                                         PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                      No. 15-2054
                     _____________

            UNITED STATES OF AMERICA

                           v.

                   JAMIL MURRAY,
                     a/k/a Smooth
                      a/k/a Mills

                       Jamil Murray,
                             Appellant
                     _____________

  APPEAL FROM THE UNITED STATES DISTRICT
                       COURT
 FOR THE EASTERN DISTRICT OF PENNSLYVANIA
          (D.C. Crim. No. 2-12-cr-00585-001)
    District Judge: Honorable Mitchell S. Goldberg
                    ____________

        Submitted Under Third Circuit LAR 34.1(a)
                      April 6, 2016
                     ____________

 Before: FISHER, RENDELL and BARRY, Circuit Judges

             (Opinion Filed: April 28, 2016)
                    ____________

Brian J. Zeiger, Esq
Levin & Zeiger
1500 John F. Kennedy Boulevard
Suite 620
Philadelphia, PA 19102

Counsel for Appellant

Anita Channapati, Esq.
United States Department of Justice
Criminal Division, Appellate Section
601 D Street, N.W.
Washington, D.C. 20530
       -AND-
Paul G. Shapiro, Esq.
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
       -AND-
Sherri A. Stephan, Esq.
Office of the United States Attorney
504 West Hamilton Street
Suite 3701
Allentown, PA 18101

Counsels for Appellee
                        ____________

                OPINION OF THE COURT
                     ____________

BARRY, Circuit Judge

       Jamil Murray entered a plea of guilty to drug
distribution offenses, pursuant to a plea agreement that
preserved his right to appeal the denial of his motion to
suppress. He now appeals the denial of that motion, arguing
that the District Court erred when it failed to suppress
evidence that law enforcement officers obtained as a result of
their entry into a motel room that he had rented, but that was
occupied by a third party. Because the Court correctly
concluded that the officers did not violate the Fourth
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Amendment when they entered the motel room or when they
frisked Murray upon his entry into the room, and because the
Court’s factual findings with respect to consent were not
clearly erroneous, we will affirm.
                               I.

       The facts as found by the District Court are as follows.
On August 16, 2010, Officer David Clee of the Bensalem
Township Police Department was investigating a report of
suspected prostitution at the Sunrise Motel, one of a series of
motels along Route 1 in Bensalem. An owner told Officer
Clee that he believed prostitution was taking place in his
motel, and that he had seen a woman he believed to be a
prostitute being picked up by a green Cadillac. Later that
day, Officer Clee learned that a “tip” had been called in by a
woman named “Jessica Brown,” stating that a man named
“Mills” was at the nearby Knights Inn, was in possession of
drugs, and was driving a green Cadillac.

      That evening, at approximately 9:00 p.m., Officer Clee
and Corporal Adam Schwartz observed a green Cadillac
parked outside another nearby motel, the Neshaminy Motor
Inn. They learned that the car was registered to Room 302,
which had been rented by one Jamil Murray. The officers
knew, from their investigation of the “tip” earlier in the day,
that Murray had rented two rooms at the Knights Inn, Rooms
157 and 158, paying cash, and they had seen a copy of
Murray’s driver’s license on file at the Knights Inn.

       Corporal Schwartz knocked on the door to Room 302.
A woman wearing lingerie (later identified as Jessica Burns)
answered the door, and asked Schwartz if he was “looking for
a date.” He responded “no.” The officers then proceeded to
the Knights Inn, where they saw the green Cadillac parked in
front of Room 158. They observed a woman leaving Room
158, and saw Murray inside the room.

      The officers returned to the Neshaminy Motor Inn, and
Corporal Schwartz again knocked on the door to Room 302.
Burns told him that she was busy, and to go away. Officer
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Clee then knocked, and when Burns told him, too, that she
was busy, he identified himself as a police officer and asked
her to open the door. He also knocked on the window, and
showed his badge to Burns through the window. She opened
the door.

       The officers asked if they could come in, and Burns
allowed them to do so. Burns told the officers that she was a
prostitute and that she worked for the person who had rented
the room, a drug dealer that provided her with drugs.
Although she did not then tell the officers, she later testified
that she had made the earlier 911 call using the alias “Jessica
Brown,” and that she had called because she felt she was in
danger.

