committed. Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 573 (1985); United States
v. Messino, 55 F.3d 1241, 1247 (7th Cir. 1995). Here, we
can find no reason to disturb the district court’s factual
findings which, in turn, support its legal conclusion that
Foster possessed the actual authority to consent to a
search of Grove’s apartment.


1
  Of course, many of these facts were not known by the officers
until after they entered the premises and thus those facts are
relevant only to actual and not apparent authority to consent.
No. 07-1217                                               7

  Groves also contends that even if Foster possessed the
authority which allowed her to consent to the search of the
apartment, she did not possess the authority, actual or
apparent, to allow a search of the nightstand drawer in
which the incriminating evidence was found. Groves
argues that the search of his nightstand was improper
because Foster did not give the officers permission to
search the nightstand and never told them that she had
access to the inside of Groves’ nightstand. At most, she
admitted to cleaning it. Groves relies heavily on United
States v. Rodriguez, 888 F.2d 519 (7th Cir. 1989) to sup-
port his argument, yet a close reading of Rodriguez indi-
cates that this reliance is misplaced. In that case, we
found that a wife’s possession of the key to open the
janitor room utilized by husband (from whom she was
separated) gave her apparent authority to consent to a
search of that room. The question then became whether
she also had the apparent authority to consent to the
opening of various closed containers within the room,
including her husband’s briefcase, which was marked on
the exterior with his name, and a metal file box labeled
“Mike,” his first name. Because there had been no argu-
ment as to those containers during the district court’s
evidentiary hearing, this court remanded for additional
findings on the defendant’s privacy interests in the
closed, labeled containers and his wife’s apparent authority
to consent to a search of those containers. 888 F.2d at 525.
  Groves’ case is more analogous to United States v. Melgar,
227 F.3d 1038, 1041 (7th Cir. 2000). In Melgar, a woman
(not the defendant) renting a hotel room consented to a
search of that room by officers seeking counterfeit checks.
The officers found evidence incriminating Melgar, the
defendant, in an unmarked purse discovered between the
mattress and box spring of one of the beds in the room.
8                                                   No. 07-1217

Because the officers had no way of knowing that the
purse belonged to someone other than the woman
renting the room, and because the renter consented to a
search for counterfeit checks which could have easily
been concealed in an object like a purse, we concluded
that the scope of the renter’s consent encompassed a
search of the unmarked, closed purse. 227 F.3d at 1043.
Similarly, in Groves’ case, the officers told Foster that
they were searching for a weapon and/or ammunition,
objects that easily could have been concealed in a
nightstand drawer. Foster told Battani that there were
no limits on where she could go in the apartment, and
that she cleaned the entire apartment on a regular basis.
Groves II at *3. In addition, Foster told the agents that
although she did not use the nightstand from which the
ammunition was recovered for her own belongings, she did
clean it. Therefore, unlike the defendant in Rodriguez who
had a potential privacy interest in a closed container
marked with his name, an interest that may have exceeded
his privacy interest in the room generally, Groves had no
similar claim for an unlocked, unmarked nightstand
drawer in a room he shared with Foster. Thus, Foster’s
valid consent to a search of the apartment included consent
to search the nightstands in the bedroom. See United States
v. Wilburn, 473 F.3d 742, 745 (7th Cir.), cert. denied, 127 S. Ct.
2958 (2007) (search resulting from consent of co-tenant with
actual authority included looking into an unlocked and
unmarked duffel bag found in the closet of the shared
bedroom).2



2
  Notably, the evidence at the center of the dispute in Matlock,
415 U.S. at 164, was cash found in a diaper bag in a closet.
No. 07-1217                                                9

  We turn now to the implications, if any, of the Randolph
decision which was decided by the Supreme Court after
we heard oral argument in this case but before we issued
our opinion. In Randolph, the Supreme Court held that “a
warrantless search of a shared dwelling for evidence
over the express refusal of consent by a physically present
resident cannot be justified as reasonable as to him on
the basis of consent given to police by another resident.”
547 U.S. at 120. In drawing this admittedly formalistic
line requiring the objecting party to be physically present
and objecting at the door, the Supreme Court affirmed its
prior decisions in Matlock and Illinois v. Rodriguez, 497
U.S. 177 (1990), which permitted co-inhabitants of a
dwelling to consent to a search under other circum-
stances, explaining that:
    [s]o long as there is no evidence that the police have
    removed the potentially objecting tenant from the
    entrance for the sake of avoiding a possible objection,
    there is practical value in the simple clarity of comple-
    mentary rules, one recognizing the co-tenant’s permis-
    sion when there is no fellow occupant on hand, the
    other according dispositive weight to the fellow occu-
    pant’s contrary indication when he expresses it.
Randolph, 547 U.S. at 121-22.
  There is no dispute that Groves was not physically
present when Foster consented to the search. The first
time this case was before us, however, we noted that
“there was some evidence that the officers here may have
effectively ‘removed the potentially objecting tenant
from the entrance for the sake of avoiding a possible
objection.’ ” Groves I, 470 F.3d at 321 (quoting Randolph,
547 U.S. at 121). That is, Groves’ adamant and repeated
denials to consent to a search of his apartment on July 5,
10                                               No. 07-1217

