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Chapter 16: Consent Searches:
   Table Of Contents
      Chapter 16: Consent Searches:
         Consent by Others:
            General Rule
            Examples:
               Landlord
               Parent
               Child
               Co-Occupant (Husband and Wife)

General Rule

General Rule:  Police may rely upon the consent of whoever they "reasonably believe," under the circumstances, possesses common authority over the premises.  (Illinois v. Rodriguez (1990) 497 U.S. 177 [111 L.Ed.2nd 148]; People v. Reed (1967) 252 Cal.App.2nd 994, 996; People v. Superior Court [Walker] (2006) 143 Cal.App.4th 1183, 1198-1201.)

The person giving consent must have either the "actual authority," or the "apparent authority," to give consent:

"Actual Authority;" Where the owner of property has expressly granted authority for a person to give consent, or where it is known that the person has mutual use or joint access, then he or she is said to have "actual authority" to consent to a search of that property.  (United States v. Davis (9th Cir. 2003) 332 F.3rd 1163, 1169; People v. Superior Court [Walker], supra, at pp. 1205-1208 .)

"Apparent Authority:"  A determination made based upon the circumstances and whether the officers reasonably believe that the person giving consent had the authority to do so.  (United States v. Fiorillo (9th Cir. 1999) 186 F.3rd 1136; People v. Superior Court [Walker], supra, at pp. 1208-1214.)

To establish "apparent authority," the prosecution must show:

  • The police believed an untrue fact that they used to assess the consenter's control over the area to be searched;
  • It was objectively reasonable for the officers to believe that the fact was true; and
  • If that fact were true, the consenter would have had actual authority to give that consent.

(United States v. Reid (9th Cir. 2000) 226 F.3rd 1020, 1025; United States v. Enslin (9th Cir. 2003) 315 F.3rd 1205, 1215; United States v. Ruiz (9th Cir. Nov. 7, 2005) 428 F.3rd 877.)

Where U.S. Marshals knew that the person giving consent was a resident of the home, and had no reason to know that defendant was occupying a back bedroom, the officers could reasonably assume the consenter/resident had the authority to authorize entry into that back bedroom.  (United States v. Enslin, supra.)

Paper bags left by defendant in an acquaintance's garage, where the acquaintance had free access to the bags, may be lawfully searched with consent from the acquaintance.  By leaving the bags with the acquaintance, knowing and not objecting to the fact that she (the acquaintance) would go into the bags, defendant "assumed the risk" that she would allow others to look into the bags.   (People v. Schmeck (2005) 37 Cal.4th 240, 280-282.)

Apparent authority found where the resident of a house gave consent to search a container set out in plain sight and no one objected when such consent was requested.  (United States v. Ruiz, supra.)

However, the search of a purse based upon the consent of the purse owner's boyfriend was held to be unlawful because it was unreasonable for the officers to think that the boyfriend had the necessary authority.  (See United States v. Welch (9th Cir. 1993) 4 F.3rd 761.)

"(A) guest who has the run of the house in the occupant's absence has the apparent authority to give consent to enter an area where a visitor normally would be received."  (People v. Ledesma (2006) 39 Cal.4th 657, 703-704.)

And, although receiving consent to enter a residence does not infer a consent to answer the telephone while in the residence (People v. Harwood (1977) 74 Cal.App.3rd 460, 458.), the telephone may be answered where the officers have probable cause to believe defendant will be calling and taking the time to get a warrant would compromise the officer's ability to quickly locate and apprehend him.  (People v. Ledesma, supra, at p. 704.)

A business that owns the company's computers may consent to the search of a computer used by an employee, at least when the employee is on notice that he has no reasonable expectation of privacy in the contents of the computer he is using.  (United States v. Ziegler (9th Cir. 2007) 474 F.3rd 1184.)

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Landlord

Landlord

A landlord may not give a valid consent for police to search a renter's home, the renter having a superior right to possession at least for the duration of the agreed rental period.  (Chapman v. United States (1961) 365 U.S. 610, [5 L.Ed.2nd 828]; People v. Roman (1991) 227 Cal.App.3rd 674.)

However, a landlord has a right to inspect the home for violations of the rental agreement, with notice to the renter and at a reasonable time, and under other limited circumstances.  (Civil Code § 1954)   Anything they observe in the process may serve as probable cause to obtain a warrant for a search by law enforcement.

Same rule applies to the manager or clerk in a hotel or motel.  (Stoner v. California (1964) 376 U.S. 483 [11 L.Ed.2nd 856]; People v. Burke (1962) 208 Cal.App.2nd 149, 160-161.)

And with an apartment manager.  (People v. Roberts (1956) 47 Cal.2nd 374, 377.)

Military personnel, living off base in a motel, but with the housing paid for by the military as an alternative to living in the on-base barracks, retain the same privacy protections as anyone else in the civilian world.  (People v. Rodriguez (1966) 242 Cal.App.2nd 744.)

However, on the base, a commanding officer may authorize a warrantless search of property, including the serviceman's locker.  (People v. Shepard (1963) 212 Cal.App.2nd 697, 700.)

