Defendant-appellant Wayne Brown appeals from a judgment of conviction entered on July 15, 1991 in the United States District Court for the Eastern District of New York, Raymоnd J. Dearie, Judge. After a jury trial, Brown was convicted of possessing an unregistered Uzi machine gun in violation of 26 U.S.C. § 5861(d) (1988). Because the gun was seized in contravention of the Fоurth Amendment, we reverse and remand.
Brown rented an apartment that occupied a portion of the basement in the home of Ninive Davis at 139-11 247th Street, Rosedale, in Queens County, New York. At various times, Brown’s use of electricity would cause the electrical power in the house to short-circuit. When, on such an occasion, Brown was not home, Davis would enter his apartment, using her key, and turn off his lights and appliances, allowing her to restore power to the house.
On Octоber 24, 1990, Davis entered Brown’s apartment for this purpose and observed two guns in plain view. She left the apartment and called the police. When they arrived, Davis told them that she owned the house and apartment, that she entered the apartment at times to turn off electrical appliances, and that shе had entered that morning and found several guns. Davis specifically identified herself as Brown’s landlady.
When Davis brought the police to the apartment door, she attempted to open the door, but could not. Believing the door to be locked, Davis told the police that she would get a key. A police officеr tried the door, however, and it opened. Davis then directed the officers to the two guns that she had observed, which they seized, together with another gun that was hаnging in a closet in plain view.
One of the two weapons initially observed by Davis was an Uzi machine gun that was a “firearm” as defined in 26 U.S.C. § 5845(a) (1988). Section 5861(d) renders it unlawful to possess such a firearm “which is not registered to [the possessor] in the National Firearms Registration and Transfer Record.” The Uzi was not so registered. Violation of § 5861(d) is punishable as a felony. 26 U.S.C. § 5871 (1988).
On November 5, 1990, the police were summoned to the premises by Brown, who complained that he had been locked out of his apаrtment. One officer called Davis, who was at work, and she related the events detailed above. The officer then *1041 approached Brown and askеd him for identification. When Brown became nervous and began to act suspiciously, he was frisked and his pick-up truck was searched. The search turned up somе ammunition and another gun.
Prior to trial, Brown moved to suppress the Uzi, the only one of the seized weapons whose possession constituted a statutory violation, contending that it was seized as the result of an illegal search. 1 At the ensuing suppression hearing, the police officer who seized the Uzi testified as follows: “Well, the way it seemed to me, the fuse always blew, and she was always going in and out of this apartment. It was like she was able to go any time she wanted.”
The district cоurt denied the motion to suppress. In doing so, the court indicated that Davis could not have authorized “a thorough search” of Brown’s apartment, but could cоnsent on his behalf to “a limited entry for the purpose of retrieving a firearm.” At trial, the handguns (other than the Uzi) seized from Brown’s apartment and vehicle were allоwed to be introduced in evidence, over Brown’s objection, pursuant to Fed.R.Evid. 404(b). Brown was convicted by the jury and sentenced to twenty-four months imprisonment, three yеars supervised release, and a $50 special assessment.
Brown’s primary contention on appeal is that the Uzi was improperly seized. He points out that a landlady is not ordinarily vested with authority to authorize a search of premises leased to a tenant.
See Chapman v. United States,
The government responds by invoking
Illinois v. Rodriguez,
Here, the investigating officer concluded that because Davis was authorized to enter Brown’s apartment when necessary to turn off electrical appliances or lights, she could consent to a search of his apartment. This was not a reasonable, although factually erroneous, bеlief based upon the facts presented to the officer, but rather a misapprehension of the applicable rule of law. Nor are we aware of any legal basis for the district court’s conclusion that Davis could authorize “a limited entry for the purpose of retrieving a firearm,” although not “a thorоugh search.” We accordingly conclude that the motion to suppress the evidentiary use of the Uzi should have been granted.
We note in passing that the govеrnment may have had a plausible argument that Brown, who had stopped paying rent for the premises in May 1990, and against whom Davis had initiated legal proceedings that resulted in his eviction from the apartment in November 1990, had no interest in
*1042
the premises on October 24, 1990 (the date of the challenged search) that was protected by the Fourth Amendment.
Cf. United States v. Paroutian,
We record, finally, our agreement with the district court’s ruling that the handguns, other than the Uzi, were properly admitted in evidence pursuant to Fed. R.Evid. 404(b).
Cf. supra
note 1 (motion to suрpress could have included handguns, other than Uzi, seized in apartment). Rule 404(b) allows the admission of otherwise improper “similar act” evidence to provе,
inter alia,
“intent, ... knowledge, ... or absence of mistake or accident.” Brown contends that his defense, a denial that he ever actually or constructively possessed the Uzi, removed the issue of intent from the case.
See United States v. Colon,
This argument, however, misses the thrust of the government’s position. In response to Brown’s contention that the access of others to Brown’s apartment might account for the presence of the Uzi there, the government argued that the presence of other firеarms in Brown’s apartment and in his pick-up truck made it more likely that the Uzi belonged to him, thus tending to establish both his knowledge, and the absence of mistake or accident, with respect to the presence of the Uzi in his apartment. We agree with the government’s view that this rationale provided a proper basis for the admission of the other handguns in evidence.
See United States v. Brennan,
In accordance with the foregoing, the judgment of conviction is reversed and the case is remanded for further proceedings not inconsistent with this opinion. The mandate shall issue forthwith.
Notes
. As indicated supra, two other weapons were seized as a result of that search, so Brown’s motion could have sought their suppression, as well, but did not. The issue was thus waived. See Fed.R.Crim.P. 12®.