S.D.N.Y.: Householder had common authority over def’s room to at least enter

A pair of shoes in plain view in defendant’s room in somebody else’s house were validly seized. The householder had sufficient common authority to at least consent to enter the room. It was not defendant’s primary residence. The officer’s reliance on common authority over the property was reasonable. United States v. Gilmore, 2020 U.S. Dist. LEXIS 205998 (S.D. N.Y. Nov. 2, 2020):

Relying on a footnote in Matlock, the defendant argues that Gall did not have authority to consent to the search of the bedroom because he did not use that bedroom for “most purposes.” See Matlock, 415 U.S. at 171 n.7. Gall did not use the bedroom at issue as his own bedroom; he did not store his things in that bedroom and did not clean it. But the defendant reads too much into the footnote in Matlock. The footnote at issue described why common authority to consent to a search could not be implied “from the mere property interest a third party has in the property.” Id. Hence, a landlord could not validly consent to a search of a house rented to another, or a hotel clerk consent to a search of a customer’s room, because common authority to consent to a search “rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Id. While the use of the property “for most purposes” might be a relevant test for determining whether a third party has sufficient “common authority” over property for purposes of the second part of the Moore inquiry, there is no basis to limit the independent part of the Moore test which requires only that a third party consenter have “permission to gain access to the area.” Moore, 505 F.3d at 209. Hence, if a third party has access to the area searched and permission to gain access to the area, that person would have authority to consent to the search. See, e.g., United States v. Marte-Cruz, 629 Fed. Appx. 89, 91 (2d Cir. 2015); United States v. Lewis, 386 F.3d 475, 481 (2d Cir. 2004) (“[S]he had access and permission to enter, and could indeed enter at any time. Under the law of this Circuit, this evidence is sufficient to show that the mother had actual authority to consent to the search of her son’s bedroom.”). Under these circumstances, consistent with the footnote in Matlock, Gilmore assumed the risk that Gall, the third party, would voluntarily consent to the search of the bedroom.

In addition to actual authority to consent to the search, Gall had apparent authority to consent to the search. Gall told Detective Chevre that Gall was the leaseholder of the apartment and that Gilmore did not use the apartment as a primary residence. See Moore, 505 F.3d at 209. A police officer’s objectively reasonable belief that the officer has obtained consent, even if the officer has not, renders a search constitutional. See Illinois v.Rodriguez, 497 U.S. 177, 188-89, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990); Moore, 505 F.3d at 209. A reasonable officer would have reasonably concluded that Gall had the authority to consent to a search of a room in his apartment. This is not a case where the officer’s failure to ask questions would have yielded information that cast doubt on Gall’s apparent authority to consent to the search of the bedroom. Indeed, further questions would have supported Gall’s actual authority to consent to the search.