W.D.Ky.: Casual visitor had no apparent authority to consent, and he wasn’t even asked what his connection was

Merely answering the door isn’t enough to be asked for consent. This guy was a casual visitor, he had no actual authority to consent, and the police made no effort to determine his apparent authority. If they asked, it would have been obvious there was none. Therefore, the entry was invalid. United States v. Flintroy, 2014 U.S. Dist. LEXIS 91488 (W.D. Ky. July 7, 2014):

Even though the Court has determined that Slim did not have actual common authority, the consent may still be valid as long as the police “relied in good faith on a third party’s apparent authority to consent to the search.” United States v. Hunyady, 409 F.3d 297, 303 (6th Cir. 2005) (quoting United States v. Gillis, 358 F.3d 386, 390 (6th Cir. 2004)). If the property is not owned by the person who consents, “the consent is valid if ‘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.'” United States v. Jenkins, 92 F.3d 430, 436 (6th Cir. 1996) (quoting Rodriguez, 497 U.S. at 188). In certain circumstances, a lack of clarity regarding ownership and use of a property may require further inquiry by police officers. See Waller, 426 F.3d at 846. Thus, “[t]he government cannot establish that its agents reasonably relied upon a third party’s apparent authority ‘if agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry.'” Id (internal quotation marks and citation omitted).

The United States argues that the police acted reasonably in believing that Slim had apparent authority to permit entry. Defendant contends that the testimony of Detective Simpson clearly demonstrated that the police knew very little about the individual who answered the door. As such, the Defendant asserts that the United States fails to meet its burden of establishing the validity of their warrantless entry of the house.

The reasonableness of the determination that Slim had apparent authority must be assessed solely on what Detective Simpson believed about Slim “at the moment” he obtained consent. See Jenkins, 92 F.3d at 436. During the hearing on these motions, Detective Simpson indicated that he did not inquire much about the individual who answered the door. In fact, the very few things that Detective Simpson learned about the individual should have prompted more inquiry on the part of Detective Simpson. 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment, § 8.3(g) (5th ed. 2013) (“But sometimes the facts known by the police cry out for further inquiry, and when this is the case it is not reasonable for the police to proceed on the theory that ‘ignorance is bliss.'”). The mere fact that Slim was using the recording studio at the Flintroy’s house does not indicate that he had authority over the entire house. Particularly troubling is the fact that Detective Simpson did not even ascertain the identity of the individual. Detective Simpson testified that the individual told him he was a neighbor. Yet, based on the testimony of Ms. Flintroy, it is quite possible that Slim’s identification would have indicated an address in Miami rather than Louisville. Certainly that would have raised more questions about Slim’s presence in the home. But it seems to the Court that the officers were not particularly interested in raising questions about Slim, they were simply satisfied that he allowed them into the home. It is also telling that the police contacted Defendant’s parents in order to have them come to the house and consent to the search. This substantially weighs against the argument that they reasonably believed that Slim had apparent authority to consent to them entering the house. As a result, the Court must conclude that based on what the police knew about Slim at the time, it was unreasonable to conclude that he had authority to consent to a search of the Flintroy’s home.