                                                                     [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT          FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                            No. 11-14200                APRIL 23, 2012
                                        Non-Argument Calendar            JOHN LEY
                                      ________________________            CLERK


                               D.C. Docket No. 3:11-cr-00007-MCR-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                               versus

FLOYD SCOTT MOONEY,

llllllllllllllllllllllllllllllllllllllll                             Defendant-Appellant.

                                      ________________________

                            Appeal from the United States District Court
                                for the Northern District of Florida
                                  ________________________

                                           (April 23, 2012)

Before BARKETT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

         Floyd Scott Mooney appeals his conviction for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, he argues that

the district court erroneously denied his motion to suppress. For the reasons set

forth below, we affirm Mooney’s conviction.

                                         I.

      On October 24, 2010, Mooney and his then-wife, Jessica Coleman, had an

argument. Coleman took their son to her father’s house. Mooney also went to

Coleman’s father’s house, and he asked Coleman to return to their marital home

that night. She refused, and Mooney left with their son. Coleman called the police

because she feared for her son’s safety. Officers Jason Land and George Kichler

responded to the call. While speaking with Coleman, the officers learned that

Mooney had firearms hidden in the bathroom of his house. Coleman agreed to

show the officers the firearms, and the officers, Coleman, and Coleman’s father

proceeded to Mooney’s house. Once at Mooney’s house, Coleman showed Land

and Kichler the firearms.

      A federal grand jury later indicted Mooney for possession of firearms and

ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Mooney

filed a motion to suppress evidence, arguing that no exception to the warrant

requirement justified the warrantless search of his house. He argued that Coleman

did not have the authority to consent to the search. The government responded that


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Coleman had common authority over the house, which meant that her consent to

the search was valid.

      At the suppression hearing, Land testified that Coleman and Mooney were

married and that Coleman had stated that she lived at Mooney’s house. Coleman

had not wanted to return home with Mooney the night of the search because he

appeared angry and intoxicated. Coleman consented to the search, and Mooney

did not refuse to allow the officers to conduct the search.

      Kichler testified that he believed that Coleman and Mooney were married

and that Coleman lived in Mooney’s house. Coleman had referred to Mooney’s

house as her home. She had not told the officers that she was staying at her

father’s house. Rather, she told them that, due to the argument she and Mooney

had, she did not want to return to Mooney’s house. Kichler further testified that

the officers did not speak with Mooney about searching the bathroom, nor did they

seek his consent to the search. Mooney did not say anything to Kichler indicating

that the officers could not search the bathroom.

      Coleman testified that, the night of the search, she was planning on staying

at her father’s house rather than returning to the marital home because of the

argument she had had with Mooney. She had originally moved out of Mooney’s

house, which was the marital home, in August 2010, but she moved back into the


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house in September 2010. She had been staying in the house since September, and

she had stayed there the night before the search on October 24, 2010. Mooney’s

guns were in his bathroom, to which Coleman had access. Her clothes were in the

house, and she had personal items in the bathroom, such as her toothbrush and hair

products. Her hair products were in the same closet in the bathroom where the

guns were hidden. At some point after the search, Mooney tried to get Coleman

not to testify against him. He told her to say that two of the firearms were hers,

that she did not live at the house, and that she did not have the right to show the

officers the guns.

      Mooney testified that he had expressly refused to consent to the search of his

house. According to Mooney, the officers responded by stating that Coleman had

given them permission to conduct the search. Coleman had moved out of the

house by the time of the search. She had spent the night a few times since moving

out, and she brought a duffle bag of her possessions to the house. She had not

spent the night before the search at his house, but she had gone over to the house

early in the morning. Mooney also testified that Coleman had two guns in the

house.

      The government argued that Coleman had authority to consent to the search

of the house and that the officers had not solicited Mooney’s consent. Nor had


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Mooney objected to the search. With the valid consent to search from one spouse,

the officers did not have to seek the consent of the other spouse. Mooney argued

in response that, even if Coleman had the authority to consent to the search, her

consent did not override his express objection to the search.

