                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-4164
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                              v.

NICHOLAS P. DIMODICA,
                                        Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
              for the Western District of Wisconsin.
         No. 05 CR 64—Barbara B. Crabb, Chief Judge.
                        ____________
 ARGUED OCTOBER 17, 2006—DECIDED NOVEMBER 16, 2006
                    ____________

 Before FLAUM, Chief Judge,               and    BAUER    and
EASTERBROOK, Circuit Judges.
  BAUER, Circuit Judge. Nicholas DiModica was in-
dicted for being a felon in possession of firearms in violation
of 18 U.S.C. § 922(g)(1). After the district court
denied DiModica’s motion to suppress the firearms seized
from his house, DiModica pleaded guilty, reserving the
right to appeal the denial of his motion. DiModica was
sentenced to 12 months imprisonment. We affirm the
district court’s denial of the motion to suppress.


                      I. Background
  On March 17, 2004, DiModica’s wife, Anita, met with
Special Agent (“SA”) Smith of the Wisconsin Department of
Justice. Anita reported that she had been abused by her
2                                                    No. 05-4164

husband on March 4, 2004. Anita had been married to
DiModica for over ten years, and she had been living
with DiModica in the same house in Cottage Grove, Wiscon-
sin for the past eight years. Anita also told SA Smith that
DiModica used drugs and likely had drugs and drug
paraphernalia in their home; DiModica owned several
firearms and likely had firearms in their home; and
DiModica was a convicted felon. SA Smith instructed Anita
to file a domestic abuse complaint with the local police.
  Later that evening, Anita met with Officer Grimyser of
the Cottage Grove Police Department. Officer Grimyser
interviewed Anita regarding the March 4th incident and
Anita filed her complaint. Officer Grimyser had another
officer photograph Anita’s injuries, which were sustained
during the domestic abuse incident. Officer Grimyser
determined that there was probable cause to arrest
DiModica.1 Wisconsin state law requires mandatory
arrest for domestic abuse if the abuse is reported within
28 days of the incident.2
    Anita told the officers that DiModica was likely at home,


1
   Dimodica waived his right to challenge whether the police had
probable cause to arrest him for domestic abuse. First, DiModica
did not challenge this issue at the evidentiary hearing. Second, in
DiModica’s opening brief, although he includes a footnote ques-
tioning the existence of probable cause, he argues that his arrest
was illegal because the officers entered his residence without a
warrant or his consent and not that the officers lacked probable
cause. See United States v. Harris, 394 F.3d 543, 559 (7th Cir.
2005) (explaining that arguments not raised in appellant’s
opening brief are waived).
2
  Under Wisconsin Statute § 968.075, the officer shall arrest
and take a person into custody if the officer has a reasonable basis
for believing that one is committing or has committed domestic
abuse and either the officer has a reasonable basis for believing
there will be continued domestic abuse or there is evidence of
physical injury to the alleged victim.
No. 05-4164                                                 3

and she gave them a key to the home. Prior to leaving the
precinct to arrest DiModica, SA Smith received written
consent from Anita to enter her residence and search every
part of the premises under her control. The consent form
permitted the officers to take any illegal drugs, firearms, or
other contraband found in the house. Anita also provided
the officers with a map of the home and marked the location
of her and DiModica’s bedroom.
  At approximately 11:00 p.m., SA Smith and Officer
Grimyser drove to DiModica’s residence in blizzard-like
conditions. Although the officers had probable cause to
make the arrest, they did not have an arrest warrant. The
officers planned to tell DiModica that Anita had been
injured in an automobile accident. They hoped that this
would cause DiModica to invite them into his home without
any confrontation. Once invited inside, the officers planned
to arrest DiModica.
  At the suppression hearing, SA Smith testified that he
and Officer Grimyser approached DiModica’s door together.
Officer Grimyser knocked on DiModica’s door and when
DiModica answered, Officer Grimyser asked DiModica if he
had a wife named Anita. DiModica answered affirmatively.
Officer Grimyser then told DiModica that his wife had been
badly injured in a car accident and asked if he could come
inside to talk to him. According to both officers, DiModica
stepped back and ushered the officers into the mudroom of
the house. DiModica, who was shirtless, then told the
officers that he was going to retrieve a shirt from another
room in the house. DiModica did not instruct the officers to
wait outside while he retrieved the shirt. When DiModica
returned to the mudroom, Officer Grimyser arrested him for
domestic abuse, placed him in handcuffs, and escorted him
to the squad car.
  Contrary to the officers’ testimony, DiModica testified
that SA Smith stood by the squad car while he spoke to
4                                                No. 05-4164

