Search and Seizure - Consent – Third Party Consent

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts
By Don Samuel
Garland, Samuel & Loeb, P.C.
Sep 1, 2015

Georgia v. Randolph, 126 S.Ct. 1515 (2006)

Distinguishing United States v. Matlock, 415 U.S. 164 (1974) and Illinois v. Rodriguez, 497 U.S. 177 (1990), the Supreme Court holds that when co-tenants of a house are at the front door and one consents to a search and the other objects, the police may not enter. The Court noted, however, that if there were exigent circumstance (evidence of abuse, for example), the police could enter.

Illinois v. Rodriguez, 497 U.S. 177 (1990)

Officers gained entry to the defendant’s apartment with the assistance of an individual who told the police that she was one of the occupants of the apartment. She gave consent to the officers to search the apartment. In fact, that individual did not have common authority because she had moved out of the apartment already. The Supreme Court upheld the search: If police officers act in good faith reliance on the apparent authority of an individual to consent to a search of certain premises, the evidence will not be suppressed.

United States v. Iraheta, 764 F.3d 455 (5th Cir. 2014)

If a driver consents to the search of his automobile, including all closed containers, and there are suitcases belonging to passengers in the vehicle, if the passengers hear the consent given by the driver and don’t object, the consent is valid. However, where, as here, the consent is given outside the earshot of the passengers, the consent is not a valid consent insofar as it purports to consent to the search of passengers’ belongings.

United States v. Peyton, 745 F.3d 546 (D.C. Cir. 2014)

The defendant and his grandmother shared a one-room apartment. The police went to the apartment and asked the grandmother for consent to search a shoebox next to the defendant’s bed. The police had been told by the grandmother that the defendant kept his personal property around his bed in the living room. Relying on the grandmother’s consent was not reasonable and the search violated the defendant’s rights under the Fourth Amendment.

United States v. Arreguin, 735 F.3d 1168 (9th Cir. 2013)

The police could not have reasonably relied on the consent of a houseguest to search an entire house. The officers made no effort to inquire whether the person who answered the door had any authority to consent to a search, or had unlimited access to the premises.

United States v. Johnson, 656 F.3d 375 (6th Cir. 2011)

The decision in Georgia v. Randolph applies even if the objecting resident has a “lesser” possessory interest than the consenting resident. In this case, the owner of the house, along with her daughter consented to a search. The daughter’s ex-husband, who was living in one of the spare bedrooms, refused to consent. The Sixth Circuit held that Randolph applied and the police could not rely on the others’ consent to enter the house.

United States v. Hassock, 631 F.3d 79 (2d Cir. 2011)

The police went to an apartment and after knocking on the door, a woman finally answered the door. The police announced that they were looking for Hassock and she mumbled something and eventually said that the police could “look around.” The police did not determine who she was, or what authority she had to permit entry into the apartment. The Second Circuit held that this was invalid consent to enter. The Court also spent considerable time discussing whether the police could engage in a Buie protective sweep and reviewed the law concerning the scope and premise for a protective sweep, noting that a protective sweep in some Circuits is limited to instances when either a search warrant is being executed or an arrest is occurring, whereas other Circuits permit a protective search in situations where a consent to search is the predicate for the entry. But that issue was not resolved in this case, because the Court concluded that the entry was unlawful.

United States v. Taylor, 600 F.3d 678 (6th Cir. 2010)

The police could not have reasonably believed that a female resident of an apartment had authority to consent to the search of a shoebox that was in a closet full of men’s clothes and which belonged to a male houseguest who had just been arrested. If the police are unsure about the consenter’s authority to give consent, they must ask about that person’s authority, or access to the item being searched, and not simply conduct the search based on the person’s general consent.