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Parent

Parent:

A parent may give consent to search the home and even the child's room over the child's objection, except areas exclusive to the child (e.g.; a footlocker which was locked by the child).  (In re Scott K. (1979) 24 Cal.3rd 395, 404-405.)

Parents of an 18-year-old adult son were held to have "actual" authority to give consent to search the son's room when the son did not pay rent, and there was no evidence of any agreement on the part of the parent not to enter the son's room.  (United States v. Rith (10th Cir. 1999) 164 F.3rd 1323.)

Father, with the apparent authority to allow police officers to search his entire residence, including the bedroom of his adult son, under circumstances where the father and defendant son had apparent free access to each other's room, validly authorized police to enter the son's room.  (People v. Oodham (2000) 81 Cal.App.4th 1.)

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Child

Child:  Whether or not a child may validly allow police into the family residence depends upon a determination whether, under the circumstances, it is reasonable to believe that the child had the authority to do so.

An 11-year-old step-daughter, baby sitting in the defendant's absence, was held not to have the authority to admit the police.  (People v. Jacobs (1987) 43 Cal.3rd 472.)

But, where a 12-year-old abuse victim led police to her aunt's house and where, in her aunt's absence, the victim was in charge of the house, living and working there, the victim could validly give consent to search for implements used to abuse her when the aunt had initially invited police inside, and after the aunt was arrested and removed from the house.  (People v. Santiago (1997) 55 Cal.App.4th 1540.)

The 16-year-old daughter of the defendant had the apparent authority to allow the officers the right to enter defendant's residence.  (People v. Hoxter (1999) 75 Cal.App.4th 406.)

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Co-Occupant (Husband and Wife)

Co-Occupant (Husband and Wife):  When two or more people have equal access to a residence (e.g.; roommates, husband and wife, etc.), the rules regarding one co-occupant giving consent vary depending upon the circumstances:

Generally, consent to a search given by someone with authority cannot be revoked by an absent co-occupant's denial of consent, even if that denial is clear and contemporaneous with the search. (United States v. Matlock (1974) 415 U.S. 164, 172 [39 L.Ed.2nd 242]:  The mutual use of property carries with it the risk that just one of the occupants might permit a search of the common areas.)

Defendant in Matlock was in a patrol car out front of the residence.  For purposes of this rule, he was deemed to be "absent."  (see also People v. Haskett (1982) 30 Cal.3rd 841, 855-857; with defendant outside in a police car, objecting, but his wife, in the residence, saying okay, the entry is lawful. 

But, when two equally-situated cotenants, both present at the scene, are asked for permission to enter and/or search a residence, with one saying "yes" but the other saying "no," entry and/or search may not be made absent an exigent circumstance or a search warrant.  (Georgia v. Randolph 2006) 547 U.S. 103[164 L.Ed.2nd 208].)

California authority to the contrary (e.g., see People v. Wilkins (1993) 14 Cal.App.4th 761, 769-776.) is no longer valid in light of this recent Supreme Court opinion.   

Randolph listed a number of exceptions to this rule:

  • Where there is a "recognized hierarchy" (e.g., parent vs. child), objections from the one with the inferior status may be ignored.
  • With a reasonable (articulable) fear for the safety of the person inviting officers inside, or anyone else inside, entry may be made to check the victim's welfare and/or to stop pending violence.
  • An objection from an absent cotenant (even if handcuffed in a patrol car immediately out front) may be ignored, at least so long as he is not led away from the scene for the purpose of justifying an entry into the residence.
  • It is not necessary to solicit possible objections from a cotenant, even if that person is inside and/or available and even if it could be expected that that person would object.
  • Any other exigent circumstance (safety of the occupants, protection of possible physical evidence, etc.) may justify an immediate entry, at least until the scene is secured and/or the suspects detained pending the obtaining of a search warrant.
  • Entering with the victim of domestic violence, at her request, for the purpose of protecting her as she collects her belongings.
  • The consenting cotenant may retrieve evidence and bring it out to the police.
  • With probable cause, a search warrant may be obtained for the search of the residence.

When a cotenant, who is absent from the scene, consents to a law enforcement entry into a residence, but another cotenant who is present at the scene objects, an entry is unlawful.   (Tompkins v. Superior Court (1959) 59 Cal.2nd 65.)

But note, should the present cotenant fail to object, consent from the absent cotenant allows the entry.  (People v. Viega (1989) 214 Cal.App.3rd 817.)

And also note United States v. Rith (10th Cir. 1999) 164 F.3rd 1323, where the absent parents' permission to enter the house took precedence over the present 18-year-old son's objection to the officers' entry.

With roommates, the consenting co-occupant may only consent to entry of his personal room and any common areas.  He may not give a valid consent to another co-tenant's private room.  (People v. Boyer (1989) 48 Cal.3rd 247, 276; United States v. Davis (9th Cir. 2003) 332 F.3rd 1163.)

When the estranged wife retains property within the residence, remains liable for rent, civil liability for accidents, etc., and has not established a permanent residence elsewhere, she still has the apparent authority to allow police into her residence where the husband still lives.  (People v. Bishop (1996) 44 Cal.App.4th 220.)

The fact that the husband had changed the locks is only indicative of the level of antagonism, and is not a limitation of the wife's authority to allow the police to enter and search.  (Ibid.)    

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