In the

    United States Court of Appeals
                 For the Seventh Circuit

No. 08-3327

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

JARRETT M. JAMES,
                                                Defendant-Appellant.


               Appeal from the United States District Court
                 for the Western District of Wisconsin.
              No. 07 CR 163—Barbara B. Crabb, Chief Judge.



             A RGUED M AY 7, 2009—D ECIDED JULY 9, 2009




    Before
        FLAUM and W ILLIAMS,                   Circuit   Judges,   and
LAWRENCE, District Judge.1
  F LAUM , Circuit Judge. Facing trial on two counts of
armed bank robbery and two counts of brandishing a



1
  The Honorable William T. Lawrence of the United States
District Court for the Southern District of Indiana, sitting by
designation.
2                                             No. 08-3327

firearm during those robberies, Jarrett James moved to
suppress evidence obtained from a safe seized from
his mother’s home. The district court denied James’s
motion to suppress. Following a three-day trial, a jury
returned guilty verdicts against James on the four counts.
The district court sentenced James to 42 years in prison.
James has appealed the district court’s ruling on his
motion to suppress, and we now affirm.


                     I. Background
  On March 16, 2006, a robbery occurred at the
Middleton, Wisconsin, branch of Bank Mutual. The
robber confronted all three tellers present and took
money from each of their drawers. He then asked about
an unmarked, closed door behind the teller counter, and
the tellers led him into the bank vault. The robber de-
manded, and received, the cash from the vault. The
robber fled with $62,288.71.
  The tellers described the robber as an African American
male who wore gloves and concealed most of his face
with a stocking cap and hood. They estimated he was in
his late twenties to early thirties, stood approximately
5’7” to 5’10”, and weighed approximately 180-200 pounds.
The tellers described the weapon used in the hold-up as
a small gun, with reddish or rusty discoloration. A
witness from a nearby apartment complex saw a large
black car, either a Crown Victoria or Grand Marquis, in
the vicinity around the time of the robbery. The vehicle
had distinctive, five-spoke rims. Police uncovered tire
tracks in the snow.
No. 08-3327                                               3

  On April 14, 2006, another robbery took place at the
same Middleton branch of Bank Mutual. Without asking
for money from teller drawers, the robber immediately
ordered the tellers to unlock the unmarked, closed door
behind the counter. He entered the vault with two tellers
and obtained $58,700.00. Tellers recounted that the
robber wore dark clothing, a hooded sweatshirt, a scarf
which obscured his face, and pink fleece gloves. They
described him as an African American male, approximately
25-30 years old, standing approximately 5’7” to 5’9” tall,
and weighing 180-200 pounds. Tellers described the
gun used in the second robbery as a large, black,
semi-automatic weapon. Again, a witness saw a large,
black vehicle parked near the bank shortly before the
robbery. The vehicle had the same distinctive rims.
  On April 16, 2006, two days after the second robbery,
police received a phone call reporting that an African
American male had pulled up to a dumpster in a black
Mercury and had thrown away a pink or red colored
item. Police retrieved a pink fleece glove.
  On April 19, 2006, a police officer observed a black
1994 Mercury Grand Marquis with shiny rims matching
the witness descriptions obtained after the bank robberies.
The officer conducted a traffic stop of the vehicle for
failure to have a front license plate, a violation in Wis-
consin. He identified the driver of the vehicle as defendant
Jarrett James. Dane County jail records showed James’
date of birth as 7/31/79 and described him as an African
American male, 5’10” tall, and 180 pounds.
  On October 24, 2006, with James suspected of both
robberies, detective Darrin Zimmerman of the Middleton
4                                            No. 08-3327

police department interviewed James’s mother, Linda
Martin. Martin told Zimmerman that James resided with
her at her home at 4009 Claire Street in Madison, Wiscon-
sin, in early 2006. James used 4009 Claire Street as his
address on important documents such as his car title.
Martin indicated that she had seen a gun in her
residence when James resided with her. She recounted
that when she found it, she told James to remove it from
the residence. Beginning in March 2006, James rented an
apartment at 803 North Thompson Drive in Madison
pursuant to a six-month lease. Martin informed
Zimmerman that James had been arrested in Nebraska
in May 2006 and was incarcerated there awaiting
trial. When James’s lease on the North Thompson Drive
apartment expired in September 2006, Martin retrieved
James’s belongings from the apartment and took them
back to her house. At the end of the October 24 inter-
view, Zimmerman left Martin his business card to enable
her to contact him if she had any questions or further
information.
  Zimmerman then confirmed with the Omaha, Nebraska,
police department that on May 16, 2006, James and a
companion were arrested in Omaha after a traffic stop.
They were in a Lexus and James was the driver. In the
trunk of the car, police found a large black duffel bag
containing marijuana, a scale, and a gun. The firearm
was a Taurus semi-automatic with a silver slide and
black handle, and that gun matched the description of the
gun used in the second Middleton bank robbery.
  On October 30, 2006, Martin left a voice message at
Zimmerman’s work phone number stating that she had
No. 08-3327                                             5

