CA9: Gov’t failed its burden of proof of apparent authority for third party consent after knock-and-talk

Officers unreasonably assumed that the person answering the door in a knock-and-talk who did not live there had apparent authority to consent to a view of the entire residence. The government bears the burden of proving voluntariness of consent and apparent authority and it failed here. United States v. Arreguin, 735 F.3d 1168 (9th Cir. 2013), prior appeal United States v. Arreguin, 453 Fed. Appx. 678 (9th Cir. 2011):

When the Agents obtained Valencia’s consent to “look around” the Residence, they knew virtually nothing about: (1) him; (2) the various separate rooms and areas inside the Residence; or (3) the nature and extent of Valencia’s connection to those separate areas. And the Agents did not ask Valencia any additional questions at that time. Instead, Agents McQuay and Corbin quickly rushed past him and started “rummaging around [the Arreguins’] home,” inspecting various rooms, and satisfying “the curiosity police always have about what they might find.” United States v. Lemus, 596 F.3d 512, 513 (9th Cir. 2010) (Kozinski, C.J., dissenting from denial of rehearing en banc).

The “police are not allowed to proceed on the theory that ignorance is bliss.” Dearing, 9 F.3d at 1430 (internal quotation marks omitted). And the Agents were proceeding in a state of near-ignorance when they searched both the master suite and the area behind the second door in the master suite. They knew far too little to hold an objectively reasonable belief that Valencia could consent to a search of those areas.

1. It was not objectively reasonable for the Agents to conclude that Valencia had authority to consent to a search of the master bedroom and bathroom.

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With this very limited set of facts available, “a reasonable person would not presume, without further inquiry, that” Valencia had joint use, access, or control over the master bedroom and master bathroom area. Reid, 226 F.3d at 1025. The failure to inquire properly weighs against the government, not Arreguin, because the police are simply “not allowed to proceed on the theory that ignorance is bliss.” Dearing, 9 F.3d at 1430 (internal quotation marks omitted).

2. It was not objectively reasonable for the Agents to conclude that Valencia had authority to consent to a search of the area beyond the door inside the master bedroom.

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Faced with this information, a “reasonable person would not presume, without further inquiry, that” Valencia had any access, control, or authority over additional areas adjacent to the master suite. Reid, 226 F.3d at 1025. From McQuay’s perspective, the door could have led to a second master bathroom; the door could have led to an adjacent nursery area for the infant in the home; the door could have led to a standard closet; the door could have led to a walk-in closet; the door could have led to some other private portion of the Residence; or the door could have led to a common area (as, in fact, it did). But the limited information available to McQuay at the time he went through that door did not tie Valencia to the area adjacent to the door.