United States v. Monghur, 588 F.3d 975 (9th Cir. 2009)

The defendant was in jail and his outbound calls were being taped. The police, listening to the tape, learned that he had a gun hidden in the house where he stayed. They went to the house and secured the consent of the owner to search the house. The police went to a bedroom that belonged to an adult mail and was the room in which the defendant stayed when he slept at the house. The police searched a closed container in that room and located the gun. The lower court held that the owner of the premises did not have authority to consent to a search of that container. The government did not appeal that holding. Rather, the government argued that the defendant lacked an expectation of privacy in the container because in a phone call that he knew was being taped, he revealed the existence of the gun. The Ninth Circuit held that when a defendant unequivocally reveals the contents of a closed container to the police, the defendant does relinquish his expectation of privacy in the container, but in this case, the defendant’s statements on the telephone clearly showed that he was trying to disguise what he as talking about and used code. This demonstrated that he maintained an expectation of privacy in the container.

United States v. Purcell, 526 F.3d 953 (6th Cir. 2008)

The police went to a hotel after receiving a tip that an escapee was there with his girlfriend. The police thought it was possible that methamphetamine was being made in the hotel room. The defendant was arrested outside the room. The girlfriend denied that there was any methamphetamine being manufactured in the room, but when the police quickly looked around, there were drug related items in the room. There was no reason to believe, however, that there was actual manufacturing in progress. Because of the lack of any such information, there was no basis to immediately start searching luggage that was in the room on the basis of exigent circumstances. Moreover, the girlfriend did not have the apparent authority to consent to a search of the luggage, which did not belong to her. “Apparent authority cannot exist if there is ambiguity as to the asserted authority and the searching officers do not take steps to resolve the ambiguity.”

Callahan v. Millard County, 494 F.3d 891 (10th Cir. 2007)

Some circuits have held that if a defendant invites a person into his house to sell drugs, and the invitee is an undercover police officer, the defendant cannot complain that pursuant to a pre-arranged signal, the undercover officer “invites” his colleagues into the house to make an arrest. However, where the invitee is a civil informant, rather than an undercover police officer, this rule is not as universal. The Tenth Circuit, in this § 1983 lawsuit held that the police did not have qualified immunity with respect to the claim that they had no lawful basis for entering the house upon the invitation of an informant. THE UNITED STATES SUPREME COURT REVERSED, HOLDING THAT THE OFFICERS WERE ENTITLED TO QUALIFIED IMMUNITY. 129 S. Ct. 808 (2009). Whether the “consent-once-removed” doctrine will ultimately be rejected, or affirmed by other Circuits, or by the U.S. Supreme Court is not known.

United States v. Cos, 498 F.3d 1115 (10th Cir. 2007)

The police had an arrest warrant for the defendant. They went to his house and learned that he was not home. A nineteen year old girl answered the door and said that she was a friend of the defendant and was visiting the home with her nephew and his friends so they could use the pool. She had no clothes at the home, did not contribute to the rent, and had spent the night there on only a couple occasions. When the police arrived, they simply asked whether Mr. Cos was home, and when told that he was not, they asked, “Can we take a look?” to which she answered, “yes.” The Tenth Circuit held that the girl did not have authority. She also did not have apparent authority. The police did not, in fact, rely on the arrest warrant when they made entry, so the good faith exception to the exclusionary rule did not apply.

United States v. Buckner, 473 F.3d 551 (4th Cir. 2007)

The police went to the defendant’s house and secured his wife’s consent to “mirror image” the computer that was seen on the table in the living room. The wife said that she used the computer occasionally to play solitaire. The agents then used forensic tools to examine the contents of the computer and determined that the defendant had used the computer to engage in various fraudulent acts. The Fourth Circuit held that the consent of the wife was not valid to enable the police to view the password-protected files on the computer, see Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001), but that she had apparent authority to grant consent. Thus, the evidence would not be suppressed.

United States v. Groves, 470 F.3d 311 (7th Cir. 2006)

The Seventh Circuit remands this case to the trial court for further findings of fact relating to the “apparent authority” of the person who supposedly gave consent to search the apartment. The police intentionally waited until the defendant, the target of the firearms investigation, left the apartment and then asked the remaining occupant, his girlfriend, if she would consent to a search (a federal magistrate had recently denied the officers’ request for a search warrant). The girlfriend said that she would have to ask her boyfriend, who was not at home. The police persisted, saying that this was between them and her. The trial court held that the girlfriend had apparent authority to consent to a search. The Seventh Circuit remanded for further development of the record.

