E.D.N.Y.: Co-tenant lacked common authority to consent to a search of a separate closet, pockets, and closed containers inside

Third party did not have the authority to consent to a search inside a closet in co-tenant’s separate bedroom. United States v. Chisholm, 2009 U.S. Dist. LEXIS 140 (E.D. N.Y. January 5, 2009):

Relatives with joint access do not automatically have authority to consent to a search of closed containers in a room occupied by a defendant. See United States v. Orejuela-Guevara, 659 F. Supp. 882, 887-89 (E.D.N.Y. 1987) (holding that joint occupant had no common authority over or implied right of access to containers in co-occupant’s closet); see also United States v. Davis, 332 F.3d 1163, 1169 (9th Cir. 2003) (tenant did not have authority to consent to search of defendant’s gym bag in defendant’s bedroom); United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978) (mother had authority to consent to search of son’s bedroom but no authority to consent to search of son’s footlocker in the bedroom); United States v. Robinson, 999 F. Supp. 155, 162-63 (D. Mass. 1998) (mother had authority to consent to search of adult son’s bedroom for items open to view but not a closed vinyl bag in the room or the pockets of a pair of pants in the room). Once a search extends beyond the common areas of the jointly occupied premises, the determination of whether a third party has the requisite authority to consent requires “layered analysis to identify and accommodate these areas entitled to independent constitutional protection.” Orejuela-Guevara, 659 F. Supp. at 887. An adult’s dresser drawer is generally recognized as a place where a person can place private items and can expect them to remain private. See Randolph, 547 U.S. at 112 (“[W]hen it comes to searching through the bureau drawers, there will [*24] be instances in which even a person clearly belonging on the premises as an occupant may lack any perceived authority to consent . . . .”).

. . .

Even if Ms. Staley had actual or apparent authority to hang clean clothes in Defendant’s closet, I agree with Judge Go that there is no evidence that she had any authority over or interest in rummaging through the pockets of Defendant’s jackets. Nor is there any evidence that Ms. Staley or Ms. Chisholm had authority over or an interest in what was on or in a box perched on the closet rod, especially given Judge Go’s finding that that Ms. Staley’s access to Defendant’s bedroom was essentially limited to tidying up the room and putting away clean laundry. (R&R 41.) Ms. Staley thus did not have the required actual or apparent authority to grant consent to a search of the locations of the closet where evidence was seized, as required by Moore v. Andreno, 505 F.3d at 208-09. The Government’s objections with respect to the search of the closet are thus denied, and this portion of the R&R is adopted in full.