       While the officers were interviewing Burns, there was
a knock at the door. Believing that it was another police
officer, the officers allowed the door to be opened. Murray,
whom the officers recognized from their investigation, came
into the room. Corporal Schwartz patted him down, and
Murray allowed the officers to remove items from his pockets
and a lanyard from around his neck. They found a cell phone,
a large sum of cash, and hotel room keys that, it was later
determined, were keys to Rooms 157 and 158 at the Knights
Inn. Murray attempted to flee, but was ultimately arrested.

       The evidence that the officers obtained from Room
302—Burns’ statements and the evidence taken from
Murray’s person—were used to obtain search warrants,
including warrants for searches of Rooms 157 and 158 at the
Knights Inn, and the Cadillac. In Room 157, officers found
192.4 grams of crack cocaine.

                              II.

      Murray was charged in a superseding indictment with
conspiracy to distribute 280 grams or more of crack cocaine,
possession of crack cocaine, and other offenses. He moved to
suppress the evidence that resulted from the encounter in
Room 302 and argued that the evidence seized from Room
                               4
157 and pursuant to other warrants should also be suppressed
as “fruit of the poisonous tree.”

      At the suppression hearing, Burns testified that she had
no problem with the officers entering the room, and that she
was “happy that they came and that they [were] there” and
“wanted to open the door” because she had called earlier for
help. Murray testified that he was not asked for, and did not
provide, consent to the removal of items from his person.

       The District Court denied Murray’s motion, finding
Burns’ testimony to be credible and determining that she had
common authority, or, in the alternative, apparent authority,
to consent to the officers’ entry into Room 302, and that her
consent was voluntary. The Court also found that the frisk of
Murray was lawful and supported by reasonable suspicion
that he was armed and dangerous, and that he consented to
the seizure of items from his person. It determined, as well,
that the warrants obtained for other locations were based on
probable cause and did not include evidence that had been
unlawfully obtained.

       On the eve of trial, Murray entered a plea of guilty to
the drug-related offenses pursuant to a plea agreement. In the
agreement, the government agreed to dismiss the remaining
charges, and Murray preserved his right to appeal the denial
of his suppression motion. Pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C), the government agreed to
recommend a sentence of 240 months’ imprisonment,
followed by 120 months’ supervised release. At sentencing,
the District Court imposed the recommended sentence. This
appeal followed.

                             III.

      The District Court had jurisdiction pursuant to 18
U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C.
§ 1291. United States v. Golson, 743 F.3d 44, 50 (3d Cir.
2014). “We review the District Court’s denial of a motion to
suppress for clear error as to the underlying factual
                              5
determinations but exercise plenary review over the District
Court’s application of law to those facts.” United States v.
Stabile, 633 F.3d 219, 230 (3d Cir. 2011).

       “[T]he question whether a consent to a search was in
fact ‘voluntary’ or was the product of duress or coercion,
express or implied, is a question of fact,” Schneckloth v.
Bustamonte, 412 U.S. 218, 227 (1973), which we review for
clear error. United States v. Givan, 320 F.3d 452, 459 (3d
Cir. 2003).      A factual finding is clearly erroneous
“when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States
v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see United
States v. Lowe, 791 F.3d 424, 427 (3d Cir. 2015).

                              IV.

       On appeal, Murray contends that Burns lacked
common or apparent authority to grant access to Room 302,
and was coerced into doing so. He also contends that the
officers illegally frisked him and that any consent to the
seizure of evidence from his person was coerced. He, thus,
concludes and argues to us that Burns’ statements, the
evidence seized from his person, and the evidence seized at
the other locations, was all “fruit of the poisonous tree”
flowing from the officers’ unlawful entry into Room 302.

