                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            DEC 27 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    15-10496

              Plaintiff-Appellee,                D.C. No. 2:15-cr-00035-RFB-
                                                 CWH-1
 v.

FRANK CHAVEZ,                                    MEMORANDUM*

              Defendant-Appellant.

                   Appeal from the United States District Court
                             for the District of Nevada
                 Richard F. Boulware, II, District Judge, Presiding

                      Argued and submitted October 21, 2016
                            San Francisco, California

Before:      HAWKINS and CALLAHAN, Circuit Judges, and SOTO,** District
Judge.

      Defendant Frank Chavez was convicted of being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). He appeals from the


      *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
      **
        The Honorable James Alan Soto, United States District Judge for the District
of Arizona, sitting by designation.
District Court’s partial denial of his motion to suppress. Defendant primarily argues

on appeal that the District Court improperly found that a third party, who was visiting

the house where Defendant was residing, had apparent authority to consent to police

officers' entry into the house and living room where Defendant was found in

possession of a firearm.

      A district court's denial of a motion to suppress is reviewed de novo. See

United States v. Arreguin, 735 F.3d 1168, 1174 (9th Cir. 2013).1 A district court's

factual findings are reviewed for clear error, and its credibility determinations based

on testimony are given special deference. See id. Whether a person has actual or

apparent authority to consent to a search is a mixed question of law and fact that is

reviewed de novo. See id.

      “The Fourth Amendment provides that the right of the people to be secure in

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

shall not be violated.” Id. “A warrantless search of a house is per se unreasonable and

absent exigency or consent, warrantless entry into the home is impermissible under

the Fourth Amendment.” United States v. Reid, 226 F.3d 1020, 1025 (9th Cir. 2000).




      1
       Unless otherwise noted, internal quotes and citations have been omitted when
quoting authority in this Memorandum Disposition.
                                          2
“Evidence that is recovered following an illegal entry into a home is inadmissible and

must be suppressed.” Id.


      Consent to search is a recognized exception to the Fourth Amendment’s

protection. See Arreguin, 735 F.3d at 1174. However, the “existence of consent to

a search is not lightly to be inferred . . . .” Reid, 226 F.3d at 1025.


      The government has the burden of establishing the effectiveness of a
      third party's consent. It can do so in three ways. First, the government
      can come forward with persuasive evidence of both shared use and joint
      access to or control over a searched area, which would demonstrate
      actual authority to consent. Second, it can show that the owner of the
      property to be searched has expressly authorized a third party to give
      consent to the search. Finally, it may establish consent by means of the
      apparent authority doctrine.
United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1994).2


      Before the District Court and on appeal, the Government did not argue that there

was valid consent in this case based on express authorization or actual authority.

Rather, the Government only argued that there was valid consent based on apparent

authority, and the District Court likewise only found valid consent based on apparent

authority. We hold that the District Court erred in its determination as to apparent

authority.


      2
       Welch was overruled on other grounds in United States v. Kim, 105 F.3d 1579
(9th Cir. 1997).
                                            3
      “Under the apparent authority doctrine, a search is valid if the government

proves that the officers who conducted it reasonably believed that the person from

whom they obtained consent had the actual authority to grant that consent.” Welch, 4

F.3d at 764; see also Arreguin, 735 F.3d at 1175 (“Apparent authority is measured by

an objective standard of reasonableness, and requires an examination of the . . .

surrounding circumstances.”). Actual authority exists if one has shared use and joint

access to or control over a searched area. See Welch, 4 F.3d at 764; Arreguin, 735 F.3d

at 1174. Apparent authority is applicable only if the facts believed by the officers to

be true would justify the search as a matter of law. See Welch, 4 F.3d at 764. “A

mistaken belief as to the law, no matter how reasonable, is not sufficient.” Id. at 765.

The “government has the burden of establishing apparent authority to consent to each

specific area searched, not just authority to consent to a generalized search of the

residence.” Arreguin, 735 F.3d at 1175. “In assessing whether an officer’s belief was

objectively reasonable, the court considers the facts available to the officer at the

moment” of the officer’s warrantless entry into a home or relevant search of an area.

Id. (emphasis in the original).


      In this case, the officers’ warrantless entry into the home where Defendant was

residing was based on the consent of a third party (Sandra Rentfro) who was visiting

the home. For apparent authority to exist, the officers had to have an objectively

                                           4
reasonable basis to believe that Ms. Rentfro had actual authority to consent to entry

into the home and living room. Actual authority would exist if Ms. Rentfro had shared

use and joint access or control over the home and living room.


