Post details: Third party consenter's actions showed apparent authority; e.g., picking up clothes from the bedroom floor; defendant's failure to object a little later considered against him
06/16/07
Third party consenter's actions showed apparent authority; e.g., picking up clothes from the bedroom floor; defendant's failure to object a little later considered against him
The facts apparent to the officers at the time of the third party's consent showed she had apparent authority to consent. United States v. Hilliard, 490 F.3d 635 (8th Cir. 2007):
Viewing the facts known to the officers at the time of the search, we conclude the officers reasonably believed Cole resided in the Arden residence and had authority to consent to the search. Cole's invitation to the officers to enter the Arden residence and to follow her into the bedroom, her collection of pieces of clothing off the floor to dress herself, and Cole's instantaneous retrieval of the contraband evidenced Cole's familiarity with the premises and the items contained and concealed therein. Cole's conduct, along with the visible presence of women's clothing and other personal items strewn about the residence, bolstered the reasonableness of the officers' belief Cole resided in the house. Although Hilliard was present and had the opportunity to object, he never opposed Cole's invitation to the officers to enter the residence or Cole's request that Officer Church follow her into the bedroom. Hilliard's silence in the face of events taking place before him in his own residence gave the officers no reason to believe Hilliard had a superior privacy interest or to doubt Cole's authority over the Arden residence.
Comment: This case assumes too much: such as the fact a suspect is supposed to know that he has to voice objection to the presence of officers in his house when they were let in by another. Just how much did the police tell him when he saw they were there? "She let us in." Then what is he supposed to say? How is a citizen supposed to know he can object to armed police officers in his house unless he is a criminal defense lawyer or prosecutor? Trained police officers are not always charged with knowledge of all the nuances of the Fourth Amendment, hence the good faith exception, but the courts seem to require citizens to be. This case is such an example. The courts put the burden on the defendant to confront officers at the scene. Remember Bumper v. North Carolina, 391 U.S. 543, 548-59 (1968)? "This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." The next case shows somewhat what happens when one objects and then runs.
Officer entered a shed without a warrant looking for the defendant in a child neglect case where children were unattended and the father had not been seen, and the defendant was seen sitting with another guy. When the officer was seen, the defendant reached down and his hands were not visible to the officer, and the officer feared he was hiding contraband or reaching for a gun. He drew his weapon and ordered the defendant to put his hands up, and he did not. "Officer Sweetin drew his service revolver and ordered the defendant to his feet. The defendant jumped out of his chair, headed towards the officer and yelled that the officer should 'Get out.' Officer Sweetin told the defendant to turn around and that he was under arrest, but the defendant did not comply with this order. He became even more excited, and headed for the rear door of the shed, saying that the officer should leave. Officer Sweetin again directed the defendant to stop, but he did not comply. The defendant attempted to remove a wood 2 x 4 which barred the rear door. Officer Sweetin holstered his weapon. The defendant managed to get the door open, but Officer Sweetin was able to stop and restrain him by using a taser." The entry was valid under exigent circumstances. United States v. Venters, 2007 U.S. Dist. LEXIS 43094 (S.D. Ill. June 14, 2007).*
Defense counsel filed an Anders brief on the search question, and the search issue was frivolous. United States v. Neuby, 2007 U.S. App. LEXIS 13977 (3d Cir. June 13, 2007)* (unpublished) (citing only Anders and no cases on the merits).
Police were permitted in a hotel room to look for contraband. The way the defendant moved toward a chair in the room caused them to suspect that there might be something there, and they moved the cushion and found a gun. The investigative defenant was reasonable under the circumstances. United States v. Msugar, 236 Fed. Appx. 929 (5th Cir. 2007)* (unpublished).
The search of defendant's car after a traffic stop was justified by his custodial arrest as either search incident to his arrest or an inventory. United States v. Shaw, 2007 U.S. Dist. LEXIS 43145 (S.D. Fla. June 14, 2007).*
(More later.)
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