Two officers knocked on the door of defendant’s apartment, and a woman answered, wearing a bathrobe and looking sleepy. The agents identified themselves, explained that they had just arrested the defendant, and asked to come inside. They didn’t ask the woman who she was, how she was related to the defendant, or whether she lived at the apartment.
As a rule, the Fourth Amendment requires the government to get a warrant before searching someone’s property. U.S. CONST. amend. IV; see also United States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000). But the warrant requirement is subject to several “carefully defined” exceptions. See Coolidge v. New Hampshire, 403 U.S. 443, 474 (1971). One is consent from a person with actual or apparent authority to give it. Basinski, 226 F.3d at 833–34. When a person allows a third party to exercise authority over his property, he “assume[s] the risk that the third party might permit access to others, including government agents.” Id. at 834 (citing United States v. Matlock, 415 U.S. 164, 171 n.7 (1974)).
The government does not claim that Carson had actual authority to consent to the search of Terry’s apartment. The dispute is about whether she had apparent authority, which exists when “the facts available to the officer at the moment …‘warrant a man of reasonable caution in the belief’ that the consenting party had authority over the premises,” even if the person actually had no such authority. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (alteration in original) (citation omitted). An officer might reasonably believe that a third party has authority over certain property if the third party appears to have “joint access or control for most purposes.” United States v Ryerson, 545 F.3d 483, 487 (7th Cir. 2008) (quoting Matlock, 415 U.S. at 171 n.7).
To determine whether the officers’ belief was reasonable, we consider “what the officers knew at the time they sought consent, not facts that came to light after the search began.” United States v. Alexander, 573 F.3d 465, 474 (7th Cir. 2009)
When the search began, the agents had four facts: Terry left Carson alone in the apartment for about forty‐five minutes, Carson was wearing a bathrobe, she appeared sleepy, and she consented to the search without hesitation.
The facts that the agents had made it reasonable for them to conclude that Carson had spent the night at Terry’s apartment. That might have been an indication that she lived with him, but there are multiple other possibilities. She could have been a one‐time guest, a periodic guest, a friend or relative visiting for a couple of days—or she may have had some other relationship to Terry. And the existence of so many other equally plausible possibilities should have prompted the agents to “inquire further.” See Goins, 437 F.3d at 648.
This kind of inferential pileup falls short of the reasonableness required by the Fourth Amendment. See Rodriguez, 497 U.S. at 188–89. A bathrobe alone does not clothe someone with apparent authority over a residence, even at 10:00 in the morning.
Anton Vialtsin, Esq.
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