     11-3809
     United States v. Marandola

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall
 3       Courthouse, 40 Foley Square, in the City of New York, on the
 4       10th day of January, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROSEMARY S. POOLER,
 9                DENNY CHIN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                                     11-3809
17
18       CHRISTOPHER MARANDOLA,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        JEREMY D. SCHWARTZ, Law Office
23                                             of Thomas J. Eoannou, Esq.,
24                                             Buffalo, New York.
25
26       FOR APPELLEE:                         MICHAEL DIGIACOMO, Assistant
27                                             United States Attorney, for
28                                             Williams J. Hochul, United

                                                  1
 1                              States Attorney for the Western
 2                              District of New York, Buffalo,
 3                              New York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Western District of New York (Arcara, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Christopher Marandola appeals from the judgment of the
13   United States District Court for the Western District of New
14   York (Arcara, J.) convicting him of violating 18 U.S.C. §
15   2252A(a)(5)(B). He appeals based on the district court’s
16   denial of his motion to suppress evidence seized during a
17   search of his property in February 2008. We assume the
18   parties’ familiarity with the underlying facts, the
19   procedural history, and the issues presented for review.
20
21        On appeal from a suppression ruling, we review the
22   district court’s factual findings for clear error and its
23   conclusions of law de novo. United States v. Rodriguez, 356
24   F.3d 254, 257 (2d Cir. 2004); United States v. Awadallah,
25   349 F.3d 42, 71 (2d Cir. 2003).
26
27        Marandola challenges his wife’s authority to grant
28   third-party consent to search an Apple computer located
29   within the couple’s home. Lisa Marandola contacted the
30   police and provided such consent after discovering child
31   pornography on the computer on February 25, 2008. Marandola
32   points out that he was the primary user of the computer; his
33   wife could not recall using it in the eight months prior.
34   Marandola also emphasizes that he installed password
35   protection on the computer, which, he claims, evinces his
36   intent to exclude others from using it. Nevertheless,
37   following a hearing, Magistrate Judge Kenneth Schroeder
38   recommended denying the motion on the grounds that Lisa
39   Marandola had both actual and apparent authority to consent
40   to the search. Judge Arcara adopted this recommendation.
41
42        We agree. A third party has actual authority to
43   provide consent to search if “first, the third party had
44   access to the area searched, and second, either: (a) common
45   authority over the area; or (b) a substantial interest in
46   the area; or (c) permission to gain access.” United States
47   v. Davis, 967 F.2d 84, 87 (2d Cir. 1992). Marandola argues

                                  2
 1   that the relevant “area” is the Apple computer, rather than
 2   the family living room in which the computer sat. While
 3   Lisa Marandola admitted to using the Apple computer
 4   sparingly, she still had access to it, as did her daughter.
 5   The computer was located in a common area and was purchased
 6   using joint funds. Mrs. Marandola paid for internet out of
 7   her own personal account. Moreover, Mrs. Marandola
 8   testified that her husband never told her that she was
 9   prohibited from using the computer, and that password
10   protection was not enabled on the day in question. These
11   facts provide compelling evidence that Lisa Marandola had
12   common authority over the area, a substantial interest in
13   the area, and even tacit permission to gain access to the
14   area.
15
16        In any event, it was certainly reasonable for the
17   detectives to believe that she possessed such authority.
18   See Georgia v. Randolph, 547 U.S. 103, 109 (2006) (“[T]he
19   exception for consent extends even to entries and searches
20   with the permission of a co-occupant whom the police
21   reasonably, but erroneously, believe to possess shared
22   authority as an occupant[.]”).
23
24        For the foregoing reasons, and finding no merit in
25   Marandola’s other arguments, we hereby AFFIRM the judgment
26   of the district court.
27
28                              FOR THE COURT:
29                              CATHERINE O’HAGAN WOLFE, CLERK
30




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