The consenter in this case was in the process of being evicted from the premises, but he still had common authority to consent to a search. State v. Haapala, 139 Wn. App. 424, 161 P.3d 436 (2007):
¶15 According to Lynda Spindor, the landlord, Craig was the only signatory on the lease, but several additional tenants lived in the house to share the rent obligation. Haapala moved into the upstairs bedroom on January 1 or 2, 2005, when Craig was moving out of that bedroom. Haapala asked Spindor to extend the lease with him as the tenant, but she refused. Due to complaints from neighbors, on January 15, 2005, Spindor served Craig with an eviction notice that gave Craig three days to vacate the premises. Police searched the house on January 19, 2005.
¶16 The trial court found that although Craig was being evicted, he was the only person on the lease and he “still had furniture and other possessions in the house and his car was visible outside of the house.” Clerk’s Papers (CP) at 74. From that finding, it concluded that “Craig, as the person who rented the home, … had the authority to consent to the [initial] search.” CP at 77. The record shows that Craig retained sufficient access and control over the residence to consent to a search of the common areas, including the downstairs bedroom. See Morse, 156 Wn.2d at 10-11.
. . .
¶18 . . . Spindor still needed to file an unlawful detainer action and obtain a court’s order to force Craig to vacate the premises. RCW 59.12.040-.080. And Spindor could not have taken possession of the house during the unlawful detainer action’s pendency unless she received a writ of restitution from the court. RCW 59.12.090. Even then, Craig could have filed a bond with the court to stay enforcement of the writ of restitution and to retain possession of the premises until the unlawful detainer action concluded. RCW 59.12.100. Thus, Craig, as a user and possessor of the house, would have had the authority to consent to a search of the common areas until the court ordered him to vacate the premises.
A child’s mother surreptitiously recorded telephone calls between her daughter and the defendant by plugging into a telephone jack. The telephone calls revealed a sexual relationship. “Article 38.23(a) of the Texas Code of Criminal Procedure states, ‘No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.'” The Court of Criminal Appeals held, relying on Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998), that the mother could vicariously consent for the daughter. Alameda v. State, 235 S.W.3d 218 (June 27, 2007), aff’g Alameda v. State, 181 S.W.3d 772 (Tex. App.–Ft. Worth 2005).*
Defendant was stopped for a traffic offense and consented to a search. He was asked whether he would mind if the officer searched. The trial court’s finding of fact supporting consent in the face of the argument defendant misunderstood is not clearly erroneous. Clarke v. State, 868 N.E.2d 1114 (Ind. 2007)*:
The meaning of Clarke’s response of “no” to whether he would “mind” if his car was searched is for the trial court to resolve. Bostick, 501 U.S. at 432. Clarke may have misunderstood the question, but, as phrased, a negative answer is a consent to the search. Moreover, Eastwood testified that Clarke’s “body language” conveyed a consent, and Clarke made no effort to change his response. Eastwood therefore reasonably accepted Clarke’s response as a consent, and the trial court’s finding that consent was given is not clearly erroneous and is dispositive of that issue. Under Bostick, the Fourth Amendment permits consensual interrogation “as long as the police do not convey a message that compliance with the requests is required.” 501 U.S. at 434-35. There is no evidence that Eastwood conveyed that message. Her mere presence as a uniformed law enforcement officer does not convert her questions into commands. Id. Accordingly, there was no seizure before Clarke gave consent to the search, and the search established probable cause to arrest Clarke. This process did not violate the Fourth Amendment.
Speeding in a school zone led to a plain view of marijuana and drug paraphernalia. When being arrested, he was asked about weapons in the car which he first denied, and then mentioned that he had a shotgun in the vehicle which was in a school zone, and that led to an impoundment which the court of appeals found unnecessary. State v. Rowell, 2007 NMCA 75, 141 N.M. 783, 161 P.3d 280 (2007), certiorari granted, 2007 N.M. LEXIS 651 (N.M., Dec. 11, 2007):
[*28] The State failed to present sufficient evidence to support application of either the exigent circumstances exception or the search incident to arrest exception in the present case. No one but Defendant was in the vehicle. After arresting Defendant, the officer asked him whether there were any weapons of which the officer should be made aware. Defendant initially stated “No,” but shortly thereafter stated that there was a shotgun in the back seat of his vehicle. The officer placed Defendant in his patrol vehicle for “safety purposes” and then “conduct[ed] an inventory pending impound of the vehicle,” pursuant to which the officer found several weapons. Apparently, the officer’s only reason for entering the vehicle was that he had determined to have the vehicle impounded and he wanted to perform an inventory search before it was towed. The officer did not say that he believed there was any threat to his safety, nor did he state any concern that objects in the vehicle would be concealed or destroyed.
[*29] Further, the weapons were not within Defendant’s immediate control at the time they were seized. None of the facts actually relied upon by the officer constitute facts that amount to any exigent circumstance justifying application of the exigent circumstances exception to the warrant requirement. Nor is there evidence of facts known to the officer at the time that he searched the vehicle which, viewed objectively, provided a valid constitutional ground for the officer’s actions.
