M.D.Ala.: Def’s 13 year old child could consent to entry, but not to search of house

ICE surveillance on defendant’s road into his property was not on the curtilage because it went to parts of defendant’s rural property other than the home. “Just as with the barn in Dunn, there is ample evidence that the road is not intimately associated with Solano-Mendoza’s home because it does not terminate at the home and is instead used for accessing other parts of the property. And there is no information in the record indicating that the interior fences Skillern crossed differ in any material respect from the fences in Dunn or that Solano-Mendoza took any other affirmative steps to protect his home from observation.” On the entry, defendant’s 13 year old daughter had common authority to permit an entry but not to conduct a search. The consent from her mother is found not voluntary. The protective sweep is also unjustified. United States v. Solano-Mendoza, 2018 U.S. Dist. LEXIS 121616 (M.D. Ala. June 29, 2018), adopted 2018 U.S. Dist. LEXIS 121247 (M.D. Ala. July 20, 2018):

Applying Matlock’s joint-access-or-control test, the court concludes that, while Jasmin may have had the authority to consent to the officers’ entry into the living room for the purpose of gathering information about the arrest, she did not have actual or apparent authority to allow a search of the entire premises. This is because there is a substantial difference between a child’s authority over common areas like an entryway or living room and private areas like a parent’s bedroom. In Matlock, the Supreme Court made clear that it must be “reasonable to recognize” that any of the residents has the right to permit inspection of the area to be searched “in his own right” such that other residents have assumed the risk that the particular area might be searched. Matlock, 415 U.S. at 171 n.7. Indeed, Matlock’s use of the phrase “common area” highlights this distinction. Here, the court cannot conclude, based on the record now before it, that it was reasonable for Skillern to assume that Jasmin, at 13, had mutual use and joint access or control of her parents’ bedroom such that it would be clear to her parents that she could permit inspection of the room in her own right.

An application of the customary post-Matlock factors buttresses this conclusion. Skillern testified that Jasmin appeared physically and emotionally mature for her age, such that he mistakenly believed she was an adult. He also noted that Jasmin dominated the conversation and acted as a “spokesman” for the family. However, there is no evidence from which the court could infer that Jasmin was routinely in charge of the home or that she was in charge of the home during the incident at hand. In fact, because there were two other people in the room who both appeared to Skillern to be adults, it could be inferred from the circumstances that Jasmin was not—at least exclusively—in charge of the home. Certainly, in a coequal tenancy situation, the better practice would be give each tenant the opportunity to refuse consent to a search. See Randolph, 547 U.S. at 122-23 (holding that a “present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant”). Of course, the situation here was not one of coequal tenancy, but of inherently unequal tenancy due to the disparate authority between Munoz and her children.