CAN ROOMIE AUTHORIZE SEARCH?

4[b] Limitations on authority--Areas under accused's exclusive control 
 
[Cumulative Supplement]

   In the following cases, the courts recognized that a cotenant or common resident has no authority to consent to a warrantless search of any areas which are reserved for the exclusive use of another cotenant or common resident.

   The warrantless search of the accused's bedroom and the seizure of physical evidence discovered therein were invalid and the evidence seized therefore inadmissible at the time of the accused's prosecution for murder, kidnapping, and robbery, where the accused had exclusive possession of the bedroom and the sole authority the police had to conduct the search emanated from the consent of the accused's cotenant, the court held in State v. Tucker, 118 Ariz. 76, 574 P.2d 1295 (1978). One evening, two individuals visited the home in which the accused resided with a married couple for the purpose of purchasing marijuana from friends of the accused who were waiting with him at the home. The two individuals who had been intending to purchase marijuana were assaulted and robbed by the accused's friends, then taken from the residence in a motor vehicle driven by one of the friends. The accused, who personally contacted the police to report a robbery and kidnapping, spoke with the police at the residence. The accused was eventually apprehended for suspicion of dealing in marijuana and, pursuant to the consent of the woman cotenant of the residence, the police searched the entire home, including the accused's bedroom. On appeal, the state attempted to justify the search of the accused's bedroom on the basis of the cotenant's consent. The court, on review, found the search invalid, commenting that while a warrantless search of property is valid if conducted pursuant to a voluntary consent, the voluntary consent to search the property of another must be issued by a third party who possesses common authority over, or other sufficient relationship to, the premises or effects sought to be inspected. In U. S. v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974), § 2[a], the court instructed, the Supreme Court declared that common authority is not to be implied from the mere property interest a third party has in the property, for the authority which justifies the third-party consent does not rest upon the law of property, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-habitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. As such, the court continued, the issue presented in the instant case turned on whether the cotenant had common authority over the accused's bedroom. Here, the court observed, the record revealed that the room was used as sleeping quarters and a storage room by the accused; there was no evidence that it was used for other purposes. As such, the court related, even though the consenting cotenant was a co-owner of the house with her husband, it could not be held that she had joint access or control within the meaning of Matlock. Since the bedroom was under the accused's exclusive control and was not such a common area of the house that it could be said the accused had assumed the risk that the cotenant might permit it to be searched, her consent to the warrantless search was not sufficient authority to validate the police entry.

   According to the court in Silva v. State, 344 So. 2d 559 (Fla. 1977), the facts of which are discussed more fully at § 9[b], one having an equal right of control or possession of premises generally does not thereby have authority to consent to a search of an area on the premises which is set aside for the exclusive use of another. After the accused struck the woman with whom he shared an apartment, the woman called the police and ultimately allowed them to enter the premises. During a subsequent search of the premises, the woman directed the officers to a hall closet containing weapons owned by the accused, an ex-felon; the closet, which contained only the accused's personal belongings, was occasionally entered by the woman for cleaning purposes. The state supreme court, on review, declared the search invalid, commenting that the consenting party did not have equal access to the area searched, nor were any of her clothes or other belongings stored there. Given the circumstances presented, the court reasoned, it was apparent that the accused, who was present at the time of the search and voiced an objection thereto, had exclusive dominion and control over the specific portion of the apartment searched, such that the woman with whom he shared the premises did not have the right to consent to a warrantless search of the closet.

   See People v. Douglas, 50 Mich. App. 372, 213 N.W.2d 291 (1973), order aff'd, 392 Mich. 775, 220 N.W.2d 37 (1974), the facts of which are discussed more fully at § 5[b], where the court held that, assuming that the accused's cotenant actually provided consent to the police intrusion, she could not, as a joint occupant, validly provide authorization to the police to conduct a warrantless search of the accused's private room, such that the evidence seized therefrom was illegally obtained and could not be used against the accused. The police conducted a warrantless search of the accused's apartment building, and ultimately visited the accused's apartment, which was then occupied by a woman. According to the evidence presented, the woman allowed the police to enter the premises, and led the authorities to the accused's bedroom, where they seized a hacksaw blade. The court reversed and remanded for a new trial, reasoning that the evidence, which had been illegally seized at various points about the apartment building, including from the accused's bedroom, could not form the basis of the accused's confession at a time when he was in custody on an unrelated charge. Assuming that the accused's cotenant consented to the contested search, the court related, a "joint occupant of an apartment may not consent to a search of another occupant's private room."

   Since the contents of a duffel bag were considered to be under the exclusive control of the accused, despite the fact that the accused had left the bag in the temporary custody of a friend, the friend did not have the authority to grant consent to the police to conduct a warrantless search of the contents of the bag, such that the evidence seized therefrom would be suppressed at the time of the accused's prosecution for theft, the court held in State v. Lynch, 94 Or. App. 168, 764 P.2d 957 (1988), the facts of which are discussed more fully at § 17[b]. The police, investigating a purported theft involving two pistols, some ammunition, a pullover sweater, and a blue nylon duffel bag, ultimately learned that the accused, a suspect in the crime, had left the bag in a friend's automobile. Pursuant to the consent of the friend, the police seized from the bag evidence implicating the accused in the crime under investigation. The court, on review of the state's appeal from an order of the trial judge granting the accused's motion to suppress the evidence seized from the bag, affirmed with respect to the search of the interior of the bag. The bag itself was recognized by the searching officer as being the object of a criminal investigation, after which the officer could have obtained a search warrant for its contents, the court stressed. Although voluntary consent is one of the recognized exceptions to the general rule that a warrantless search is per se unreasonable, the court stated, and while effective consent may be provided by a person other than the one whose activities are the subject of the search, third-party consent is valid only if the consenting party has authority to give it. Here, the court instructed, the state could not produce evidence which would support a finding that the accused's friend was a third party who possessed common authority over, or other sufficient relationship to, the effects sought to be inspected. Here, the court held, no evidence had been presented below which would indicate that the accused had granted his friend actual authority over the duffel bag, the contents of which were not under the joint control of the friend.