received a letter from James telling her there was a gun
inside her residence in a safe that belonged to James.
Martin stated in the message that she was not going
to open the safe before police came over to her residence.
Zimmerman responded to Martin’s message and told
her he would like to come to her residence and assist
her with turning the gun over to police. Martin did not
object to that plan.
  On October 31, 2006, Attorney Terry Frederick left a
message for Zimmerman stating he had been retained by
Martin and wanted all further contact to come through
him. On November 1, Zimmerman returned Frederick’s
call. Zimmerman advised Frederick that he was
interested in evidence contained in Martin’s residence.
Frederick said that he was not aware of Martin having
any information regarding the bank robberies. Zimmerman
and Frederick agreed to meet at Martin’s residence con-
cerning the evidence.
  On November 2, 2006, Zimmerman and another detec-
tive met Martin and Frederick at Martin’s residence.
Martin opened a closet and pointed to a safe on the floor
of the closet. Martin said that the safe belonged to James
and that the gun she had referenced was inside.
Zimmerman told Frederick and Martin that he intended
to seize the safe so the evidence was not destroyed, and
he would then obtain a search warrant before opening
the safe. Zimmerman did not provide a formal consent
form. Neither Martin nor her attorney objected to
Zimmerman’s plan; they remained silent. Martin pro-
vided Zimmerman with the keypad code for the safe.
6                                               No. 08-3327

The meeting ended cordially, and Zimmerman left with
the safe.
  A state judge then issued a search warrant for the safe,
and police opened the safe after the warrant issued. They
recovered contraband, including a gun that matched
descriptions of the gun used during the first robbery.
They also recovered receipts and other evidence of large
cash purchases that James had made in the time period
immediately after the robberies. Based on that evidence,
Middleton police contacted the previous owner of the
Lexus that James had been driving in Nebraska. Police
learned that in late April 2006, James had purchased
the Lexus for $15,500.00. He paid in 155 sticky and crisp
$100 bills, and he made the payment without checking
out the used car or negotiating the price. Police also
located the Grand Marquis, which had been abandoned,
and matched the tire tracks found at the first bank robbery.
  On December 5, 2007, a federal grand jury in the
Western District of Wisconsin returned a six-count indict-
ment charging James with two counts of armed bank
robbery, two counts of brandishing a firearm during
those bank robberies, one count of possessing cocaine
base with the intent to distribute (there was also cocaine
in the safe), and one count of possessing a firearm in
furtherance of that drug crime. At the government’s
request, the district court later dismissed the drug
charge and the drug-related firearm charge.
  On May 1, 2008, James filed a motion to suppress
seeking to bar the government from introducing at trial
the safe, its contents, and any evidence derived from it.
No. 08-3327                                               7

On May 14, 2008, Magistrate Judge Stephen Crocker
conducted an evidentiary hearing on James’s motion to
suppress. Zimmerman and Frederick testified. Zimmer-
man testified that after he seized the safe, he “didn’t open
it without a search warrant.” On May 30, 2008, the magis-
trate judge recommended that the district court deny
James’s motion to suppress evidence. The magistrate’s
report stated that James was conflating his possessory
interest in the safe with his privacy interest in its con-
tents. The report added that it was not even clear that
removal of the safe from Martin’s home constituted
interference with James’s possessory interest. In any
event, the report concluded that Martin had the right to
allow police to enter the home, and police had probable
cause to secure the container before the state issued a
warrant to search its contents.
  On June 3, 2008, James objected to the recommendation.
He argued that the magistrate erred in concluding
both that police could seize his property without a war-
rant, and that James had no interest in the safe that was
infringed by removing the safe from Martin’s home
without his consent.
  The district court adopted the magistrate’s recommenda-
tion and denied James’s motion to suppress. The court
stated the “only question to be decided in determining the
constitutionality of the seizure of the safe [was] whether
the seizure violated any possessory interest of defendant,”
and it concluded that “[c]learly it did not.”
 The case went to trial on June 16, 2008. The govern-
ment introduced evidence that: (1) James matched the
8                                             No. 08-3327

tellers’ physical descriptions of the robber from both
robberies; (2) he drove, at the time of the robberies, a
vehicle matching the description of a car seen parked
near the bank at both robberies, and tire marks left in
the snow outside the bank matched the tires on his car;
(3) the robber in the second robbery wore hot-pink fleece
gloves, and two days after that robbery a witness saw
someone matching James’s description and driving a
car matching the vehicle observed at the scene of the
robberies tossing what turned out to be a hot pink-colored
glove in a dumpster, and subsequent testing developed
James’s DNA inside the glove; (4) James confessed to
Nebraska inmate Lateeno Mills that he committed the
two Wisconsin robberies; (5) a gun that matched descrip-
tions of the gun used in the second robbery was
recovered from James at the time of his Nebraska arrest;
(6) the safe seized from Martin’s Madison residence
contained a gun that matched descriptions of the gun
used in the first bank robbery; and (7) James made large
cash purchases shortly after the second robbery. Based on
that evidence, on June 18, 2008, the jury returned guilty
verdicts against James on all charges. On September 4,
2008, the district court sentenced James to 42 years in
prison.


