Sunday, February 17, 2019

A bathrobe alone does not clothe someone with apparent authority

Apparent authority and consent from a third party may provide law enforcement with an exception to the warrant requirement where the officers reasonably believe that the third party has joint access or control over the property for most purposes. But the Seventh Circuit reminds us this past week in United States v. Terry that apparent authority’s exception cannot apply where officers veil themselves in ignorance by failing to inquire further.

Related imageIn Terry, officers relied on the prompt verbal and written consent to search defendant’s residence obtained by a woman who answered the door at 10 a.m. in a bathrobe and looking sleepy. Prior to relying on her consent, the officers did not know who she was, what her relationship was to the defendant, why she was in the apartment, how long she had been in the apartment, or whether she lived there. "Sometimes the facts known by the police cry out for further inquiry, and when this is the case it is not reasonable for the police to proceed on the theory that ‘ignorance is bliss.’” (Quoting LaFave.) Conviction vacated.

And of course, even if the officers had gained the requisite information to demonstrate that the woman had authority over the residence, it would still be at issue whether she had authority over the containers searched therein. See, e.g., United States v. Salinas-Cano, 959 F.2d 861, 862 (10th Cir. 1992) (“[O]wnership and control of property does not automatically confer authority over containers within it.”) (citing United States v. Karo, 468 U.S. 705 (1984)).

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.