                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-1805

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

V ICTOR G ARCIA,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 10 CR 176-2—Amy J. St. Eve, Judge.



     A RGUED A UGUST 7, 2012—D ECIDED A UGUST 27, 2012



 Before P OSNER, T INDER, and H AMILTON, Circuit Judges.
   P OSNER, Circuit Judge. The defendant pleaded guilty to
attempting to possess cocaine, intending to distribute
it, and was sentenced to 120 months in prison. He
had given a person who, unbeknownst to him, was work-
ing with the federal Drug Enforcement Administration
$477,020 for 32 kilograms of what he thought was cocaine
(it wasn’t). After arresting him officers searched his
apartment and found 13 kilograms of real cocaine. He
hasn’t been prosecuted for that possession although he
2                                              No. 12-1805

could have been because the five-year statute of limita-
tions had not yet run. He challenged the legality of the
search because he feared that the government might use
the 13 kilograms against him at trial to bolster its case
of attempt; the government did not deny that it might.
His agreement to plead guilty provided that he could
challenge the search and entitles him if the challenge
succeeds to withdraw his plea of guilty. Apparently he
thinks that in a trial he might be acquitted of attempted
possession if the 13 kilograms of real cocaine were kept
out of the case.
  The district judge conducted a suppression hearing
and denied the defendant’s motion to suppress after
making the following findings:
  When the defendant was arrested, officers found a
piece of paper with an address on it and went to the
address. It turned out to be the home of the defendant’s
sister and her daughter, the defendant’s 18-year-old
niece. The defendant’s son, a child of 8, was also pres-
ent. The child’s mother lived in California, and the child
lived with his father in an apartment in the same apart-
ment complex (in Palatine, Illinois) as the aunt and niece.
  Two of the officers who had gone to the relatives’
apartment testified at the suppression hearing. They
gave essentially the same testimony: They had inter-
viewed the two women, and the niece had told them
that because the defendant was often not in his apart-
ment during the day or even the night, she made sure
that the child got to school in the morning and
sometimes would wait for him in the defendant’s apart-
ment when the child came home from school if the de-
No. 12-1805                                             3

fendant wasn’t expected to be at home. She said the
defendant had given her or her mother a key to the apart-
ment and she had unlimited access to it to take care of
the child—get him ready for school, let kids into the
apartment to play with him in her presence, and so
forth. She was willing to allow the officers to search the
apartment and told them she thought she was
authorized by the defendant to allow people to enter and
look through it. She signed a form they handed her,
consenting to the search, and led them to the apartment
and opened the door for them. They found the 13 kilo-
grams of cocaine in 13 packages in a closet.
   The niece’s testimony at the suppression hearing con-
tradicted the officers on key points, but the judge disbe-
lieved her, as she was entitled to do, especially since
the niece had an incentive to testify favorably to her
uncle. So the question is whether the facts as we have
recited them show that the officers had a reasonable
belief that the niece had been authorized to allow a
search of her uncle’s apartment. Illinois v. Rodriguez,
497 U.S. 177 (1990).
  We note parenthetically that having arrested the defen-
dant the police could of course have obtained a warrant
to search his apartment and could have prevented
anyone from entering until they had procured and exe-
cuted it. Undoubtedly they would have done those
things had they not based the search on the niece’s
consent. That may well make this a case of “inevitable
discovery,” excusing the lack of any lawful basis for
the search that was actually conducted. But the govern-
4                                                  No. 12-1805

ment doesn’t argue inevitable discovery, and so we’ll
confine our analysis to whether the search was sup-
ported by valid consent.
  The question of the authority of someone not the occu-
pant of a home to consent to a search of it arises
frequently but has never received a crisp general
answer and probably never will. The courts typically
ask whether the nonoccupant who consented had “com-
mon authority [that is, authority in common with
the occupant] over or other sufficient relationship to
the premises” to allow the nonoccupant to consent to a
search. United States v. Matlock, 415 U.S. 164, 171
(1974); United States v. Ryerson, 545 F.3d 483, 487 (7th Cir.
2008); United States v. Groves, 470 F.3d 311, 318-19 (7th
Cir. 2006); United States v. Cos, 498 F.3d 1115, 1124 (10th Cir.
2007). This is a pretty empty formula. It restates the
question rather than answering it. A little more helpful,
though still vague, is another formulation in Matlock:
“mutual use of the property by persons generally having
joint access or control for most purposes.” 415 U.S. at 171
n. 7; see, e.g., United States v. Cos, supra, 498 F.3d at
1125. Sharing a home is the clearest example of such joint
access and control. See 4 Wayne R. LaFave, Search and
Seizure § 8.3(a), pp. 148-49 (4th ed. 2004). But what of the
common case in which someone besides the occupant or
occupants of a house or an apartment or other pre-
mises—someone who does not live there (if it’s a
residence rather than an office)—has a key to it: a
neighbor, a relative, a cleaning service, a babysitter,
a dog walker, the person who feeds the cat when the
homeowner is away, the building superintendent, hotel
No. 12-1805                                                5

