CA7: Def lived with grandparents, and they could consent to search of bomb making stuff in basement

Defendant who lived with his grandparents had “mental health issues” and expressed “anti-government sentiment.” They called the police because he was making M-80’s in the basement, and M-80s were classified as explosive devices. They police and ATF came warrantless to do a knock-and-talk and invited him outside. He wouldn’t consent to a search without a warrant, so they asked his grandmother. She had common authority over the basement. It wasn’t like they wanted to search his bedroom. The government’s claim of exigency is unnecessary and criticized for lack of effort to get a search warrant; it would only take about an hour. United States v. Witzlib, 2015 U.S. App. LEXIS 13811 (7th Cir. August 7, 2015):

But the police wanted only to search the basement, which was no more Witzlib’s private space than the living room was. He could not reasonably believe that merely because some of his possessions (the M-80s) were in the basement, his grandmother—the owner of the home—could not authorize a search of it. In other words, this is a “joint access” case, in which “shared premises” or (equivalently) “common authority over the premises” permit one of the joint occupants of the premises to consent to a search without obtaining the permission of the other or others. See id., 547 U.S. at 110-11; Fernandez v. California, 134 S. Ct. 1126, 1133 (2014); Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990); United States v. Matlock, 415 U.S. 164, 170 (1974). Georgia v. Randolph suggests that “a potential defendant with self-interest in objecting” (regardless of his exact status in the household) who is “in fact at the door and object[ing]” can bar a consent search authorized by a joint occupant, but not a potential defendant who is “nearby but not invited to take part in the threshold colloquy.” 547 U.S. at 121; see also Fernandez v. California, supra, 134 S. Ct. at 1134-36; United States v. Henderson, 536 F.3d 776, 784 (7th Cir. 2008). Witzlib, standing in the driveway, was in the second category.

The government argues in the alternative (unnecessarily, and also unpersuasively) that the danger posed by the M-80s justified an immediate search—that it would have been risky [*6] to lose time seeking a search warrant. That is an appeal to the “exigent circumstances” exception to the requirement of obtaining a warrant to search a home, an exception frequently invoked in cases involving explosives. See, e.g., United States v. Infante, 701 F.3d 386, 393-94 (1st Cir. 2012); Armijo ex rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1071-73 (10th Cir. 2010); United States v. Lindsey, 877 F.2d 777, 781-82 (9th Cir. 1989); United States v. Al-Azzawy, 784 F.2d 890, 894 (9th Cir. 1985). But in this case it is refuted by the four-hour delay in conducting the search after the police had obtained ample probable cause from their conversation with the aunt and uncle. Indeed there was a delay of more than 24 hours between when the police first learned from Witzlib’s aunt and uncle of the M-80s in the basement and when they conducted the search pursuant to the belatedly obtained warrant. None of the cases we’ve cited involved a delay of more than an hour, and there is no suggestion that the police could not have obtained a warrant in an hour or less.

Where exigency is pertinent to this case is in relation to what the uncle told the police when they first spoke to him and the aunt—that Witzlib had made M-80s and was storing them in the basement of his grandmother’s house. These are dangerous explosives, especially when homemade—and by a person with “mental health issues” to boot. The police may well have been lax in taking so long to conduct a thorough search after hearing from the uncle, but we don’t see why that laxity should benefit Witzlib.