       A.     Consent to Enter Room 302

       “When ‘the Government obtains information by
physically intruding’ on persons, houses, papers, or effects, ‘a
“search” within the original meaning of the Fourth
Amendment’ has ‘undoubtedly occurred.’”            Florida v.
Jardines, 133 S. Ct. 1409, 1414 (2013) (citing United States
v. Jones, 132 S. Ct. 945, 950 n.3 (2012)). Here, although the
officers did no more than enter Room 302 and speak with
Burns, we analyze their conduct as a “search” for purposes of
the Fourth Amendment because they were gathering
information in an area in which Murray had a legitimate
                               6
expectation of privacy, and did so “by physically entering and
occupying the area to engage in conduct not explicitly or
implicitly permitted” by him. See id. (holding that bringing a
drug-sniffing dog onto a homeowner’s porch constituted a
search). The District Court found, and the parties do not
dispute, that Murray had a legitimate expectation of privacy
in Room 302. See Stoner v. California, 376 U.S. 483, 490
(1964).

       While the Fourth Amendment prohibits unreasonable
searches and seizures, “[c]onsent is an exception to the
‘requirements of both a warrant and probable cause.’”
Stabile, 633 F.3d at 230 (citing Schneckloth, 412 U.S. at 219).
“[T]he consent of one who possesses common authority over
premises or effects is valid as against the absent,
nonconsenting person with whom that authority is shared.”
United States v. Matlock, 415 U.S. 164, 170 (1973). This
concept of “common authority” rests on the principle that one
“assume[s] the risk” that a co-inhabitant “might permit the
common area to be searched.” See id. at 171 n.7. “Common
authority” is defined as “mutual use of the property by
persons generally having joint access or control for most
purposes.” Id.; Stabile, 633 F.3d at 230-31. When an
individual possesses only apparent, rather than actual,
common authority, the Fourth Amendment is not violated if
the police officer’s entry is “based upon the consent of a third
party whom the police, at the time of the entry, reasonably
believe to possess common authority over the premises, but
who in fact does not do so.” Illinois v. Rodriguez, 497 U.S.
177, 179, 188-89 (1990).

       The District Court correctly concluded that Burns had
common authority over Room 302 or, in the alternative,
apparent authority. The facts as known to the officers at the
time they entered Room 302 warranted a reasonable belief
that Burns was a prostitute who had access to and control
over the room for most purposes. Earlier, she had asked
Corporal Schwartz if he was “looking for a date,” and prior to
the officers identifying themselves as law enforcement, she
denied them entry to the room, saying that she was “busy.”
                               7
(See App. 4.) It was reasonable for the officers to believe that
Burns was in control of who would be permitted to enter the
room, a belief reinforced by the fact that, later, Murray
knocked before entering.

       The fact that the officers knew the room was registered
to Murray does not render Burns’ consent invalid, because
she had common authority—or, at a minimum, apparent
authority—over the room. See, e.g., United States v.
Caldwell, 518 F.3d 426, 429 (6th Cir. 2008) (consent to
search hotel room was valid when one co-occupant
consented); United States v. Rodriguez, 414 F.3d 837, 844
(8th Cir. 2005) (consent to search motel room was valid when
defendant’s girlfriend consented, although defendant had
registered and paid for the room); United States v. Morales,
861 F.2d 396, 399-400 (3d Cir. 1988) (consent to search car
was valid when provided by the driver, although the car had
been leased by another person who was present, but silent).
When Murray granted Burns access to and control of Room
302, he assumed the risk that she could—and would—permit
others, including law enforcement, to enter the room when he
was not present.1

      Murray argues that Burns was coerced into opening
the door and permitting the officers to enter Room 302. We
conclude, however, that the District Court did not clearly err

1
  Murray attempts to analogize the facts of this case to those
in which an employee, such as a housekeeper, babysitter, or
handyman, is present in an employer’s home to perform
specific work, with only temporary access to and control over
the premises. This case, of course, involves neither a home
nor an ordinary household employee. The nature of Burns’
employment pre-supposed that she would allow third parties
to enter the room, and the facts known to the officers—
including evidence that Murray was involved with
prostitution-related activities at two other nearby hotels—
made it reasonable for them to believe that Murray had
granted Burns access to and control over the room for the
purpose of engaging in prostitution.
                               8
in finding that Burns voluntarily consented to the officers’
entry, in light of her testimony that she willingly allowed
them to enter, was “happy that [the police] came and that they
[were] there,” and “wanted to open the door.”

