CA6: Consenter had no apparent or actual authority; suppression should have been granted

The district court erred in finding that the owner of property who three years earlier signed a no trespass letter had common authority over the property at the time of consent. “Furthermore, it goes without saying that even a party with authority over the premises at the time of a search cannot grant consent retroactively.” The officers had no consent from anyone with actual or apparent authority. As to the government’s alternative basis for the search, a lack of standing, the defendant had a reasonable expectation of privacy at least as an overnight guest. The District Court erred in not suppressing the search. United States v. Kimber, 395 Fed. Appx. 237 (6th Cir. 2010)*:

Further, we have no doubt that society would recognize Kimber’s subjective expectation of privacy as reasonable. The Anglo-American tradition has long regarded the forcing open of locked doors by law enforcement officials with special disapproval (even where, unlike here, the police have a warrant supported by probable cause). See Semayne’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195-96 (K.B. 1603) (“[T]he law … abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue ….”); see also Wilson v. Arkansas, 514 U.S. 927, 931-34 & n.2 (1995) (discussing common-law and colonial authorities). Accordingly, we cannot affirm on this alternative basis, either.

[Clearly an illegal search with four theories of the government accepted by the district court and rejected by the Sixth Circuit, and it goes down unpublished and per curiam. This is somewhat remarkable because the district court did not suppress in the first place because it is so obvious.]