                              In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 12-3763

UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,

                                v.


TIMOTHY L. RICHARDS,
                                             Defendant-Appellant.

        Appeal from the United States District Court for the
          Northern District of Indiana, Fort Wayne Division.
      No. 1:10-cr-00006-TLS-1 — Theresa L. Springmann, Judge.


   ARGUED OCTOBER 31, 2013 — DECIDED JANUARY 31, 2014


   Before BAUER, MANION, and ROVNER, Circuit Judges.
    BAUER, Circuit Judge. Timothy L. Richards (“Richards”) was
charged in a four-count indictment with (1) possession of a
controlled substance with intent to distribute, (2) maintaining
a residence or place for the purpose of using and distributing
controlled substances, (3) possession of a firearm in further-
ance of a drug trafficking crime, and (4) being a felon in
possession of a firearm. Prior to trial, the district court denied
Richards’ first and second motions to suppress evidence that
2                                                         No. 12-3763

the police seized without a search warrant at the time of his
arrest. After trial, a jury convicted Richards of all four charges.
    Richards now appeals the district court’s decisions to allow
the government to introduce the seized evidence and raises
two issues. First, Richards argues that the district court erred
when it found that Edward Rawls (“Rawls”) had the mental
capacity to consent to the warrantless search of his home.
Second, Richards argues that the district court erred when it
found that (1) Rawls had apparent authority to consent, and
even if Rawls did not have the requisite authority to consent,
(2) exigent circumstances validated the warrantless search of
a bedroom Richards used in Rawls’ house. For the following
reasons, we find no error.
                        I. BACKGROUND
    On December 8, 2009, Fort Wayne Police Department
Officers Phillip Ealing and Dale Llewellyn attempted to
execute an arrest warrant for Paul Wilson (“Wilson”). While in
uniform and on patrol, the officers talked to several individu-
als who said they had seen Wilson frequently enter and leave
a particular residence on the corner of Jefferson Boulevard and
Hanna Street. When the officers arrived at the described house,
Officer Llewellyn knocked on the door. An individual named
“Diaz” opened the door and invited the officers inside to speak
with the homeowner, Rawls.1 The officers did not have a




1
  Rawls is the uncle of Richards. At the time of the incident, Rawls was
eighty-six years old; an advanced age, but not one that requires a mental
test to be considered reasonably reliable.
No. 12-3763                                                     3

search warrant for the residence or an arrest warrant for
anyone other than Wilson.
    The officers went inside to talk with Rawls and noticed that
there were several people in the house. The officers asked
Rawls if Wilson was present. Rawls told the officers that he
was not, but gave them permission to look around the house
to confirm. The officers encountered several people as they
walked through the house, but Wilson was not one of them.
    When they entered the kitchen, the officers smelled the
strong odor of burnt marijuana. Richards and another man sat
at the kitchen table. Officer Ealing testified that he saw what he
thought was a rock of crack cocaine on a plate next to a
microwave oven. Officer Llewellyn testified that he saw a
marijuana cigarette, a small amount of marijuana, drug
paraphernalia, and plastic baggies on the kitchen table. All of
these items were in plain view.
    Officer Llewellyn told Richards to stand up so that he could
conduct a protective pat down for weapons, but Richards
refused. The verbal confrontation escalated into a physical
struggle between the two; at one point, Officer Ealing used
pepper spray to subdue Richards. The officers then handcuffed
Richards and lifted him to his feet. When they did so, a
handgun fell from his waistband onto the floor. Officer Ealing
also discovered a knife sticking out of Richards’ back pocket.
    After the altercation with Richards, the officers called
for backup and conducted a protective sweep of the house.
Officer Llewellyn entered the west bedroom that Richards
stayed in when he visited his uncle. The door frame had a hasp
and padlock, but the door was unlocked at the time Officer
4                                                    No. 12-3763

