In 2012, the U.S. Census Bureau reported (“Sharing a Household”) that the number of shared family households in this country increased by 11.4 percent between 2007 and 2010. A majority of shared households consist of adult children, and their families, living with their parents. Many others involve non-related people, friends, sometimes complete strangers moving in together to help ends meet.
“Although the reasons for household sharing are not discernible from the survey, our analysis suggests that adults and families coped with challenging economic circumstances over the course of the recession by joining households or combining households with other individuals or families,” said Laryssa Mykyta, an analyst in the Census Bureau’s Poverty Statistics Branch and one of the authors of the report.
Who has authority to consent to search?
Warrantless searches of shared households by law enforcement are increasingly being challenged in the both the state and federal court systems. In 1974, the Supreme Court first dealt with this issue in U.S. v. Matlock. In that case the court held that “the consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared.”
In 2006, the Court created a narrow exception to the Matlock rule with Georgia v. Randolph. In that case the police responded to a domestic disturbance dispute at the Randolph residence. They requested but were denied consent to search the residence by Scott Randolph. The officers then requested and secured a “consent to search” the residence by Scott’s spouse, Janet Randolph. While the court reiterated the premise of Matlock that an individual who shares a residence with another assumes the risk that “any one of them may admit visitors with the consequences that a guest obnoxious to one may nevertheless be admitted in his absence by another,” the court said this rule does not apply when “a physically present inhabitant’s express refusal to consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant.”
Moving Back Home With the Parents
The Matlock rule and the Randolph exception are finding themselves inserted in an increasing judicial mix involving “consent to search” cases given by parents and grandparents against adult children and grandchildren living in their homes.
For example, in 2011, the Texas Court of Criminal Appeals in Hubert v. State and, in 2015, the 14th Court of Appeals in Hall v. State upheld consent to searches given by grandparents to search the living quarters of their grandsons. Both courts held that the grandparents, as owners of the residences, had the “actual” authority to allow the police to enter the bedrooms to search for illegal weapons.
In both these Texas cases the police found the weapons in “plain view,” giving them long-standing authority to seize the unlawful weapons. Neither court addressed the specific issue of whether the grandparents had actual authority to permit a police search of their adult grandchildren’s personal effects in either a closed container such as a suitcase or a closed box or in some other obviously private storage area.
The Fifth Circuit Court of Appeals has addressed this issue, finding in 1955 and 1971 that third-party consent to search a residence is limited to the common areas in the residence, not to a joint occupant’s personal effects.
More recently (2014), the D.C. Circuit Court of Appeals in United States v. Peyton held that the “fact that a person has common authority over a house, an apartment, or a particular room, does not mean that she can authorize a search of anything and everything within that area.” Peyton involved a great-great grandmother who consented to the search of an apartment she shared with her grandson whose living area was in the living room. The police searched the living area, including a shoebox next to the grandson’s bed. The shoebox contained illegal drugs. The appeals court found that the grandparent “could not lawfully permit the police to search [the grandson’s] closed shoebox.”
Similarly, in a 2012 state case in Florida, Ward v. State, an appeals court dealt with a case where a mother gave consent for the police to search the bedroom in which her adult son lived. The police found a box hidden behind some of the grandson’s clothing. Drugs were discovered inside the box. The court ruled the search unlawful, finding that no one can validly consent to a search of someone else’s personal property, unless the person giving consent actually uses or exercises control over that particular property.
On August 7, 2015, the Seventh Circuit Court of Appeals in United States v. Witzlib dealt with a situation where Witzlib’s aunt and uncle reported to the police that their nephew was making M-80s (a powerful explosive firework) in the basement of his grandmother’s residence. The police were concerned about the explosives not only because it is illegal to make them without a license but because Witzlib held, according to the aunt, “anti-government beliefs” and had serious mental health issues for which he had been proscribed medication that he was not taking.
State and federal agents went to the residence. Witzlib responded to their knock on the door. The agents informed him that they had received a “fireworks complaint” and needed to conduct a “safety check” of the house. Witzlib demanded to see a search warrant which the agents did not have. The agents escorted him to the driveway and held him there while other agents sought out and secured from the grandmother consent to search the residence. She told the agents that her grandson had been making “fireworks” in the basement. They went there and found a “thousand M-80s.” They arrested Witzlib and removed the M-80s from the residence. The next day the agents returned with a warrant and conducted a more thorough search of the residence during which they discovered additional incriminating evidence.
Witzlib challenged the first warrantless search. The Seventh Circuit held that “consent is an alternative to a search warrant, provided it’s consent by someone who has, or appears to have, the right to consent.” Witzlib argued that while his grandmother owned the residence, he resided there and thus his consent to search the residence was required. The appeals court responded:
“ … We don’t think so. It would be one 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.”
The Seventh Circuit took pains to note that the police only wanted to conduct a warrantless 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) 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.”
The Witzlib court narrowed the Randolph rule to two distinct categories: a potential defendant who is standing at the door (regardless of his status in the household) objecting to a warrantless search and a potential defendant who is “nearby but not invited to take part in the threshold colloquy” about whether a warrantless search can be conducted with consent. The court noted that Witzlib was standing in the driveway, and therefore fell into the second category with no standing to take part in the “consent to search” process of a home he did not own.
Our problem with the Witzlib ruling is twofold. First, Witzlib was standing in the driveway because the police asked him to accompany them there. He was removed by the police from the doorway objecting to the search to a neutral spot in the driveway where he lost standing to object. This seems, to us, a deliberate attempt by the police to undercut the Randolph exception.
Second, we agree with Witzlib’s argument that the police had ample probable cause to secure a warrant after talking to his aunt and uncle. But there was a four hour gap from the time the police received the aunt/uncle information and the time when the warrantless search was conducted. The Seventh Circuit agreed that had the police sought a warrant during this four-hour time period, it would have been issued by a judge or magistrate. The appeals court skirted this issue by saying an “exigent circumstance” existed because Witzlib’s had the M-80s stored in her grandmother’s basement and they posed an explosion risk.
This reasoning defies logic. If the risk potential of the M-80s in the basement was so great, then why did the police wait four hours to conduct the warrantless search. They did not have to organize a “swat team” to conduct the search. Several state agents and one federal agent casually drove to the residence. There was no emergency. The federal agent was along for the ride because he had been contacted by the state agents after they spoke to the aunt/uncle. Did they have to wait four hours for him agent to meet up with them? If so, the federal agent obviously did not think that the mere presence of the M-80s in the basement posed a real risk of a dangerous explosion.
It seems to us that the four hour gap between receipt of the aunt/uncle information and the warrantless search eliminated any reasonable “exigent circumstance.” Hopefully, the appellate attorneys involved in this case will try to get the Supreme Court to hear the case pursuant to the Randolph exception.