staff (if one is staying at a hotel—and some people live
in hotels), or other institutional staff (many people live in
retirement or nursing homes).
  If anyone with a key can permit police to search a per-
son’s home, office, hotel room, or other place of occupancy,
personal privacy would be considerably diminished.
Courts understandably refuse to grant the police such
carte blanche. It is different, however, if an employee,
relative, or neighbor is left in charge of the premises. See
United States v. Ayoub, 498 F.3d 532, 539 (6th Cir. 2007);
LaFave, supra, § 8.5(e), p. 235; id., § 8.6(c), pp. 248-49.
  Difficult as it is to draw the line, we can at least mark
the extremes—at one extreme a couple married or unmar-
ried (so much cohabitation today is nonmarital) sharing
a home. Each spouse or partner has the full run of the
house. Each can let anyone in and authorize the visitor
to look around—even to look in a closet. At the other
extreme are the neighbor who has a key, the babysitter,
the hotel staff: their authority over the place of residence
is specific and limited; they are not authorized to com-
promise the resident’s privacy beyond what they have
to do to perform their authorized tasks. If such persons
could authorize a police search, personal privacy would
be gravely compromised because the average person
would be afraid to refuse a police officer’s request to
let them into a house to which the person had a key,
to search.
  We think the facts of the present case as found by the
district judge place it slightly nearer the cohabitation
pole. As a single, working parent of a young child, the
6                                              No. 12-1805

defendant needed considerable help and some of it
was given by his niece and aunt (particularly the for-
mer) in his home. He was fortunate in being able to
turn for help to two relatives who were also neighbors
of his. He was more likely to trust them than a nonrela-
tive. He gave them the run of the apartment to take care
of the child (to get clothes for the child, for example—one
of the things the niece told the officers she did in the
apartment). The apartment was very small—it’s not as if
there had been a children’s wing to which the relatives
could have confined themselves when attending the
child. Sometimes there were other children in the apart-
ment, invited to play with the defendant’s child—the
relatives were authorized to admit them.
  The defendant’s lawyer describes the niece as a
mere babysitter. She was more than that. Although
neither she nor her mother lived in the defendant’s apart-
ment, when they were there they were in loco parentis.
Had the child’s mother lived there, her authority to
allow the search could not have been questioned. The
defendant’s aunt and niece together were not quite a
surrogate mother, but neither were they just neighbors
with a key. That the defendant kept a large quantity of
cocaine in a closet of this small apartment suggests that
he reposed an unusual degree of trust in his aunt
and niece and thus had delegated to them a large
measure of authority over the apartment when he was
not there.
  The closet, moreover, contained more than packages of
cocaine—contained children’s clothing, obviously the
No. 12-1805                                              7

clothing of the defendant’s child. This fact supports an
inference that the critical part of the apartment that
was searched was within the scope of the niece’s au-
thority. Keeping cocaine in the closet was as we said
indicative of the defendant’s trust, in his aunt and niece.
That the child’s clothes were also kept in the closet
further confirms that trust, since part of the niece’s as-
signment was to see that the child “got clean clothes
and . . . [got him] ready for school.”
  The facts of this case are thus unlike those held not to
create authority to consent to search in the Rodriguez
case (the Court remanded for a determination
of whether other facts might have created apparent
authority—that is, whether the police had had a
reasonable although erroneous belief that the person
who consented to the search had the occupant’s
authority to consent): “The evidence showed that
although Fischer, with her two small children, had lived
with Rodriguez beginning in December 1984, she had
moved out on July 1, 1985, almost a month before
the search at issue here, and had gone to live with
her mother. She took her and her children’s clothing
with her, though leaving behind some furniture and
household effects. During the period after July 1 she
sometimes spent the night at Rodriguez’s apartment,
but never invited her friends there, and never went
there herself when he was not home. Her name was not
on the lease nor did she contribute to the rent. She had
a key to the apartment, which she said at trial she
had taken without Rodriguez’s knowledge (though she
testified at the preliminary hearing that Rodriguez
8                                               No. 12-1805

had given her the key).” 497 U.S. at 181. Unlike the niece
in this case, who retained continuing authority over the
apartment, Fischer had become simply an occasional
visitor, and was merely that when she consented to the
search. See also United States v. Brown, 328 F.3d 352, 356
(7th Cir. 2003), where the person authorizing the
search “informed [the police officer] that his only con-
nection with the apartment was that he leased it
for [defendant] as a favor; [he] stated that he did not
have keys to the apartment, had not paid any money
for the apartment, and did not keep any belongings
there.” This case is much different, and on very similar
facts in United States v. Garcia-Jaimes, 484 F.3d 1311, 1323-
24 (11th Cir. 2007), abrogated in part on other grounds
by Regalado Cuellar v. United States, 553 U.S. 550, 556
(2008), valid consent was found. The facts of the
present case, as found by the district judge, establish at
the least that the police had a reasonable belief that
the niece was authorized to consent to the search; no
more is needed to uphold the validity of the search.
                                                  A FFIRMED.




                           8-27-12
