RI: No apparent authority to consent shown; police merely assumed consenter lived there, but she didn’t

By John Wesley Hall
Law Offices of John Wesley Hall
Jun 28, 2017

The person asked for consent didn’t live there, and the officers made no attempt to find out whether she did. They just assumed she did. The state’s alternative argument of exigency is rejected because the officers never testified to any concern about a weapon in the house. State v. Terzian, 2017 R.I. LEXIS 98 (June 23, 2017):

This Court recognizes that, in the context of apparent authority, “room must be allowed for some mistakes on [the officer’s] part.” Rodriguez, 497 U.S. at 186 (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949)). However, “the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.” Id. (emphasis added) (quoting Brinegar, 338 U.S. at 176). An assumption, in the absence of factors that would lead an experienced police officer to reach such a conclusion, is woefully inadequate and does not lead to a reasonable judgment. Thus, we agree with the Superior Court justice that this search cannot be justified on the basis of apparent authority to consent. The record is devoid of any facts upon which the officers could formulate a reasonable belief that Stephanie was clothed with apparent authority sufficient to invoke the consent exception to the warrant requirement.

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The record before this Court demonstrates that neither officer testified that he was concerned about the unsecured firearm or that he was faced with an emergency. Neither officer testified that he was concerned that the underlying dispute may reignite or that he suspected that Samantha or Stephanie may pursue their earlier aggressors armed with the unsecured firearm.