In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3322

United States of America,

Plaintiff-Appellee,

v.

Zoila Melgar,

Defendant-Appellant.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99-CR-13-C--Barbara B. Crabb, Judge.


Argued February 23, 2000--Decided September 19, 2000




  Before Flaum, Chief Judge, Kanne and Diane P. Wood,
Circuit Judges.


  Diane P. Wood, Circuit Judge. Zoila Melgar
pleaded guilty to one count of conspiracy to
commit bank fraud and interstate transportation
of counterfeit securities, conditioned on her
right to challenge and now to appeal from the
district court’s denial of her motion to suppress
evidence found inside a purse. The district court
relied on the "inevitable discovery" doctrine to
support its ruling, but we conclude that there is
a more straightforward way to reach the same
result. The purse was discovered by the police
during the course of a search to which the renter
of the hotel room had validly consented, and
under the circumstances the police were permitted
to investigate the contents of the purse as well.
We therefore affirm the judgment of the district
court, but on different grounds.

I

  On January 29, 1999, officers of the Madison,
Wisconsin, police department arrested four men on
charges of passing counterfeit dividend checks
supposedly issued by the Johnson Controls
Corporation. A search of their car turned up a
receipt showing that a Rita Velasquez had rented
Room 136 at a local Holiday Inn. Officers Louis
Geblar and Bruce Frey, following up on that lead,
drove to the hotel and went to the room in
question. Joel Mejia responded to their knock on
the door. He gave them permission to enter the
room, where they found three other people:
Celenia Mejia, Oscar Barrientos, and Jose
Vasquez. Only Joel Mejia was fluent in English,
and so the officers first asked him about the
counterfeiting scheme, and then had him serve as
a translator for the others. Geblar asked
everyone present for consent to search their
wallets or purses, and everyone agreed.


  After this exchange, three more women arrived
at the room: Rita Velasquez herself, Marcella
Hernandez, and the defendant Zoila Melgar. Geblar
asked Velasquez to step into the hall, where he
searched her purse and jacket, found a
counterfeit check, and arrested her. (Velasquez
told him that the check was a joke, but he
obviously found that story implausible.) On a
more serious note, Velasquez also told Geblar
that she saw Melgar give Hernandez a large number
of checks, and that Hernandez had placed these
checks in her purse.


  Geblar returned to the room and next summoned
Hernandez into the hall with him. There he
searched her purse, but he found nothing
incriminating in it. When he asked Velasquez to
offer an explanation, she indicated that the
checks were in a second purse Hernandez owned (a
black one), that was still in the room. Geblar
held up that purse and asked everyone whose purse
it was, but no one claimed ownership. He then
opened it and found an envelope with Hernandez’s
name on it that contained fake Johnson Control
checks. At that point, he arrested Hernandez.



  Once again, Geblar then asked Velasquez to
accompany him to the hall. This time he asked for
her permission to search the room. His request
was a general one; he did not specifically ask
her if the police could search particular closed
containers within the room, nor did he ask her
which of the numerous people then in the room
were actually staying there. Velasquez gave her
permission, which she signified both orally and
by signing a scrap of paper (since lost) on which
Geblar had scribbled out a consent form. At that
point, the officers arrested and handcuffed
everyone who had not already been arrested
(including Melgar) and sent them to the station
house.
  After they all departed, the officers began
their search of the room. Between the mattress
and box springs of one of the beds, Frey found a
floral purse that had no personalized markings on
the outside. He opened it, and found inside an
identification form that bore Melgar’s photograph
and the name "Diana Lopez." He also found a
counterfeit Johnson Controls check payable to
Diana Lopez. It is this evidence that
incriminated Melgar, and it is the district
court’s refusal to suppress this evidence on the
ground that it was obtained in violation of the
Fourth Amendment that Melgar challenges in this
appeal.

II


  Melgar reasons that the evidence of the
contents of the purse should have been suppressed
because the police never obtained permission from
anyone to search that particular closed container
in Room 136. The police should have understood
that the purse did not necessarily belong to
Velasquez because there were several women in the
room. Furthermore, she continues, the amount of
luggage and other belongings scattered around
made it obvious that Velasquez was not the sole
occupant. Melgar concedes that Velasquez had at
least apparent authority to authorize the search
of the room itself, but she argues that this
authority did not (either actually or apparently)
extend to closed containers within the room. She
also suggests that because the police had already
matched up the other purses they had seen with
the other women, they should have assumed that
the purse underneath the mattress was Melgar’s.


  The district court saw enough possible merit in
Melgar’s arguments that it chose not to rely on
consent in its ruling on the motion. Instead, it
turned to an argument that had not been raised
before the magistrate judge, upon whose report
and recommendation the district court was
relying. That argument was "inevitable
discovery": had the police refrained from
searching the floral purse then and there, out of
concern for the lack of a warrant justifying such
a search, they would simply have secured the
room, obtained a warrant, and then opened the
purse and obtained exactly the same damning
materials they did. On appeal, the government
raises another argument that it failed to make
before the magistrate judge, namely, that the
purse might have been subject to a valid search
incident to an arrest.
  Our cases, however, indicate that arguments not
made before a magistrate judge are normally
waived. See, e.g., Divane v. Krull Electric Co.,
194 F.3d 845, 849 (7th Cir. 1999). It is also
true that we have said that waiver is a flexible
doctrine, see Old Ben Coal Co. v. Director,
Office of Workers’ Compensation Programs, 62 F.3d
1003, 1007 (7th Cir. 1995), but there are good
reasons for the rule that district courts should
not consider arguments not raised initially
before the magistrate judge, even though their
review in cases governed by 28 U.S.C. sec.
636(b)(1) is de novo. Failure to raise arguments
will often mean that facts relevant to their
resolution will not have been developed; one of
the parties may be prejudiced by the untimely
introduction of an argument (which Melgar argues
is the case here). Additionally, a willingness to
consider new arguments at the district court
level would undercut the rule that the findings
in a magistrate judge’s report and recommendation
are taken as established unless the party files
objections to them. We need not decide here,
however, whether there might be exceptions to
this rule in unusual cases, or if this was such
a case. The ground actually presented to the
magistrate judge was consent. The government did
not abandon that argument either before the
district court or this court, and it is
sufficient to support the district court’s
ruling, as we now explain.


