                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0050n.06
                           Filed: January 22, 2007

                                            No. 05-4123

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


CURTIS PRATT, JR.,                                    )
                                                      )
       Defendant-Appellant,                           )
                                                      )
v.                                                    )
                                                      ) ON APPEAL FROM THE UNITED
UNITED STATES OF AMERICA,                             ) STATES DISTRICT COURT FOR THE
                                                      ) NORTHERN DISTRICT OF OHIO
       Plaintiff-Appellee.                            )
                                                      )



Before: MERRITT and GIBBONS, Circuit Judges; and O’MEARA, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. Defendant-Appellant Curtis Pratt, Jr. pled

guilty in district court to one count of violating 18 U.S.C. § 922(g)(1), felon in possession of a

firearm. As part of the plea agreement, Pratt reserved his right to appeal the district court’s denial

of his motion to suppress evidence obtained from his bedroom in his mother’s house. The district

court found that Pratt’s mother consented to the warrantless search of her house, including her son’s

bedroom. For the following reasons, we affirm the district court’s denial of the motion to suppress

evidence.

                                                 I.

       On September 24, 2003, six law enforcement officers, including Deputy United States

       *
       The Honorable John Corbett O’Meara, United States District Judge for the Eastern District
of Michigan, sitting by designation.
Marshall Hebert and Bureau of Alcohol, Tobacco, and Firearms Special Agent Jean-Marc Behar,

went to the home of Pratt’s mother, Barbara Pratt, to arrest Pratt on a warrant for assault. Pratt

lived with his mother in the upper flat of a duplex she owned on Hampden Avenue in Cleveland,

Ohio. Pratt did not pay rent for the single bedroom he occupied in the flat.

       The six officers were met by Pratt’s mother and his aunt, Margaret Pratt, when they

arrived at the residence. Although she actually owned the residence, Barbara Pratt incorrectly

informed the officers that she was the sole leaseholder. She also informed the officers that Pratt

“stayed” there. Pratt’s mother ultimately clarified to the officers that she alone had legal

possession of the residence.

       The officers requested to search the residence for Curtis Pratt, but his mother notified

them that he was not present. Hebert then asked to further search the premises for weapons or

drugs and presented Pratt’s mother with a “Consent to Search” form. Barbara Pratt signed the

form, which authorized the officers “to conduct a complete search of [the] premises” and to take

from the premises “any letters, papers, materials or other property which they may desire.” Pratt

has not asserted that his mother’s consent was coerced or otherwise improperly obtained.

       During the search, the officers came upon Pratt’s locked bedroom door. The parties

dispute whether Pratt’s mother provided the officers with a key to the bedroom. Barbara Pratt

testified, however, that she ordinarily kept an extra key to Pratt’s bedroom but had given this

spare key to Pratt the day before because Pratt had misplaced his key. Pratt’s mother further

testified that she “had access to [the room] any time [she] wanted.” According to Pratt’s mother,

she currently did not have a key only because her son had recently borrowed it and failed to


                                                  2
return it. Nonetheless, the officers somehow gained entry to the room. Once inside, Behar

discovered a pistol and ammunition in a dresser drawer.

         Pratt subsequently moved to suppress all evidence obtained from the locked bedroom.

The district court denied his motion to suppress. Pratt has appealed the denial on the grounds

that his mother lacked authority to consent to the search of the locked bedroom and that the

police were unreasonable in relying on an appearance that she had such authority.

                                                  II.

         Review of a district court’s denial of a motion to suppress is for clear error as to findings

of fact and de novo as to conclusions of law. United States v. Henry, 429 F.3d 603, 607 (6th Cir.

2005).

                                                  III.

         The Fourth Amendment recognizes as valid a warrantless search of a person’s house when

a person possessing authority over the house gives consent to the search. Georgia v. Randolph, 126

S. Ct. 1515, 1520 (2006) (citing Illinois v. Rodriguez, 497 U.S. 177, 181 (1990)). “That person

might be . . . a fellow occupant who shares common authority over property, when the suspect is

absent, and the exception for consent extends even to entries and searches with the permission of a

co-occupant whom the police reasonably, but erroneously, believe to possess shared authority as an

occupant.” Id. (citing Rodriguez, 497 U.S. at 186; United States v. Matlock, 415 U.S. 164, 170

(1974); Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)).

         A warrantless search does not violate the Fourth Amendment when a person who possesses

common authority over the premises with the suspect consents to the search. Matlock, 415 U.S. at


                                                   3
170-71. “Common authority” derives from the “mutual use of the property by persons generally

having joint access or control for most purposes.” Id. at 171 n.7. Typically, all family members

have common authority over all of the rooms in the family residence. United States v. Clutter, 914

F.2d 775, 777 (6th Cir. 1990). However, family members may be deprived of common authority

access to an enclosed space over which one family member has “clearly manifested an expectation

of exclusivity.” Id. at 778.

