{"id":4782,"date":"2011-01-11T17:03:52","date_gmt":"2010-10-15T08:27:30","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-10-15T08:27:30","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=4782","title":{"rendered":"CA8: Defendant’s wife had apparent authority to consent to search of a gun safe she had access to although he had the key on him"},"content":{"rendered":"

Defendant\u2019s wife consented to a search of a gun safe that she did not have the key to (the key was on defendant\u2019s person), but which she otherwise had apparent authority to enter. After her consent, the police retrieved the key from defendant\u2019s pocket while he was locked in the back of the police car. The police also had no duty to ask him for consent under Randolph<\/a>. United States v. Amratiel<\/a>, 622 F.3d 914 (8th Cir. 2010):<\/p>\n

Hibdon contends that the officers\u2019 reliance on Ms. Hibdon\u2019s apparent authority over the gun safe was unreasonable. Here, the available facts would \u201cwarrant a person of reasonable caution in the belief that the consenting party had authority over the [gun safe].\u201d James, 353 F.3d at 615. At the time of consent, the officers knew: (1) the safe was in a common area, the garage; (2) Ms. Hibdon knew where the keys were (on Hibdon\u2019s person) and how to unlock the safe (she unlocked it herself); (3) she never indicated that she had no access to the safe or that it was for Hibdon\u2019s exclusive use; (4) as the officers removed the weapons, Ms. Hibdon identified one of the handguns as hers. Contrary to Hibdon\u2019s contention, possession of a key is not the sole factor whether a third party has authority over a locked space. This court does \u201cnot accept [defendant\u2019s] argument that a key is necessary to establish authority over the premises.\u201d Iron Wing v. United States<\/a>, 34 F.3d 662, 665 (8th Cir. 1994). Compare United States v. Backus<\/a>, 349 F.3d 1298, 1304-05 (11th Cir. 2003) (estranged wife, a domestic abuse victim, who co-owned a home with her husband could consent to a search after her husband changed the locks), and United States v. Brannan<\/a>, 898 F.2d 107, 108 (9th Cir. 1990) (wife who had moved out of a house she co-owned with her husband could consent to a search after her husband changed the locks), with United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978) (police acted unreasonably in forcing open a locked footlocker where the mother gave consent to search her son\u2019s room, but specifically disclaimed any right of access to the footlocker), and United States v. Infante-Ruiz<\/a>, 13 F.3d 498, 505 (1st Cir. 1994) (police acted unreasonably in opening a locked briefcase when the party who consented to the search said specifically that he did not have access to it). While it may be possible for a spouse to maintain exclusive control over some private areas of the home, this is not such a case. See Almeida-Perez<\/a>, 549 F.3d at 1172 (explaining that to rebut the presumption of a spouse\u2019s authority to consent to a search, \u201cthe nonconsenting spouse must show that police had reason to know the area or container was off-limits to the consenting spouse.\u201d).<\/p>\n

Hibdon\u2019s failure to object when the police took the keys from him is further evidence that the officers acted reasonably. Although Hibdon testified that he objected to the search, this court defers to the district court\u2019s determination that because Hibdon\u2019s testimony was inconsistent, bizarre and self-serving, he was not credible. See United States v. Tucker<\/a>, 243 F.3d 499, 506 (8th Cir. 2001).<\/p><\/blockquote>\n

Note: The style of the case is United States v. Rachel Amratiel, f\/k\/a Thomas Hibdon, Defendant-Appellant.<\/p>\n","protected":false},"excerpt":{"rendered":"

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