CA10 explains the presumption of apparent authority for consent with parents and adult children living at home

Defendant was convicted of murder. The body was found, and it was obviously dumped. The FBI learned that the victim had been seen last with the defendant in the car at a casino and defendant had a gun consistent with the murder weapon, so a search warrant for the car was based on probable cause. The police also came to his house where he lived with his stepfather, and the stepfather was found to have apparent authority to consent to a search of defendant’s room. The Tenth Circuit has a presumption of apparent authority even in parent-adult child cohabitation, which it finds applies to stepchildren. The locks on the bedroom door weren’t found until after they were inside. The court also lets the government argue apparent authority for the first time on appeal because the record is sufficient. United States v. Romero, 749 F.3d 901 (10th Cir. 2014):

Under Tenth Circuit precedent, when a child lives with a parent, the parent-child relationship establishes a presumption that the parent has control for most purposes over the property and therefore actual authority to consent to a search of the entire home. See United States v. Rith, 164 F.3d 1323, 1330 (10th Cir. 1999) (“Relationships which give rise to a presumption of control of property include parent-child relationships and husband-wife relationships.”). Determining whether there is “control for most purposes of property is a normative inquiry dependent upon whether the relationship between the defendant and the third party is the type which creates a presumption of control for most purposes over the property by the third party.” Id. In Rith we held that the defendant’s parents had actual authority to consent to a search of their adult son’s bedroom for firearms. See id. at 1331. Although we recognized that there were no factual findings to satisfy the mutual-use test for actual authority—such as a finding that the defendant’s parents had joint access to their son’s bedroom—the control-for-most-purposes test was satisfied because the government showed that the defendant lived with his parents, thereby creating “a presumption of control for most purposes by [defendant’s parents] over the entire home.” Id. And there was no evidence to rebut the presumption—”no lock on [Defendant’s] bedroom door; no agreement with [Defendant’s] parents that they not enter his room without his consent; no payment of rent.” Id.; see United States v. Ladell, 127 F.3d 622, 624 (7th Cir. 1997) (mother had apparent authority to consent to a search of her son’s bedroom, in part because “third-party consent is … easier to sustain if the relationship between the parties—parent to child here, spouse to spouse in other cases—is especially close”); United States v. Peterson, 524 F.2d 167, 179-81 (4th Cir. 1975) (mother had authority to consent to a search of her entire house, including the bedroom where her son stayed). But see United States v. Whitfield, 939 F.2d 1071, 1075, 291 U.S. App. D.C. 243 (D.C. Cir. 1991) (applying a legal test rejected by the Tenth Circuit, see Rith, 164 F.3d at 1329, to conclude that agents could not reasonably believe that mother had authority to consent to a search of her adult son’s bedroom without evidence that she had mutual use of the room).

The government acknowledges that there is enough evidence to rebut the presumption of actual authority in this case: Mr. Martinez testified at the suppression hearing that he usually did not enter Defendant’s room and that there was a lock on the door to the room. But it asserts that there was apparent authority because the agents who searched the house did not know either of those facts and were entitled to rely on the presumption of control established by Mr. Martinez’s statement that he was Defendant’s stepfather.

Defendant points out that the government did not make an apparent-authority argument to the district court. But “we are free to affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law ….” United States v. Nicholson, 721 F.3d 1236, 1246 (10th Cir. 2013) (brackets and internal quotation marks omitted). The district court relied on apparent authority for its own ruling and appropriately developed the necessary factual record for review. The government defends that ruling on appeal and Defendant provides no reason why it would be unfair for this court to address the issue.

On the merits of the claim of apparent authority, Defendant argues that the stepparent-stepchild relationship should not trigger the same presumption of authority as the parent-child relationship because it “is inherently ambiguous, especially as it pertains to expectations of privacy in a residence and when the stepson is an adult.” Aplt. Reply Br. at 20. He cites for support United States v. Acosta, 807 F. Supp. 2d 1154, 1211 (N.D. Ga. 2011), which adopted a magistrate judge’s recommendation that a stepdaughter did not have authority to consent to a search of her stepfather’s locked office or locked bedroom and safe. But that decision did not turn on any distinction between a parent and stepparent. It assumed that the stepdaughter was entitled to the normal presumptions of a parent-child relationship. And it acknowledged that “typically, all family members have common authority over all of the rooms in the family residence.” Id. (brackets and internal quotation marks omitted). The court concluded only that any presumption of authority had been rebutted because the stepdaughter was the child rather than the parent; the office, bedroom, and safe were all locked; and there was an agreement not to access the rooms. See id.

In our view, the presumption regarding a parent also applies to a stepparent. An owner of a house is presumed to have control for most purposes of the entire house, including the bedroom of a stepchild permitted to live there. Stepparents are part of the family, and when they live with stepchildren they will necessarily share the intimacies of family life. The relationship between a child and stepparent may be less loving than between a child and natural parent, but it may also be more loving. We are not about to insist on an examination of the extent of ties of affection between an adult and a child or stepchild in assessing the authority of a consent.