       Mere possession or non-possession of a key at the time of a search is not dispositive in

determining whether a co-occupant has common authority over an enclosed space. See Rodriguez,

497 U.S. at 181 (co-occupant did not have common authority though she had keys to the residence);

United States v. Gillis, 358 F.3d 386, 390 (6th Cir. 2004) (noting the district court’s finding that a

co-occupant had common authority though she did not have keys to the residence’s exterior doors).

Instead, courts consider a number of factors in determining whether common authority exists,

including: whether the co-occupant owns the residence or is named on the lease; if the individual

contributed rent; and whether the individual visited the residence when the co-occupant was not

present. See Rodriguez, 497 U.S. at 181.

       Here, although we assume that Barbara Pratt lacked a key to her son’s bedroom at the time

of the search, it is clear that she ordinarily retained a key to the room and accordingly had regular

access to the room. As such, Pratt did not have a clear expectation of exclusivity by simply locking

the door. Moreover, Pratt provides no authority to support the proposition that, by itself, a temporary

inability to access a room for lack of a key deprives a co-occupant of common authority over that

room. On the contrary, the case law places no particular emphasis on whether co-occupants possess


                                                  4
keys in determining their authority over an enclosed space; possession of a key is merely a factor in

the analysis. See, e.g., Rodriguez, 497 U.S. at 181; see also Gillis, 358 F.3d at 390. Pratt’s mother

had title to the entire residence, including Pratt’s bedroom. Pratt did not even contribute rent.

Barbara Pratt lived in the residence and had access to Pratt’s room “anytime [she] wanted.” In light

of these facts, we conclude that Barbara Pratt had actual authority to consent to the search of her

son’s locked bedroom.

                                                 IV.

       Although the determination that Barbara Pratt had actual authority to consent to the search

is dispositive of the appeal, we consider the issue of apparent authority as well. The police may also

search a residence with the permission of an occupant whom they reasonably, even if erroneously,

believe to have authority to consent to the search. Rodriguez, 497 U.S. at 186. Shared occupancy

has been found to include an “assumption of risk” that one occupant might permit a search of the

premises against the wishes of an absent co-occupant. Randolph, 126 S. Ct. at 1522; Matlock, 415

U.S. at 171 n.7. Further, police officers are entitled to rely on this “assumption of risk,” and there

is no burden on the police to eliminate the possibility of atypical shared occupancy arrangements

absent some “reason to doubt that the regular scheme is in place.” Randolph, 126 S. Ct. at 1522.

In fact, “it would be unjustifiably impractical to require the police to take affirmative steps to

confirm the actual authority of a consenting individual whose authority was apparent.” Id. at 1527.

       Typically, all family members have common authority over all of the rooms in the family

residence. Clutter, 914 F.2d at 777. Evidence that the co-occupant is a leaseholder of the residence

strongly supports the reasonableness of an officer’s reliance on the co-occupant’s apparent authority.


                                                  5
Gillis, 358 F.3d at 390. Further, officers may also reasonably rely on the apparent authority of a co-

occupant who merely “shows that she belongs” in a residence. Randolph, 126 S. Ct. at 1521. Police

officers may also reasonably rely on the appearance of authority even when a co-occupant does not

have a key to the premises. Gillis, 358 F.3d at 390.

       In this case, the officers had no reason to conclude that Pratt’s mother did not have authority

to consent to a search of a bedroom occupied by her son, as family members typically have authority

over the entire family residence. In addition, Barbara Pratt identified herself to the officers as the

sole leaseholder of the residence. Barbara Pratt also “showed that she belonged” in the residence

because she was entertaining a guest, Margaret Pratt, and further by authorizing the officers to search

the premises for her son. The mere fact that Barbara Pratt temporarily lacked a key to the bedroom

would not have made the officers’ reliance on the appearance of her authority unreasonable. We

therefore conclude that, even if she lacked actual authority, Barbara Pratt had apparent authority to

consent to the search of her son’s locked bedroom.

                                                 V.

       For the foregoing reasons, the district court’s denial of the appellant’s motion to suppress is

AFFIRMED.




                                                  6
        MERRITT, Circuit Judge, dissenting. Here one of the deputy marshals asked for Ms. Pratt’s

permission to search the residence for weapons and drugs and presented a consent to search form,

stating that Ms. Pratt consented to a “complete search” of her premises. Ms. Pratt signed the

document and stated that Pratt, her son, did not pay rent. The door to Pratt’s bedroom was locked.