      At the moment the officers entered the home based solely on Ms. Rentfro’s

consent, the officers knew that: (1) Ms. Rentfro did not own the home, (2) Ms. Rentfro

did not reside at the home, (3) Ms. Rentfro’s adult son (Raymond Fletcher) owned the

home and resided at the home with his roommate (Defendant), (4) Ms. Rentfro had

come in from out of town to visit with her son for his birthday, and (5) the owner and

residents of the home (Mr. Fletcher and Defendant) were present inside the home.


      At the moment the officers entered the home based solely on Ms. Rentfro’s

consent, they did not know any of the following regarding Ms. Rentfro’s connection

to the home: (1) whether she had a key to the home, (2) whether she could enter and

leave the home at will, (3) how often she was alone in the home, (4) whether she was

left in charge of the home when the other residents were not home, (5) the frequency

of her visits to the home, (6) what rooms she routinely used and accessed when she

visited, (7) whether she invited other guests into the home, or (8) whether she could

invite guests into the home without the permission of the residents and what areas of

the home would these other guests be permitted.



                                          5
         Despite the circumstances before them prior to their entry into the home, the

officers never asked to speak to the owner or other resident of the home. Rather, they

proceeded into the home based solely on the consent of a third party that they knew did

not own or reside at the home, and that they knew had come in from out of town to

visit her adult son that owned the home in question.


         In light of the foregoing, the officers did not have an objectively reasonable basis

to believe that Ms. Rentfro had shared use and joint access to or control over the home

and living room. Therefore, Ms. Rentfro did not have apparent authority to consent to

their entry into the home and living room under the particular circumstances of this

case.3


         As all subsequently found evidence must be suppressed under the fruit of the

poisonous tree doctrine as there was no apparent authority to enter the home and living

room, we do not address Defendant's alternative grounds for appeal (i.e., that the

officers exceeded the scope of Ms. Rentfro's consent to search and they did not have

reasonable suspicion or probable cause to search and arrest Defendant). See United

States v. Redlightning, 624 F.3d 1090, 1102 (9th Cir. 2010).

         3
         While we recognize the special familial relationship between a parent and
child, and this is certainly a factor that is weighed in assessing consent, the officers
in this specific case did not have an objectively reasonable basis to conclude that Ms.
Rentfro had apparent authority.
                                              6
REVERSED.




            7
                                                                             FILED
USA v. Frank Chavez, No. 15-10496
                                                                             DEC 27 2016
CALLAHAN, Circuit Judge, dissenting:                                     MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


      The apparent authority doctrine requires that a police officer reasonably

believe that a person consenting to a search has “shared use and joint access to or

control over a searched area.” United States v. Welch, 4 F.3d 761, 764–65 (9th Cir.

1993) (emphasis omitted). The inquiry turns on “an examination of the actual

consent as well as the surrounding circumstances.” United States v. Arreguin, 735

F.3d 1168, 1175 (9th Cir. 2013) (internal quotation marks omitted). Because I find

that Officers Christina Alfonsi and James O’Leary had an objectively reasonable

belief that Ms. Sandra Rentfro had authority to consent to a search of a common

area within her son’s residence, I respectfully dissent.

      It is reasonable for an officer to infer that a resident’s guest would have at

least “joint access” to common areas such as an entryway, kitchen, and living

room. See United States v. Ladell, 127 F.3d 622, 624 (7th Cir. 1997) (“Third-party

consents to search the property of another are based on a reduced expectation of

privacy in the premises or things shared with another.”). Officers Alfonsi and

O’Leary knew several facts when Rentfro, the mother of the owner of the

residence, Raymond Fletcher, allowed them entry into the residence: (1) Rentfro

had reported a domestic disturbance involving Chavez within the residence, (2)

Chavez possessed a firearm the location of which was unknown, (3) Rentfro
emerged from the residence to greet the officers, (4) Rentfro was staying with her

son at his residence, and (5) the living room (where the search occurred and where

Chavez was located) was visible from the entryway. From these facts the officers

could reasonably infer that Rentfro had joint access to the entryway and living

room, both of which were common areas that comprised a continuous and

unobstructed living space. That Rentfro is a family member of the owner’s, and

was visiting from Indiana, only bolsters this conclusion.

      The majority makes much of what the officers did not know, see Maj. Op. at

5, but this merely distracts from the operative inquiry. Our case law does not

require, for example, knowledge of whether a third-party can “enter and leave the

home at will,” the “frequency of [the third-party’s] visits to the home,” “how often

[the third-party] was alone in the home,”“whether [the third-party] invited other

guests into the home,” and on and on. Cf. id. This grab-bag of factors may be

helpful in some instances, but the majority cites no authority suggesting that

satisfying any or all of them is determinative, let alone necessary.