United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008)

The police found child pornography on the defendant’s office computer and asked for his consent to go to his house to examine his home computer. He refused. The police then called his wife and asked if they could come to the house and take the computer. She consented. The initial panel opinion, 459 F.3d 922 (2006), held that this violated the rule announced in Georgia v. Randolph. Though the husband was not a “present” and objecting occupant, this did not sufficiently distinguish Randolph. EN BANC GRANTED 1/04/07 and REVERSED, by en banc court on March 11, 2008, 518 F.3d 954. The en banc court held that because Hudspeth was not a present non-consenting co-tentant, his refusal to consent did not override the wife’s consent.

United States v. Waller, 426 F.3d 838 (6th Cir. 2005)

The defendant was evicted from one apartment where he was living with friends and asked another friend if he could store some of his belongings in his apartment. The friend agreed. Shortly thereafter, the police obtained an arrest warrant for the defendant and arrested him outside the friend’s apartment. He acknowledged coming out of that apartment. The police obtained the friend’s consent to search the apartment. The police searched throughout the apartment and found guns in what turned out to be the defendant’s suitcase. He was prosecuted for possession of the guns. The Sixth Circuit held that the evidence should have been suppressed. The defendant had standing to challenge the search of his suitcases and the apartment owner did not have actual or apparent authority to search the suitcases. The officers did not reasonably believe that the apartment owner had authority to grant consent to search the defendant’s personal belongings that were stored there.

United States v. Jimenez, 419 F.3d 34 (1st Cir. 2005)

The lessee of the premises where the defendant had a room did not have authority to consent to a search of the defendant’s room. She explained to the officers that she did not go into that room, and she had no key – the lessee used a butter knife to enter that room.

United States v. Davis, 332 F.3d 1163 (9th Cir. 2003)

The occupant of an apartment does not have authority to consent to the search of a gym bag owned by another occupant of the apartment. There was no indication that the person giving consent had common authority of the gym bag.

United States v. Jones, 335 F.3d 527 (6th Cir. 2003)

The police arrested the defendant and asked for consent to search his house. He refused. Later, the police went to the house and asked a handyman who was mopping the floor for consent and he agreed. Where a primary occupant has denied consent, an employee does not have actual authority to consent to a search. The handyman lacked apparent authority, because the police knew that the primary occupant had already refused to consent to a search. While a person with an equal interest in the residence, such as a spouse or cotenant might give consent after the defendant has refused to do so (but see Georgia v. Randolph), a handyman does not have that authority.

United States v. James, 353 F.3d 606 (8th Cir. 2003)

The defendant was in jail. He asked a friend to destroy the contents of an envelope that the defendant had given to the friend (it contained computer disks). The police acquired the envelope and the friend gave the police permission to open it and review the contents. The friend did not have authority to consent to a search of the envelope and the evidence should have been suppressed. The friend was the “custodian” of the envelope, the equivalent of a bailee, and the police were aware that the friend had not been given permission to open the envelope or access the contents of the disks. One does not cede dominion over an item to another just by putting him in possession. United States v. Kelly, 529 F.2d 1365 (8th Cir. 1976); United States v. Welch, 4 F.3d 761 (9th Cir. 1993); UnitedStates v. Basinski, 226 F.3d 829 (7th Cir. 2000). See also Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001) (password-protected files on a shared computer are not subject to warrantless search, even by person who shares the computer, but does not have password).

