United States v. Cos
498 F.3d 1115, 2007 U.S. App. LEXIS 19839, 2007 WL 2372376 (2007)
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Rule of Law:
For a third party's consent to a warrantless search to be valid under the apparent authority doctrine, police officers must reasonably believe the person has authority over the premises; if the circumstances are ambiguous, officers have a duty to inquire further before relying on that consent.
Facts:
- Jose Antonio Cos's ex-girlfriend, Krista Shepard, reported to Albuquerque police that Cos had threatened her with a knife.
- Based on this report, police obtained an arrest warrant for Cos.
- More than three weeks later, seven police officers went to Cos's apartment to serve the warrant.
- Earlier that day, Cos had given his nineteen-year-old friend, Feather Ricker, permission to bring three young children to his apartment to use the complex's swimming pool.
- Cos dropped Ricker and the children off at his apartment and then left, leaving them alone inside for approximately forty minutes before police arrived.
- Ricker had known Cos for about a month, had stayed overnight a few times, but did not have a key, did not live there, was not on the lease, and kept no personal belongings in the apartment.
- When officers knocked, Ricker answered the door. Without asking her name or her relationship to Cos or the apartment, an officer asked, "Can we take a look?" and Ricker replied, "Yeah, go for it."
- The officers entered, conducted a search of the bedroom, and found a gun under the bed.
Procedural Posture:
- A federal grand jury indicted Jose Antonio Cos on one count of being a felon in possession of a firearm.
- In the U.S. District Court, Cos filed a motion to suppress the gun found in his apartment, arguing the search was unconstitutional.
- The district court conducted an evidentiary hearing and granted Cos's motion to suppress.
- The government filed three successive motions asking the district court to reconsider its suppression order.
- The district court denied all of the government's motions to reconsider.
- The government, as appellant, appealed the district court's suppression order to the United States Court of Appeals for the Tenth Circuit.
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Issue:
Does a nineteen-year-old friend, who is temporarily alone in an apartment but lacks a key, co-tenant status, or any other indicia of residency, have apparent authority under the Fourth Amendment to consent to a police search of that apartment?
Opinions:
Majority - Henry, Circuit Judge
No, a third party in these ambiguous circumstances lacks apparent authority to consent to a search. A warrantless search based on third-party consent is invalid when police are faced with an ambiguous situation regarding the consenting party's authority and fail to make further inquiries to resolve that ambiguity. Ricker lacked actual authority because she did not have 'mutual use of the property by virtue of joint access' (she needed Cos's permission to enter and had no key) or 'control for most purposes over it,' as her relationship was not one from which control is presumed, like a spouse or parent. She also lacked apparent authority because the facts available to the officers at the moment were ambiguous; her presence at the door, even with children, did not make it reasonable to assume she was a resident with authority to consent. Plausible alternative explanations existed (e.g., she was a visitor or a babysitter), and the officers had a duty to investigate further by asking simple questions about her status before relying on her consent. Finally, the good-faith exception to the exclusionary rule is inapplicable because it ordinarily applies only when an officer reasonably relies on a mistake made by someone else, such as a magistrate issuing a warrant, not on the officer's own mistake of fact or law regarding consent authority.
Dissenting - Gorsuch, Circuit Judge
This opinion does not address the merits of the Fourth Amendment issue. The court lacks jurisdiction to hear this appeal. The government's notice of appeal was untimely because the 30-day statutory deadline began to run when the district court denied its first motion for reconsideration. The government's subsequent motions for reconsideration did not toll the appeal period. Congressionally mandated filing deadlines are jurisdictional and are not subject to equitable exceptions, meaning the appeal must be dismissed regardless of the government's reasons for the delay.
Analysis:
This decision reinforces the Fourth Amendment's protection of the home by placing a clear duty of inquiry on police officers when seeking consent to search from a third party whose authority is uncertain. It clarifies that mere presence is insufficient to establish apparent authority and prevents police from benefiting from a ' willful ignorance' approach. The ruling also narrowly construes the 'good-faith exception,' refusing to extend it to an officer's own error in judging a third party's authority, thereby maintaining the exclusionary rule's deterrent effect on police conduct in warrantless search situations.