Llewellyn entered the room. Once inside, he saw an open
briefcase on the bed containing what he believed to be cocaine.
    After the officers finished the sweep, backup arrived.
Officer Llewellyn and Detective Shane Pulver asked Rawls if
he would give written consent to search his home. Before
giving him the consent form, Detective Pulver read Rawls his
Miranda rights. Rawls was never handcuffed or detained.
Officer Llewellyn then gave Rawls time to read the consent
form on his own and read portions of the form aloud to Rawls
as well. Officer Llewellyn informed Rawls of his right to refuse
consent and his right to seek legal counsel. Rawls told the
officers that he understood his rights and willingly signed the
consent form on the officers’ first request to do so.
   Throughout their interaction with Rawls, the officers did
not notice anything unusual about his behavior. Officer Ealing
was a member of the Fort Wayne Crisis Intervention Team and
had received specialized training on how to identify people
who suffer from mental illnesses. Neither officer observed
signs that Rawls was experiencing any kind of dementia or
confusion. Additionally, neither officer noticed any slurred
speech, detected the smell of alcohol on Rawls’ breath or
discerned an indication that Rawls was intoxicated.
    Richards was arrested and charged with (1) possession of
a controlled substance with intent to distribute, in violation of
21 U.S.C. § 841(a)(1); (2) maintaining a residence or place for
the purpose of using and distributing controlled substances, in
violation of 21 U.S.C. § 856(a)(1); (3) possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c); and (4) possession of a firearm having previously been
No. 12-3763                                                   5

convicted of a felony offense, in violation of 18 U.S.C.
§ 922(g)(1).
    In July 2010, Richards filed a motion to suppress evidence
seized by police during his warrantless arrest. After an
evidentiary hearing, the district court found that Rawls
voluntarily provided valid consent for the police to search his
residence and denied Richards’ motion. In February 2011,
Richards filed a second motion to suppress, arguing that Rawls
lacked authority to consent to a search of the bedroom that
Richards used when he stayed with Rawls. After an eviden-
tiary hearing, the district court denied Richards’ second motion
to suppress on two separate grounds. First, the court found
that Rawls had apparent authority to consent to the search of
the bedroom. The court also found that exigent circumstances
justified the officers’ protective sweep of the bedroom. After a
jury convicted Richards of all four counts, the court sentenced
him to a total term of 180 months in prison followed by six
years of supervised release.
                      II. DISCUSSION
    When reviewing a district court’s denial of a motion to
suppress, we review legal conclusions de novo. United States v.
Huddleston, 593 F.3d 596, 600 (7th Cir. 2010). We review the
district court’s factual findings for clear error and will only
reverse if the findings leave this Court with a “definite and
firm conviction that a mistake has been made.” United States v.
Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994). Mixed questions of
law and fact are reviewed de novo. United States v. Gevedon, 214
F.3d 807, 810 (7th Cir. 2000).
6                                                    No. 12-3763

    A. Richards’ First Motion to Suppress
    Richards argues that the district court erroneously found
that Rawls had the requisite mental capacity to freely and
voluntarily consent to the officers’ search of his home. Whether
an individual’s consent to a search was voluntary is a factual
determination, which we review for clear error. United States
v. Johnson, 495 F.3d 536, 541 (7th Cir. 2007). Relying on testi-
mony from the suppression hearing, Richards argues that
Rawls was incapable of consenting to the officers’ search
because his advanced age of eighty-six years left him a
confused old man who was out of touch with reality. We
disagree.
    Our analysis begins with the presumption that warrantless
searches or arrests within a home are unreasonable and violate
the Fourth Amendment. Payton v. New York, 445 U.S. 573, 576
(1980); Johnson v. United States, 333 U.S. 10, 14 (1948). However,
warrantless searches or arrests are constitutionally permissible
when a “narrowly proscribed” exception exists. United States
v. Bell, 500 F.3d 609, 612 (7th Cir. 2007). One such exception
exists when “an authorized individual voluntarily consents to
the search.” United States v. Duran, 957 F.2d 499, 501 (7th Cir.
1992). The government must prove “by a preponderance of
evidence that consent was freely and voluntarily given.” United
States v. Grap, 403 F.3d 439, 445 (7th Cir. 2005).
   It is uncontested that Rawls, as the homeowner, was
authorized to consent to the officers’ search of his house. Rawls
unequivocally consented; when the police asked him if they
could search the house, he said “search.” The issue remains,
however, whether Rawls had the mental faculties about him on
No. 12-3763                                                      7

