W.D.N.Y.: Co-owner of a business couldn’t consent to opening safe officers knew was owned solely by other co-owner

Codefendant consented to a search of shared business premises. His general consent to search the basement did not extend to breaking open a safe that both said was defendant’s because he had no joint control over the safe. United States v. Abdullah, 2015 U.S. Dist. LEXIS 22621 (W.D.N.Y. February 25, 2015), R&R 2014 U.S. Dist. LEXIS 182405 (W.D. N.Y. October 31, 2014):

Defendant Alawi further objects to the Magistrate Judge’s conclusion that the contents of the safe, which belonged to Mr. Alawi but was found in Mr. Abdullah’s bedroom, should not be suppressed because Mr. Alawi did not object when Mr. Abdullah consented to law enforcement opening the safe. (Docket No. 157 at 21.) On this point the Court agrees with Defendant. “[T]he consent of the host should ordinarily be insufficient to justify a warrantless search when it is obvious that the searched item is the exclusive property of the guest.” United States v. Isom, 588 F.2d 858, 861 (2d Cir. 1978). Here, when asked, both Mr. Abdullah and Mr. Alawi confirmed that the safe belonged to Mr. Alawi. There was no evidence that, although owned by Mr. Alawi, Mr. Abdullah could use or access the contents of the safe or that Mr. Alawi himself was asked permission to open the safe. Indeed, law enforcement had to pry open the safe, either because of a dead battery or a lack of a key, and the testimony does not make clear that Mr. Alawi was in a position to witness either Mr. Abdullah’s consent or the opening of the safe. (Docket No. 132 at 34-35 (Tr. 248-49)); see Isom, 588 F.2d at 861 (authority to consent to search of premises does not necessarily include authority to consent to forcible opening of locked metal box found therein).

In light of this, Mr. Alawi’s general consent to the search of the “downstairs” cannot be said to include the locked safe. (Docket No. 151 at 14); see Florida v. Jimeno, 500 U.S. 248, 251-52, 111 S.Ct. 1801, 114 L. Ed. 2d 297 (1991) (distinguishing between the opening of a closed container based on a general consent and the “breaking open of a locked briefcase”); United States v. Buitrago Pelaez, 961 F.Supp. 64, 68 (S.D.N.Y. 1997) (general consent to search office did not encompass permission to search locked safe). Law enforcement may not avoid an owner’s potential refusal to permit a warrantless search by procuring the consent of a third party when that owner is readily available. See Georgia v. Randolph, 547 U.S. 103, 110, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006) (“the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared” (emphasis added)) (quoting United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974)). Accordingly, Defendant’s objection on this point is granted and the contents of the safe must be suppressed.