  The probable cause and warrant requirements of
the Fourth Amendment are not applicable where a
party consents to a search, Schneckloth v.
Bustamonte, 412 U.S. 218 (1973), where a third
party with common control over the searched
premises consents, Florida v. Jimeno, 500 U.S.
248 (1991), or where an individual with apparent
authority to consent does so, Illinois v.
Rodriguez, 497 U.S. 177 (1990). Here, there is no
dispute that Velasquez was the person who had
rented the room, that she gave her consent for a
search, and that she had authority (or at least
apparent authority) to do so. Generally, consent
to search a space includes consent to search
containers within that space where a reasonable
officer would construe the consent to extend to
the container. Jimeno, 500 U.S. at 251; see also
Wyoming v. Houghton, 526 U.S. 295, 302 (1999)
(applying this rule to searches of a container
within an automobile, if the container is of a
type that might conceal the object of the
search); United States v. Ross, 456 U.S. 798
(1982) (same).


  Melgar responds that there is an exception for
closed containers that the police have no reason
to believe are under the control of the person
who agreed to the search. She relies principally
on our decision in United States v. Rodriguez,
888 F.2d 519 (7th Cir. 1989), in which we held
that a spouse’s consent to search a room in a
union hall where her husband was sleeping did not
extend to her husband’s briefcase, which had the
word "Mike" on the outside. Id. at 524. The
opinion reasoned that consent to search premises
cannot always extend to every closed container
within them, because such a rule would imply that
consent to search the United Airlines baggage
facility at O’Hare Airport would justify
searching everyone’s luggage--a proposition we
were not willing to endorse. On the other hand,
the government responds, in United States v.
Saadeh, 61 F.3d 510 (7th Cir. 1995), this court
upheld a workplace search in which the police
made it clear they were looking for drugs, the
employer consented to the search of an entire
facility, and the police found drugs in a closed
toolbox and desk. Id. at 516-19. Saadeh,
according to the government, controls this case
and demonstrates that the police were entitled to
search the contents of the floral purse.


  In our view, neither Rodriguez nor Saadeh is
directly on point, but taken together they can
guide us to the correct result. In a sense, the
real question for closed container searches is
which way the risk of uncertainty should run. Is
such a search permissible only if the police have
positive knowledge that the closed container is
also under the authority of the person who
originally consented to the search (Melgar’s
view), or is it permissible if the police do not
have reliable information that the container is
not under the authorizer’s control. We are not
aware of any case that has taken the strict view
represented by the first of these possibilities.
With respect to the search of the briefcase in
Rodriguez, the police had positive information
that it did not belong to his spouse (the name
label on the outside). The same is true for the
suitcases in a baggage facility, which must have
on the outside an identification tag with the
passenger’s name and address. No reasonable
police officer, having obtained the airline’s
permission to search the facility, could think
that the airline is also authorized to speak for
each individual passenger whose luggage is stored
there. See also United States v. Fultz, 146 F.3d
1102, 1106 (9th Cir. 1998) (property owner made
clear that the boxes were not hers); United
States v. Welch, 4 F.3d 761, 765 (9th Cir. 1993)
(purse clearly did not belong to driver).


 Here, the police had no reason to know that the
floral purse they found under the mattress did
not belong to Velasquez. They knew that the room
had been rented to Velasquez; they knew that at
least one of the women, Hernandez, had two
purses; and there were no exterior markings on
the purse that should have alerted them to the
fact that it belonged to another person. Coupling
those facts with the fact that Velasquez knew
that they were searching for evidence of
counterfeit dividend checks, which could easily
fit inside the purse, we conclude that the scope
of Velasquez’s consent encompassed their right to
look into this container.


  A contrary rule would impose an impossible
burden on the police. It would mean that they
could never search closed containers within a
dwelling (including hotel rooms) without asking
the person whose consent is being given ex ante
about every item they might encounter. We note
that there is no possibility of such a rule for
automobile searches, because the Supreme Court
has already authorized this type of container
search in that context. See Ross, supra;
Houghton, supra. Our conclusion here rests in
part on the discussion in Houghton that indicates
that the container rule rests on general
principles of Fourth Amendment law that do not
depend on the special attributes of automobile
searches. See 526 U.S. at 302.

III


  Because the police had no reason to believe
that Velasquez could not consent to the search of
the floral purse, and because (as Melgar
conceded) Velasquez gave her consent to a
complete search of Room 136, we hold that the
search of the purse did not violate the Fourth
Amendment and that the district court correctly
declined to grant Melgar’s motion to suppress.
The judgment of the district court is Affirmed.
