United States v. Chirichiello

Opinion

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February 18, 1994     [NOT FOR PUBLICATION]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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