       B.     Frisk and Seizure of Items from Murray

        Citing longstanding precedent, the Supreme Court
acknowledged in Terry v. Ohio that “[n]o right is held more
sacred, or is more carefully guarded, by the common law,
than the right of every individual to the possession and
control of his own person, free from all restraint or
interference of others, unless by clear and unquestionable
authority of law.” 392 U.S. 1, 9 (1968) (quoting Union Pac.
R. Co. v. Botsford, 141 U.S. 250, 251 (1891)). Nevertheless,
in Terry, the Court held that an officer does not violate the
Fourth Amendment when he conducts a limited search for
weapons, for his own protection, where there is “reason to
believe that he is dealing with an armed and dangerous
individual.” Id. at 27. In reviewing the legality of such a
search, we ask “whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety
or that of others was in danger.” Id. In Ybarra v. Illinois, 444
U.S. 85, 92-93 (1979), the Court made clear that “a
reasonable belief that [an individual is] armed and presently
dangerous . . . must form the predicate to a patdown of a
person for weapons.” The fact that an individual is present at
a location where a search is taking place is not sufficient
justification for a Terry frisk: “The ‘narrow scope’ of the
Terry exception does not permit a frisk for weapons on less
than reasonable belief or suspicion directed at the person to
be frisked, even though that person happens to be on premises
where an authorized narcotics search is taking place.” Id. at
94.

        The District Court did not err in concluding that the
frisk of Murray was supported by reasonable suspicion that he
was armed and dangerous. The officers had obtained
evidence from Burns, supported by information from their
investigation earlier in the day, that Murray was a drug dealer
                               9
who was running a prostitution operation. In light of these
facts, it was reasonable to suspect that Murray was armed.
See United States v. Binion, 570 F.3d 1034, 1039 (8th Cir.
2009) (“An officer’s reasonable belief that someone is
involved in drug dealing can support a suspicion that the
person is armed since weapons are often present incident to
the drug business.”). Corporal Schwartz’s limited intrusion
upon Murray’s personal security was supported by reasonable
suspicion and within the “narrow scope” of Terry. See
Ybarra, 444 U.S. at 94; Terry, 392 U.S. at 27; United States v.
Anderson, 859 F.2d 1171, 1177 (3d Cir. 1988) (holding that a
pat-down was lawful, where an officer had testified that he
was “concerned for his safety because persons involved with
drugs often carry weapons”).

       Murray contends, however, that the frisk was unlawful
because Terry has no application when the police-citizen
encounter takes place in a home. Murray cites language from
our opinion in United States v. Myers, 308 F.3d 251, 258 (3d
Cir. 2002), in which we observed that Terry “has never been
applied inside a home.” That case, however, dealt with
markedly different facts. There, an officer entered a home,
arrested an individual without probable cause, and searched a
bag. The government attempted to justify the search of the
bag as lawful incident to a valid Terry search. Here, by
contrast, the officers were lawfully present in a motel room
(not a home) and conducted a limited pat-down search for
weapons when Murray arrived unexpectedly on the scene
presenting a potential threat to their safety. In Myers, we
acknowledged that to the extent Terry did apply, it would
“only allow the officer to exercise control over [the
individual] to protect himself and secure the situation.” Id. at
258. This is precisely what took place in Room 302. The
same principles that the Supreme Court outlined Terry, and
acknowledged in Ybarra, are at work here: because the
officers possessed reasonable suspicion that Murray was
presently armed and dangerous, their limited intrusion into his
personal security by way of a frisk for the purpose of officer
safety did not run afoul of the Fourth Amendment.

                              10
       Importantly, the items taken from Murray were not
seized in connection with the frisk. The District Court found,
and we agree, that the items taken from Murray’s pockets and
from around his neck were taken pursuant to his valid
consent. Although Murray testified to the contrary, Corporal
Schwartz testified that he requested and received consent. In
the absence of any facts to support a “definite and firm
conviction that a mistake has been committed,” we cannot say
that the Court clearly erred in crediting Corporal Schwartz’s
version of events. See Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 574 (1985) (“Where there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”).

                             V.

       Because the District Court correctly concluded that
there was no Fourth Amendment violation, we will affirm the
denial of Murray’s motion to suppress.




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