United States v. Lopez, No. 08-1269 (2d Cir. 2008)
Annotate this Case
Download PDF
08-1269-cr United States v. Lopez 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 -------- 4 August Term, 2008 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 (Argued: October 17, 2008 Decided: November 13, 2008) Docket No. 08-1269-cr -----------------------------------------------------------X UNITED STATES OF AMERICA, Appellee, - v. ALBERT LOPEZ, Defendant-Appellant. -----------------------------------------------------------X Before: McLAUGHLIN, LEVAL, and POOLER, Circuit Judges. Appeal from a judgment of the United States District Court 21 for the District of Connecticut (Underhill, J.), convicting 22 defendant, after a guilty plea, of possession of a firearm by a 23 convicted felon. 24 25 26 27 28 29 30 31 32 33 34 35 AFFIRMED. JAMES R. SMART, Assistant United States Attorney, for Nora R. Dannehy, United States Attorney for the District of Connecticut, Bridgeport, Connecticut (Sandra S. Glover, on the brief), for Appellee. CHARLES F. WILLSON, Nevins & Nevins LLP, East Hartford, Connecticut, for Defendant-Appellant. 1 2 McLAUGHLIN, Circuit Judge: Albert Lopez appeals from a judgment of conviction entered 3 on March 5, 2008. 4 District Court for the District of Connecticut (Underhill, J.) to 5 one count of possession of a firearm by a convicted felon. 6 was sentenced principally to 47 months imprisonment. 7 He had pled guilty in the United States He On appeal, Lopez contests the denial of his pretrial motion 8 to suppress a firearm seized during a search by United States 9 marshals. His live-in girlfriend had consented to the search. 10 He contends that her consent was ineffective as to him because he 11 was present in the house and the marshals did not request his 12 consent. 13 14 15 16 17 18 We agree with the district court that the marshals had no obligation to get Lopez s consent. Accordingly, we affirm. BACKGROUND In July 2006, Albert Lopez, a convicted felon, violated the terms of his supervised release by failing a drug test. In October 2006, U.S. marshals arrested Lopez on the first 19 floor of his house pursuant to an arrest warrant. 20 handcuffed Lopez, who was wearing only shorts, one of the 21 marshals then escorted Lopez s girlfriend to their second-floor 2 Having 1 bedroom to get clothes for Lopez. 2 procedure. 3 Lopez did not object to this In the bedroom, the marshal saw narcotics and drug 4 paraphernalia on the night stand. 5 girlfriend to search the bedroom, and he summoned another marshal 6 upstairs to witness the consent and to assist with the search. 7 The marshals never asked Lopez, who remained downstairs during 8 the search, for consent to search the bedroom. 9 handgun was found under a pillow on the bed. 10 He got consent from Lopez s A loaded .357 In March 2007, Lopez was indicted for possession of a 11 firearm by a convicted felon in violation of 18 U.S.C. §§ 12 922(g)(1) and 924(a)(2) and for possession of a firearm by an 13 unlawful user of a controlled substance in violation of 18 U.S.C. 14 §§ 922(g)(3) and 924(a)(2). 15 Lopez moved to suppress the gun, arguing that, 16 notwithstanding the consent of the girlfriend, the search of the 17 bedroom was unreasonable because he did not consent to it. 18 a hearing, the district court denied the motion to suppress, 19 finding that the consent of Lopez s girlfriend was sufficient to 20 justify the search in light of Lopez s failure to object. 21 After Reserving the right to appeal the denial of his motion to 22 suppress, Lopez pled guilty to possession of a firearm by a 23 convicted felon. 3 1 2 In March 2008, the district court sentenced Lopez to 47 months imprisonment. 3 4 Lopez now appeals the denial of his motion to suppress. For the reasons that follow, we affirm. 5 DISCUSSION 6 Lopez argues that the warrantless search of his bedroom 7 without his consent was unreasonable under Georgia v. Randolph, 8 547 U.S. 103 (2006). 9 We disagree. When considering a district court s ruling on a suppression 10 motion, we review factual findings for clear error and legal 11 determinations de novo. 12 128 (2d Cir. 2007). 13 United States v. Rommy, 506 F.3d 108, Although warrantless searches are per se unreasonable under 14 the Fourth Amendment, Katz v. United States, 389 U.S. 347, 357 15 (1967), those searches are permissible when a person with common 16 authority over the area to be searched voluntarily consents, 17 Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). 18 the Supreme Court held that when law enforcement officers conduct 19 a search, authorized by one co-occupant, over the express 20 objection of another co-occupant, any further search would be 21 unreasonable as to the objecting co-occupant.1 1 In Randolph, 547 U.S. at 122- In United States v. Lopez, 386 F.3d 475 (2d Cir. 2004), we observed in dictum that even where the defendant has already refused consent the officers may nonetheless rely on consent 4 1 23. 