December 8, 2009, to freely and voluntarily consent to the
search.
    Whether a third-party’s consent is voluntarily given to the
police is a question of fact that depends on the totality of
circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227
(1973). To determine whether consent was provided volun-
tarily, we consider (1) Rawls’ age, education, and intelligence;
(2) whether Rawls was informed of his constitutional rights;
(3) whether Rawls was in custody; (4) how long he was
detained; (5) whether Rawls consented immediately or after
police made several requests; and (6) whether the police used
physical coercion. United States v. Strache, 202 F.3d 980, 985
(7th Cir. 2000); Schneckloth, 412 U.S. at 226. We review these
factors in the light of “objective facts, as presented to a reason-
able inquirer, that would reasonably put him or her on notice
that a voluntary consent could not be given.” Grap, 403 F.3d
at 445. Our determination does not depend on a single control-
ling factor, but carefully considers “all of the surrounding
circumstances.” Schneckloth, 412 U.S. at 226.
    Richards attacks Rawls’ capacity to freely and voluntarily
consent based only on the first factor—age, education, and
intelligence—because he contends that Rawls was an “old man
out of touch with reality.” This argument is not persuasive.
   To guide our determination of whether Rawls voluntarily
consented to the search, we consider the information known to
the officers when they arrived at Rawls’ house on the day in
question. It was readily apparent to the officers that Rawls was
an older gentleman because he clearly had difficulty walking.
However, nothing occurred to put the officers on notice that
8                                                            No. 12-3763

Rawls lacked the intelligence or the capacity to voluntarily
consent to the search of his home. When Officers Ealing and
Llewellyn first talked to Rawls, Rawls confirmed that he
was the homeowner and invited the officers to search for
Wilson. Rawls was accompanied by two other men during
this conversation, and neither of them expressed any concerns
about Rawls’ mental condition. Officer Ealing testified that he
did not observe any signs of dementia during his interaction
with Rawls. Officer Llewellyn testified that he did not notice
any signs that Rawls suffered from mental problems either.
Rawls did not make any inappropriate comments or act in a
way that would lead the officers to believe he was confused,
delusional, or unable to consent. We find nothing that would
have put a reasonable officer on notice that Rawls’ mental state
was so impaired that he could not provide voluntary consent
to the impending warrantless search.
    After Richards’ arrest and the discovery of drugs, the
officers again conferred with Rawls and asked him to sign a
written consent form. Detective Pulver then read Rawls his
Miranda rights and discussed the consent form with him.
Rawls told Officer Llewellyn that he could read and write.2
Officer Llewellyn read portions of the consent form to Rawls
and informed him of his right to an attorney and his right to
refuse consent. Rawls then signed the consent form. Officer
Llewellyn and Detective Pulver testified that Rawls did not
seem confused or disoriented and was aware of the events that


2
  At the suppression hearing, it was discovered that Rawls was not literate,
however, Officer Llewellyn had no reason to doubt the veracity of Rawls’
statement at the time.
No. 12-3763                                                     9

