CA8: Common authority is based on what the officers learn or know at the scene

Common authority is based on what the officers see at the time of the search. While defendant seeks to show that common authority was actually limited and the consenter only had permission to drive the car, the consenter described her control as complete, and that was enough for the officers to believe she had common authority. United States v. Scott, 732 F.3d 910 (8th Cir. 2013):

As a factual matter, the district court did not clearly err in finding Starnes had common authority over the Jaguar based on “mutual use, joint access, and control.” Id. (“Common authority … is a question of fact.”). Starnes not only drove the Jaguar, but explained to the officers that she was the Jaguar’s only licensed driver (Scott’s license was suspended). Starnes had the only key to the car, and earlier that day Scott expressly told Starnes she could drive the car home from work. Even if Scott is correct that he gave Starnes only narrow permission to drive the car home from work because it was raining, Starnes described for the officers her control over the car in broad terms sufficient to give a reasonable appearance of authority. See United States v. Nichols, 574 F.3d 633, 636 (8th Cir. 2009) (explaining the Fourth Amendment does not require suppression of the fruits of a search conducted in “reasonabl[e] rel[iance] on the consent of a third party who demonstrates apparent authority to authorize the search, even if the third party lacks common authority”).

While SCOTUS has never said that they’ve sanctioned the good faith exception in warrantless searches, that’s exactly what this is. Rodriguez from 1990 is quite similar and adopted a de facto GFE for consent. The consenter, while not in the apartment, had moved out, and she expressed to the police control, had a key, and wanted her stuff out.