E.D.Va.: Manafort storage building search sustained: Employee with free access had apparent authority to consent to entry

The FBI reasonably relied on a person with apparent authority to consent to an entry into a storage locker to look around. The consenter had free access to the storage room as an employee, and the employer-employee relationship can permit consent. Common authority does not require the consenter actually keep things of his or her own in the storage unit. The entry was valid. The look resulted in seeing labels on boxes and then obtaining a search warrant for the boxes for “Records relating to violations of 31 U.S.C. §§ 5314, 5322(a) (Failure to File a Report of Foreign Bank and Financial Accounts), 22 U.S.C. § 618 (Foreign Agent Registration Act), and 26 U.S.C. § 7206(a) (Filing a False Tax Return), including: ….” Aside from the look, even discounting all of that, the independent source doctrine would have permitted the entry based on the face of the affidavit for the search warrant, and there would be no valid ground for suppressing the evidence recovered under the search warrant. United States v. Manafort, 2018 U.S. Dist. LEXIS 115223 (E.D. Va. July 9, 2018):

Defendant also contends that the government has not demonstrated that Trusko had common authority over the storage unit because there is no evidence that Trusko stored any of his own property in the storage unit. But this argument also fails, as courts have routinely concluded that in employer-employee contexts such as exists here, an employee has common authority where he or she “is authorized to enter” a location “to perform his [job duties]” there. United States v. Buettner-Janusch, 646 F.2d 759, 765 (2d Cir. 1981) (holding that an employee with keys to a lab and permission to enter to conduct his lab duties had common authority to consent to a search of the lab).6Link to the text of the note None of these cases holds that common authority requires the employee to include his own property in the storage unit. And notably, even the case on which defendant chiefly relies—United States v. Whitfield, 939 F.2d 1071, 1075 (D.C. Cir. 1991)—does not stand for the proposition that a third party must store his or her own property in a location to meet the requirements of common authority. In Whitfield, the D.C. Circuit, considering the validity of a mother’s consent to a search of her adult son’s bedroom, concluded that the evidence there did not establish common authority. Whitfield, 939 F.2d at 246. Importantly, in reaching this conclusion, the D.C. Circuit reasoned that because there was no evidence in the record reflecting that the defendant’s mother “made use of the room at any time for any purpose[,]” the mother could not have common authority to consent to a search of the room. Id. By contrast, the record here clearly reflects that Trusko made use of the storage unit on multiple occasions when he moved filing cabinets and files into the unit as part of his job duties. As such, Whitfield is inapposite and does not demand a result contrary to that reached here.

In sum, the facts that Trusko rented the storage unit in his name, retained the key to the storage unit, and used the storage unit to move and to store defendant’s files are sufficient to establish Trusko’s common authority over the storage unit. Accordingly, Trursko’s consent to Special Agent Pfeiffer’s May 26, 2017 search of the storage unit was valid, and there is no basis on this ground to suppress the evidence recovered from the later search.

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Defendant also contends that the government has not demonstrated that Trusko had common authority over the storage unit because there is no evidence that Trusko stored any of his own property in the storage unit. But this argument also fails, as courts have routinely concluded that in employer-employee contexts such as exists here, an employee has common authority where he or she “is authorized to enter” a location “to perform his [job duties]” there. United States v. Buettner-Janusch, 646 F.2d 759, 765 (2d Cir. 1981) (holding that an employee with keys to a lab and permission to enter to conduct his lab duties had common authority to consent to a search of the lab).6Link to the text of the note None of these cases holds that common authority requires the employee to include his own property in the storage unit. And notably, even the case on which defendant chiefly relies—United States v. Whitfield, 939 F.2d 1071, 1075 (D.C. Cir. 1991)—does not stand for the proposition that a third party must store his or her own property in a location to meet the requirements of common authority. In Whitfield, the D.C. Circuit, considering the validity of a mother’s consent to a search of her adult son’s bedroom, concluded that the evidence there did not establish common authority. Whitfield, 939 F.2d at 246. Importantly, in reaching this conclusion, the D.C. Circuit reasoned that because there was no evidence in the record reflecting that the defendant’s mother “made use of the room at any time for any purpose[,]” the mother could not have common authority to consent to a search of the room. Id. By contrast, the record here clearly reflects that Trusko made use of the storage unit on multiple occasions when he moved filing cabinets and files into the unit as part of his job duties. As such, Whitfield is inapposite and does not demand a result contrary to that reached here.

In sum, the facts that Trusko rented the storage unit in his name, retained the key to the storage unit, and used the storage unit to move and to store defendant’s files are sufficient to establish Trusko’s common authority over the storage unit. Accordingly, Trursko’s consent to Special Agent Pfeiffer’s May 26, 2017 search of the storage unit was valid, and there is no basis on this ground to suppress the evidence recovered from the later search.

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