Officer Grimyser through his screen door. DiModica
claims that he did not invite Officer Grimyser into the
house and Officer Grimyser never asked to come into his
house. DiModica testified that he specifically told Officer
Grimyser to stay outside prior to retrieving his sweat-
shirt. DiModica also testified that when he returned to the
front door, Officer Grimyser had entered his home with-
out his permission.
   The parties agree that both DiModica and Anita were
living in the house together on the day of the arrest. The
parties also agree that the officers never asked DiModica
for his consent to search the home, and DiModica never told
the officers that they could not search the home. After
arresting DiModica, the officers placed him in the squad car
and took him to the police station. The officers then began
searching the residence pursuant to Anita’s consent. Anita
met the officers at her home and helped the officers conduct
their search. The officers found a shotgun, a .22 caliber
revolver, and a .22 caliber pistol in the home. DiModica
subsequently admitted that the firearms belonged to him.
   As DiModica was a convicted felon, he was charged
with violating 18 U.S.C. § 922(g)(1), which prohibits a
convicted felon from knowingly possessing a firearm.
DiModica filed a motion to suppress the evidence, arguing
that the police illegally entered his home without his
permission to effectuate his arrest; the illegal arrest tainted
the subsequent search, and the seized evidence should be
suppressed as the fruit of the poisonous tree; and his
presence nullified Anita’s consent to search the home. On
August 5, 2005, the magistrate judge found that Anita’s
consent permitted the police to search DiModica’s home.
Additionally, the magistrate found that even if the police
illegally entered DiModica’s home to make the arrest, the
evidence obtained during the subsequent search would not
be suppressed because none of the evidence that the
government intended to introduce at trial was obtained as
No. 05-4164                                                 5

a result of the arrest. On August 17, 2005, the district court
adopted the magistrate judge’s report and denied
DiModica’s motion to suppress the evidence. DiModica
timely filed this appeal.


                      II. Discussion
  In this appeal, DiModica makes two arguments. First,
DiModica argues that his arrest was illegal because the
officers entered his home without a warrant or his con-
sent in violation of the Fourth Amendment. DiModica
contends that the illegal arrest tainted the subsequent
search and the evidence should be suppressed as the fruit
of the poisonous tree. Second, he argues that had he not
been illegally arrested and removed from the scene, he
would have remained in his home and refused to consent to
the search to which his wife had agreed.


  A. Consent to Enter DiModica’s Home and His
     Arrest
  DiModica argues that his arrest was illegal because
the officers entered his home without an arrest warrant
or his consent. In the absence of an arrest warrant, consent
or exigent circumstances permit officers to enter a residence
to effectuate an arrest. Sparing v. Village of Olympia
Fields, 266 F.3d 684, 688 (7th Cir. 2001). When reviewing
a denial of a motion to suppress evidence, we review legal
questions de novo and factual findings for clear error.
United States v. Fields, 371 F.3d 910, 914 (7th Cir. 2004).
Whether a person consents to allow an officer into his or her
home is a question of fact. Id. “A factual determination is
clearly erroneous only if, after considering all of the evi-
dence, the reviewing court is left with the firm conviction
that a mistake has been committed.” United States v.
Messino, 55 F.3d 1241, 1247 (7th Cir. 1995).
6                                                No. 05-4164

