Friend Lacked Apparent, Actual Authority to Consent to Search
U.S. v. Cos, --- F.3d ----, 2007 WL 2372376 (10th Cir. August 21, 2007)
A great defense victory on the merits: the 10th upheld the district court’s suppression of evidence grounded upon a lack of actual and apparent authority to consent to a search.
1. Appellate jurisdiction: the 30 day period available to the government for filing an interlocutory appeal under 18 U.S.C. § 3731 began when the court denied the government’s THIRD motion to reconsider its grant of D’s motion to suppress, because the court in fact tentatively engaged in a consideration of the government’s late-raised issue of a good faith exception, and invited the government to file a more extensive motion. Read the opinion for more on the convoluted facts, but once again it seems, the bad bad doggie still gets a bone. Interestingly, Gorsuch was pulled by D into a dissent, reasoning that there was no appellate jurisdiction, and that under the recent S. Ct. Bowles decision, a statutory deadline such as in this case, as opposed to a court rule deadline, is mandatory, and equitable considerations for loosening those time limits do not apply.
2. The merits: Friend of D’s using the apartment for the day answered the door when cops came with an arrest warrant for D. She told them it was not her apartment, etc. etc., but they swept, mini-searched and found a gun, and obtained a search warrant. Read the opinion–the facts are operative.
Actual authority: 10th confirms that this circuit rejects assumption of the risk analysis, and distinguishes its recent Trotter decision. The friend was an occasional visitor who was allowed in only with D’s consent, without control over the premises, and there would be no societal recognition that her relationship to the D and the apartment would be one that gave her actual authority over it. Apparent authority: the inquiry is objective-- whether the facts available to the police warranted a reasonable belief that the person had authority over the premises to consent, and any ambiguous facts related to authority require further investigation. Even though in this case the friend had children over in the apartment when police came, that was no baby on the hip per Matlock that supported a belief that she had authority to consent. They did not know who she was, it was 3 in the afternoon and she could have been cleaning the apartment with children present, etc. They made no further inquiries. Good Faith exception: 10th reaffirms that the Leon exception applies generally only when the officer is relying upon a decision made by another–e.g., a magistrate decision to issue a warrant.
A great defense victory on the merits: the 10th upheld the district court’s suppression of evidence grounded upon a lack of actual and apparent authority to consent to a search.
1. Appellate jurisdiction: the 30 day period available to the government for filing an interlocutory appeal under 18 U.S.C. § 3731 began when the court denied the government’s THIRD motion to reconsider its grant of D’s motion to suppress, because the court in fact tentatively engaged in a consideration of the government’s late-raised issue of a good faith exception, and invited the government to file a more extensive motion. Read the opinion for more on the convoluted facts, but once again it seems, the bad bad doggie still gets a bone. Interestingly, Gorsuch was pulled by D into a dissent, reasoning that there was no appellate jurisdiction, and that under the recent S. Ct. Bowles decision, a statutory deadline such as in this case, as opposed to a court rule deadline, is mandatory, and equitable considerations for loosening those time limits do not apply.
2. The merits: Friend of D’s using the apartment for the day answered the door when cops came with an arrest warrant for D. She told them it was not her apartment, etc. etc., but they swept, mini-searched and found a gun, and obtained a search warrant. Read the opinion–the facts are operative.
Actual authority: 10th confirms that this circuit rejects assumption of the risk analysis, and distinguishes its recent Trotter decision. The friend was an occasional visitor who was allowed in only with D’s consent, without control over the premises, and there would be no societal recognition that her relationship to the D and the apartment would be one that gave her actual authority over it. Apparent authority: the inquiry is objective-- whether the facts available to the police warranted a reasonable belief that the person had authority over the premises to consent, and any ambiguous facts related to authority require further investigation. Even though in this case the friend had children over in the apartment when police came, that was no baby on the hip per Matlock that supported a belief that she had authority to consent. They did not know who she was, it was 3 in the afternoon and she could have been cleaning the apartment with children present, etc. They made no further inquiries. Good Faith exception: 10th reaffirms that the Leon exception applies generally only when the officer is relying upon a decision made by another–e.g., a magistrate decision to issue a warrant.
posted by Anonymous at 9:40 AM
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