                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                              MAY 10, 2010
                            No. 09-12471                       JOHN LEY
                        Non-Argument Calendar                    CLERK
                      ________________________

                  D. C. Docket No. 07-20839-CR-PCH

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

GUILLERMO ALFONZO ZARABOZO,

                                                        Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________


                             (May 10, 2010)

Before BLACK, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
      Guillermo Alfonso Zarabozo appeals his sixteen felony convictions: one

count of conspiracy to commit violence against maritime navigation, one count of

seizing a ship, one count of performing violence likely to endanger the safe

navigation of a ship, four counts of first degree murder within the maritime

jurisdiction of the United States, four counts of kidnaping within the maritime

jurisdiction of the United States, one count of robbery, and four counts of using a

firearm resulting in death. On appeal, he challenges the district court’s denial of

two motions to suppress evidence, one involving evidence taken from his bedroom,

the other involving evidence taken out of bags recovered from the life raft from

which he was rescued at sea. We address each claim in turn and affirm his

convictions.

      The Fourth Amendment of the Constitution 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. Denial of a motion to suppress evidence based on an allegedly unreasonable

search and seizure is a mixed question of law and fact. United States v. Lindsey,

482 F.3d 1285, 1290 (11th Cir. 2007). We review the factual findings supporting

the district court’s ruling on a motion to suppress for clear error, with the record




                                           2
viewed in the light most favorable to the prevailing party. Id. We review the

district court’s application of law to those facts de novo. Id.

                                                I.

       Zarabozo first challenges the admission of evidence seized from his

bedroom pursuant to a warrant obtained based on probable cause discovered when

Zarabozo’s mother allowed law enforcement to search the room.1 “Under the

Fourth Amendment, searches and seizures ‘inside a home without a warrant are

presumptively unreasonable.’” United States v. Davis, 313 F.3d 1300, 1302 (11th

Cir. 2002) (quoting Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380

(1980)). If a search warrant is based on probable cause discovered because of an

illegal search, generally the search warrant is tainted and the evidence obtained

pursuant thereto is inadmissible. United States v. McGough, 412 F.3d 1232, 1240

(11th Cir. 2005).



       1
         Zarabozo attempts to appeal, for the first time in his reply brief, the admission of
evidence extracted from his living room computer. Zarabozo’s initial motion to suppress, filed
in district court, challenged only the validity of Zarabozo’s mother’s consent to law
enforcement’s search of Zarabozo’s bedroom. Although the motion briefly noted that Zarabozo’s
mother consented to the search of the living room computer, the motion did not contend that
Zarabozo’s mother lacked the authority to consent to the computer search. Zarabozo’s initial
appellate brief states the computer was located in his bedroom and makes arguments dealing
solely with the validity of his mother’s consent to search the bedroom. Zarabozo concedes in
his reply brief that the computer was taken from the living room but contends that its contents
should still have been suppressed. He then provides, for the first time, arguments regarding his
mother’s authority to consent to a computer search. We do not consider issues raised for the first
time in a reply brief. See United States v. Smith, 416 F.3d 1350, 1352 n.1 (11th Cir. 2005).

                                                3
      When consent is given for a search, however, the search may be valid even

without a warrant or probable cause. United States v. Dunkley, 911 F.2d 522, 525

(11th Cir. 1990). To validate a warrantless search, consent must be voluntarily

given by a person with the authority to give it or by a person who reasonably

appears to have that authority. Id. (citing United States v. Matlock, 415 U.S. 164,

171, 94 S. Ct. 988, 993 (1974); Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 2793

(1990)).

      For Fourth Amendment purposes, a landlord generally lacks the necessary

authority to consent to the search of her tenant’s apartment. United States v.

Brazel, 102 F.3d 1120, 1148 (11th Cir. 1997). A third party may give valid

consent to search an area, however, if she “has mutual use of it, with joint access to

or control of the area for most purposes.” Id. The reasonableness of a search may

be influenced by commonly shared social understandings of the authority that

co-inhabitants exercise over each other’s interests. Georgia v. Randolph, 547 U.S.

