E.D.Tenn.: No key to a locked cabinet was not common authority to consent to a search

The consenter did not have common authority to access a locked gun cabinet where he lacked a key. He also did not have apparent authority. United States v. Sharp, 2009 U.S. Dist. LEXIS 71045 (E.D. Tenn. June 10, 2009):

While the Court acknowledges that guns in the closet once belonged to, or perhaps, in title only, continued to belong to, Mack Sharp, the testimony at the hearing and the facts of this case indicate that Mack Sharp no longer had access to the contents of the closet or the cabinet. All the evidence presented to the Court supported the conclusion that the Defendant possessed the only key to the closet and cabinet. In addition to not possessing the key, Mack Sharp did not indicate to officers that he had any knowledge of what key might open the closet and cabinet nor did he indicate that he ever accessed the closet and cabinet using the Defendant’s keys. In fact, from Ms. Sharp’s testimony at the hearing and the addition of padlock within a year of the search, it appears that very real efforts were being made to prevent Mack Sharp from accessing the closet or cabinet, due to his deteriorating health and the danger he might pose to himself and others were he able to access the firearms in the closet and cabinet.

As previously stated, a resident’s consent to search his home is not necessarily consent to search a closed object within the home. Karo, 468 U.S. at 725. Instead, “[a] valid consent to search the closed container must come from one who has common authority over the effects sought to be inspected, one who has mutual use of the property, and one who generally has joint access or control for most purposes.” Id. at 725-26. Further, relevant case law supports the Court’s reliance on the lack of a key or knowledge of how to open the containers when determining whether common authority existed. See United States v. Ayoub, 498 F.3d 532, 539 (6th Cir. 2007) (adopting the district court’s conclusion that possession of the key to a home is a strong indicia of authority); see also United States v. Chen, 629 F.Supp. 263, 270 (S.D.N.Y. 1986) (finding common authority in a locked safe in a closet where both parties had keys to the closet and knew the combination to the safe).

Applying these rules and case law to the facts described above, the Court concludes that Mack Sharp lacked common authority over the closet and gun cabinet. Mack Sharp was wholly without the ability to access the closet. He possessed neither the mutual use nor the joint access and control that support finding common authority, Karo, 468 U.S. at 725, and accordingly, the Court finds that Mack Sharp did not have the common authority to consent to a search of the closet and cabinet. Thus, any consent to search his home was not consent to search the locked closet and gun cabinet within his home.

Defendant got a Franks hearing, but he failed to prove that the statements were false. Since the statements were not false, the court did not have to determine whether it was intentional or reckless. United States v. Sharp, 2009 U.S. Dist. LEXIS 71050 (E.D. Tenn. May 11, 2009) (same case).*