United States v. Rith, 164 F.3d 1323 (10th Cir. 1999)

The court reviews the law governing when a parent may consent to the search of a son’s bedroom in the parents’ home. The court concludes that a third party has authority to consent to a search of property if that third party has either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes over the property. The first option is a fact-intensive inquiry which focuses on the actual relationship between the consenter and the property: does the parent, for example, clean the room, visit with the son in the room, or otherwise go into the room without an invitation. The second option is determined from the relationship between the occupant and the consenter. A landlord, for example, does not have control. The nature of the relationship may create a presumption of control, though this presumption may be rebutted. In this case, the presumption was triggered and it was not rebutted.

United States v. Fultz, 146 F.3d 1102 (9th Cir. 1998)

The police believed that the defendant was involved in a burglary. They learned that the defendant was living with someone named Kassedyne. The police went to Kassedyne’s home and asked for permission to search the house. Kassedyne explained that the defendant’s belongings were located in a certain part of the garage, and none of her belongings were intermingled with his. She did not specifically consent to a search of the defendant’s belongings. The officers found an illegal firearm in defendant’s belongings. The Ninth Circuit concludes: (1) the defendant had an expectation of privacy in the containers that were stored in Kassedyne’s garage; (2) there was no evidence in the record to demonstrate that Kassedyne had a right of access to, or had authority or apparent authority to consent to a search of defendant’s belongings; (3) the police had no basis for believing that Kassedyne had authority to consent to a search of the defendant’s belongings – in fact, they were told by Kassedyne that the items in that part of the garage were the defendant’s, and not hers. The officers’ mistaken belief of law, as distinguished from a mistaken belief as to the facts, did not support the application of the apparent authority doctrine.

United States v. Vega, 221 F.3d 789 (5th Cir. 2000)

The police knocked of the door or a house that they suspected was being used for drugs. One person fled out the back door and was then detained. There was no probable cause for his arrest, however. Though he was not the owner or lessee of the house, he consented to a search of the house. The police, arguably, could have believed that he had authority to consent. However, because he was unlawfully detained, the consent was invalid and the defendant who did have standing to contest the search of the house could assert that fourth amendment violation to contest the supposed consent search of the house.

United States v. Infante-Ruiz, 13 F.3d 498 (1st Cir. 1994)

The defendant was a passenger in a car which was being followed by the police. When the car stopped, the defendant was arrested on an outstanding arrest warrant. The driver was asked for permission to search the car, which he provided. When the trunk was opened, the driver identified one of the briefcases as belonging to the defendant. Though the driver had consented to a search of the car, he did not have the authority to consent to a search of the defendant’s briefcase and the officer’s search of that briefcase was, therefore, not lawful.

United States v. Jaras, 86 F.3d 383 (5th Cir. 1996)

The police stopped a car in which there was a driver and the defendant was a passenger. The driver consented to a search of the car. When the officer opened the trunk, he saw a garment bag and a suitcase. He asked who owned what. The driver said the garment bag was his and the suitcase was the defendant’s. The driver watched this exchange, and when asked by the officer what was in the suitcase, he responded, “I don’t know.” The officer then searched the suitcase. This was an unlawful search. The driver clearly did not have the authority to consent to a search of the suitcase and the defendant never gave his consent. The defendant’s silence and failure to object does not amount to consent.

United States v. Ibarra, 965 F.2d 1354 (5th Cir. 1992)(en banc, equally divided)

An overnight guest may consent to the search of a house, but not, as in this case, to the removal of a structural barrier to the attic. The guest simply said “that would be alright” when the police asked if they could search the house. This did not authorize the removal of large wooden boards which blocked access to the attic.

United States v. Roark, 36 F.3d 14 (6th Cir. 1994)

The defendant lived in a house behind his sister’s house. The sister owned both houses. The police went to the sister’s house and asked permission to search her residence. She consented. This did not authorize the police to search the house in which the defendant resided. This search exceeded the scope of consent given by the sister.

