S.D.N.Y.: A woman forced to leave a home because of alleged domestic violence, even though expressing no intent to return, still has apparent authority to consent

A woman forced to leave a home because of alleged domestic violence, even though expressing no intent to return, still has apparent authority to consent. United States v. Turner, 2014 U.S. Dist. LEXIS 75088 (S.D. N.Y. June 2, 2014):

This case is on a slightly different footing because, unlike the third parties in the foregoing cases who still lived in the premises, at the time of the search McIntyre had left the apartment and affirmatively disavowed to the officers any future intent to return. The government argues that as a purported victim of domestic violence, however, McIntyre was essentially forced out; thus, the government contends that she should not be deemed to have relinquished her rights over the premises.

The Second Circuit has not specifically discussed whether a consenting party in McIntyre’s position can provide consent under an apparent authority theory.¹⁸ The only case proffered by the parties or identified by the Court within this Circuit finding that a wife or girlfriend subjected to violence or threats of violence had apparent authority to consent to a search even after leaving the residence is United States v. Stone, No. 3:05cr281 (EBB), 2007 U.S. Dist. LEXIS 69210, 2007 WL 2727532, at *5 (D. Conn. Sept. 18, 2007). In that case, however, the district court found that a wife forced out of the marital home a week earlier also had actual authority to grant consent to search the marital residence. Id.

18. The Second Circuit has ruled that wives and girlfriends can consent to search a home despite the fact that they have moved out of the premises where they have actual authority. See Trzaska, 859 F.2d at 1120; United States v. McGee, 564 F.3d 136 (2d Cir. 2009) (live-in girlfriend had actual authority to consent to search of defendant’s residence where the defendant took away her keys after she told him she planned on leaving him).

There is, however, substantial support in cases outside the Second Circuit for the proposition that victims of domestic violence retain rights over property they are forced to flee. In a closely analogous case out of Kentucky, for example, the court found that a live-in girlfriend had apparent authority to consent to a search of the defendant’s residence even though she had lived there for only “a period of months,” did not have a key, and her name was not on the lease. United States v. Clay, Cr. No. 13-15-GFVT, 2014 U.S. Dist. LEXIS 21109, 2014 WL 657183, at *4 (E.D. Ky. Feb. 20, 2014). The complainant in Clay told police that the defendant had assaulted her earlier that day, had thrown her out of the house, and was keeping drugs and a gun inside a locked closet in his apartment. Id. The court held the girlfriend’s written consent to be valid for the apartment search. Id.