§ 16.06 "Apparent Authority"

• Jurisdiction: United States

§ 16.06 "Apparent Authority"⁷³

Suppose that X, a guest at D's house, answers the door when the police arrive. The officers, believing that X lives at the residence, seek and receive consent from X to search the premises. Is such consent — consent based on apparent, not real, authority — effective? The issue cuts to the core of the rationale of consent searches.

In Stoner v. California,⁷⁴ the Supreme Court stated that "the rights protected by the Fourth Amendment are not to be eroded . . . by unrealistic doctrines of 'apparent authority.'" Ten years later, however, in United States v. Matlock,⁷⁵ the Court expressly left open the issue of whether "apparent authority" constitutes effective consent.

In Illinois v. Rodriguez,⁷⁶ the Court resolved the issue. It held, 6-3, that a warrantless entry of a residence is valid when it is based on the consent of a person whom the police, at the time of entry, reasonably (but incorrectly) believe has common authority over the premises.

In Rodriguez, X reported to the police that she had been severely beaten that day by R in a specified apartment. X stated that R was now asleep on the premises, and she offered to let the police in with her key so that they could arrest him. During her conversation with the police, X referred to R's apartment as "our" apartment, and she stated that she had clothing and furniture there. In fact, however, although she had once shared the apartment with R, she had vacated it weeks earlier and had taken the key without R's knowledge. With X's consent, the police entered R's apartment. Inside, they observed drug paraphernalia and cocaine in plain view. R was arrested and charged with possession of illegal drugs. The trial court granted R's motion to exclude the evidence found in the apartment because X lacked common authority over the premises.

The Supreme Court, per Justice Scalia, reversed. According to Rodriguez, "what is at issue when a claim of apparent consent is raised is not whether the right to be free of searches has been waived, but whether the right to be free of unreasonable searches has been violated." Addressing the reasonableness issue, Justice Scalia wrote:

It is apparent that in order to satisfy the "reasonableness" requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government — whether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer

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