Filed: Oct. 29, 2015
Latest Update: Mar. 02, 2020
Summary: 14-2666-cr United States v. Marte-Cruz UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
Summary: 14-2666-cr United States v. Marte-Cruz UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ..
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14‐2666‐cr
United States v. Marte‐Cruz
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ʺSUMMARY ORDERʺ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 29th day of October, two thousand fifteen.
PRESENT: ROBERT D. SACK,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. 14‐2666‐cr
HENRY MARTE‐CRUZ,
Defendant‐Appellant.
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FOR APPELLEE: ILAN GRAFF, Margaret Garnett, Assistant
United States Attorneys, for Preet Bharara,
United States Attorney for the Southern
District of New York, New York, New York.
FOR DEFENDANT‐APPELLANT: MARILYN S. READER, Law Office of Marilyn
S. Reader, Larchmont, New York.
Appeal from the United States District Court for the Southern District of
New York (Seibel, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant‐appellant Henry Marte‐Cruz appeals from the district courtʹs
judgment entered July 2, 2014, convicting him, following a three‐day jury trial, of
unlawful transportation of a firearm, in violation of 18 U.S.C. § 922(a)(3). The district
court sentenced Marte‐Cruz principally to thirteen monthsʹ imprisonment and three
yearsʹ supervised release. On appeal, Marte‐Cruz challenges the district courtʹs
decision, rendered orally on November 1, 2013, denying his motion to suppress
evidence obtained during a search of his bedroom. We assume the partiesʹ familiarity
with the underlying facts, the procedural history of the case, and the issues on appeal.
We review the district courtʹs ruling on a motion to suppress for clear error as to
its factual findings and de novo as to its conclusions of law. United States v. Bershchansky,
788 F.3d 102, 108 (2d Cir. 2015).
The relevant facts, as found by the district court, are as follows: Marte‐
Cruz resided in a bedroom in the basement of a home owned by his aunt and uncle.
Marte‐Cruz did not pay for rent or utilities, or otherwise contribute to household
expenses except for occasionally paying a few dollars for high speed cable. A closet in
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Marte‐Cruzʹs bedroom also served as a household storage space for things like luggage,
paper towels, and other home goods, and the bedroom contained an electrical box that
held the circuit breakers for the house, which was also frequently accessed by others
who lived in the house. The door of the basement bedroom had a lock on it, but only
the aunt had the key and she did not share it with Marte‐Cruz or others. Marte‐Cruz
was able to lock the door from the inside when he was there, but the door was usually
left open and unlocked when he was not present. Family members had free access to
the bedroom, and they regularly accessed it once or more a week. Marte‐Cruz was
aware that family members were accessing his bedroom at will, and he did not object or
take any steps to stop them from doing so.
On November 1, 2011, after the aunt informed police officers that Marte‐
Cruz kept a firearm in his bedroom, the uncle voluntarily gave consent to police officers
to search the basement bedroom. With the uncleʹs assistance, the officers discovered
and seized a firearm in Marte‐Cruzʹs bedroom between the mattress and boxspring of
his bed, and he was subsequently charged with unlawful transportation of a firearm.
Marte‐Cruz moved to suppress the evidence seized from the search, arguing that, inter
alia, the uncle did not have actual authority to consent to a search of his bedroom. The
district court denied the motion, holding that the uncle had ʺactual authority to consentʺ
to the search of the basement bedroom and that ʺthe officers were entitled to enter [the
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basement bedroom] based on his consent and seize the weapon that they found there.ʺ
App. at 137‐38.
We agree. A valid search generally requires both probable cause and a
warrant, unless it falls into one of the recognized exceptions to these requirements. See
Moore v. Andreno, 505 F.3d 203, 208 (2d Cir. 2007). ʺOne such exception is that a
warrantless entry and search are permissible if the authorities have obtained the
voluntary consent of a person authorized to grant such consent.ʺ United States v. Elliott,
50 F.3d 180, 185 (2d Cir. 1995); see also Florida v. Jimeno, 500 U.S. 248, 250‐51 (1991) (ʺ[W]e
have long approved consensual searches because it is no doubt reasonable for the police
to conduct a search once they have been permitted to do so.ʺ). A third party has actual
authority to provide consent to search if ʺfirst, the third party had access to the area
searched, and, second, either: (a) common authority over the area; or (b) a substantial
interest in the area; or (c) permission to gain access.ʺ United States v. Davis, 967 F.2d 84,
87 (2d Cir. 1992).
On appeal, Marte‐Cruz does not challenge the uncleʹs authority to consent
to a search of his bedroom, but argues that the uncle lacked authority to consent to the
search of his bed. He asserts that the district court should have undertaken a separate
analysis as to the uncleʹs authority to consent specifically to a search of the area between
the mattress and the box spring. We reject this argument.
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Marte‐Cruz was aware that other family members had largely unfettered
access to the bedroom, and he took no steps to restrict that access (other than when he
was present) or to indicate to the other family members that any particular areas within
the room were off limits to them. While it may be that there were certain areas or items
within the room to which the uncleʹs authority to consent did not extend, there is no
basis in the record to conclude that the area between Marte‐Cruzʹs mattress and box
spring was one of them. Thus, the district courtʹs conclusion that the uncle had the
authority to consent to the search of the area where the gun was located is well‐
supported by the record and suffices to establish the constitutionality of the search at
issue. See United States v. McGee, 564 F.3d 136, 139 (2d Cir. 2009) (ʺAuthority to consent
to a search rests on ʹmutual 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 the co‐
inhabitants 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.ʹʺ (quoting United States v. Matlock, 415 U.S. 164, 171 n.7 (1974))). Accordingly,
we affirm the district courtʹs denial of Marte‐Cruzʹs motion to suppress because the
uncle had actual authority to consent to the search of Marte‐Cruzʹs bedroom and bed.
We have considered Marte‐Cruzʹs remaining arguments and conclude
they are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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