                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 08 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 14-10330

              Plaintiff - Appellee,              D.C. No. 2:13-cr-00087-LKK-1

 v.
                                                 MEMORANDUM*
JOSE ROBERTO ORTEGA-
GUTIERREZ, a.k.a. Jose Roberto
Gutierrez, a.k.a. Roberto J. Ortega, a.k.a.
Salvador Ortega, a.k.a. Roberto Ortega-
Gutierrez,

              Defendant - Appellant.


                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                              Submitted July 6, 2015**
                              San Francisco, California

Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Jose Roberto Ortega-Gutierrez appeals the district court’s denial of his

motion to suppress. Before the district court, Ortega-Gutierrez did not contest the

facts presented by the government, including the government’s assertion that

Ortega-Gutierrez’s parents voluntarily consented to a search of his bedroom. He

argued only, as a matter of law, that his parents did not have authority to consent to

the search of their entire home. The district court rejected this argument. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and, on this record, we affirm.

      Ortega-Gutierrez’s parents—with whom he lived—had apparent authority to

consent to the search of his bedroom. Agent Javier Carbajal, the ICE agent who

conducted the search, believed that Ascencion and Soccoro Ortega had access to

and control over Ortega-Gutierrez’s bedroom, a fact that—if true—would have

given them actual authority to consent to the search. See United States v. Dearing,

9 F.3d 1428, 1429–30 (9th Cir. 1993) (describing the test to determine apparent

authority), disapproved of on other grounds by United States v. Kim, 105 F.3d

1579 (9th Cir. 1997).

      It was objectively reasonable for Agent Carbajal to believe this fact because

he knew Ascencion and Soccoro owned the house. And although the first door

through which Ascencion tried to access the bedroom was locked—a fact that

ordinarily militates against a finding of apparent authority—Ascencion then led


                                          2
Agent Carbajal to an unlocked door through which the agent ultimately entered the

room. That Ascencion could enter the room through an unlocked door validates

the agent’s belief that he had “joint access or control” over it. United States v.

Matlock, 415 U.S. 164, 171 n.7 (1974); see also United States v. Enslin, 327 F.3d

788, 794 (9th Cir. 2003) (finding actual authority when a resident permitted the

marshals to search her apartment, and the back bedroom the marshals searched was

unlocked). Finally, Ascencion is Ortega-Gutierrez’s father, a fact that reinforces

Agent Carbajal’s belief that Ascencion controlled Ortega-Gutierrez’s room. See

Georgia v. Randolph, 547 U.S. 103, 114 (2006) (noting that a parent usually has

authority to consent to the search of his or her child’s bedroom).

      Because the facts available to Agent Carbajal at the time of the search would

“warrant a man of reasonable caution in the belief that the consenting party had

authority over the premises,” the search was valid. Illinois v. Rodriguez, 497 U.S.

177, 188 (1990) (citation omitted) (internal quotation marks omitted).

      AFFIRMED.




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