                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3231
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Western
                                         * District of Missouri.
Gail W. Douglas,                         *
                                         *       [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: March 16, 2005
                                 Filed: June 1, 2005
                                  ___________

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and RILEY, Circuit Judges.
                         ___________

PER CURIAM.

       This case presents the question of whether a police officer's warrantless search
of Gail Douglas's apartment was unreasonable under the fourth amendment. The
district court1 denied Mr. Douglas's motion to suppress a shotgun seized as a result
of the search. It adopted the magistrate judge's report and recommendation that
concluded that the search was not unreasonable, because a reasonable police officer


      1
        The Honorable Gary A. Fenner, United States District Judge for the Western
District Court of Missouri, adopting the report and recommendation of The
Honorable Sarah W. Hays, United States Magistrate for the Western District of
Missouri. See 28 U.S.C. § 636(b)(1)(B).
could have believed that Stephanie Burton, who consented to the search, was a co-
habitant of the apartment and, in the alternative, that sufficient exigent circumstances
existed to warrant the search. Mr. Douglas entered a conditional guilty plea to the
charge of being a felon in possession of a firearm, see 18 U.S.C.
§§ 922(g)(1), 924(a)(2), reserving the right to appeal the denial of his motion to
suppress. We affirm the district court’s order denying the suppression motion, but
on different grounds: We conclude that Ms. Burton had actual authority over the
apartment and therefore could consent to a search of it.

       The magistrate judge found the following facts based on evidence adduced at
the suppression hearing. Two police officers went to Mr. Douglas's apartment to
investigate a domestic-disturbance call. Ms. Burton, Mr. Douglas's girlfriend at the
time, answered the door and invited the officers in. Once inside, the officers
interviewed Mr. Douglas and Ms. Burton. Mr. Douglas told the officers that
Ms. Burton did not live in the apartment. Ms. Burton told the officers that she had
another residence but that she stayed primarily at Mr. Douglas's apartment;
Ms. Burton had a microwave oven, a television, clothes, vitamins, and some of her
children's toys at the apartment. She also informed them that Mr. Douglas was a
convicted felon (which one of the officers confirmed by calling the police dispatcher)
and that he possessed a shotgun which he stored under the mattress in the bedroom
of the apartment. One of the officers followed Ms. Burton to the bedroom and seized
the shotgun from underneath the mattress. Following the search, Ms. Burton
reiterated to the police that she lived at the apartment, explaining that she stayed there
about four nights per week. On the basis of these facts, the magistrate judge found
that Ms. Burton lived at the apartment with Mr. Douglas.

       The fourth amendment provides that "the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated." U.S. Const. amend. IV. As a rule, searches and seizures are
unreasonable unless accompanied by a warrant. See, e.g., Illinois v. McArthur,

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531 U.S. 326, 330 (2001). There are exceptions to this rule, however. Id. A
warrantless search or seizure is not unreasonable if it has been consented to. See
generally Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). An individual’s
consent is valid if he or she has common authority over the property to be searched.
United States v. James, 353 F.3d 606, 613 (8th Cir. 2003). The existence vel non of
common authority does not depend upon the technical rules of property law, United
States v. Matlock, 415 U.S. 164, 171 n.7 (1974), but "is a function of mutual use, joint
access, and control." James, 353 F.3d at 613. Thus "an adult co-occupant of a
residence can consent to a search." United States v. Jones, 193 F.3d 948, 950 (8th
Cir. 1999).

        Whether an individual has common authority over property is a question of
fact. James, 353 F.3d at 613. Here, the magistrate judge found on an ample record
that Ms. Burton lived at the apartment at the time of the search. (Part of the basis for
this finding was that Ms. Burton had clothes, a television set, and a microwave oven
there, facts that Mr. Douglas does not contest.) A finding that Ms. Burton had
common authority over the premises follows as a matter of law. Her consent to
search it was therefore valid.

      Affirmed.
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