5.4.3

• Jurisdiction: Arizona

§ 5.4.3 Apparent Authority

1. General Rule. “The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained. Illinois v. Rodriguez, 497 U.S. 177 (1990); United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L.Ed.2d 242 (1974).” Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 1518 (2006). See also Rodriguez, supra, 497 U.S. at 181-82 (consent is sufficient when given by a person who reasonably appears to have common authority but who, in fact, has no property interest in the premises searched) (cited in Georgia v. Randolph, supra).

To the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable per se, Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L.Ed.2d 639 (1980); Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971), one “jealously and carefully drawn” exception, Jones v. United States, 357 U.S. 493, 499, 78 S. Ct. 1253, 2 L.Ed.2d 1514 (1958), recognizes the validity of searches with the voluntary consent of an individual possessing authority, Rodriguez, 497 U.S. at 181, 110 S. Ct. 2793. That person might be the householder against whom evidence is sought, Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), or a fellow occupant who shares common authority over property, when the suspect is absent, Matlock, supra, at 170, 94 S. Ct. 988, and the exception for consent extends even to entries and searches with the permission of a co-occupant whom the police reasonably, but erroneously, believe to possess shared authority as an occupant, Rodriguez, supra, at 186, 110 S. Ct. 2793.

Georgia v. Randolph, 126 S. Ct. at 1520.

2. Storage Locker. Person whose name appeared on rental agreement, who have been responsible for payment of rent, who retained a set of keys to the locker, had apparent authority to consent to the search of the locker. State v. Lucero, 143 Ariz. 108, 109-10, 692 P.2d 287 (1984).

3. Houses/Apartments.

a. Parents. Defendant’s mother had apparent authority to consent to the search of the house when she told police she was joint owner, which she was, and said she had authority to consent. State v. Girdler, 138 Ariz. 482, 486, 675 P.2d 1301, 1305 (1983). See also State v. Rodriguez, 205 Ariz. 392, 71 P.3d 919 (App. 2003) (Div. 2) (mother consented to search of home; weapon found under mattress of bed in bedroom, and juvenile defendant was lying on bed).

Defendant’s parents had authority to consent to search of attached apartment in which defendant lived without paying rent, even though defendant kept apartment locked; parents owned and lived on premises and had key to apartment and entered at will. State v. Maximo, 170 Ariz. 94, 821 P.2d 1379 (App. 1991) (Div. 2).

The rule of Georgia v. Randolph, infra (permitting one objecting co-tenant’s consent to override the other co-tenant’s consent) would not apply when a parent is consenting, and a child is objecting. See Georgia v. Randolph, 126 S. Ct. at 1523 (noting that its rule would apply “unless the people living together fall into some recognized heirarchy, like a household of parent and child”).

b. Co-occupants. Where two people with equal access share an apartment, either person can consent to a search of common areas, but not to private areas over which they have no control. See United States v. Matlock, 415 U.S. 164, 170 (1974) (“the consent of one who possesses common authority over premises or effects is valid as against the absent, consenting person with whom that authority is shared”; female tenant consented to search of house while defendant sitting in squad car outside); Illinois v. Rodriguez, 497 U.S. 177 (1990) (woman who referred to defendant’s apartment as “our” apartment, and who stated she had furniture and clothing there, and who had a key, had apparent authority to consent to search of that apartment); State v. Jones, 185 Ariz. 471, 917 P.2d 200 (1996) (where owners had joint access or control over dining room closet where defendant’s clothes were found, they had authority to consent). But see “Present and Objecting Co-Occupant,” infra.

“When someone comes to the door of a domestic dwelling with a baby at her hip, as [the woman in Matlock] did, she shows that she belongs there, and that fact standing alone is enough to tell a law enforcement officer or any other visitor that if she occupies the place along with others, she probably lives there subject to the assumption tenants usually...