Occasional visitor to defendant’s house had no apparent authority

The district court suppressed the search of defendant’s property because the person the police sought consent from did not have apparent authority to consent and retrieve a gun for them. The fact they slept together a few times at his house, and he left her there alone on the day in question, did not create the usual incidents of apparent authority. United States v. Cos, 498 F.3d 1115 (10th Cir. 2007):

Applying the Rith standard for actual authority, we are not convinced by the government’s arguments. The government maintains that Ms. Ricker had joint access to the apartment because she had used it in the past and because, on the day of the search, Mr. Cos had left her alone there. According to the government, the record also establishes the alternative standard for actual authority–control for most purposes. As to that standard, the government asserts, Ms. Ricker had “an established personal relationship” with Mr. Cos and thus Mr. Cos had no “expectation of exclusive access” to the apartment. Aplt’s Br. at 16-17. For support, the government observes that Ms. Ricker had slept in Mr. Cos’s bedroom on previous occasions and, on the day of the search, had gone through the bedroom where the gun was found in order to use the bathroom.

The government’s argument regarding the first alternative Rith inquiry–mutual use of the property by virtue of joint access–completely ignores our statement that the government must show that the third party “entered the premises or room [that was subjected to the search] at will, without the consent of the subject of the search.” Rith, 164 F.3d at 1330 (emphasis added). Here, Ms. Ricker testified at the evidentiary hearing that she did not have a key to the apartment, and the district court expressly found that “the United States has not established that [Ms.] Ricker had, in fact, a key to the apartment.” Aplt’s App. vol. I, at 62. Moreover, Ms. Ricker also testified that she could not enter the apartment without Mr. Cos’s consent and that she had to ask for his consent to invite other people over, like the children who came to the apartment to swim on the day of the search. Thus, like the district court, we conclude that Ms. Ricker could not enter the apartment without Mr. Cos’s consent.

Moreover, as the district court also observed, there are additional facts indicating that Ms. Ricker “was more like an occasional visitor whom [Mr.] Cos allowed to visit, rather than one who asserted a right to access the property jointly with [Mr.] Cos.” Id. Ms. Ricker did not leave her personal belongings in the apartment, but instead took them with her when she left, indicating that she could not come and go as she pleased. Further, she had only been alone in the apartment on two occasions before the day of the search, and each occasion was only for a brief period. Ms. Ricker’s limited access to the apartment is therefore insufficient to demonstrate actual authority under the first Rith inquiry. See United States v. Warner, 843 F.2d 401, 403 (9th Cir. 1988) (affirming the district court’s finding that a landlord lacked actual authority to consent to a search of a tenant’s property because “at best, the landlord had permission to enter the property for the limited purpose of making specified repairs and occasionally mowing the lawn”); United States v. Corral, 339 F. Supp. 2d 781, 791-92 (W.D. Tex. 2004) (holding that a part-time housekeeper lacked actual authority to consent to a search of the defendant’s residence because she “enjoyed only limited access to the residence,” “was present for specific and limited purposes only,” did not have a key, and never let others into the house nor had permission to do so); see also United States v. Salimonu, 182 F.3d 63, 76 (1st Cir. 1999) (Lipez, J., dissenting) (concluding, on an issue not reached by the majority, that a third party who had permission to enter the defendant’s apartment solely for the purpose of facilitating the move of his possessions into storage lacked actual authority to consent to search of the apartment because “[a]ccess to the apartment for that limited purpose cannot be reconciled with the joint access or control for most purposes which is required for valid consent”).

As to the second Rith inquiry–control over the apartment for most purposes–the government’s argument is similarly unconvincing. The relationship between Ms. Ricker and Mr. Cos, who had dated for a short time and were friends (having “an established personal relationship,” in the government’s words), is not the equivalent of the relationships we recognized in Rith as establishing a presumption of control: those between parent and child and husband and wife. Rith, 164 F.3d at 1330. If, as we stated in Rith, co-tenant relationships do not establish a presumption that each party has control over the property for most purposes, we fail to see how this particular personal relationship should create such a presumption. See id.

Comment: One might think that the fact the court took so many pages to explain its rationale would support the government’s justification for the search, but, here, the contrary is true. It took that many pages to dispose of the government’s argument.