                      II. Analysis
  James claims that we should vacate the district court’s
judgment and sentence because the court failed to
suppress the items found in the safe that authorities
removed from Martin’s home and, after obtaining a
No. 08-3327                                                9

search warrant, searched. The district court’s denial of
James’s suppression motion is subject to a dual standard
of review. We review legal conclusions de novo and
findings of fact for clear error. United States v. Whited,

, 697 (7th Cir. 2008).
   The Fourth Amendment protects the “right of the
people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures . . . .”
U.S. Const. amend. IV. In clarifying that the amendment
addresses property interests in addition to privacy con-
cerns, the Supreme Court defined the amendment’s use
of the term “seizure” as “some meaningful interference
with an individual’s possessory interests in [his] property.”
Soldal v. Cook County, 

, 61 (1992) (citing
United States v. Jacobsen, 

, 113 (1984)). Thus,
James holds two interests protected by the Fourth Amend-
ment that were implicated by the seizure of the safe and
the subsequent search: (1) his privacy interest in the
contents of the safe; and (2) his right to possess the safe.
See United States v. Ward, 

, 1031 (7th Cir.
1998). James’s privacy interest in the contents of the safe
is not at issue in this case. After law enforcement officers
removed the safe from James’s mother’s home, they
obtained a search warrant before opening and searching
the safe, and James does not challenge that search.
  Only James’s interest in possessing his safe free from
government seizure is at issue. In the typical case, a
“seizure of personal property [will be] per se unreason-
able within the meaning of the Fourth Amendment
unless it is accomplished pursuant to a judicial warrant
10                                                No. 08-3327

issued upon probable cause and particularly describing
the items to be seized.” United States v. Place, 

,
701 (1983). However, because the Fourth Amendment, at
bottom, prohibits only “unreasonable” seizures, the
Supreme Court has recognized that a balancing must
take place, and that there are instances where societal
interests outweigh the individual’s right to be free from
the government’s unauthorized exercise of dominion
over his private property. 

. For instance, if “law enforcement authorities
have probable cause to believe that a container holds
contraband or evidence of a crime, but have not secured
a warrant,” seizure of the property is permitted
“pending issuance of a warrant to examine its contents, if
the exigencies of the circumstances demand it or some
other recognized exception to the warrant requirement
is present.” 

.
  Here, the government argues, a recognized exception
to the warrant requirement was present: third party
consent. Because a person may voluntarily waive his
Fourth Amendment rights, no warrant is required where
the defendant consents to a search. United States v. Matlock,

, 171 (1974). Based on the concept of assump-
tion of risk, that exception to the warrant requirement
extends to consent legitimately obtained from a third
party. Id.; United States v. Duran, 

, 504 (7th Cir.
1992). Thus, where a defendant allows a third party to
exercise actual or apparent authority over the defendant’s
property, he is considered to have assumed the risk that
the third party might permit access to others, including
No. 08-3327                                                 11

government agents. 

n.7; United
States v. Jensen, 

, 1048-49 (7th Cir. 1999). James
agrees that if Martin had actual or apparent authority to
consent to the seizure of James’s property, and if Martin
actually consented voluntarily, then no constitutional
violation occurred here.2 James argues, however, that
Martin had neither actual nor apparent authority to
consent. In addition, he argues that even if Martin did
have authority to consent, she did not actually do so
voluntarily.
  We turn first to whether Martin had actual or apparent
authority to consent. The government has the burden of
proving authority to consent by a preponderance of the
evidence. United States v. Denberg, 

, 991 (7th
Cir. 2000) (citing Illinois v. Rodriguez, 

, 181
(1990)). Consent to a search or seizure may be obtained
from any person who has common authority over the
property (actual authority), Denberg, 

, 991 (7th
Cir. 2000), or who would appear to a reasonable person,
given the information that law enforcement possessed, to
have common authority over the property (apparent
authority). United States v. Basinski, 

, 834 (7th
Cir. 2000). In the search context, the Supreme Court has
expounded: “The authority which justifies the third-party
consent . . . rests rather on mutual use of the property
by persons generally having joint access or control for
most purposes.” 

