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United States v. Cross

United States Court of Appeals, Eighth Circuit

April 30, 2018

United States of America Plaintiff- Appellee
v.
Donavan Cross Defendant-Appellant

          Submitted: December 14, 2017

          Appeal from United States District Court for the Northern District of Iowa - Sioux City

          Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.

          LOKEN, CIRCUIT JUDGE.

         A jury convicted Donavan Cross of being a prohibited person in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1), (3), 924(a)(2). The district court[1] sentenced Cross to 120 months in prison. Cross appeals his conviction and sentence, raising several issues. We affirm.

         I. The Suppression Issue

         On June 4, 2016, Andrea Cross called 911 to report a "physical" disturbance between her grandson, Donavan Cross, and his girlfriend at Andrea's home in Sioux City, Iowa. Andrea told the dispatcher she had left the home and responding officers should "use the front door" to enter. Officers Paul Yaneff and William Enockson soon arrived. As they approached the front door, they heard a woman scream inside. Moments later, Cross's girlfriend, Sophia Finauga, exited the house, distraught and exhibiting a bruised eye. Yaneff called her but Finauga ran back into the house.

         Cross, known to be violent and to carry weapons, was wanted on a warrant. Officer Yaneff requested backup. Other officers arrived and surrounded the house. Using a loudspeaker, Yaneff repeatedly ordered Cross to exit the home with his hands empty. Finauga came out first. Yaneff directed her to safety after confirming Cross was still inside. Cross finally emerged, naked except for a hand towel, and was arrested on the outstanding warrant. Cross said he wanted to get clothes from the home and led Yaneff and two other officers inside to his clothes lying in a hallway. On the left side of the hallway was a bedroom; Yaneff testified Cross tried to close the bedroom door with his foot while they were picking up his clothes. As they were leaving, the officers asked Cross if they should lock or shut the front door. Cross replied, "[l]eave it alone just in case [Finauga] goes back inside."

         After questioning Cross about Finauga's eye injury and whether she lived with him, Officer Yaneff spoke with Finauga. She said her eye injury resulted when Cross assaulted her four days earlier. Meanwhile, Sergeant Jacob Hoogendyk called the number Andrea Cross had provided. She said that Finauga "had recently moved back into the residence with Donavan, " the two had many verbal fights, and "[Finauga] can go get her stuff, and then I want her gone." The Officers helped Finauga arrange for her mother to pick her up. Yaneff asked Finauga if she wanted to collect her belongings from Andrea Cross's home to take to Finauga's mother's home. Finauga said yes and agreed that two officers should accompany her inside the home.

         Inside the home, Finauga walked into the bedroom, collected a makeup bag, and began filling two duffel bags with her belongings. When she picked up a t-shirt lying atop a hamper, a nine-millimeter Ruger gun fell on the floor, ejecting the gun's loaded magazine. Finauga claimed she knew nothing about the gun. Officer Yaneff, standing in the doorway, told Finauga to back away from the gun, collect her belongings, and leave the room. Yaneff proceeded to apply for a search warrant.

         Meanwhile, Andrea Cross returned to the rear of her home. Hoogendyk explained they found a gun, were obtaining a search warrant, and asked who used which rooms. Andrea Cross said the bedroom was Donavan's, a room across the hall was his music studio, and he used the bathroom between those rooms. During the ensuing warrant search, officers found a methamphetamine pipe containing burnt residue, clear plastic baggies, mens clothing, and mail and documents addressed to Donavan Cross in the bedroom where the gun and magazine were found. In the studio room, they found live ammunition for the gun, drug paraphernalia, and a plastic bag containing a substance that field-tested positive for methamphetamine. In the bathroom, they found more drug paraphernalia, a holster that fit the gun, and Donavan Cross's cellphone and debit card.

         Before trial, Cross moved to suppress the evidence seized from his home, arguing Finauga lacked apparent authority to consent to the officers' entering without a warrant while she collected her belongings. After an evidentiary hearing, the magistrate judge[2] recommended denying the motion, concluding Finauga had actual and apparent authority to consent to the entry. Adopting all but one of the magistrate judge's findings, the district court denied the motion to suppress, concluding the entry into Andrea Cross's house before the warrant issued was constitutionally permissible because it was within the scope of Andrea Cross's initial consent to enter her home to resolve a domestic disturbance, and because the officers reasonably believed that Finauga had apparent authority to consent to the officers' entry. In reviewing the denial of a motion to suppress, we review the court's fact findings for clear error and its legal conclusions de novo. United States v. Amratiel, 622 F.3d 914, 915 (8th Cir. 2010), cert. denied, 562 U.S. 1247 (2011).

         The general prohibition against warrantless entry into a home does not apply "to situations in which voluntary consent has been obtained, either from the individual whose property is searched, or from a third party who possesses common authority over the premises." Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); see United States v. Matlock, 415 U.S. 164, 171 (1974). "Consent is valid when an officer reasonably relies on a third party's demonstration of apparent authority over the premises." United States v. Lindsey, 702 F.3d 1092, 1096 (8th Cir.) (quotation omitted), cert. denied, 570 U.S. 912 (2013). A third party has apparent authority when "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." Amratiel, 622 F.3d at 916 (quotation omitted). Whether the police reasonably rely "on indicia of common authority . . . is a question of law that we review de novo." United States v. Almeida-Perez, 549 F.3d 1162, 1170 (8th Cir. 2008).

         On appeal, Cross argues the police had no reason to believe they had valid consent to enter because they did not adequately investigate Finauga's apparent authority, and because Andrea Cross's initial consent to enter the home lapsed once the domestic disturbance had been resolved. But Cross ignores a litany of facts permitting reasonable officers to believe they had consent to accompany Finauga into the home to collect her personal belongings: After the officers arrived, Finauga exited and reentered the house freely. Cross, under arrest and leaving with his clothing, told the officers to leave the front door open in case Finauga went back inside. Finauga told an officer she had been with Donavan Cross for "a while" and confirmed she had personal belongings in the home. Finauga had to call her mother to come get her, suggesting she was not a temporary visitor. And Andrea Cross ...


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