Mistake of fact as to abandonment did not permit search of defendant’s belongings on eviction

Defendant did not abandon apartment just because he was behind in rent and was sleeping elsewhere because his stuff was still there. Officers reasonably believed, with a mistake of fact and not of law, that the landlord with a judgment of eviction could consent to a seizure of his belongings, but not a search of the computer. Obtaining a search warrant for defendant’s computer for child porn purged any taint. United States v. Barefoot, 2008 U.S. Dist. LEXIS 59797 (W.D. Pa. August 5, 2008):

12. The Court finds that Detectives Matthews and Mayer reasonably believed that Beley had apparent authority to consent to their search of defendant’s apartment and their seizure of his computer and related equipment. Any mistake made by the detectives as to whether defendant had vacated the apartment was a mistake of fact, not one of law. United States v. Elliott, 50 F.3d 180, 187 (2d Cir. 1995), cert. denied, 516 U.S. 1050 (1996); Brazel, 102 F.3d at 1148-49 (search constitutional even though landlord misinformed officer that apartment was vacant); see also United States v. Green, 102 F.Supp.2d 904, 911-12 (S.D.Ohio 2000) (police relied on owner, who was mistaken about whether apartment was vacant). Beley had not completed the eviction process but he told the detectives that he had. The “standard of reasonableness is governed by what the law enforcement officers know, not what the consenting party knows.” United States v. James, 353 F.3d 606, 615 (8th Cir. 2003). What these detectives knew on August 28, 2007, came from Beley’s statements and their own observations of the premises. Beley told them that he had obtained what he described as a “judgment for eviction” for non-payment of rent, that defendant had not paid rent in six months and that he had removed defendant’s belongings from the apartment and placed them in boxes on the porch. Beley also confirmed that he had hired Lukotich to work in the apartment to prepare it to be rented again.

13. It is a closer question whether it was reasonable for the detectives to believe that Beley could consent to their removal of defendant’s computer. While the facts indicate that Beley believed that he had taken possession of the apartment, he also stated that he was in the process of disposing of defendant’s belongings. Beley told detectives that he had tried to contact defendant “several times,” but there is no evidence that Beley told them that he had actually spoken to the defendant about the apartment and its contents.

14. Police officers may not always accept a person’s invitation to enter premises and seize personal property therein. “Even when the invitation is accompanied by an explicit assertion that the person [has authority to consent], the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry.” Rodriguez, 497 U.S. at 188. While it may have been reasonable, though mistaken, for the detectives to believe that Beley had taken possession of the apartment, it was unreasonable to assume that Beley could consent to the seizure of defendant’s computer.