n.7. Adopting the


2
   James does not dispute that law enforcement had probable
cause to make the seizure.
12                                              No. 08-3327

Court’s guidance to an initial seizure, as opposed to a
subsequent search, we can conclude that Martin had
authority to consent if: (1) she had joint control of or
access to the safe itself (regardless of whether she had
access to the contents of the safe) (actual authority); or
(2) it was reasonable for police to believe she had joint
control of or access to the safe itself (apparent authority).
  Below, the government submitted evidence that James
lived with Martin at 4009 Claire Street off and on, includ-
ing during the time of the bank robberies. In late
March 2006, James had also leased an apartment at 803
North Thompson Drive. When the lease expired, Martin
gathered James’s belongings from that apartment and
brought them to her residence at 4009 Claire Street, and
Martin had maintained possession of them since then.
The district court found that the safe was at Martin’s
house because James had left it with her when he took
off for Nebraska. That finding is supported by the
record, and it was not clearly erroneous. It is clear that
Martin possessed the safe for a significant period of time.
Even though the safe contained only James’s belongings,
Martin exercised control over the safe itself. There is no
evidence that James attempted to limit or restrict her
control over the safe. On these facts, we can conclude
that James assumed the risk that Martin would consent
to the safe’s seizure; Martin had actual authority to con-
sent. Even if James had not granted actual authority
to Martin, she had apparent authority because a rea-
sonable person, given the information that Detective
Zimmerman possessed, would believe that Martin had
joint control of the safe.
No. 08-3327                                              13

  We next consider whether Martin actually and volun-
tarily did consent to the seizure. The government bears
the burden of proving that a third party consented volun-
tarily. United States v. Evans, 

, 1230 (7th Cir.
1994) (citing Schneckloth v. Bustamonte, 

, 222
(1973)). James argues that Martin’s silence as Zimmerman
seized the safe cannot constitute consent. However, we
recognize that consent may be manifested in a non-verbal
as well as a verbal manner. United States v. Walls, 

, 863 (7th Cir. 2000). Consent can be expressed or
implied from the circumstances. United States v. Wesela,

, 661 (7th Cir. 2000). In Wesela, we deter-
mined that a woman who had called 911 and requested
that police come to her home had “impliedly” consented
to a search of the premises. While there was no direct
verbal exchange between the woman and law enforce-
ment officers, we stated that the events indicated her
implicit consent and stated that “had she wished to do
so, she could have objected to [the] . . . search.” 

case, the government submitted evidence demon-
strating that Martin called Zimmerman on October 30,
2006, left a message for him about the gun, and told him
that she would not open the safe without police present.
In a return call, Zimmerman told Martin he would like
to assist her with turning the gun over to police. On
November 1, Zimmerman spoke with Martin’s attorney
and told him that police were interested in evidence
contained in the safe, and the two of them made arrange-
ments to meet at Martin’s residence. Martin’s attorney
had no objection to this process. On November 2,
Zimmerman met with Martin and her attorney at Martin’s
14                                            No. 08-3327

residence. Martin invited Zimmerman to come in, led
Zimmerman to the safe, and said that the gun was inside.
Zimmerman advised Martin and her attorney that he
would seize the safe to protect the evidence, but that he
would obtain a search warrant before searching inside
the safe. Martin and her attorney could have voiced their
objections to Zimmerman’s plan, but neither objected. The
government submitted sufficient evidence for us to con-
clude that Martin voluntarily consented, through her
words and actions, as a matter of law.
  Finally, even if there had been error in the district
court’s failure to suppress the evidence seized from the
safe, any such error would have been harmless. If the
government had never uncovered evidence from the
safe, at the least it still would have presented: (1) the
testimony of the victim tellers whose descriptions of the
robber during both robberies matched the defendant’s
physical characteristics; (2) evidence describing the
vehicle seen near the bank at the approximate times of
both bank robberies, and the evidence that the defendant
was stopped driving a vehicle that exactly matched
that description; (3) the pink fleece glove, which
matched the description of the gloves worn by the
robber during the April 14 robbery, and which contained
James’s DNA as the major component of the DNA identi-
fied inside the glove; (4) evidence that James was
positively identified driving his vehicle two days after
the second robbery, and was seen tossing a pink glove in a
dumpster; (5) evidence that the handgun used in the
April 14 robbery was recovered during the Nebraska
arrest; and (6) evidence of James’s detailed admissions to
No. 08-3327                                           15

both robberies made to an inmate in the Nebraska jail. We
believe that the jury would have convicted James of the
two counts of armed bank robbery and the two counts
of brandishing a firearm during those bank robberies
even without evidence from the safe.


                    III. Conclusion
  We A FFIRM the judgment and conviction order of the
district court.




                          7-9-09