CA7: Niece who was longstanding house and babysitter had common authority to consent

Posner on consent and common authority of a niece who was defendant’s longstanding house and baby sitter who had the run of the place. They could examined the extremes and policy considerations and found she fell on the side of being in loco parentis to the child, and, thus, the house. United States v. Garcia, 690 F.3d 860 (7th Cir. 2012):

The question of the authority of someone not the occupant of a home to consent to a search of it arises frequently but has never received a crisp general answer and probably never will. The courts typically ask whether the nonoccupant who consented had “common authority [that is, authority in common with the occupant] over or other sufficient relationship to the premises” to allow the nonoccupant to consent to a search. United States v. Matlock, 415 U.S. 164, 171 (1974); United States v. Ryerson, 545 F.3d 483, 487 (7th Cir. 2008); United States v. Groves, 470 F.3d 311, 318-19 (7th Cir. 2006); United States v. Cos, 498 F.3d 1115, 1124 (10th Cir. 2007). This is a pretty empty formula. It restates the question rather than answering it. A little more helpful, though still vague, is another formulation in Mattock: “mutual use of the property by persons generally having joint access or control for most purposes.” 415 U.S. at 171 n. 7; see, e.g., United States v. Cos, supra, 498 F.3d at 1125. Sharing a home is the clearest example of such joint access and control. See 4 Wayne R. LaFave, Search and Seizure § 8.3(a), pp. 148-49 (4th ed. 2004). But what of the common case in which someone besides the occupant or occupants of a house or an apartment or other premises—someone who does not live there (if it’s a residence rather than an office)—has a key to it: a neighbor, a relative, a cleaning service, a babysitter, a dog walker, the person who feeds the cat when the homeowner is away, the building superintendent, hotel staff (if one is staying at a hotel—and some people live in hotels), or other institutional staff (many people live in retirement or nursing homes).

If anyone with a key can permit police to search a person’s home, office, hotel room, or other place of occupancy, personal privacy would be considerably diminished. Courts understandably refuse to grant the police such carte blanche. It is different, however, if an employee, relative, or neighbor is left in charge of the premises. See United States v. Ayoub, 498 F.3d 532, 539 (6th Cir. 2007); LaFave, supra, § 8.5(e), p. 235; id., § 8.6(c), pp. 248-49. Difficult as it is to draw the line, we can at least mark the extremes—at one extreme a couple married or unmarried (so much cohabitation today is nonmarital) sharing a home. Each spouse or partner has the full run of the house. Each can let anyone in and authorize the visitor to look around—even to look in a closet. At the other extreme are the neighbor who has a key, the babysitter, the hotel staff: their authority over the place of residence is specific and limited; they are not authorized to compromise the resident’s privacy beyond what they have to do to perform their authorized tasks. If such persons could authorize a police search, personal privacy would be gravely compromised because the average person would be afraid to refuse a police officer’s request to let them into a house to which the person had a key, to search.

We think the facts of the present case as found by the district judge place it slightly nearer the cohabitation pole. …

The defendant’s lawyer describes the niece as a mere babysitter. She was more than that. Although neither she nor her mother lived in the defendant’s apartment, when they were there they were in loco parentis. Had the child’s mother lived there, her authority to allow the search could not have been questioned. The defendant’s aunt and niece together were not quite a surrogate mother, but neither were they just neighbors with a key. That the defendant kept a large quantity of cocaine in a closet of this small apartment suggests that he reposed an unusual degree of trust in his aunt and niece and thus had delegated to them a large measure of authority over the apartment when he was not there.