In the

United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 07-2077

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                 v.

T ERRY L. R EED,
                                              Defendant-Appellant.
                          ____________
             Appeal from the United States District Court
      for the Northern District of Indiana, South Bend Division.
          No. 06 CR 75—Robert L. Miller, Jr., Chief Judge.
                          ____________

    A RGUED F EBRUARY 14, 2008—D ECIDED A UGUST 20, 2008
                          ____________



  Before M ANION, R OVNER, and W ILLIAMS, Circuit Judges.
  M ANION, Circuit Judge. During interrogation by police,
Terry Reed claimed he had no authority to permit a
search of a dwelling he apparently shared with his girl-
friend. After he was arrested on an outstanding warrant,
his girlfriend consented to a search that produced a
weapon and drugs. Reed was convicted by a jury of being
a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) and being a drug user in possession of a firearm
2                                              No. 07-2077

in violation of 18 U.S.C. § 922(g)(3). Reed appeals the
district court’s denial of his motion to suppress, claiming
that the search violated the Supreme Court’s holding in
Georgia v. Randolph, 

(2006). He also chal-
lenges the district court’s rejection of a proposed jury
instruction. We affirm.


                            I.
  On March 27, 2006, while patrolling in an unmarked
police vehicle, Corporal Scott Severns of the South Bend,
Indiana, Police Department spotted a black Cadillac
Escalade driven by Terry Reed. Severns recognized Reed
from an earlier investigation during which undercover
officers had purchased crack cocaine at 4009 Bonfield
Place in South Bend. Severns also knew that Reed had a
suspended driver’s license and an outstanding warrant.
Because he was in an unmarked car, Severns radioed for
a marked car to stop Reed. Corporal Michael Ingle re-
sponded to the call and stopped the Escalade. Reed exited
the vehicle and was arrested. During the pat-down of
Reed, Ingle discovered a baggie containing crack cocaine
and over $5,000 in cash in Reed’s pockets.
  After reading Reed his Miranda rights, Severns con-
ducted a recorded interview at the scene of the stop.
During the interview, Reed stated that the cocaine that
Ingles found was for Reed’s personal use. Reed also told
Severns that he lived at 1805 Sample Street in South Bend
and that he had multiple prior felony convictions. Severns
told Reed that police had information that Reed had guns
at 4009 Bonfield Place and asked Reed if he lived there.
No. 07-2077                                               3

Reed responded that he only visited there but he gave his
girlfriend money to pay the rent there. As for the guns,
Reed said that he was not aware of any guns and that
he did not own any guns because of his felony convic-
tions. When Severns inquired whether Reed would sign a
consent to search form for 4009 Bonfield, Reed responded,
“Naw, it’s not my place. I can’t give you permission for
that.” Thereafter, Reed was taken to jail.
  While Severns was interviewing Reed, Johanna Foster,
Reed’s girlfriend, drove up to the scene and spoke with the
officers. Severns also conducted a taped interview of
Foster. Foster informed him that she lived at Alonzo
Watson Drive, but stayed with Reed at 4009 Bonfield.
Foster also stated that the lease for 4009 Bonfield was in
both her and Reed’s names. When Severns inquired
whether there were any guns at the residence, Foster
responded that she thought that there were two guns that
belonged to Reed’s friend. When Severns asked Foster if
the police could search the house, Foster responded, “If
I go with them and they promise not to tear it up.” The
police and Foster drove to 4009 Bonfield, and after consult-
ing her sister and an attorney, Foster signed the consent
form.
  During the course of the search of 4009 Bonfield, officers
found a Lorcin .380 caliber handgun and a Smith and
Wesson .38 caliber special revolver in the bedroom closet.
Also in the bedroom, the officers located a small amount
of crack cocaine on top of a television set and documents
addressed to Reed (with the Sample Street address). The
officers found a box of .38 special ammunition there as
4                                               No. 07-2077

well. Tests later revealed that a fingerprint on one of the
guns belonged to Reed.
  In a two-count indictment, Reed was charged with
being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1) and being a drug user in possession
of a firearm in violation of 18 U.S.C. § 922(g)(3). Citing
Georgia v. Randolph, 

