                                                                        F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        August 17, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                      No. 05-3128
          v.                                            (D . of Kan.)
 BR UCE SEA RS,                                (D.C. No. 04-CR-10174-M LB)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before H ARTZ, EBEL, and T YM KOVICH, Circuit Judges. **


      Defendant-Appellant Bruce Sears challenges a district court order denying

his motion to suppress evidence. Sears claims that police violated the Fourth

Amendment when they (1) searched his vehicle without valid consent, and

(2) searched his home pursuant to a warrant that lacked probable cause and was

unconstitutionally vague. The district court upheld the search of the vehicle and




      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
found probable cause to search the residence. The court did not address the

specificity argument because Sears raises it for the first time on appeal. W e

AFFIR M .

                                   I. Background

        On July 4, 2004, two males robbed a Red Lobster restaurant in W ichita,

Kansas. They threatened the restaurant’s employees while brandishing a silver

handgun and left after stealing money as well as an employee’s cellular

telephone. W itnesses later provided police with a physical description of the

perpetrators and identified the getaw ay car as a white M azda minivan with

temporary license tags. Less than two weeks later, W ichita police identified a

minivan with a matching description. Although the minivan had permanent

license tags, the license number w as registered to a different vehicle. Officers

stopped the minivan and subsequently arrested its driver, Bruce Sears, for driving

on a suspended license. Sears consented to a search of his vehicle, but for

reasons not indicated in the record, officers did not seize any evidence at that

time.

        The police sought to search the minivan a second time later that day.

Although they were unable to locate the minivan’s registration in a Vehicle

Identification Number (VIN) database, police traced the permanent license tags

on the car to another automobile owned by Natashia Gafford. Neither the other

vehicle nor its license tag had been reported stolen. After contacting Gafford,

                                         -2-
police learned that she and Sears had been in a long-term relationship but were

presently separated. In addition, they had two children together, and Gafford was

pregnant with their third. Police also learned that following Sears’s arrest earlier

that day, Gafford had driven the minivan to Sears’s grandfather’s house for

safekeeping. After police asked whether she had an ownership interest in the

minivan, Gafford responded that she had previously given Sears half of the money

he needed to buy the vehicle. Gafford subsequently signed a “waiver to search”

form, authorizing police to search the minivan a second time. This form read, in

relevant part:

      I, Natasha Gafford, having been informed of my constitutional right not
      to have a search made of the premises hereinafter mentioned without a
      search warrant and of m y right to refuse to consent to such a search,
      hereby authorize . . . Officers of the W ichita Police Department,
      W ichita, Kansas to conduct a complete search of my . . . vehicle.

Aplee. App. at 36. 1 The consent form specifically identified the M azda minivan

by its VIN . During this second search, police recovered a temporary license tag.

      By this point in the investigation, police had identified Sears as matching a

general description of the armed perpetrator from the Red Lobster robbery.

Police already knew the minivan matched the description of the robbery getaway

vehicle, and, from the search, the minivan contained a temporary license tag




      1
       The form listed Gafford’s first name as “Natasha,” however, it is signed
by “Natashia Gafford.” W e can only assume that the officers who prepared the
form for G afford inadvertently misspelled her name.

                                         -3-
consistent with eyewitness observation at Red Lobster. 3   In a subsequent photo

lineup, one of the restaurant eyewitnesses positively identified Sears as the

individual who had robbed the Red Lobster at gunpoint. Police incorporated all

of this information into an affidavit establishing probable cause in support of a

warrant to search Sears’s residence.

      A magistrate judge issued a w arrant authorizing police to search Sears’s

residence for the following:

      1. Any and all ammunition located inside the residence.
      2. Firearms and indicia of ownership.
      3. C lothing, including but not limited to masks, gloves, hats, hooded
      sweatshirts, sweaters, pantyhose, and shoes.
      4. Indicia of occupancy, residency, and/or ownership of the [residence].
      5. United States currency.
      6. Security safes and/or lock boxes.
      7. Sacks.
      8. Cellular phones.
      9. Photographs and diagrams of the residence.
      10. Forensic evidence including but not limited to fingerprints, hair,
      fiber and other trace evidence.

