Consent searches are the bane of the Bryan-College Station criminal defense attorney. Next to our client’s confession, the biggest headache for defense lawyers is a consent search. In the same way police are trained to obtain incriminating statements before Miranda warnings become necessary, law enforcement’s first-line attack in a criminal investigation is persuading suspects to consent. Whether it’s searching an automobile, obtaining a DNA sample, or searching a suspect’s home, the police are handy at convincing the uninformed to waive their constitutional right to a search based on probable cause. But did the person giving consent have the authority to consent?
Actual and apparent authority to consent were recent issues we litigated in a suppression hearing. The voluntariness of the consent was not in question. Nor had the search exceeded the consent’s scope. Rather, the bone of contention was whether the person providing police permission to search had the authority to consent. Some facts will help place the case into context.
Several female college students were overnight guests at their friend’s apartment the night before a big football game. Each woman contributed money for the purchase of a tiny marijuana stash. Inside the home the marijuana was secreted in a small colored box, which belonged to one of the guests. Importantly, the box did not belong to the apartment owner. Once police were called to investigate the report of burning marijuana, they deftly obtained the apartment owner’s consent to search for contraband. During the search, however, the officer searched the colored box without first obtaining consent from the box’s owner. Inside the officer found two marijuana blunts. Our client established standing by testifying she owned one of the blunts, in addition to being an overnight guest. The State offered no evidence the apartment owner (who had given consent to search) owned anything in the colored box, nor that she controlled the colored box for any purpose. Did the apartment owner have authority to consent to the search of the colored box, which did not belong to her? Here’s what our legal research found.
A 3rd party can consent to a search, against the privacy interest of another, if the 3rd party had actual authority over the place or thing to be searched. The 3rd party may give valid consent when they, and the non-consenting person, share common authority over the premises or property. Common authority is shown by the mutual use of the property by people having joint access or control for most purposes. In this situation, the non-consenting person assumes the risk that someone with common authority might permit the common place or thing to be searched. See Hubert v. State, 312 S.W.3d 554, 560-61 (Tex. Crim. App. 2010); also Welch v. State, 93 S.W.3d 50, 52-53 (Tex. Crim. App. 2002). If the 3rd person consenting does not have actual authority the police may still rely upon the 3rd party’s “apparent” authority to consent. When an officer reasonably (though erroneously) believes a 3rd party has actual authority to consent to a search of a place or property, apparent authority exists making the search reasonable. See Hubert at 561.
The burdens of proof regarding actual and apparent authority make for important trial tactics. First, of course, the person challenging the search must establish standing to contest the search. Once standing is established the burden shifts to the prosecution. The State’s burden is proving the consenting 3rd party, and the non-consenting party (your client), had common authority over the place or property searched. Courts use the “totality of the circumstances” to make this determination. If the State relies upon the apparent authority doctrine they, too, have the burden to prove the officer conducting the search reasonably believed the facts would have established actual authority. Hubert at 561-62. Similarly, under the apparent authority doctrine an officer conducting a search must make reasonable inquires when “ambiguous circumstances” arise. See McNairy v. State, 835 S.W.2d 101, 105 (Tex. Crim. App. 1991). In other words, in a situation that does not appear to come within the consent obtained the searching officer must stop the search and make inquires about the continued effectiveness of the consent. McNairy at 105; and United States v. Heisman, 503 F.2d 1284 (8th Cir. 1974).
We lost the suppression hearing, but made a good record. The next time you’re confronted with a consent search try litigating the authority to consent question. I wish you better luck. At a minimum you’ll have something for appeal.
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.