KAREN E. SCHREIER, District Judge.
Defendant, Nicholas Steven Zastrow, is charged with possession of an unregistered firearm under 26 U.S.C. §§ 5861(d), 5845(a)(1), and 5871. Zastrow moves to suppress all evidence seized following a warrantless search of his residence. Docket 26. He argues that the evidence was obtained in violation of the Fourth Amendment to the United States Constitution. The motion was referred to United States Magistrate Judge Veronica L. Duffy for a report and recommendation under 28 U.S.C. § 636(b)(1)(B).
An evidentiary hearing was held on June 7, 2016. Two witnesses testified and several exhibits were received at the hearing. The magistrate judge issued a report and recommended denial of Zastrow's motion to suppress. Docket 34. Zastrow timely filed an objection to the report and recommendation. Docket 35. For the following reasons, the court adopts the report and recommendation.
This court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge's recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Because motions to suppress evidence are considered dispositive matters, a magistrate judge's recommendation regarding such a motion is subject to de novo review. 28 U.S.C. § 636(b)(1)(A); see also United States v. Raddatz, 447 U.S. 667, 673 (1980). In conducting a de novo review, this court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
Neither party objected to the magistrate judge's findings of fact. The court has reviewed the record and adopts the magistrate judge's factual findings in full. For ease of reference, the court provides the facts as found by the magistrate judge:
Docket 34 at 2-6 (footnotes omitted).
The Fourth Amendment provides for "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV. Warrantless searches and seizures carried on inside an individual's home are presumptively unreasonable. Groh v. Ramirez, 540 U.S. 551, 559 (2004). "It is therefore well-established that the police may not invade a person's house without a warrant except under very limited circumstances, such as the presence of exigent circumstances or an occupant's consent." United States v. McMullin, 576 F.3d 810, 815 (8th Cir. 2009). And while "the burden of proof is on the defendant who seeks to suppress evidence," the burden is "on the government to justify a warrantless search." Carter v. United States, 729 F.2d 935, 940 (8th Cir. 1984); see also United States v. Hughes, 517 F.3d 1013, 1019 (8th Cir. 2008).
The third-party consent doctrine can provide justification for the warrantless search of a home. The Supreme Court held in United States v. Matlock, 415 U.S. 164, 171 (1974), that the government may conduct a warrantless search after obtaining consent voluntarily given from a third party "who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." The Court explained that
Id. at n.7. And in Illinois v. Rodriguez, 497 U.S. 177, 179 (1990), the Court considered whether a third party's consent could vitiate a warrantless search even if the third party did not have common authority over the premises. The Court held that it could, but only if the officer reasonably believed that the third party had common authority to consent to the search. Id. at 186. The test is an objective one: "would the facts available to the officer at the moment . . . `warrant a man of reasonable caution in the belief' that the consenting party had authority over the premises?" Id. at 188 (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). Thus, the court considers the totality of the circumstances available to the officer at the time the third party's consent is given. See United States v. Weston, 443 F.3d 661, 668 (8th Cir. 2006).
Here, the magistrate judge found that Pomerenke had joint access and control over the living room/dining room area. Thus, the magistrate judge found that Pomerenke could consent, and did consent, to a search of the area. Zastrow does not object to the magistrate judge's formulation of the third-party consent doctrine or any of the case law cited in the report. Rather, Zastrow objects to the magistrate judge's conclusion. He argues that
Docket 35 at 1.
Zastrow's objection, however, is directed at an issue the magistrate judge did not resolve and did not need to resolve. The issue of whether it was reasonable for Officer Smith to believe that Pomerenke had common authority to consent to the search is relevant only if Pomerenke did not, in fact, have common authority over the area. See Rodriguez, 497 U.S. at 181-183 (concluding that the third party did not have actual authority over the apartment and then addressing whether, nonetheless, it was reasonable for the officers to rely on the third party's apparent authority). The magistrate judge found that Pomerenke had joint access and control over the area (i.e., actual common authority) and, thus, the magistrate judge did not need to address whether it was reasonable for Officer Smith to believe that Pomerenke had such authority over the area (i.e., apparent common authority). The Supreme Court drew a distinction between these two types of third party consent theories in Rodriguez and, more recently, in Georgia v. Randolph, 547 U.S. 103 (2006). There, the Court explained that
Id. at 109 (internal citations omitted); see also United States v. Almeida-Perez, 549 F.3d 1162, 1170 (8th Cir. 2008) (explaining that whether an individual has common authority is a question of fact while the issue of whether an individual has apparent authority is a question of law).
The court agrees with the magistrate judge's finding that Pomerenke had joint access and control over the living room/dining room area. The facts demonstrate that Pomerenke leased the residence in his name, that he regularly needed to traverse the area to get to his own bedroom, the kitchen, and the basement, and that the area was still functional as a living room even though Zastrow slept there (i.e., it contained chairs and a small table in addition to the loveseat). The facts demonstrate that Pomerenke "had unrestricted and joint access to the entire residence[.]" United States v. Nichols, 574 F.3d 633, 636 (8th Cir. 2009). The Eighth Circuit has recognized that
United States v. James, 353 F.3d 606, 613 (8th Cir. 2003) (internal citation omitted).
Even if the court disagreed with the magistrate judge's conclusion that Pomerenke had common authority over the living room/dining room area, the court concludes that Pomerenke had apparent authority over the area. Cf. Nichols, 574 F.3d at 636 ("Additionally, we note that even had [the third party] lacked common authority, her consent was still effective because police officers had reason to believe that she had common authority."). The facts demonstrate that no part of the area was partitioned off by a screen or curtain to create a zone of exclusivity around the loveseat, and the loveseat itself was not marked in any way to suggest that only Zastrow could use it. Almeida-Perez, 549 F.3d at 1172 (explaining that "if part of a dwelling is appropriated for the exclusive use of one occupant, other inmates of the house have no right to consent to police entry of the space from which they themselves are excluded"). Although Pomerenke indicated that Zastrow was staying in the living room/dining room area, that did not mean automatically that Pomerenke could not reasonably convey his own authority to be there. In fact, Pomerenke was searching the living room/dining room area with Officer Smith while he was looking for firearms. And the loveseat itself was not a sealed container, a desk, a closet, or any other item that would suggest from its ordinary use and appearance that it would be used to store personal possessions. See, e.g., James, 353 F.3d at 615 (noting the searched property was marked with stickers that read "confidential," "personal," and "private"); United States v. Clark, 409 F.3d 1039, 1044 (8th Cir. 2005) (observing that items in a closet "were not clearly labeled or specifically identified as belonging only to Clark"). Thus, it was reasonable for Officer Smith to believe that Pomerenke had common authority over the area and, therefore, Pomerenke's consent to search the area permitted Officer Smith to do so.
Pomerenke had sufficient authority, whether actual or apparent, over the living room/dining room area. His consent, therefore, justified Officer Smith's warrantless search of the area. The court agrees with the magistrate judge's conclusion that Zastrow's motion to suppress be denied. Thus, it is
ORDERED that the report and recommendation (Docket 34) to deny Zastrow's motion to suppress is adopted as supplemented herein.
