CA9: How can a mere visitor have apparent authority to consent to search premises? She can’t

The District Court clearly erred in crediting that a mere visitor had apparent authority to consent to a search of a house. United States v. Chavez, 2016 U.S. App. LEXIS 23301 (9th Cir. Dec. 27, 2016):

“Under the apparent authority doctrine, a search is valid if the government proves that the officers who conducted it reasonably believed that the person from whom they obtained consent had the actual authority to grant that consent.” Welch, 4 F.3d at 764; see also Arreguin, 735 F.3d at 1175 (“Apparent authority is measured by an objective standard of reasonableness, and requires an examination of the … surrounding circumstances.”). Actual authority exists if one has shared use and joint access to or control over a searched area. See Welch, 4 F.3d at 764; Arreguin, 735 F.3d at 1174. Apparent authority is applicable only if the facts believed by the officers to be true would justify the search as a matter of law. See Welch, 4 F.3d at 764. “A mistaken belief as to the law, no matter how reasonable, is not sufficient.” Id. at 765. The “government has the burden of establishing apparent authority to consent to each specific area searched, not just authority to consent to a generalized search of the residence.” Arreguin, 735 F.3d at 1175. “In assessing whether an officer’s belief was objectively reasonable, the court considers the facts available to the officer at the moment” of the officer’s warrantless entry into a home or relevant search of an area. Id. (emphasis in the original).

In this case, the officers’ warrantless entry into the home where Defendant was residing was based on the consent of a third party (Sandra Rentfro) who was visiting the home. For apparent authority to exist, the officers had to have an objectively reasonable basis to believe that Ms. Rentfro had actual authority to consent to entry into the home and living room. Actual authority would exist if Ms. Rentfro had shared use and joint access or control over the home and living room.