(2006), Reed moved to
suppress the evidence acquired during the search of 4009
Bonfield. After conducting a hearing, the district court
denied Reed’s motion. It concluded that Reed’s case was
distinct from the scenario in Randolph and that consent
to search was validly obtained to search 4009 Bonfield.
   Reed pleaded guilty to the felon in possession of a
firearm charge, but later withdrew his plea and proceeded
to trial. At trial, Reed testified that he had touched the
guns, but he had thought that they were toys. Reed stated
that he immediately returned the bag in which the guns
were located to the closet shelf once he saw what appeared
to him to be ammunition. Outside of the presence of the
jury, Reed submitted to the district court the following
proposed jury instruction: “The mere presence of a finger-
print on a firearm is insufficient to prove possession of a
firearm beyond a reasonable doubt.” The district court
rejected this submission, concluding that it was “unneces-
sary and overstatement of the law.” The district court
further noted, that “[c]ounsel are free to argue the issue
of sufficiency without further instruction.” The jury
returned a verdict of guilty on both counts, and Reed was
sentenced to 262 months’ imprisonment. Reed now
appeals the denial of his motion to suppress and the
district court’s rejection of his proposed jury instruction.
No. 07-2077                                                  5

                              II.
  We review questions of law de novo and findings of fact
for clear error when reviewing a district court’s denial of
a motion to suppress. United States v. Hagenow, 

, 641-42 (7th Cir. 2005).
  Reed contends that the evidence seized during the
search of 4009 Bonfield should be suppressed pursuant to
Georgia v. Randolph, 

(2006). In Randolph, the
Supreme Court held that a stated refusal to permit entry
by a physically present co-occupant prevails over the
consent to search by the other co-occupant, rendering the
warrantless search unreasonable and invalid as it affects
the non-consenting 

. Both
the defendant in Randolph and his estranged wife were
at the threshold of the residence when police arrived.
The officers first asked Randolph for consent to search;
after he objected, the officers turned to his wife, who
consented. In deciding Randolph, the Court carefully
distinguished and preserved the holdings in two earlier
Supreme Court cases involving challenges to the consent
to search a defendant’s residence. In United States v.
Matlock, 

(1974), the defendant was in a squad
car near his dwelling but was not given the opportunity to
object to the search. In Illinois v. Rodriguez, 

(1990), the defendant was asleep in the residence but was
not given a chance to object to a search. In both cases the
Court held that consent to search by a co-occupant of the
premises was valid. In Randolph, the Court stated that the
“fine line” it was drawing was this: “if a potential defen-
dant with self-interest in objecting is in fact at the door and
6                                                No. 07-2077

objects, the co-tenant’s permission does not suffice . . .
whereas the potential objector, nearby but not invited
to take part in the threshold colloquy, loses out.”

. The Court, however, continued
qualifying this “fine line” by stating that it stands “[s]o
long as there is no evidence that the police have re-
moved the potentially objecting tenant from the entrance
for the sake of avoiding a possible objection.” 

district court properly concluded, Reed’s case
does not fall within the ambit of Randolph. First, Reed
was absent from the residence at the time Foster con-
sented and the search was conducted. Reed’s absence was
a result of a valid arrest, and the police did not execute
the arrest for the purpose of removing Reed from the
area when the police obtained Foster’s consent. See United
States v. Wilburn, 

, 745 (7th Cir. 2007) (con-
cluding that the case did not fall within the narrow line
of Randolph where the defendant was not physically
present when consent was obtained and he was not
removed “from the area to avoid hearing him invoke an
objection to the search”). See also United States v. DiModica,

, 499 (7th Cir. 2006) (concluding that there
was no Fourth Amendment violation where consent to
search was obtained from a wife after her husband was
removed from the home during the course of a valid
arrest); United States v. Parker, 

, 1078-79 (7th
Cir. 2006) (holding that the co-tenant’s consent to search
a house was independent of defendant’s arrest). Further,
it is clear from the record that Foster voluntarily con-
sented to the search of 4009 Bonfield, as evinced by her
consultation with her sister and an attorney.
No. 07-2077                                                  7

  Moreover, had Reed been standing in the doorway and
refused to consent to a search because it was not his place,
only to be overridden by Foster’s subsequent consent,
we might have a closer question under Randolph. But we
need not answer that question because unlike the defen-
dant in Randolph, Reed was not present at the searched
residence. Reed cites United States v. Ellis, 

(7th
Cir. 2007), in support of his position that his statement
was a refusal binding the officers not to search. However,
Reed’s case is distinct from Ellis. The defendant in Ellis
stood at the door and stated a decisive “no” to the officers’
request to search a home before stating that he did not
live in the house. 

