S.D.N.Y.: Co-conspirator in a drug trafficking ring had apparent authority to consent to search of hotel room he was staying in but did not rent

A hotel guest with the defendant had apparent authority to consent to a search of the room that they were in as a part of a conspiracy to import 100,000 ecstasy pills. In addition, under the S.D. N.Y.’s practice rule to provide an affidavit of facts in dispute it is the defendant’s burden to show a fact dispute to get an evidentiary hearing. Without the fact dispute, the court does not have to have a hearing. United States v. Cicuto, 2010 U.S. Dist. LEXIS 79674 (S.D. N.Y. August 6, 2010):

But since a third party’s authority to consent to a search does not turn on “technical property interest[s],” Randolph, 547 U.S. at 110, whether or not Mannu was registered with the hotel as a guest staying in Room 233 is nearly irrelevant. Indeed, other courts have recognized the authority of third-parties sharing hotel rooms to consent to a search of the room even if the room is not registered in their name. See United States v. Kimoana, 383 F.3d 1215, 1222 (10th Cir. 2004) (“Although Defendant was not the registered guest who had paid for the room, he had stayed there overnight, left his possessions there, and carried a key to the room. This supports a finding that Defendant had joint access or control over the room, and thus had actual authority to consent.”); United States v. Clark, 234 F. Supp. 2d 471, 476-77 (D. N.J. 2002) (third-party had actual authority to consent to search of hotel room where he stayed overnight despite not being a registered guest). Mannu was clearly an occupant of Room 233 with “access to the area searched” and “common authority over the area.” Davis, 967 F.2d at 87. As such, he had actual authority to consent to the search. Id. In light of Mannu’s authority to consent to the DEA agents’ search of the hotel room, Cicuto ran the risk that “a guest obnoxious to … [him] would be admitted in his absence,” Randolph, 547 U.S. at 110, and the search of Room 233 did not violate the Fourth Amendment.

Even if Mannu did not have actual authority, it was objectively reasonable for the DEA agents to believe that he had the authority to consent to a search of Room 233, and so he had apparent authority. Rodriguez, 497 U.S. at 188. Mannu “reasonably appeared to … [the DEA agents] to possess authority to consent to the search,” McGee, 564 F.3d at 139, because he told the informant he was staying at the Ramada; provided the informant with the hotel phone number and room extension; answered the phone in Room 233 both the day before and morning of the search; and was alone in Room 233 when the agents knocked on the door after arresting Cicuto. Since Mannu had apparent authority to consent to the search of Room 233, his consent and the search were valid.