      The district court denied the motion to suppress. The court credited

Coleman’s and the officers’ testimony over Mooney’s testimony. The testimony at

the hearing showed that Coleman and Mooney were married at the time of the

search, Coleman moved back into the marital home in September 2010, she stayed

at the house the night before the search, and she had at least some personal

belongings at the house. Based on those facts, the court found that Coleman had

common authority to consent to the search because she had access to and control

over the house. Mooney’s failure to restrict Coleman’s access to the house after

she left in August further supported the court’s conclusion. The court credited the

government’s witnesses, rather than Mooney, and found that Mooney did not

object to the search.

      A jury found Mooney guilty of possession of a firearm or ammunition by a

convicted felon. Mooney was sentenced to 60 months’ imprisonment.

                                         II.

      In reviewing a ruling on a motion to suppress, we “review the district court’s


                                          5
factual findings for clear error and its application of the law to those facts de

novo.” United States v. Tovar-Rico, 61 F.3d 1529, 1534 (11th Cir. 1995). “[A]ll

facts are construed in the light most favorable to the prevailing party below.” Id.

      The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend IV. Although officers generally may not search a

home without a warrant, they may conduct a search “with the voluntary consent of

an individual possessing authority.” Georgia v. Randolph, 547 U.S. 103, 109, 126

S.Ct. 1515, 1520, 164 L.Ed.2d 208 (2006). Officers may obtain consent “from a

third party who possessed common authority over or other sufficient relationship to

the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S.

164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). Whether the officers’ validly

relied upon third-party consent depends on whether the officers, “at the time of

entry, reasonably believed [that the third party] possessed authority over the

premises.” United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir. 2008).

Whether an individual possessed common authority is not a question of property

law, but rather depends “on mutual use of the property by persons generally having

joint access or control for most purposes.” Matlock, 415 U.S. at 171 n.7, 94 S.Ct.

at 993 n.7. The government bears the burden of establishing common authority.


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Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148

(1990).

      In United States v. Backus, 349 F.3d 1298 (11th Cir. 2003), we held that an

estranged wife had common authority to consent to a search of her husband’s

home. Id. at 1305. Due to her husband’s abuse, the wife left the home six months

before consenting to its search. Id. at 1301, 1304. We explained that there was a

difference between voluntarily abandoning a home and being forced to flee due to

abuse. Id. at 1304. Accordingly, we upheld the search and declined “to extend to

violently abusive husbands something akin to a rule of repose against the authority

of their wives to consent to a search of jointly owned property.” Id. at 1305.

      The district court did not err in denying Mooney’s motion to suppress. On

appeal, Mooney only argues that Coleman did not have authority to consent to the

search. The district court’s factual findings—that Coleman had moved back into

the marital home in September 2010, Coleman and Mooney were married at the

time of the search, at least some of Coleman’s personal property was in the house,

and Coleman stayed at the house the night before the search—were not clearly

erroneous, as they were supported by Coleman’s and the officers’ testimony at the

suppression hearing. Based on those facts showing that Coleman lived at the house

for the month preceding the search and that her personal belongings were at the


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house, Coleman had mutual use of and access to the house. Due to her mutual use

of and access to the house, Coleman had common authority to consent to the

search. See Matlock, 415 U.S. at 171 n.7, 94 S.Ct. at 993 n.7.

      On appeal, Mooney also makes arguments regarding: (1) the lack of

evidence of Coleman’s property interest in the house, (2) the significance of

Backus to the evidence of common authority in this case, and (3) the officers’

inquiry into Coleman’s authority to consent to the search. First, the argument

regarding a property interest is misplaced because the question of common

authority does not rest on property interests. See Matlock, 415 U.S. at 171 n.7, 94

S.Ct. at 993 n.7. Second, Mooney’s argument regarding Backus also fails. It is

true that, unlike the wife in Backus, Coleman had been living in the home for

approximately one month preceding the search. Despite the factual differences

distinguishing this case from Backus, as discussed above, we affirm the denial of

the motion to suppress because Coleman had common authority to consent to the

search. Finally, Mooney’s argument regarding the officers’ inquiry into Coleman’s

authority to consent to the search also fails. Based on Coleman’s statements to the

officers that she and Mooney were married and that she lived at the house, they

reasonably believed that she had common authority to consent to the search. See

Mercer, 541 F.3d at 1074. Based on the above, the district court correctly denied


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the motion to suppress.

      For the foregoing reasons, we affirm Mooney’s conviction.

      AFFIRMED.




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