The District Court stated explicitly that “the record tends to reflect that Barbara Pratt did not possess

a key during the search . . . .” (J.A. 31). Ms. Pratt testified that she told the officers that she

generally kept a key to Pratt’s room but had given the key to Pratt the day before at his request.

Thus, it seems clear that the officers entered and searched the locked room without the permission

of the occupant. They must have done so by breaking the lock, not by unlocking the door.

        When Pratt took back his mother’s key to his locked bedroom, the situation changed. The

locked bedroom door –– locked without a key available from anyone other than the occupant ––

makes this situation different from others where common authority existed over an openly accessible

room. Pratt’s actions in taking back the key and stashing contraband in a dresser drawer signals his

expectation of exclusivity. Under these circumstances I do not think the government has carried its

burden of showing that Ms. Pratt — with no key and no way to enter — had either actual or apparent

common authority to consent to the search of her adult son’s bedroom.

        The majority’s holding that Ms. Pratt had actual authority to consent to the search of Pratt’s

room is directly contrary to the applicable test from United States v. Matlock, 415 U.S. 164 (1974)

and contradicts relevant precedent from this Court and others. As my colleagues note, an individual

has common authority if she has “mutual use of the property” with “joint access or control for most

purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit


                                                   7
the inspection in his own right and that the others have assumed the risk.” Id. at 171 n.7, quoted in

Georgia v. Randolph, ____ U.S. ____, 126 S. Ct. 1515, 1521 (2006). The court believes that Ms.

Pratt had “mutual use” and “joint access or control” of Pratt’s room –– even though Pratt withdrew

from his mother any use or access by locking the door and retaining the only key. How Mrs. Pratt

has “mutual use” of her son’s locked bedroom which she cannot enter is left unexplained. This

contradiction runs counter to cases finding no actual common authority over an enclosed area in the

home in which a non-minor child targeted for the search “has clearly manifested an expectation of

exclusivity.” United States v. Clutter, 914 F.2d 775, 777 (6th Cir. 1990); see also State v. Vinuya,

32 P.3d 116, 131-32 (Haw. Ct. App. 2001) (mother without a key did not have actual common

authority to consent to a search of her son’s locked bedroom); State v. Gordnoshnka, No. 86319,

2006 WL 302354, at *4 (Ohio Ct. App. Feb. 9, 2006) (unpublished) (father without keys or a right

of access to his son’s locked bedroom did not have actual authority to consent to a search thereof).

On the other hand, had Pratt left his door unlocked or provided his mother a key, there would be little

doubt that Ms. Pratt would have had actual common authority. See Clutter, 914 F.2d at 778 (minor

children had common authority to consent to inspection of their parents’ open bedroom); United

States v. Cork, 18 Fed. App. 376, 383 (6th Cir. Sept. 6, 2001) (unpublished) (homeowner had

common authority over unlocked bedroom shared by her nephew); State v. Harris, 642 A.2d 1242,

1247 (Del. Super. Ct. 1993) (mother with a key to her son’s locked bedroom possessed common

authority over the room).

       The two cases cited for the finding of actual common authority, United States v. Gillis, 358

F.3d 386 (6th Cir. 2004) and Illinois v. Rodriguez, 497 U.S. 177 (1990), provide no support for that


                                                  8
proposition. Gillis expressly declined to address whether actual authority was present: “Because we

agree with the district court’s decision that Williams had apparent authority, we need not consider

whether she also possessed actual authority.” Gillis, 358 F.3d at 391. In Rodriguez, the Supreme

Court went a step further, holding that no actual authority existed and proceeded to analyze the case

under the doctrine of apparent common authority. Rodriguez, 497 U.S. at 179, 181-82, 189.

       The location of the contraband in a dresser drawer makes Ms. Pratt’s purported authority

even less reasonable. See Randolph, 126 S. Ct. at 1522 (“when it comes to searching through bureau

drawers, there will be instances in which even a person clearly belonging on premises as an occupant

may lack any perceived authority to consent . . . .”); Clutter, 914 F.2d at 778 (stating that, although

minor children had authority to consent to a search of their parents’ open bedroom, their authority

to consent to a search of a bureau drawer therein was “a closer question”). Randolph is the Supreme

Court’s latest decision on consent searches. It holds 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 the police by another resident.” Randolph,

126 S. Ct. at 1526. By analogy, an absent resident cannot be held to have given consent to search

dresser drawers when he has locked his room and has the only key. There cannot be apparent

authority to search in dresser drawers or other nooks and crannies of the room when the police must

break the lock or climb in a window in order to gain access to the room. We should not permit the

erosion of Fourth Amendment principles that has taken place in this case.




                                                  9