  DiModica argues that the evidence presented at the
suppression hearing established that he directed the officer
to wait outside while he retrieved his shirt. In support of
this argument, DiModica contends that it is inherently
incredible for the district court to conclude that after being
invited into DiModica’s home, the officers would allow
DiModica, who was possibly armed and dangerous, to
retrieve a shirt from another room outside of their presence.
  The magistrate judge observed the testimony of DiModica
and the two officers, made credibility determinations, and
reviewed all the exhibits offered by both parties at the
suppression hearing. Although the magistrate judge
admitted that it was difficult “to determine which version
of events is more accurate because neither account is
completely logical,” the court chose to credit the officers’
version of events. Specifically, the magistrate judge found
that “Officer Grimyser . . . crossed the threshold into the
mudroom without protest from DiModica” and that
“DiModica did not direct Officer Grimyser (or Agent Smith)
to wait outside on the stoop in the blizzard while
he dressed.”
  The magistrate judge’s findings, which were adopted by
the district court, are not clearly erroneous. That there were
blizzard-like conditions that night in Cottage Grove and the
officers had told DiModica that Anita had been badly
injured in an accident permit the inference that a concerned
husband invited the officers into his house. Because the
arrest was based upon probable cause and DiModica
consented to the officers entering his residence, DiModica’s
arrest was legal and did not taint the officers’ subsequent
search.


    B. Consent to Search DiModica’s Home
  A search conducted without a warrant is considered per
se unreasonable and a violation of the Fourth Amendment
No. 05-4164                                                7

unless the search falls within a specifically established
exception. Katz v. United States, 389 U.S. 347, 357, 88
S. Ct. 507, 514 (1967). An exception to the general rule
permits searches based upon the voluntary consent of a
person authorized to provide consent. Schneckloth v.
Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045 (1973).
“The consent of one who possesses common authority over
premises or effects is valid against the absent, non-consent-
ing person with whom that authority is shared.” United
States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 993
(1974).
  The district court found that Anita’s consent to search the
residence was sufficient based upon the Supreme Court’s
holding in Matlock. In Matlock, officers arrested the
defendant in the yard of his residence. Matlock, 415 U.S. at
166. The officers never asked the defendant (a boarder)
which room he occupied or whether he would consent to a
search. Id. Instead, the officers placed defendant in a
nearby squad car and then obtained permission to search
defendant’s residence from one of his co-tenants. Id. at 179.
The Court concluded that the officers did not have to obtain
defendant’s consent prior to the search when a third party
with joint occupancy consented to the search.
  DiModica argues that his case should instead be governed
by Georgia v. Randolph, ___ U.S. ___, 126 S. Ct. 1515
(2006), which was decided by the Supreme Court after his
suppression hearing. In Randolph, the defendant’s wife
complained to the police regarding a domestic dispute.
Randolph, 126 S. Ct. at 1519. When the officers arrived at
their residence, the defendant’s wife told the officers that
her husband was a drug user. Id. The officers asked the
defendant for permission to search his house, and he
refused. Id. The police then turned to the defendant’s wife
and asked for her consent to search. Id. She consented, and
the police searched the residence. Id. The Court found that
the warrantless search was unreasonable and held that “a
8                                               No. 05-4164

physically present inhabitant’s express refusal of consent to
a police search is dispositive as to him, regardless of the
consent of a fellow occupant.” Id. at 1528. DiModica argues
that Randolph controls because had he not been illegally
arrested and removed from the scene, he would have
refused to allow the police to search his home.
  The present matter is distinguishable from Randolph.
Unlike the defendant and his wife in Randolph, DiModica
and his wife were not standing together at the doorway, one
consenting to the search while the other refused. The
officers never asked DiModica for permission to search his
house. Additionally, DiModica never told the officers that
they could not search his house. The Supreme Court in
Randolph preserved its holding in Matlock, stating:
    we have to admit, we are drawing a fine line; if a
    potential defendant with self-interest in objecting is
    in fact at the door and objects, the co-tenant’s permis-
    sion does not suffice for a reasonable search, whereas
    the potential objector, nearby but not invited to take
    part in the threshold colloquy, loses out.
Randolph, 126 S. Ct. at 1527. DiModica argues that the
police removed him from the entrance of his house for the
sake of avoiding a possible objection to the subsequent
search. However, DiModica fails to distinguish his case
from Matlock.
  We agree with the district court that there are differences
between the instant case and Matlock, but the differences
are immaterial. The officers did not remove DiModica to
avoid his objection; they legally arrested DiModica based on
probable cause that he had committed domestic abuse. Once
DiModica was arrested and removed from the scene, Anita’s
consent alone was valid and permitted the officers to legally
search the residence.
No. 05-4164                                           9

                  III. Conclusion
  For the reasons stated above, we AFFIRM the district
court’s denial of DiModica’s motion to suppress.

A true Copy:
      Teste:

                     ________________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




                USCA-02-C-0072—11-16-06
