Who's that knocking at your door? Third party consents to police entry.

• Author: Robinson, Joseph D.

Searches by consent make a police officer's job easier because neither probable cause nor a search warrant is required. But what should be a rather cut-and-dried area of the law to understand and apply is anything but, as "consent searches" are fertile ground for suppression litigation in courtrooms all over the country. Was the consent voluntary? Was it a broad or narrow consent? Did the person who gave consent know it could be withheld? Was the consent expressed or implied, and if implied, is that O.K.? When, as here, the consent comes from a third party, issues relating to actual or apparent authority to consent and the relationship between the parties come to the fore.

United States v. Ladell, 127 F.3d 622 (7th Cir. 1997)

As stated above, issues arising from consent to enter or search have led to a large amount of litigation in the trial courts and the courts of appeal. This legal thicket only gets thornier when the consent received was given not by the defendant, but rather by a third party, particularly when the location is the defendant's residence. This article aims to examine the law of third party consents to enter a residence as applied by the appellate courts in the State of Florida and compare it to its application in the federal courts.

Legal Background

The bedrock source of law pertaining to search and seizure issues is, of course, the Fourth Amendment to the U.S. Constitution (1) and its counterpart in the Florida Constitution. (2) These constitutional sources forbid law enforcement authorities from performing warrantless "unreasonable searches and seizures." An individual's residence is afforded the greatest level of protection under the Fourth Amendment; the courts essentially have banned all warrantless searches of homes except where justified by exigent circumstances (3) or by a valid consent to search. (4)

Consent searches were approved by the U.S. Supreme Court in Schneckloth v. Bustamante, 412 U.S. 218 (1973), as "a constitutionally permissible and wholly legitimate aspect of effective police activity." (5) For a consent to search to be valid, the consent must be given freely and voluntarily. (6) The government has the burden of proof in establishing that a consent was given voluntarily. (7) Voluntariness is determined by weighing the totality of the circumstances. (8)

A consent to search may be given by someone other than the individual directly affected by the search. This third party must reasonably appear to those seeking consent to share control of the premises or items to be searched. (9) The rationale behind permitting searches based upon third party consents was articulated by the U.S. Supreme Court in Frazier v. Cupp, 394 U.S. 731 (1969), wherein Justice Marshall stated that by allowing another person access to a particular place or item, the defendant was assuming the risk that the third party would allow others to search it. (10)

In Matlock v. U.S., 415 U.S. 164 (1974), the U.S. Supreme Court formally validated the view that

when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.

Sixteen years later, the Court revisited third party consents in Illinois v. Rodriguez, 497 U.S. 177 (1990), and held that a third party consent to enter a residence may be validly based upon an officer's reasonable belief that the consenting third party had the apparent authority to consent, even though it is subsequently learned that the third party lacked the actual authority to do so. The Rodriguez court added that the police should not accept at face value every third party assertion of authority; rather, the police must make further inquiries where a reasonable person would question the validity of the assertion of authority. (11) Applying this standard of reasonableness is where problems arise in the Florida courts.

Identifying the Problem

* Difficulties in Applying Reasonable Man Standard in Florida

The problems with present-day third party consent analysis in Florida are perhaps best exemplified in Cooper v. State, 706 So. 2d 369 (Fla.2d DCA 1998). In Cooper, a detective's investigation of some vehicle burglaries led him to a certain motel room. The motel management informed the detective the renter was a woman, and that two other men (one of whom was the defendant, Cooper) were presently occupying the room. The detective knocked at the door, which was answered by a teenaged girl. The detective identified himself, told the girl he was looking for the two male occupants, and asked to come in. He was admitted entry, and saw in plain view items which appeared to be taken in the burglaries. Cooper was asleep on the bed and, after some difficulty, was awakened by the girl and the detective. Cooper then consented to a full search of the room, which turned up more items taken in the burglaries. In court, the detective stated that he never questioned the girl's authority to grant him entry, but instead felt that he had no reason to believe that she did not have that authority, believing that the girl had common authority over the room was based simply on the fact that she had opened the door.

The Cooper court overturned the trial court's finding that the detective's entry into the motel room was lawful, holding that under the Rodriguez standard the detective could not reasonably infer that the girl was authorized to permit his entry, and that he "did not exercise caution, but instead jumped to a conclusion that was not warranted by the circumstances." (12)

A similar case to Cooper is Williams v. State, 788 So. 2d 334 (Fla. 5th DCA 2001). The case may be summarized as follows: The Daytona Beach police department received several complaints that drugs were being sold out of a particular motel room. Six police officers in uniform went to the room and knocked on the room door. Their stated purpose was to conduct a "knock and talk," i.e., to speak to the room occupant and attempt to obtain a consent to search for drugs. After knocking, a voice called out "Who is it?" One officer responded with his first name. A woman (one Quain) then answered the door and, stepping back, said, "Come in." The officers entered and saw a man (Williams) sitting on a bed, next to a night stand upon which is a baggie containing what appeared to be cannabis. Williams picked up the baggie and attempted to eat it. The officer prevented him from eating it, recovered the baggie, and arrested Williams for possession of cannabis. A search incident to this arrest revealed more illegal drugs and paraphernalia in the room. The police subsequently learned that the woman who answered the door was the motel manager and the girlfriend of Williams. The trial court upheld the entry of the police on the basis that...