Aplee. App. at 144. Police executed the search warrant and seized evidence

connecting Sears to the robbery.

      Prior to trial, Sears moved to suppress the evidence gathered from his

minivan and residence. Sears claimed that the search of his minivan was illegal

under the Fourth Amendment because Gafford had no ownership interest in the

      3
        W itnesses at the robbery were not able to identify the number on the
temporary tag of the getaway car. Although the temporary tag in Sears’s car
looked similar to the one used on the getaw ay car, police were unable to confirm
that they were the same.

                                         -4-
vehicle and that it was unreasonable for police to conclude that she had apparent

authority to consent to the search. He also claimed the evidence from his

residence should be suppressed because the issuing magistrate judge lacked a

substantial basis for finding probable cause to search the residence. The district

court denied the motion on both grounds.

      A jury convicted Sears on three counts relating to the Red Lobster robbery,

and he was sentenced to life imprisonment.

                                    II. Analysis

      On appeal, Sears contends that the district court erred in denying his

motion to suppress evidence. He argues first that under the totality of

circumstances, the police officers’ conclusion that Gafford had authority to

consent to a search of the minivan was “totally unreasonable,” so the search

yielding the temporary license tag violated the Fourth Amendment. Aplt. Br. at

10. Sears further maintains that police violated the Fourth Amendment when they

searched his residence because the search warrant lacked probable cause and

failed to describe with sufficient particularity the things to be seized. W e

consider each claim in turn.

      A. Standard of Review

      W hen reviewing a district court’s denial of a motion to suppress, we accept

the facts underlying its determination unless clearly erroneous, and view the

evidence in a light most favorable to the government. United States v. Kimoana,

                                         -5-
383 F.3d 1215, 1220 (10th Cir. 2004). The credibility of the witnesses, the

weight to be given to the evidence, and the reasonable inferences drawn from the

evidence fall w ithin the province of the district court. Id. The ultimate

determination of reasonableness under the Fourth A mendment, however, is a

question of law that we review de novo considering the totality of the

circumstances. See id.

      B. Search of the M inivan

      The first claim is that Gafford lacked authority to consent to the search of

the minivan, rendering the search unconstitutional. W e reject this claim because

the facts known to police when she signed the waiver supported a reasonable

belief that she had authority to consent.

      A third party’s consent to search property is valid if police reasonably

believe that she has “apparent authority” to consent to the search. United States

v. Gutierrez-H erm osillo, 142 F.3d 1225, 1230 (10th Cir. 1998) (citing Illinois v.

Rodriguez, 497 U.S. 177, 188 (1990)). The “apparent authority” test for

determining the reasonableness of an officer’s belief is objective, asking whether

the facts available to police at the time would “warrant a m an of reasonable

caution [to believe] that the consenting party had authority over the premises[.]”

Id. (quoting Rodriguez, 497 U.S. at 188).

      Sears argues that the facts at the time of the search do not meet this

standard. He first argues that Gafford’s obvious economic status did not permit a

                                            -6-
reasonable conclusion that she could have her ow n vehicle and ow nership interest

in the minivan. Furthermore, while Gafford may have driven the minivan

following Sears’s arrest, the fact that she parked it at his grandfather’s house, and

not her ow n, indicated that the vehicle was not hers. 4

      The authority justifying third-party consent does not rest upon property law

“but rests rather on mutual use of the property by persons generally having joint

access or control for most purposes.” Kimoana, 383 F.3d at 1222 (quoting United

States v. M atlock, 415 U.S.164, 171 n.7 (1974)) (emphasis added). It was

therefore unnecessary for police to believe Gafford owned the minivan. Instead,

police needed only a reasonable belief that she had general access to or control

over the minivan for her consent to be valid. Sears’s evidence that Gafford did

not actually own the vehicle is therefore not dispositive on the issue of third party

consent. W e reiterate as well that the “apparent authority” analysis turns on

officers’ reasonable belief about a third party’s authority to consent; officers are

not required to be absolutely certain.

