Repo man has apparent authority to consent to a search

A repo man with the paperwork showing the authority to repossess a car for the lienholder when the payments have not been made has apparent authority to consent to a search of the vehicle. United States v. Alexander, 2007 U.S. Dist. LEXIS 62747 (W.D. Wis. August 24, 2007) (R&R), 2007 U.S. Dist. LEXIS 65616 (W.D. Wis. September 5, 2007) (R&R adopted):

The government has met its burden of persuasion in the instant case by establishing that Bowman had the apparent authority to consent to this search. Wisconsin law authorizes self-help for repossession of personal property so long as there is no breach of the peace. Although the government observes that state law is irrelevant to determining the reasonableness of a search, in this case, state law on property repossession is relevant to determining whether it was reasonable for the police to believe Bowman had authority to consent to the search. Along these lines, Alexander argues that the government has not established that Fjelstad actually had defaulted on her car loan, thus giving Bowman actual authority to repossess her car. See Reply, dkt. 37, at 1-2. This reliance on an upstream fact might seem fastidious, but it’s a valid point: the record does not reflect that Officer Nale personally verified the accuracy of Bowman’s representations. Even so, the police reports, exhibits and hearing testimony sufficiently establish that it was reasonable for Officer Nale and his colleagues to rely on Bowman’s apparent authority to repossess the Buick and then to consent to a police search. Bowman had sought out police assistance and he shared his paperwork with them showing the repossession order that had been placed for the car. Obviously the MPD has received similar requests in the past, since it had assigned its officers to assist Bowman. Therefore, it was reasonable for WCPT officers to conclude that Bowman was authorized to repossess the Riviera.

Comment: As stated in footnotes to § 8.37 of the Treatise, apparent authority to consent is the good faith exception in action in a warrantless search.

Post-conviction petitioner could not claim the benefit of a decision that came down after his conviction that sufficiently changed the law such that he might have prevailed if he had raised the issue first. Defense counsel is not expected to forecast changes in the law as significant as happened. It was reasonable to have not made the motion at the time, and he would not have prevailed at the time. Moore v. State, 872 N.E.2d 617 (Ind. Ct. App. 2007):

We agree with the State that both Flaherty and Figert are distinguishable and do not presage the holding in Merritt. In Flaherty, a police officer drafted a probable cause affidavit for the search of a specific apartment unit allegedly controlled by the Flahertys based on a controlled buy performed by a confidential informant. The affidavit stated only that the informant entered the apartment building and emerged five minutes later with marijuana. Following their convictions for possession of LSD and marijuana, the Flahertys challenged the sufficiency of the affidavit. Judge Miller noted that the affidavit “made no attempt to establish the informant’s reliability” and framed the issue as

whether the affidavit itself, without additional information or testimony presented after the search warrant is executed, alleges sufficient facts upon which the issuing authority could have made an independent determination of probable cause. Here, the affidavit left to the speculation of the magistrate whether or not the informant actually entered Apartment # 72. If we were to uphold the search warrant in this case, we would be sanctioning the search of any apartment unit merely upon an officer’s observation of an unreliable informant entering an apartment lobby. We decline to do so and hold the affidavit insufficient.

443 N.E.2d at 341, 343 (footnote omitted).

. . .

In the instant case, as the State points out, Officer Santa’s affidavit “established that a reliable informant was present inside the home to be searched. It further established that the informant knew what cocaine looked like, that there was cocaine in the home, and that someone inside the home wanted to sell that cocaine.” Appellee’s Br. at 9. As such, we disagree with Moore’s contention that Flaherty and Figert “could have formed the basis for a successful Motion to Suppress.” Appellant’s Reply Br. at 4. Moreover, as the State correctly observes,

at the time of the Merritt ruling, there was no precedent requiring an affidavit to state information indicating that a drug dealer frequents, resides or is concealing drugs at a house even though the affidavit sufficiently states that a reliable source had bought [or, more accurately, had an opportunity to buy] drugs from the drug dealer at [a] specifically described house within the past seventy-two hours.

Appellee’s Br. at 7. Accordingly, we conclude that Moore has failed to establish by a preponderance of the evidence that his trial counsel was ineffective in failing to file a motion to suppress, i.e., that such a motion would have been successful. Wales, 768 N.E.2d at 523. We therefore affirm the denial of Moore’s petition for post-conviction relief.

Comment: And the court said retroactivity will be determined in another case when the issue is ripe.

Class certification denied in a claim for racial profiling of African-American males seeking DNA samples to solve a serial rape case because the lead plaintiff had become sufficiently acquainted with one of the defendants that it was doubtful he could vigorously pursue the claim. Monroe v. City of Charlottesville, 2007 U.S. Dist. LEXIS 63013 (W.D. Va. August 27, 2007)*, later order 2007 U.S. Dist. LEXIS 67444 (W.D. N.C. September 12, 2007).*