were unfolding. The district court found the officers’ impres-
sions of Rawls “completely credible;” we find no error in the
district court’s finding.
    Richards relies solely on Rawls’ testimony at the August 18,
2010, suppression hearing to support his argument. Richards
contends that Rawls lacked the mental competence to consent
to a search because (1) his testimony included significant
factual mistakes about the events on December 8, 2009, and (2)
he contradicted himself repeatedly as he testified. To the
contrary, the district court found that Rawls’ testimony
“largely corroborated the version of events related by
Llewellyn, Ealing, and Pulver.” Although Rawls’ recollection
of the events that occurred over eight months prior was not
impeccable, we find that his testimony was not so garbled as
to call into question his mental faculties on the day in question.
    This case is similar to our decision in Grap, 403 F.3d at 445.
In Grap, we held that a third-party freely and voluntarily
consented to a detective’s warrantless search even though she
suffered from documented mental infirmities. Id. The detective
informed Mrs. Grap that he believed her son, the defendant,
was storing stolen property in her garage. Id. at 441. Before
searching the garage, the detective had Mrs. Grap sign a
written consent form. Id. The detective observed nothing
unusual about Mrs. Grap’s behavior that would lead him to
believe that Mrs. Grap lacked the capacity to consent to the
search of the garage. Id. Based on the detective’s testimony, we
found that Mrs. Grap’s consent was valid. Id. at 445. We noted
that a person’s mental capacity is only one factor in determin-
ing whether someone’s consent was voluntary, and that a
person is not precluded from consenting to a warrantless
10                                                  No. 12-3763

search simply because he or she suffers from a mental disease.
Id. Our review is aimed at “regulating police conduct,” and to
achieve that objective, the appropriate standard is what
objective facts were known to the inquiring officer at the time
consent was given. Id.
    In Richards’ case, there is no evidence that Rawls suffered
from a diagnosed mental disability or that officers had any
reason to believe that he could not consent to the search of his
home. Three officers testified about their interactions with
Rawls; each concluded that Rawls appeared to understand
his rights and be free of mental defects. Officer Ealing was
specially trained to recognize symptoms of mental illness, and
he testified that Rawls appeared to have “all his mental
faculties about him.” Without evidence of aberrant behavior
from Rawls on December 8, 2009, we conclude that the district
court’s finding that Rawls was capable of voluntarily consent-
ing to the officers’ search was not clearly erroneous.
    Richards also contends that Rawls could not voluntarily
consent to the search on December 8, 2009, because he was too
intoxicated. But the record lacks any evidence to support this
contention. Rawls admitted that he drinks beer or wine on
occasion, but never admitted drinking on the day in question.
Furthermore, Officers Ealing and Llewellyn detected no signs
that Rawls was intoxicated. Rawls’ sister, Kathryn, testified
that Rawls did not appear to be drunk when she arrived at the
scene later that day. The district court found that “the evidence
did not support Richards’ contention that his uncle might have
been so intoxicated on the day in question that he did not
understand what was happening.” We agree with the district
court’s conclusion.
No. 12-3763                                                 11

   Based on objective facts that were known to the officers on
December 8, 2009, they reasonably concluded that Rawls freely
and voluntarily consented to the search of his home. Thus, we
hold that the search of Rawls’ home falls within the consent
exception to the warrant requirement and affirm the district
court’s denial of Richards’ first motion to suppress.
   B. Richards’ Second Motion to Suppress
    Having recognized Rawls’ capacity to freely and volun-
tarily consent, our analysis turns to whether Rawls had the
authority to consent to a search of the west bedroom. Whether
Rawls had actual or apparent authority to consent to the search
is a mixed question of law and fact, which we review de novo.
Gevedon, 214 F.3d at 810. The government carries the burden of
proof by a preponderance of the evidence that the officers
reasonably believed that Rawls had sufficient authority over
the west bedroom to consent to its search. United States v.
Matlock, 415 U.S. 164, 177, n.14 (1974).
    A defendant assumes the risk that a co-occupant may
expose a common area of a house to a police search, as long as
the co-occupant possesses “common authority over or other
sufficient relationship to the premises or effects sought to be
inspected.” Matlock, 415 U.S. at 171. Common authority is not
based on a property interest, but is a social concept based on
whether the consenting person had joint access or control of
the area being searched. Id. Because common authority is
premised on mutual use, an ownership interest in the property
to be searched does not necessarily suffice as actual authority
on its own. United States v. Evans, 27 F.3d 1219, 1229–30 (7th
Cir. 1994). A houseguest has an expectation of privacy,
12                                                    No. 12-3763