690. Reed, however, was away
from the home and responded to Severns’s request to
sign a form giving the officers consent to search “your
place over on Bonfield.” Reed responded, “Naw, it’s not
my place[;] I can’t give you permission for that.” Unlike
the defendant in Ellis, Reed was not present at the thresh-
old of the home. In fact, he was not near the location
when police stopped his car and arrested him. Therefore,
in light of Reed’s absence from 4009 Bonfield, we con-
clude that the district court did not err in holding that
the suppression of evidence was not warranted under
Randolph.
  Reed also challenges the district court’s rejection of one
of his proposed jury instructions, arguing that the rejection
denied him a fair trial. “We review a district court’s
decision not to instruct the jury on a theory of defense de
novo.” United States v. Hendricks, 

, 1004 (7th
Cir. 2003). Considering the jury instructions as a whole, a
defendant is not entitled to a specific instruction if a jury
8                                               No. 07-2077

was adequately instructed on a defendant’s theory of
defense. United States v. Given, 

, 394 (7th Cir.
1999).
   The proposed instruction the district court rejected
stated, “The mere presence of a fingerprint on a firearm
is insufficient to prove possession of a firearm beyond a
reasonable doubt.” The district court submitted to the
jury the instruction that the government must prove,
among other things, that Reed knowingly possessed a
firearm, and that:
    The word “knowingly” means that the defendant
    realized what he was doing and was aware of the
    nature of his conduct and did not act through igno-
    rance, mistake or accident. Knowledge may be proved
    by the defendant’s conduct and by all the facts and
    circumstances surrounding the case.
    Possession of an object is the ability to control it.
    Possession may exist even when a person is not in
    physical contact with the object, but knowingly has
    the power and intention to exercise direction and
    control over it, either directly or through others.
(Emphasis added.)
  We conclude that viewing the instructions as a whole, the
district court did not err in denying Reed’s request for
the specific instruction. The provided instruction clearly
sets forth that possession must be knowing and that
possession is not achieved by accident. Thus, the instruc-
tion given encompassed Reed’s theory of the case that he
accidentally came in contact with the guns. Furthermore,
No. 07-2077                                              9

the district court permitted Reed’s counsel to assert his
theory regarding sufficiency during closing argument.
Reed’s attorney took advantage of this opportunity by
stating that Reed was not charged with touching a fire-
arm and asserted that Reed coming in contact with the
guns was an accident caused by Reed’s mistaken belief
that the gun was a toy. Accordingly, the district court
did not err in rejecting Reed’s proposed jury instruction.


                            III.
  The police officers’ search of 4009 Bonfield did not
violate the principles set forth in Randolph, and therefore
the district court properly denied Reed’s motion to sup-
press. Regarding the jury instructions, the district court
did not err in denying Reed’s proposed instruction be-
cause the instruction given properly informed the jury of
the controlling law and instructed the jury on Reed’s
theory of defense. Accordingly, we A FFIRM .




  R OVNER, Circuit Judge, concurring. I agree both with the
result and the bulk of the reasoning in this majority
opinion. I object only to the statement that a valid arrest
eviscerates a resident’s objection to an officer’s request
to search made while that resident was present on the
property.
10                                              No. 07-2077

  In my recent dissent in United States v. Henderson, No. 07-
1014, 

(7th Cir. Aug. 6, 2008) (Rovner, J.,
dissenting), I argued that “where the police are responsible
for the objecting tenant’s removal from the premises, his
objection ought to be treated as a continuing one that
trumps his co-tenant’s consent and so precludes a search of
the premises unless and until the police obtain a warrant.”

My conclusion rested on the essential expectation
of residential privacy protected by the Fourth Amendment,
and specifically, on the social expectations paradigm
upon which the Supreme Court relied in its decision in
Georgia v. Randolph, 

, 

(2006).
“Only in a Hobbesian world,” I wrote, “would one
person’s obligation to another [to obey the command to
keep out] be limited to what the other is present and able
to enforce.” Henderson, 

, at *11 (Rovner, J.,
dissenting)
  On the flip side of this theory, once a tenant chooses to
share access to the premises with another person and then
leaves the premises voluntarily, that resident assumes
the risk that a co-tenant may admit an objectionable
person into the residence. Henderson, 

,
at *11 (Rovner, J., dissenting). Under this reasoning, a
court must consider not whether the resident was removed
pursuant to a valid arrest, but whether the objecting
resident was removed involuntarily or whether he aban-
doned the premises of his own volition. In this case,
however, we need not be bothered with such a determina-
tion. Reed was never removed from the premises, nor was
he present at the address when he said “Naw, it’s not my
place. I can’t give you permission for that.” He was sitting
in his car on the side of the road. He was not, therefore, a
No. 07-2077                                           11

present and objecting tenant. Consequently, in sustaining
the search, I would go no further than noting that
Reed was absent from the premises when his girlfriend,
who was present at the residence and had authority to
consent, gave the okay for the search.




                         8-20-08