                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-6332


NATHAN WEBB, a/k/a Nathaniel R. Webb,

                Plaintiff - Appellant,

          v.

LYNNE BRAWN; JAMES F. SMITH; MARK VAN HOUTEN,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:12-ct-03042-BO)


Submitted:   August 27, 2015             Decided:   September 14, 2015


Before MOTZ, KING, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Nathan Webb, Appellant Pro Se.      John Thomas Crook, BAILEY &
DIXON, Raleigh, North Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Nathan Webb appeals the district court’s judgment granting

summary judgment to the Defendants on the basis of qualified

immunity    and    dismissing    Webb’s   civil    rights     complaint      filed

pursuant to 42 U.S.C. § 1983 (2012).                  Webb claimed that the

Defendants    violated    his    Fourth   Amendment        protection       against

unreasonable search and seizure during a warrantless search of

his home.    We affirm.

      We review the grant of summary judgment de novo.                 Pender v.

Bank of Am. Corp., 788 F.3d 354, 361 (4th Cir. 2015).                  All facts

and   reasonable     inferences     are   viewed      “in    the    light      most

favorable to the non-moving party.”            Dulaney v. Packaging Corp.

of Am., 673 F.3d 323, 330 (4th Cir. 2012).                 Summary judgment is

only appropriate when “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.”     Fed. R. Civ. P. 56(a).           “[T]he nonmoving party must

rely on more than conclusory allegations, mere speculation, the

building of one inference upon another, or the mere existence of

a scintilla of evidence.”        Dash v. Mayweather, 731 F.3d 303, 311

(4th Cir. 2013).

      Qualified       immunity     protects        “government          officials

performing    discretionary      functions    .   .    .    insofar    as    their

conduct     does   not   violate    clearly    established         statutory     or

constitutional rights of which a reasonable person would have

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known.”       Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).                   To be

entitled to qualified immunity, a defendant must show either

that his conduct did not violate the plaintiff’s constitutional

rights, or that even if there was a constitutional violation,

the right in question was not clearly established at the time

that the defendant acted.               Henry v. Purnell, 652 F.3d 524, 531

(4th Cir. 2011) (en banc); Ridpath v. Bd. of Governors Marshall

Univ., 447 F.3d 292, 306 (4th Cir. 2006).                   “The burden of proof

and persuasion with respect to a defense of qualified immunity

rests    on    the   official       asserting      that   defense.”       Meyers     v.

Baltimore Cty., 713 F.3d 723, 731 (4th Cir. 2013).

     The Fourth Amendment prohibits warrantless home searches in

most instances.         Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973).       Voluntary consent to a search is an exception to the

warrant requirement.          Id.       A warrantless search of a home may be

proper if law enforcement receives voluntary consent from “an

occupant      who    shares,       or    is   reasonably    believed     to    share,

authority over the area in common with a co-occupant who later

objects.”        Georgia      v.    Randolph,       547   U.S.    103,   106   (2006)

(holding that a present co-occupant’s refusal to consent to a

search    prevails     over    a    present       co-occupant’s    consent     to   the

search).       Moreover, if consent to the search is given by a

person who is present and possesses common authority over the



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premises, it is valid against the absent, objecting occupant.

Fernandez v. California, 134 S. Ct. 1126, 1134-35 (2014).

       Common authority rests on:

       mutual use of the property by persons generally having
       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 the inspection in
       his own right and that the others have assumed the
       risk that one of their number might permit the common
       area to be searched.

U.S. v. Matlock, 415 U.S. 164, 171 n.7.

       As     the    Fourth    Amendment      guards     against     unreasonable

searches, there is no violation if an officer could reasonably

have    believed      that    the   consenting      party   had     authority   to

consent.       Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990).

“As long as the facts available to the officer at the moment

warrant a person of reasonable caution in the belief that the

consenting party had authority, apparent authority to consent

exists.”      United States v. Buckner, 473 F.3d 551, 555 (4th Cir.

2007) (internal quotation marks and alterations omitted).

       Upon    our   review   of    the   record,   we   conclude    that   Webb’s

girlfriend, Heather Upchurch, had actual and apparent authority

to consent to the search of the house.                   She and their infant

daughter lived in the house with Webb for six months.                    Upchurch

had as much interest in the house as did Webb.                      Upchurch kept

all of her belongings there.              The fact that she believed Webb

abused their daughter, as later proven at a criminal trial, and

                                          4
she could no longer stay at the house with Webb, did not result

in the surrender of her authority over the house days after an

abusive incident.            See United States v. Backus, 349 F.3d 1298,

1304 (11th Cir. 2003) (holding wife had authority to consent to

search    after       husband’s    criminal        acts     against     wife     and    child

forced them to leave); see also United States v. Brannan, 898

F.2d    107,    108     (9th     Cir.    1990)       (holding      co-owner      of     house

retained actual authority to consent to search even though she

moved out due to husband’s abuse and husband had changed locks).

Thus,    Upchurch’s       consent       to    search      the    home    prevailed       over

Webb’s objections to the search, in light of the fact that she

was present at the house and Webb elected to be absent despite

requests       from    law     enforcement         that     he   come    to    the     house.

Fernandez, 134 S. Ct. at 1135-36.

       Even if Upchurch lacked actual authority to consent to the

search, she had apparent authority.                       Under the totality of the

circumstances, we conclude, it was reasonable for the Defendants

to believe that Upchurch retained authority to consent to the

search.        Therefore, the district court did not err in ruling

that    the    Defendants       were    entitled       to    qualified        immunity    and

granting summary judgment on that basis.

       Accordingly, we affirm the district court’s judgment.                              We

deny Webb’s motion for appointment of counsel.                          We dispense with

oral    argument       because    the        facts   and     legal      contentions      are

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adequately   presented   in   the   materials   before   this   court   and

argument would not aid the decisional process.

                                                                 AFFIRMED




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