Scope of consent search of business found limited to business premises, and defendant’s apartment on premises was not within consent

Officers received an anonymous letter that defendant (who was involved in a marital dispute) had a meth lab at his business, where he was staying in an apartment. Officers showed up, but he was not there, and they obtained consent over the phone from him to search the business. In the course of the search, they found an apartment. His consent did not extend to the apartment, and the district court erred in concluding otherwise. Wilson v. Commonwealth, 2007 Ky. App. LEXIS 201 (July 6, 2007):

Certainly there were no circumstances that would justify scaling a wall to obtain access to Wilson’s personal space upstairs. Second, there was no other proof or confirmation regarding the scope of Wilson’s consent, either from another police officer or from a signed consent form. Third, if Wilson had consented to a search of the entire building over the telephone, there would have been no need for Det. Conley to obtain a search warrant once they found the suspected drugs and paraphernalia in the cigar box in Wilson’s living area. While Det. Conley testified that consent is sometimes withdrawn, necessitating a search warrant, it is undisputed that Wilson was not there to withdraw his consent. Therefore, there was no need to seek a warrant at that particular time. The Commonwealth’s argument that Wilson was cooperative upon his return has no bearing on the extent of his initial consent, as the police had obtained a warrant by that time and Wilson was complying with the terms of the warrant.

Based upon the totality of the circumstances, it is clear that the Commonwealth did not prove by a preponderance of the evidence that Det. Conley obtained a valid consent to search the entire building.

On remand from United States v. Buckles, 137 Fed. Appx. 950 (9th Cir. 2005), “The district court found that Buckles’ testimony that he had objected to the search was not credible. Rather, Buckles ‘conveyed [to the agents] the message that consent was not his to give; that it was his sister’s car’ and ‘at least by implication that, if consent to search the car was to be given, it had to be obtained from, the sister.’ The court concluded that under the ‘totality of the circumstances,’ based on the information known to the agents at the time of the search, Weinberger had apparent authority to consent to the search of the car. [¶] The district court’s factual findings are not clearly erroneous, and we affirm.” United States v. Buckles, 2007 U.S. App. LEXIS 4054 (9th Cir. February 12, 2007)* (unpublished).

Defendant told the police that there were shooting victims in his house. This was sufficient for the initial entry. Further entry was invalid, but not barred because of inevitable discovery. (Defendant waived the search issue in the case, but the court decides it anyway in case of further appellate review.) State v. Anderson, 2007 Tenn. Crim. App. LEXIS 535 (July 6, 2007):

To assist possible further appellate review, however, we mention that England led the police to the scene where the shooting occurred, and the police officers found McGhee’s body. The defendant and Canady had not been apprehended, and officers observed movement in the house. The evidence in the record does not preponderate against the trial court’s statement that exigent circumstances existed to justify the warrantless entry into the defendant’s home.

Of course, however, once Officer Lee determined no suspects were present in the home, the exigency ended. The officers who subsequently entered without a warrant to collect evidence did so in violation of the Fourth Amendment. Nevertheless, because of the inevitable discovery doctrine the evidence was admissible. Under the inevitable discovery doctrine, illegally obtained evidence is admitted by the court when the evidence would have inevitably been discovered by lawful means. See State v. Patton, 898 S.W.2d 732, 735 (Tenn. Crim. App. 1994) (citing Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984)). Here, England informed police officers that the shooting occurred at this house, 2813 East 5th Avenue, and the police found a dead body in the house’s driveway. Under these circumstances, the police officers had probable cause to obtain a search warrant.