N.D.Iowa: Proving “actual authority” v. “apparent authority” to consent

The government failed on proving “actual authority,” but it succeeded in showing “apparent authority.” United States v. Shady, 2012 U.S. Dist. LEXIS 17210 (N.D. Iowa January 20, 2012)*:

Here, Hubbard is not Defendant’s spouse nor does she have legal title in Defendant’s residence. The exact nature of the living arrangement understood between Defendant and Hubbard is unknown. Hubbard told officers that she had lived at the residence since March 2010, but she did not testify at the hearing. It is likely that 18 months of living with Defendant featured all of the privileges typical of cohabitation, which would thus enable Hubbard authority to consent. See Matlock, 415 U.S. at 171 n.7 (“[i]t is reasonable to recognize that any of the co-inhabitants has the right to permit inspection in his own right.”). However, no evidence was presented at the hearing detailing the arrangement. Without proof regarding Hubbard’s prior use of and access to the trailer, the Court is unable to find that she had common authority over the residence. Thus, the Government has failed to meet its burden of proving her actual authority to consent to a search.

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Furthermore, the facts available to the officers prior to the warrantless entry support their belief that Hubbard had authority. Most importantly, Hubbard told the police she lived with Defendant. She described in detail her efforts to retrieve personal effects still inside. Hubbard told the officers that Defendant had carried her belongings back into the residence after she had removed them to the sidewalk. This could reasonably suggest to the officers that Defendant recognized Hubbard’s cohabitation of the trailer. Finally, Officer Fier testified that Hubbard’s knowledge of an unlocked window was apparently not discovered through trial-and-error, as if she were a guest, but with the precise knowledge of a genuine resident. The Eighth Circuit has routinely upheld a finding of apparent authority under similar facts. See Nichols, 574 F.3d at 636-37 (finding apparent authority where cohabitant girlfriend kept possessions at defendant’s house, called and met police at the door, and “appeared familiar with the home”); Hilliard, 490 F.3d at 639 (finding apparent authority where girlfriend invited officers into defendant’s home, picked up her personal items from the floor, and retrieved defendant’s hidden handgun); Douglas, 135 Fed. Appx. at 5-6 (finding girlfriend had apparent authority where she invited officers into defendant’s apartment, claimed it was her primary residence over defendant’s objections, kept belongings there and revealed location of defendant’s handgun). Therefore, the Court believes that the officers could have reasonably believed that Hubbard had authority to allow law enforcement to enter the residence. Amratiel, 622 F.3d at 916.