      Sears also relies on Gafford’s testimony at the suppression hearing about a

conversation she had with police prior to signing the “waiver to search” form.

The district court concluded that when Gafford’s testimony about the

      4
        Sears asserts that Gafford was not in possession of the minivan’s keys,
and criticizes the failure of police to ask whether she even possessed the keys.
Yet Gafford drove the minivan to Sears’s grandfather’s house “for safekeeping”
after Sears’s arrest. Sears does not explain how Gafford was able to drive the
minivan w ithout having the keys.

                                           -7-
conversation conflicted with that of police, the court “credit[ed] [the police]

version.” Aplee. Supp. App. at 133. W itness credibility falls within the province

of the district court. Kimoana, 383 F.3d at 1220. W e must therefore defer to the

district court’s conclusion that Gafford’s relationship to Sears and her “demeanor

on the witness stand and her effort to mince words as to what was said leads the

court to conclude that [the police] account of Gafford’s statements is more

accurate.” Aplee. Supp. App. at 133. Sears cites no reason to conclude that this

view of Gafford’s testimony was clearly erroneous, so we accept as fact the

district court finding that Gafford told police she had an ownership interest in the

minivan and had given Sears half the money to purchase it. [Aplee. Supp. App. at

123.]

        In addition to Gafford’s statements to police, other facts indicate Gafford

had authority and control over the minivan. Sears and Gafford had been in a

long-term relationship, had two children together, and were expecting a third.

The license plate displayed on the minivan was actually registered to a vehicle

owned by Gafford, and neither the other vehicle nor the license plate had been

reported stolen. Gafford had also driven the minivan to Sears’s grandfather’s

house following Sears’s arrest. Finally, Gafford signed a consent form that

specifically identified the minivan as “my vehicle.” 5 In light of these facts, the

        5
       Gafford’s suppression hearing testimony that she did not actually read the
waiver before signing it has no bearing on the fact that signing the waiver gave
                                                                      (continued...)

                                          -8-
police reasonably believed Gafford had authority to consent to the search. Thus,

the district court properly denied the motion to suppress.

         C. Search of Sears’s Residence

         Sears next challenges the search of his home on two grounds. First, he

claims the facts did not support a finding of probable cause. Second, he argues

that the search warrant failed to “particularly describ[e]” the things to be seized

as required by the Fourth Amendment. Sears did not previously raise this second

issue below .

                1. Probable Cause

         On the first point, we agree with the district court that the warrant was

supported by probable cause. Probable cause exists when facts presented in a

supporting affidavit “would warrant a man of reasonable caution to believe that

evidence of a crime will be found at the place to be searched.” United States v.

Nolan, 199 F.3d 1180, 1183 (10th Cir. 1999) (quotation marks omitted). Probable

cause is predicated on “a nexus between suspected criminal activity and the place

to be searched.” United States v. Corral-Corral, 899 F.2d 927, 937 (10th Cir.

1990).

         W e find such a nexus here. The affidavit included the fact that Sears

matched the physical description eyewitnesses gave at the Red Lobster and that



         5
       (...continued)
the impression that she had authority to consent to the search.

                                           -9-
his M azda minivan also matched eyewitness descriptions of the getaway vehicle.

The affidavit noted that Sears was driving the minivan w ith permanent license

tags belonging to another vehicle, but inside the vehicle was a temporary license

tag— similar to the temporary tag eyewitnesses observed on the getaway vehicle.

Finally, the affidavit reflected that an eyew itness had positively identified Sears

in a police photo lineup as the armed robber at the restaurant. Because the search

of the minivan did not recover the stolen money, the gun used in the commission

of the robbery, or other items relating to the robbery, it was logical that such

evidence could be found at Sears’s residence.