2 preserved its earlier holdings in United States v. Matlock, 415 3 U.S. 164 (1974), and Rodriguez, two prior cases where the Court 4 upheld searches conducted with the consent of the defendant s co- 5 occupant. 6 In so holding, the Supreme Court carefully distinguished and See Randolph, 547 U.S. at 121-22. In Matlock, the defendant was arrested in his front yard and 7 was moved to a nearby squad car while police officers obtained 8 consent to search his residence from a woman with whom he lived. 9 415 U.S. at 166. In Rodriguez, the defendant was asleep inside 10 the residence, and the officers obtained consent from his 11 girlfriend, whom the police reasonably believed also lived at the 12 premises. 13 officers did not give the defendants an opportunity to object to 14 the searches. 497 U.S. at 180. In both cases, law enforcement 15 To reconcile its holding in Randolph with Matlock and 16 Rodriguez, the Supreme Court dr[ew] a fine line, reasoning as 17 follows. 18 while the other objects, the search would be unreasonable as to 19 the co-occupant who objected. 20 the consent of one co-occupant, the officers are under no 21 obligation to inquire of the other occupant whether he consents, If one co-occupant of a premises consents to search On the other hand, having obtained from a third party. Id. at 481. It is certainly questionable whether that proposition is valid after Randolph. 5 1 even when the other occupant is present at the premises when the 2 consent is given. 3 subject to a limitation: the police must not have removed the 4 occupant for the purpose of avoiding a possible objection. 5 at 122. Randolph, 547 U.S. at 121-22. This rule is Id. 6 Randolph also added in dictum that law enforcement officers 7 need not take affirmative steps to find a potentially objecting 8 co-tenant before acting on the permission they had already 9 received from another tenant. Id. According to the Court, 10 requiring police to seek consent from potential objectors would 11 needlessly limit the capacity of police to respond to ostensibly 12 legitimate opportunities in the field and turn every co-tenant 13 case into a test about the adequacy of the police's efforts to 14 consult with a potential objector. 15 Id. Applying these standards, we find that the search of Lopez s 16 bedroom was reasonable. Lopez concedes that his live-in 17 girlfriend voluntarily consented to the search of their bedroom 18 and that Lopez did not object to the search. 19 is no indication that the marshals removed Lopez for the purpose 20 of avoiding his potential objection. 21 contrary, the evidence shows that, after being arrested, Lopez 22 remained inside the house during the entire search. 23 any contention that the officers separated Lopez from his 6 In addition, there See id. at 121. To the Nor is there 1 girlfriend in order to conceal from him that they would ask her 2 for consent. 3 The fact that the marshals did not ask Lopez for his consent 4 does not render the search unreasonable. Randolph indicates that 5 law enforcement officers are under no affirmative obligation to 6 request consent from a potentially objecting co-occupant before 7 acting on permission they received from another occupant. 8 122. 9 needlessly time-consuming and impractical. Id. at As the Supreme Court noted, a contrary rule would prove See id. 10 Lopez maintains that the rule we now adopt does not apply 11 here because the marshals were not required to find Lopez to 12 obtain his consent. 13 for permission merely by calling down the stairs or contacting 14 their colleagues downstairs by radio. 15 The Supreme Court upheld the searches in Matlock and Rodriguez 16 notwithstanding that the potentially objecting co-occupants were 17 readily accessible to law enforcement officers. 18 defendant was in a squad car near the residence, 415 U.S. at 166, 19 and the Rodriguez defendant was asleep in another room, 497 U.S. 20 at 180. 21 sound law. 22 which law enforcement officers might seek the defendant s 23 permission to search when a co-occupant has already consented is Rather, the marshals could have asked him We reject this argument. The Matlock Randolph specifically confirmed that these cases remain See Randolph, 547 U.S. at 121. 7 Thus, the ease with 1 simply irrelevant. 2 far more accessible to the law enforcement officers than were the 3 Matlock and Rodriguez defendants is unavailing. 4 Accordingly, Lopez s contention that he was In short, we hold that the marshals had no duty to ask Lopez 5 whether he consented to the search, no matter how easy or 6 convenient it might have been to do so. 7 Lopez to object to the search. 8 girlfriend s consent was valid, and the search was reasonable. 9 10 Rather, the onus was on Because he did not object, his The district court did not err in denying Lopez s motion to suppress. 11 CONCLUSION 12 For the foregoing reasons, we AFFIRM the judgment of the 13 district court. 8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