the magistrate’s denial of a search warrant, and the officers’
subsequent decision to approach the apartment at a time
when they knew Groves would be absent, initially gave us
pause. The district court had no opportunity at the time of
the motion to suppress to consider the question because
Randolph was decided after the case came to us on appeal.
Consistent with our remand, the district court considered
whether the police officers here “procured Groves’ absence
for the purpose of avoiding an objection” such that
Randolph would be triggered. Groves I, 470 F.3d at 321. The
court found that the officers did nothing to procure Groves’
absence from the premises and so Randolph provides no
relief.
  In addition to the officers playing no active role in
securing Groves’ absence, Groves was not objecting at
the door, as Randolph requires. Indeed, a few weeks had
passed since he had refused the officers’ first attempts to
obtain his consent. Moreover, that the government agents
waited until Groves was at work to seek Foster’s consent
did not undermine the validity of the search because
they had no active role in securing Groves’ absence. This
fact is critical, as it makes this case even further removed
from the facts of Randolph than either Wilburn, 473 F.3d
742, or United States v. DiModica, 468 F.3d 495 (7th Cir.
2006), in which this court declined to apply Randolph
where the defendants were in valid police custody at the
time consent was sought from co-tenants.3 At bottom,
Randolph expressly disinvites anything other than the
narrowest of readings; because the facts here are readily


3
  Admittedly, neither Wilburn nor DiModica had previously
explicitly denied consent to search, but as we stated, Groves’
earlier denials do not change the analysis.
No. 07-1217                                                11

distinguishable, Randolph does not render Foster’s con-
sent invalid.
   We turn to Groves’ argument that Foster’s consent was
involuntary and, as such, invalid. See Schneckloth v.
Bustamonte, 412 U.S. 218, 248-49 (1973). In Groves I,
we analyzed the legal requirements for a valid consent
and noted that the district court’s single finding relevant
to this issue was too minimal and ambiguous to allow us
a proper review. 740 F.3d at 321-22. We asked the dis-
trict court on remand to make detailed findings relating
to this issue, and also to “analyze the totality of the cir-
cumstances surrounding Foster’s consent.” Id. at 323.
Specifically, we asked the court to make fact-findings
regarding Foster’s age, level of intelligence and degree of
education, as well as findings regarding the conduct of
the officers. For example, we asked the court to consider,
among other things, the show of force displayed by the
officers, whether they threatened Foster in any way,
the tone of the questioning and the duration of the en-
counter that led to her signing the consent form.
  In its order after remand, the district court clarified
that it found Foster not credible and accepted as true
Agent Battani’s account of what happened the day of the
search. Groves II at 14. After accurately setting forth the
factors to be considered in an inquiry into whether con-
sent was voluntary in a Fourth Amendment case under
Bustamonte, 412 U.S. at 226, the court analyzed the facts
in view of the Bustamonte factors, ultimately concluding
that Foster’s consent was entirely voluntary. Groves II at 14-
16. The court found that Foster was of at least average
intelligence, that the officers did not threaten her in any
way, that they did not threaten to remove her child to
Child Protective Services, that they did not interrogate
12                                                No. 07-1217

her and that any questioning was neither repetitive nor
prolonged in nature. The court found that the officers
fully advised Foster of her rights, including her right to
insist on a search warrant, her right to consult with an
attorney and her right to withdraw her consent. The court
found that Foster did not ask for an attorney, that she
was not in custody, and that no physical coercion (such
as deprivation of food or sleep) was employed. The court
found further that the officers did not display overwhelm-
ing force, instead arriving in plain clothes, in unmarked
cars, with only one of the three officers speaking to
Foster. Considering the totality of the circumstances, the
court found that Foster’s consent was voluntary and not the
result of duress or coercion.
   The voluntariness of Foster’s consent is a factual ques-
tion which we review for clear error, deferring to the
district court’s determinations of witness credibility. We
will not reverse unless we are left with the definite and
firm conviction that a mistake has been made. United
States v. Cellitti, 387 F.3d 618, 622 (7th Cir. 2004). See also
United States v. Raibley, 243 F.3d 1069, 1076 (7th Cir. 2001).
Now that we are able to review the factual basis for the
district court’s decision, we conclude there is no reason to
disturb the court’s findings related to the voluntariness
of Foster’s consent.
  For the foregoing reasons, we find Groves’ Motion to
Suppress was correctly denied and the judgment of the
district court is therefore AFFIRMED.




                    USCA-02-C-0072—6-27-08
