N.D.Ga.: Landlord had apparent authority to consent because of writ of possession

Defendant’s landlord had a writ of possession from a state court and had evicted him from the premises. He called the police and the police saw the writ of possession, and they had no reason to question it. The court does not even have to consider whether state law on service of the writ of possession was valid. Instead, the court just resolves this under the rubric of apparent authority under the Fourth Amendment finding that the landlord had apparent authority. United States v. Russell, 2016 U.S. Dist. LEXIS 156325 (N.D.Ga. Oct. 3, 2016), adopted, 2016 U.S. Dist. LEXIS 156028 (N.D. Ga. Nov. 10, 2016):

But even if the service was technically insufficient because Moody did not specify on the paperwork “studio apartment” or “garage apartment” at 4310 Matt Highway or because Deputy Loggins did not leave the paperwork on the door to the studio apartment, that deficiency by itself does not render the seizure at issue unconstitutional. See, e.g., United States v. Adigun, No. 1:10-cr-00202-RWS-RGV, 2011 U.S. Dist. LEXIS 60310, at *84-85 (N.D. Ga. May 4, 2011) (“Since the legality of Detective Guy’s search does not turn on whether Tabb properly evicted Adigun, the Court need not decide these contested questions of state property law, and may resolve the issue entirely on analysis of Fourth Amendment principles.”), adopted by 2011 U.S. Dist. LEXIS 60303 (N.D. Ga. June 3, 2011). Instead, “‘reasonableness is still the ultimate standard’ under the Fourth Amendment.” Soldal v. Cook Cnty., 506 U.S. 56, 71, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992). Here, Deputy Skibba knew that Moody had obtained a writ of possession signed by a magistrate judge which authorized him to evict Defendant from 4310 Matt Highway, Cumming, Georgia (Gov’t Ex. 8), and Moody, who lived in the house at 4310 Matt Highway, had a key to the apartment. Deputy Skibba testified that he had the original writ of possession with him, and he had no reason to believe that there was any issue with the service of process or that the order was not valid because it was signed by a judge. (Tr. 91-92). Thus Deputy Skibba had an objectively reasonable belief that Moody had the legal authority to enter Defendant’s apartment at 4310 Matt Highway, Cumming, Georgia to effectuate the eviction, i.e., to remove Defendant’s belongings and place them outside. See O.C.G.A. § 44-7-55(c). Moreover, as discussed above, Deputy Skibba acted reasonably in taking the rifle, silencer, and ammunition discovered during the apparently lawful eviction process in order to protect the public.

On this front, the undersigned finds the discussions in Adigun and Soldol instructive. In Adigan, the defendant argued that the warrantless searches of his restaurant violated the Fourth Amendment because Tabb, her landlord, “had failed to lawfully evict her from the premises prior to granting law enforcement permission to enter and seize any items they believed to have evidentiary value.” 2011 U.S. Dist. LEXIS 60310, at *82. The court explained that it “need not resolve these issues because it finds that [the law enforcement officers] reasonably believed that Adigun no longer had possession of the premises based on Tabb’s statements and the surrounding facts and circumstances.” Id. at *83. The court found “Detective Guy’s belief that Tabb had possession and authority to consent to a search of [the] restaurant was objectively reasonable because: ….