103, 111, 126 S. Ct. 1515, 1521 (2006). Even if the third party lacks actual

authority to consent to the search, if an officer has an objectively reasonable, good-

faith belief that the consent is valid, there is no Fourth Amendment violation.

Brazel, 102 F.3d at 1148.




                                           4
       We conclude the district court did not err in ruling the evidence taken from

Zarabozo’s bedroom was admissible, because Zarabozo’s mother had apparent

authority to consent to the search of his room that led FBI agents to the probable

cause they used to obtain a warrant. Zarabozo’s mother told FBI agents she was

the head of the house and that by living in her house, Zarabozo had agreed he

would abide by her rules and let her be “in his business.”

      Zarabozo shared the bedroom with his thirteen-year-old stepsister.

Zarabozo’s mother told the FBI agents she often went into the room to clean and

straighten it. He kept the door to the room ajar. His mother repeatedly entered and

exited Zarabozo’s bedroom, retrieving and replacing various items, during her

interview with the FBI agents. Zarabozo’s mother opened Zarabozo’s mail and

told FBI agents Zarabozo gave her the code the lockbox for his gun, which he kept

in his room. His mother made no mention that Zarabozo paid her $300 per month

in rent. The district court found Zarabozo’s mother’s voluntarily showed the FBI

agents into Zarabozo’s room and opened the lockbox for them without being

asked. All of these events made it appear that Zarabozo’s mother exercised

authority over Zarabozo’s space and belongings.

      Given this testimony, the district court did not err in finding the

circumstances created an objectively reasonable, good-faith belief that Zarabozo’s



                                           5
mother had the authority to consent to the search of Zarabozo’s bedroom. Thus,

the district court did not err in admitting into evidence items obtained by the

resulting search warrant.

                                                II.

       Zarabozo also challenges the district court’s denial of his motion to suppress

evidence recovered from the warrantless search of the backpacks taken from the

life raft in which Zarabozo was discovered. Exigent circumstances may justify a

warrantless search where there is an indication that evidence will be destroyed if

the search is delayed. United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir.

1991). The test is “whether the facts . . . would lead a reasonable, experienced

agent to believe that evidence might be destroyed before a warrant could be

secured.” Id. (quotations omitted). We conclude the district court did not err in

finding the facts in this case justified such a belief.2

       When Zarabozo and his co-defendant, Archer, were rescued from the life

raft, they reported the Joe Cool fishing boat had been hijacked, four people were

shot and dumped overboard, and the attackers fled the scene when the boat ran out


       2
         The district court gave several alternative bases for its ruling. Having concluded exigent
circumstances justified the search, however, we need not analyze the merits of the alternate
grounds. Neither are we confined to the facts the district court used to justify its ruling, as “we
may affirm on any ground that finds support in the record.” United States v. Mejia, 82 F.3d
1032, 1035 (11th Cir. 1996) (citing Jaffke v. Dunham, 352 U.S. 280, 280, 77 S. Ct. 307, 308
(1957)).

                                                 6
of gas. FBI agents were dispatched to the scene to investigate the attack and were

aware they might need to conduct further search and rescue efforts.

      FBI Agents found the Joe Cool fishing boat and began searching the areas

on the boat that were exposed to the elements, based on exigent circumstances,

while waiting for search warrants to explore the protected areas. The Joe Cool’s

life raft, used by Zarabozo and Archer after the attack, was completely unprotected

from the elements. An FBI Agent and a photographer went to the life raft and

discovered Zarabozo’s two soaking wet bags. They collected the bags and

eventually opened them and removed their contents, which included weapons,

some receipts, and a cell phone the agent threw into a bag of rice to dry.

      We conclude the district court did not err in finding these facts constituted

exigent circumstances supporting the FBI agent’s warrantless search of Zarabozo’s

bags. Zarabozo’s bags had been exposed to massive amounts of sea water, and the

district court found law enforcement had a reasonable fear that any electronic or

paper evidence might be irrevocably damaged if left in that condition.

Accordingly, the district court ruled it was reasonable for agents to search

Zarabozo’s bags to collect evidence in danger of immediate deterioration. We




                                          7
conclude the court, therefore, committed no error in admitting into evidence the

items found pursuant to that search.

      AFFIRMED.




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