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Owner’s consent to search common area of home made search lawful

United States v. Bodie B. Witzlib, 7th Circuit Court of Appeals No. 15-1115, 8/7/15

The search of the basement of the home Witzlib was living in with his grandmother was valid because the area was shared and not Witzlib’s private space. Nor was the consent affected by the fact that after Witzlib answered the officers’ knock on the front door they asked him to come out of the house onto the driveway and, after he refused consent to search, they went back to ask for his grandmother’s consent to search.

The grandmother owned the house but Witzlib also resided there and he argues that therefore his consent was required. We don’t think so. It would be one thing had the police wanted to search his bedroom. To say that the owner of the house could consent to such a search would be as unreasonable as saying that a hotel’s owner or manager could consent to a police search of all the guest rooms. See Georgia v. Randolph, 547 U.S. 103, 112 (2006); Minnesota v. Carter, 525 U.S. 83, 88–90 (1998); cf. Minnesota v. Olson, 495 U.S. 91 (1990). Or that the person refusing consent had a lesser right to decide whether to permit the search than the person granting consent did, for example if they were a married couple and the search would be of their joint household, as in Georgia v. Randolph.

But the police wanted only to search the basement, which was no more Witzlib’s private space than the living room was. He could not reasonably believe that merely because some of his possessions (the M-80s [which he was illegally manufacturing]) were in the basement, his grandmother—the owner of the home—could not authorize a search of it. In other words, this is a “joint access” case, in which “shared premises” or (equivalently) “common authority over the premises” permit one of the joint occupants of the premises to consent to a search without obtaining the permission of the other or others. See id., 547 U.S. at 110–11; Fernandez v. California, 134 S. Ct. 1126, 1133 (2014); Illinois v. Rodriguez, 497 U.S. 177, 188–89 (1990); United States v. Matlock, 415 U.S. 164, 170 (1974). Georgia v. Randolph suggests that “a potential defendant with self-interest in objecting” (regardless of his exact status in the household) who is “in fact at the door and object[ing]” can bar a consent search authorized by a joint occupant, but not a potential defendant who is “nearby but not invited to take part in the threshold colloquy.” 547 U.S. at 121; see also Fernandez v. California, supra, 134 S. Ct. at 1134–36; United States v. Henderson, 536 F.3d 776, 784 (7th Cir. 2008). Witzlib, standing in the driveway, was in the second category.

The court rejects the government’s alternative “exigent circumstances” justification for the warrantless search, for in this case exigency is “refuted by the four-hour delay in conducting the search after the police had obtained ample probable cause from their conversation with the aunt and uncle [about Witzlib’s activity]. Indeed there was a delay of more than 24 hours between when the police first learned from Witzlib’s aunt and uncle of the M-80s in the basement and when they conducted the search pursuant to the belatedly obtained warrant. None of the [exigent circumstances] cases we’ve cited involved a delay of more than an hour, and there is no suggestion that the police could not have obtained a warrant in an hour or less.” (Slip op. at 5).

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