Minnesota v. Olson, 495 U.S. 91, 99 (1990), and the possession of
a key is a sign of actual authority over a room, United States v.
Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989).
    It is undeniable that Rawls had a relationship to the west
bedroom as the homeowner, however, Richards had been
staying with Rawls approximately three times a week for eight
months prior to his arrest. Richards alone stayed in the west
bedroom, and he frequently locked the door with a padlock.
Rawls did not have a key and had no access to the room unless
Richards unlocked it. Richards had an expectation of privacy
in the west bedroom because he was Rawls’ houseguest and he
alone had access to the room if it was locked. Therefore, we
conclude that Rawls lacked actual authority to consent to a
search of the west bedroom.
    Even without actual authority, however, a warrantless
search may still be permissible if consent is obtained from a
third-party with apparent authority. Illinois v. Rodriguez, 497
U.S. 177, 188–89 (1990); United States v. Rosario, 962 F.2d 733,
737 (7th Cir. 1992). When determining whether an individual
has apparent authority to consent, the court employs an
objective standard; officers may conduct a search without a
warrant if they “reasonably (though erroneously) believe” that
the person consenting had authority over the premises.
Rodriguez, 497 U.S. at 186. The touchstone of the inquiry is
whether the officer reasonably believed that the person had
authority to consent based on the facts known to him at the
time. Rodriguez, 497 U.S. at 184; United States v. Groves, 470 F.3d
311, 319 (2006).
No. 12-3763                                                      13

    Rawls told Officers Ealing and Llewellyn they could look
around his house to search for Wilson. Rawls did not tell the
officers to avoid the west bedroom or restrict their search in
any way. Rawls never informed the officers that he lived with
anyone else. The padlock on the door to the west bedroom was
unlocked at the time the officers searched the home. The
officers were unaware Rawls did not have a key to the padlock.
Thus, the officers’ belief that Rawls had access to, and likewise,
the authority over all of the rooms in his house was reasonable.
It is “unjustifiably impractical to require the police to take
affirmative steps to confirm the actual authority of a consent-
ing individual whose authority is apparent. Georgia v. Randolph,
547 U.S. 103, 122 (2006) (citing Illinois v. Rodriguez, 497 U.S. 177
(1990)).
    Richards contends that under Randolph, the officers’ un-
reasonably believed Rawls had authority over the west
bedroom. He argues that the presence of a padlock on the door
to the west bedroom placed a duty on the officers to eliminate
the possibility of an atypical living arrangement. Richards
suggests that the officers should have asked Rawls why there
was a padlock on the door before entering. This argument is
misplaced.
    There is nothing in this case that should have alerted the
police to an atypical arrangement. Richards did not object to
the officers’ entry of the west bedroom. Rawls did not seek
anyone’s approval before letting the officers search the house.
Rawls did not tell the officers they could not go in the west
bedroom. None of the other occupants in Rawls’ house told the
officers that they were not permitted to enter the west bed-
room. There were no signs posted that the west bedroom was
14                                                   No. 12-3763

private or off limits. The door was unlocked at the time of the
search. Richards never indicated that the padlock was his.
Based on the facts known to the officers at the time, it was
reasonable for them to believe that it was Rawls that placed the
padlock on the door, not Richards. Once Rawls consented to a
warrantless search, the officers were not required to “take
affirmative steps to find a potentially objecting co-tenant before
acting on the permission they already received.” Id. at 122.
    We hold that Rawls’ apparent authority to consent to the
search of his house was sufficient to permit the officers’
warrantless search of the west bedroom, so we need not reach
the issue of whether exigent circumstances justified the
officers’ search. We find no error in the district court’s denial
of Richards’ second motion to suppress.
                     III. CONCLUSION
    The district court properly denied Richards’ first motion to
suppress evidence because Rawls validly consented to the
officers’ warrantless search of his house. The court properly
denied Richards’ second motion to suppress because Rawls
had apparent authority to consent to a search of his entire
home, including the west bedroom. Therefore, the district
court’s denials of Richards’ motions to suppress
are AFFIRMED.