United States v. Johnson, 22 F.3d 674 (6th Cir. 1994)

The police went to an apartment where a 14-year-old girl had been kidnapped and held for several days. When the police arrived, the girl answered the door, but she was unable to let the officers in (or escape) because of a locked iron gate. The police broke open the iron gate. The girl then “consented” to a search of the apartment – the defendant was not at home. This was not a valid consent search. The girl did not have the authority to consent to a search of the apartment. The fact that she was locked in established that she was not free to come and go (and hence invite others to do the same). Moreover, there was no evidence that she had any authority to enter the closet where the guns were located. There were also no exigent circumstances justifying the warrantless search. Because the defendant was not present, the apartment could have been secured and a search warrant obtained.

White Fabricating Company v. United States, 903 F.2d 404 (6th Cir. 1990)

The government has the burden to prove the voluntary consent to a search or seizure and must do so by a preponderance of the evidence. The party giving consent must have “sufficient authority” over the property or premises to consent to the search, or at least the government officers making the search must have a reasonable belief that the person giving consent has that authority. The record in this case failed to show that the agents of the owners of the property had the authority or that the police reasonably believed they had the authority and an additional hearing was necessary.

United States v. Rodriguez, 888 F.2d 519 (7th Cir. 1989)

The defendant’s wife consented to the search of a room, but the record did not demonstrate that she had authority to consent to the opening of a briefcase and a file cabinet inside the room. A remand was appropriate to determine the extent of the wife’s authority.

United States v. Fultz, 146 F.3d 1102 (9th Cir. 1998)

The defendant was evicted from his apartment and packed his belonging in garbage bags and cardboard boxes. He brought his belongings to a woman’s house who allowed him to move in. The woman who owned the house purportedly gave consent to the police to look inside the cardboard boxes. However, she did not have authority herself to look in the boxes and the fact that she had full use and access to the garage in which the boxes were stored did not mean that she had the right to go into the boxes, or authorize the officers’ entry into the boxes. Finally, the officers had no reason to believe that the friend had the authority to enter the boxes, so they could not rely on the apparent authority doctrine.

United States v. Dearing, 9 F.3d 1428 (9th Cir. 1993)

The police should have realized that the baby sitter did not have authority to consent to a search of the defendant’s bedroom, in which the police found a machine gun. Even though the sitter had access to the bedroom on prior occasions, there was insufficient evidence that the sitter was authorized to enter that room.

United States v. Welch, 4 F.3d 761 (9th Cir. 1993)

The defendant and her boyfriend were detained at a casino in Las Vegas. The boyfriend gave consent to the officers to search their car. In a woman’s purse in the trunk, the officers located counterfeit bills. This was not a valid consent search. Though the boyfriend had the authority to consent to a search of the car, the officers could not have reasonably believed that he had consent to search the woman’s purse, which obviously belonged to the defendant. Under Illinois v. Rodriguez, the boyfriend had neither actual, nor apparent authority to consent to the search of the purse.

United States v. Salinas-Cano, 959 F.2d 861 (10th Cir. 1992)

The defendant frequently stayed at his girlfriend’s house. When he arrived there, he brought his suitcase and left it in his room. After his arrest, the police went to the apartment. The girlfriend gave her consent to a search of the apartment. The police knew, however, that the closed suitcase was not hers. She lacked the authority to consent to the search of the suitcase and the officer knew it. The search was invalid. “When a guest in a private home has a private container to which the homeowner has no right of access . . . the homeowner . . . lacks the power to give effective consent to the search of the closed container.” UnitedStates v. Karo, 468 U.S. 705, 725-26 (1984)(O’Connor, J., concurring).

United States v. Whitfield, 939 F.2d 1071 (D.C.Cir. 1991)

Relying on Illinois v. Rodriguez, 497 U.S. 177 (1990), the district court concluded that the police reasonably believed that the defendant’s mother had authority to give consent to enter the son’s bedroom in her house. The D.C. Circuit disagrees and reverses: the officers were laboring under a mistake of law, not a mistake of fact. There was no reason for the officers to believe that the mother had authority to consent to the search of her 29 year old son’s room which he occupied in the house. The officers cannot be said to have acted in good faith if, with faced with an ambiguous situation, they proceed without making further inquiry.