      The majority relies on Arreguin and Welch, but those cases actually support

a finding of apparent authority here. In Arreguin, the officers knew “virtually

nothing” about the third-party who opened the door to the residence and consented

to a search, yet proceeded to investigate a private bedroom anyway. 735 F.3d at

                                          -2-
1176. Here, by contrast, the officers did know Rentfro’s relationship to the owner

of the house and searched only a common area to which she clearly had use and

access.

       Similarly, Welch makes clear the distinction between consent to search

common rather than private areas of a residence. Welch involved a party’s consent

to search a car and purse located within the vehicle on suspicion that they

contained counterfeit money. 4 F.3d at 762–63. The consenting party, McGee,

was traveling in the rental car with his girlfriend, Welch. Id. at 765. At the time of

consent, the officers knew three things: (1) Welch was McGee’s girlfriend, (2)

Welch had traveled with McGee in the rental car, and (3) the purse belonged to a

woman. Id. The officers searched both the car and purse, the latter of which

contained counterfeit money. Id. at 762–63. The court upheld the search of the car

but suppressed the contents of the purse. Id. at 764–65. The court reasoned that

McGee had authority to authorize the search of the car because he and Welch had

“joint access to and mutual use of it.” Id. at 764. But the officers lacked a

reasonable belief that he had a similar interest in the purse. Id. at 765. Unlike the

car, “Welch had a reasonable expectation of privacy in the contents of her purse.”

Id. at 764.




                                          -3-
      Just as McGee had authority to consent to a search of the rental car in Welch,

so, too, Officers Alfonsi and O’Leary reasonably concluded that Rentfro had

authority to consent to a search of her son’s living room. The officers did not

expand the search beyond common areas of the home into rooms where the owner

or another resident might have a reasonable expectation of privacy—the ills

identified in Welch and Arreguin.

      The officers also confined their search to the scope of Rentfro’s consent.

“The scope of a search is generally defined by its expressed object.” Florida v.

Jimeno, 500 U.S. 248, 251 (1991). Here, the object of the officers’ search was

Chavez on suspicion of theft. It was therefore reasonable for O’Leary to enter the

living room where Chavez was located to investigate the allegation. Moreover,

neither Rentfro nor her son—who had emerged from the back of the

residence—objected to O’Leary’s entry into the living room, further indicating that

O’Leary acted within the scope of Rentfro’s consent.

       O’Leary’s subsequent pat-down search of Chavez was also reasonable.1

“We review for clear error a district court’s determination of the voluntariness of a


      1
              Because the majority concludes that Rentfro lacked apparent authority
to authorize a search of the residence, it does not analyze the district court’s
finding that the officers conducted a valid pat-down search of Mr. Chavez’s
person.

                                         -4-
defendant’s consent to a search.” United States v. Brown, 563 F.3d 410, 414 (9th

Cir. 2009) (internal quotation marks omitted). O’Leary testified that he asked

Chavez, “[d]o you mind if I pat you down for weapons?”2 Chavez answered “yes,”

but then immediately complied with a “consensual pat down” and continued to

answer O’Leary’s questions. The district court committed no error—let alone clear

error—in finding that Chavez consented to the search.

      As the pat-down progressed to the back of Chavez’s waistband, O’Leary

testified that Chavez “pulled forward, releasing his hands from my grip,” and

“hunched forward” in what could reasonably be characterized as an aggressive

stance. The officers then placed Chavez in handcuffs.

      Chavez claims that the officers placed him under arrest when they

handcuffed him. He argues that the officers lacked probable cause to do so

because, at the time he was handcuffed, the officers lacked specific information

about a criminal offense. But placing Chavez in handcuffs did not convert a

permissible investigatory stop into an unconstitutional arrest. A “brief but

complete restriction of liberty, if not excessive under the circumstances, is

permissible during a Terry stop and does not necessarily convert the stop into an

      2
             O’Leary subsequently testified that he could not recall the exact
phrasing of his question—i.e., whether he asked if Chavez minded if he conducted
a pat-down or if he could conduct a pat-down.

                                          -5-
arrest.” United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982). The

detention here was reasonable to protect the officers’ safety after Chavez took an

aggressive stance. Accordingly, the district court properly concluded that

handcuffing Chavez did not amount to an arrest.

      I respectfully dissent.




                                         -6-
