USA v. Chirichiello

• Court: District Court, D. New Hampshire
• Decided: June 24, 1993
• Docket: CR-92-92-B
• Status: Published

Opinion

USA v. Chirichiello CR-92-92-B 06/24/93

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 92-92-01-B

Gary Chirichiello

O R D E R

Defendant, Gary Chirichiello, has been charged with growing

marijuana in violation of 21 U.S.C. § 841(a) (1) . The physical

evidence supporting this charge, including numerous marijuana

plants, was seized during the search of a residence pursuant to a

warrant. The information used to obtain the search warrant,

however, was uncovered during a warrantless search of the

residence by a New Hampshire state police trooper who was

admitted by an informant claiming that he lived at the residence

and was helping Chirichiello grow the marijuana.

Chirichiello has moved to suppress the evidence obtained in

both searches because he claims that the informant lacked actual

or apparent authority to consent to the warrantless search. I

reject Chirichiello's contention and conclude that the informant

had sufficient apparent authority to justify the search because

the state police trooper who conducted the search reasonably

believed that the informant had common authority over the premises. Accordingly, I deny the motion to suppress.

FACTS

On July 27, 1992, New Hampshire State Trooper Susan Forey

spoke with Robert J. Anthony, an informant who had previously

provided Trooper Forey with reliable information in another

investigation. Anthony told Trooper Forey that he could bring

her to a residence in Landaff, New Hampshire, where he was

involved in growing marijuana with Chirichiello and two other

individuals.

Later that day, as Anthony and Trooper Forey were driving to

the residence, Anthony explained that Chirichiello and the others

had been growing marijuana at a residence in Antrim, New

Hampshire and that they had invited Anthony to join in their

venture shortly before they decided to move the operation to

Landaff. Anthony's role in the operation was to assist in the

move, provide advice regarding the growing process, and care for

the plants by watering them regularly, checking the timers for

the lights and fans, and protecting the plants if the electricity

went out. Anthony also stated that he was responsible for caring

for two dogs Chirichiello kept at the Landaff residence. In

return for these services, Anthony claimed that he was supplied

2 with food and permitted to live at the residence. Anthony also

informed Trooper Forey that while he did not have his own key to

the house, he did have access to a key which was kept over the

door. He informed her that the marijuana was being grown on the

second floor behind a door secured by a combination lock and that

he knew the combination and had access to the plants.

When they arrived at the house, Anthony retrieved the key

and opened the door. During the tour of the common areas of the

house. Trooper Forey observed manuals explaining how to grow

marijuana. Also during the tour, Anthony pointed out food that

belonged to him and explained that although he had formerly slept

inside, he now slept in a tent in the backyard because he did not

want to get caught in the house with the marijuana plants.

However, he informed Trooper Forey that he continued to use the

kitchen and bathroom facilities regularly.

After inspecting the first floor. Trooper Forey and Anthony

climbed the stairs and Anthony unlocked the combination lock on

the upstairs door. They entered the various rooms on the second

floor where the marijuana was being grown, and Trooper Forey took

numerous photographs of the plants. On August 12, 1992, Trooper

Forey filed an application for a search warrant based on what she

had seen in the house.

3 DISCUSSION

The government defends Trooper Forey's warrantless search of

the Landaff residence by arguing that she reasonably believed

that Anthony had authority to consent to the search. The

standard against which this claim must be tested is derived from

two Supreme Court decisions: United States v. Matlock, 415 U.S.

164 (1974), and Illinois v. Rodriquez, 110 S. Ct. 2793 (1990).

In Matlock, the Supreme Court held that a third party with

"common authority" over a premises may consent to a search of the

premises. Common authority exists when there is

mutual use of the property by persons generally having joint access and 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 members might permit the common area to be searched.

415 U.S. at 171 n.7. In Rodriquez, the Supreme Court extended

Matlock to situations in which the police officer conducting the

search acted under a reasonable but mistaken belief that the

third party consenting to the search had the power to consent to

the search. 110 S. C t . at 2801. Reading Matlock and Rodriquez

together, therefore, a search conducted pursuant to the consent

of a third party will be lawful if, considering the totality of

circumstances, the law enforcement officer conducting the search

4 reasonably believes that the consenting party has common

authority over the place to be searched.

In the present case, Anthony told Trooper Forey that he had

recently been living in the residence and that he still used the

kitchen and bathroom facilities on a regular basis. More

importantly, Anthony told Trooper Forey that, as an active

participant in the conspiracy, he had regular access to the

residence in general, and the marijuana growing rooms in

particular. Moreover, Trooper Forey had a substantial basis for

crediting Anthony's claims because: (i) Anthony had provided her

with information in a prior investigation that had proved to be

reliable, (ii) certain observations Trooper Forey made at the

scene before she entered the residence supported the accuracy of

Anthony's information,1 and (iii) Anthony knew where to find the

key to the house and knew the combination of the lock on the door

to the growing rooms. Thus, the totality of the facts available

1 When they arrived at the house. Trooper Forey recognized two vehicles that were present on the property. The first was a truck which she knew was registered to Chirichiello. The second vehicle belonged to another individual whom Trooper Forey was already in the process of investigating. Anthony also identified other individuals who were involved in the investigation that were known to Trooper Forey. At the hearing. Trooper Forey testified that the presence of the vehicles, and her ability to corroborate the names provided by Anthony supported her reliance on Anthony's statements.

5 to Trooper Forey when she entered the premises demonstrates the

reasonableness of her belief that Anthony had common authority

over the residence in general, and the growing rooms in

particular. Accordingly, Trooper Forey's warrantless search was

lawful. Accord United States v. Cepulonis, 530 F.2d 238, 244

(1st Cir.) (co-conspirator with joint access to trunk could

consent to search), cert, denied, 426 U.S. 908 (1976); United

States v. Murphy, 506 F.2d 529, 530 (9th Cir. 1974) (defendant's

employee with key could consent to search of warehouse leased by

defendant), cert, denied, 420 U.S. 996 (1975).

CONCLUSION

Chirichiello's Motion to Suppress (document no. 19) is

denied.

SO ORDERED.

Paul Barbadoro United States District Judge June 24, 1993 cc: Michael G. Shklar, Esg. U.S. Attorney U.S. Probation U.S. Marshal