      W e agree with the district court that the affidavit created a substantial and

reasonable basis for concluding that probable cause existed to search Sears’s

residence.

      2. Particularity

      The second issue relating to the search of the residence is new to this

appeal. Sears asserts that the warrant used to search his residence lacked

particularity, so the search of his residence was essentially “a fishing expedition.”

Aplt. Br. at 17. Because Sears failed to raise this issue before the district court,

our review is limited to plain error. United States v. Hernandez-Rodriguez, 352

F.3d 1325, 1329 (10th Cir. 2003). Under this standard, reversal is warranted only

where there is “(1) error, (2) that is plain, which (3) affects substantial rights, and

which (4) seriously affects the fairness, integrity, or public reputation of judicial

                                         -10-
proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.

2005) (quotation omitted). W e need not pursue this analysis to its end because

we find no error here.

      As noted above, the warrant to search Sears’s residence specifically listed

the various items to be seized. Sears rests his particularity argument on the

assertion that the items to be seized in the search warrant were so general that

they “are arguably present in almost every American home,” and that the search

warrant’s scope went beyond what the affidavit contained. Aplt. Br. at 16. For

example, Sears notes that the search warrant listed ammunition even though the

affidavit for the search warrant did not indicate the firearm used in the robbery

was even loaded. Also, the search warrant did not identify the “firearm” sought

with any greater specificity, despite witnesses who identified the armed robber as

wielding a silver handgun. The search warrant also failed to identify the

particular brand of stolen cellular telephone police sought, despite the fact that

the affidavit described it as a Nokia telephone. Thus, Sears argues, the search

warrant was not only vague, but it also erroneously left out evidence that had

been included in the affidavit.

      Sears cites the Supreme Court’s decision in Groh v. Ramirez, 540 U.S. 551

(2004), as support for his contention that lack of particularity of a warrant renders

that search unreasonable under the Fourth Amendment. Indeed, the Court in Groh

found that even if an affidavit for a warrant adequately describes the things to be

                                         -11-
seized, if the warrant itself does not, it is invalid. Id. Thus, Sears argues, even if

the affidavit accompanying the application for a search warrant specified exactly

the items used in the commission of the robbery— a silver handgun and a Nokia

mobile phone— the fact that the search warrant did not include them renders it

facially invalid.

      The Fourth Amendment’s particularity requirement ensures that search

warrants are specific enough so as to prevent an officer from conducting a

“general, exploratory rummaging in a person’s belongings.” Coolidge v. New

Ham pshire, 403 U.S. 443, 467 (1971). A search warrant’s description is

sufficiently particular when it “enables the searcher to reasonably ascertain and

identify the things authorized to be seized.” United States v. Leary, 846 F.2d 592,

600 (10th Cir. 1988) (quotations removed). “The common theme of all

descriptions of the particularity standard is that the warrant must allow the

executing officer to distinguish between items that may and may not be seized.”

Id. at 600 n.12.

      The Groh decision cited by Sears dealt with a search warrant whose

generality cannot reasonably be compared to the search warrant in this case. The

search warrant in Groh was unconstitutional because the portion of the warrant

calling for a description of the property to be searched described only a “two-

story blue house.” Id. at 554. Such a broad description would permit precisely

the kind of “exploratory rummaging” prohibited by the Fourth Amendment. Here,

                                          -12-
the specificity of the list in the warrant to search Sears’s residence would allow

police to reasonably ascertain and identify the items to be seized while preventing

them from conducting a generalized rummaging through Sears’s belongings.

      Because there was no error below, we need not pursue the remaining steps

of plain error analysis.

                                  III. Conclusion

      For these reasons, we AFFIRM the district court’s denial of Sears’s motion

to suppress evidence.

                                                     Entered for the Court


                                                     Timothy M . Tymkovich
                                                     Circuit Judge




                                         -13-
