USCA1 Opinion
February 18, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2076
UNITED STATES,
Appellee,
v.
GARY CHIRICHIELLO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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Michael C. Shklar on brief for appellant.
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Paul M. Gagnon, United States Attorney, Gary V. Milano,
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Assistant United States Attorney, and David A. Vicinanzo,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Appellant Gary Chirichiello appeals the
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denial by the district court of his motion to suppress
evidence which led to his indictment for manufacturing
marijuana in violation of 21 U.S.C. 841(a)(1). The
evidence was seized pursuant to a warrant which itself was
based on information acquired during a prior warrantless
search of a residence in Landaff, New Hampshire. The prior
search was undertaken by a New Hampshire state trooper who
was admitted to the residence by an informant who claimed to
have been helping Chirichiello grow marijuana in the
residence. Chirichiello later pled guilty but reserved his
right to appeal the denial of his motion to suppress. We
affirm.
Discussion
Discussion
The court supportably made the following factual
findings. In July 1992, New Hampshire State Trooper Susan
Forey was told by an informant, Robert Anthony, who had
previously provided Forey with reliable information, that he
could bring her to a residence where he was an active
participant in a conspiracy to grow marijuana along with
Chirichiello and two other individuals. Anthony indicated
that his role was to provide advice as to the growing of the
plants and to care for them on a regular basis. He told the
trooper that the plants were kept on the second floor behind
a door secured by a combination lock. Anthony told Forey
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that, although he did not reside in the house,1 he had
access to and use of the kitchen and bathroom on a regular
basis. He also indicated that he had access to the marijuana
plants on the second floor and had an ongoing involvement in
tending the plants, which included caring for them in
Chirichiello's absence. While he did not have his own key to
the residence, Anthony said that he had access to a common
key kept above the door and that he knew the combination of
the lock to the second floor.
Upon arriving at the residence, Forey made observations
which supported the accuracy of Anthony's information.
Anthony then retrieved the key and opened the door. After
giving Forey a brief tour of the premises, during which Forey
observed manuals on how to grow marijuana, Anthony led her to
the second floor where he unlocked the combination lock
behind which the marijuana was being grown. Based on her
observations, Forey obtained a search warrant for the
premises.
A party with common authority over a premise may consent
to its search. United States v. Matlock, 415 U.S. 164, 170
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(1974). Common authority exists where there is
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1. Anthony claimed that he slept in a tent in the backyard
because he did not want to be caught in the house where the
marijuana was being grown. He had previously lived in the
house.
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mutual use of the property by persons generally
having joint access or control for most purposes,
so that it is reasonable to recognize that any of
[them] has the right to permit the inspection in
his own right and that the others have assumed the
risk that one of their number might permit the
common area to be searched.
Id. at 171 n.7. Even if a party lacks actual common
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authority to consent to a search, the search is lawful if the
officer conducting the search reasonably believed, based on
the totality of the circumstances, that the consenting party
did have common authority. Illinois v. Rodriguez, 497 U.S.
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177, 185-86 (1990). In the instant case, the district court
found that, based on the totality of these circumstances,
Forey had reason to believe that Anthony had common authority
over the residence in general and the growing rooms in
particular. We find no clear error in this finding. See
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United States v. Mancini, 8 F.3d 104, 107 (1st Cir. 1993) (in
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reviewing the district court's suppression order, findings of
fact, including mixed findings of fact and law, upheld absent
clear error) (citing cases).
Forey could reasonably have concluded that Anthony's
regular use of the cooking and bath facilities of the house
authorized him to enter and make use of the common areas of
the house in general. Moreover, she could have concluded
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reasonably that, as a coconspirator who had an ongoing
involvement in tending the plants, Anthony was authorized to
enter and to make use of the second floor area in which the
marijuana was being grown.2 These conclusions were
confirmed by Anthony's ready access to the key to the
residence and his knowledge of the combination of the lock on
the door behind which the marijuana was being grown. The
totality of these circumstances is sufficient to establish
that Chirichiello had forfeited any reasonable expectation of
privacy in these areas and, thus, that Anthony had apparent
authority to consent to the search. Cf. United States v.
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Buettner-Janusch, 646 F.2d 759, 765-66 (2d Cir.) (student
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assistant who was authorized to enter and use professor's
laboratory had common authority to consent to search), cert.
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denied, 454 U.S. 830 (1981); United States v. Cepulonis, 530
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F.2d 238, 244 (1st Cir.) (participant in robbery had joint
control over property locker in which he and others had
placed gun), cert. denied, 426 U.S. 908 (1976); United States
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v. Murphy, 506 F.2d 529, 530 (9th Cir. 1974) (employee, who
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was given key to warehouse only when required to perform work
on premises, had sufficient control to consent to search).
Since there is no allegation that any of the information
used in obtaining the warrant was secured from observations
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2. There is no contention that the second floor was used for
any purpose other than the growing of marijuana.
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other than those made in the common areas of the house or on
the second floor, i.e, no allegation that any information was
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obtained from the search of areas in which others had a
reasonable expectation of privacy, the suppression motion was
properly denied. See Rodriguez, 497 U.S. at 188-89 (search
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valid if consenting party had apparent authority over the
area searched).
Affirmed.
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