 
CUMULATIVE SUPPLEMENT 

CUMULATIVE SUPPLEMENT 

Cases:

   Although individual had authority to consent to a general search of a computer shared by her and her housemate, she lacked authority to consent to a search of her housemate's private, password-protected computer files; despite fact that both parties had joint access to computer's hard drive, each protected his or her personal files with passwords, individual did not have access to housemate's passwords, and by using a password, housemate affirmatively intended to exclude individual and others from his personal files, so that he had a reasonable expectation of privacy in the password-protected files. U.S.C.A. Const. Amend. IV. Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001).

   Common authority to consent to search of premises rests on mutual use of the property by persons generally having joint access or control for most purposes, such that it is reasonable to recognize that any of the co-inhabitants has the right to permit inspection in his own right, and that others have assumed the risk that one of their number might permit common area to be searched. U.S. Const. Amend. IV. U.S. v. Jenkins, 285 F. Supp. 2d 999 (N.D. Ohio 2003).

   Where roommates have separate rooms, each roommate presumes that he has exclusive control over his own room; thus, roommates do not have actual authority to consent to search of another roommate's room unless there are specific facts that would indicate otherwise. U.S. Const. Amend. IV. U.S. v. Barrera-Martinez, 274 F. Supp. 2d 950 (N.D. Ill. 2003).

   A finding of actual authority to consent to a search of the property of another depends on whether there is mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. U.S. v. Hephner, 260 F. Supp. 2d 763 (N.D. Iowa 2003).

   The authority which justifies the third-party consent to warrantless search of premises rests on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. U.S.C.A. Const. Amend. 4. Acklin v. State, 790 So. 2d 975 (Ala. Crim. App. 2000), cert. denied, 790 So. 2d 1012 (Ala. 2001) and cert. denied, 121 S. Ct. 2565, 150 L. Ed. 2d 729 (U.S. 2001).

   Whether consent to search given by third party is valid under the Fourth Amendment rests upon mutual use of the property by persons generally having joint access or control for most purposes, and pertinent question is whether the one giving consent possesses common authority or other sufficient relationship to the premises. U.S.C.A. Const. Amend. 4. Love v. State, 138 S.W.3d 676 (Ark. 2003).

   Two factors indicative of exclusive possession, as to preclude common authority that justifies third-party consent to warrantless search, are whether the room was locked in defendant's absence and whether defendant gave explicit instructions not to allow anyone into the room; where the evidence fails to establish both of these factors, attack on third-party consent to search has failed. U.S. Const. Amend. IV. People v. Bishop, 287 Ill. Dec. 461, 815 N.E.2d 1264 (App. Ct. 2d Dist. 2004).

   Regardless of the nature of their relationship or the mere commingling of their belongings, a third party and a defendant share common authority over property subject to a warrantless search, for the purposes of determining whether the third party has authority to consent to search, only if the third party's degree of control is equal to or greater than that possessed by the defendant. U.S.C.A. Const. Amend. 4; S.H.A. Const. Art. 1, § 6. People v. Miller, 282 Ill. Dec. 462, 806 N.E.2d 759 (App. Ct. 2d Dist. 2004).

   Persons sharing premises may retain areas or objects within their exclusive control that are not subject to search based on consent of one of the co-occupants. U.S.C.A. Const.Amend. 4. Gado v. State, 882 N.E.2d 827 (Ind. Ct. App. 2008).

   Common authority to consent to search arises from mutual use of the property to be searched, so it is reasonable to recognize that any co-inhabitant may permit a search or inspection in his own right; the other co-inhabitants have assumed the risk that one of them might permit the common area to be searched. U.S. Const. Amend. IV; LSA-Const. Art. 1, § 5. State v. Williams, 858 So. 2d 878 (La. Ct. App. 2d Cir. 2003).

   Common authority over property, as required to give consent to search property, is defined as mutual use of the property by persons generally having joint access or control for most purposes. U.S.C.A. Const.Amend. 4. State v. Ryan, 2006-NMCA-044, 132 P.3d 1040 (N.M. Ct. App. 2006), cert. denied, 2006- NMCERT-004 (N.M. 2006).

   The authority which justifies a third-party consent to search rests on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. U.S. Const. Amend. IV. State v. Thompson, 51 P.3d 143 (Wash. Ct. App. Div. 2 2002).

   The scope of the authority of a cohabitant to consent to a search of the premises extends only to areas shared by the cohabitants. West's RCWA Const. Art. 1, § 7. State v. Morse, 123 P.3d 832 (Wash. 2005).

 
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68 A.L.R.5th 343