United States v. Jose Ortega-Gutierrez

MEMORANDUM

Jose Roberto Ortega-Gutierrez appeals the district court’s denial of his motion to suppress. Before the district court, Ortega-Gutierrez did not contest the facts presented by the government, including the government’s assertion that Ortega-Gutierrez’s parents voluntarily consented to a search of his bedroom. He argued only, as a matter of law, that his parents did not have authority to consent to the search of their entire home. The district court rejected this argument. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and, on this record, we affirm.

Ortega-Gutierrez’s parents — with whom he lived — had apparent authority to consent to the search of his bedroom. Agent Javier Carbajal, the ICE agent who conducted the search, believed that Ascención and Soccoro Ortega had access to and control over Ortega-Gutierrez’s bedroom, a fact that — if true — would have given them actual authority to consent to the search. See United States v. Dearing, 9 F.3d 1428, 1429-30 (9th Cir.1993) (describing the test to determine apparent authority), disapproved of on other grounds by United States v. Kim, 105 F.3d 1579 (9th Cir.1997).

It was objectively reasonable for Agent Carbajal…