Police are called to apartment in reference to a burglary of hab. When they get there the defendant's roomate explained to the officers that the house was broken into and directs the police to the defendant's bedroom. Police notice that the bedroom has been ransacked and window broken out. While dusting for prints the police find Drugs in plain view. Is this a search? If it is, is it illegal?
Look at Corea v. State, 52 S.W.3d 311 (TA1 2001). Seems to say that you've got some problems -- this case doesn't look right to me. How much access the person who gave consent had to the other guy's bedroom will be important. United States v. Aghedo, 159 F.3d 308 (7th Cir. 1998).
Might make somethig out of investigation and implied consent see Brown v. State, 856 S.W.2d 177 but I'm not sure of that.
Posts: 527 | Location: Fort Worth, Texas, | Registered: May 23, 2001
David is right, Corea is the most recent CCA opinion, but it doesn't necessarily hurt your consent search depending on your facts. The Supremes and CCA have long held that a third party can consent to a search when they have common authority to use premises (as in your roommate situation). US v. Matlock, 94 SCt 988; Becknell, 720 SW2d 526. "Common authority" is the first test. If you have a problem showing common authority, next assert that "apparent authority" was shown by your facts. Apparent authority arises when you have TP consent and the facts available to the officer would warrant a reasonable person to believe that the consenting party had authority over the premises. Illinois v. Rodriguez, 110 SCt 2793; Brimage, 918 SW2d 466. However, Texas hasn't completely adopted "apparent authority" as evidenced in Brimage and Corea -- our added wrinkle is that if there are "ambiguous circumstances" which cast doubt on the effectiveness of the consent, the officer must stop and inquire (in Corea, the roomie said that the D's room was ONLY his room -- this made the consent ambiguous).
I had a case where D lived with his parents; mom consented to search of D's bedroom. Bedroom was separate, but Mom went through it routinely to pick up D's dirty clothes and wash them. She had common authority in spite of some significant evidence at trial regarding D keeping his room private and partially closed off and D buying house (parents just squatting). Also, based upon facts at time of consent, mom had apparent authority and no ambiguity undermined that authority. Bottom line, good thing the defendant was too lazy to wash his dirty laundry. Of course, he's still relying on others for laundry service, just down at TDCJ now!
Posts: 62 | Location: Fort Worth, TX | Registered: November 02, 2001
I assume the issue is whether the police had the right to be in the bedroom. Clearly observing something in plain view does not constitute a search or require probable cause. I can't imagine a court saying that the police have to get a warrant in order to investigate a burglary call, just because it may not be clear the reporting person has control over the premises. Maybe there's an issue about the credibility or reliability of the informer, but if that bridge is crossed why say the police must get permission to go on the premises? I think consent is a side issue, why not focus on the reason the police were going into the bedroom.
Having been called to the house to investigate a burglary, why does the officer need the permission of a person to enter a particular room? Wouldn't it be reasonable for an officer to examine all the rooms, including any rooms with windows by which a burglar could have entered? And doesn't the constitution merely require that an officer act reasonably?
John, sadly "reasonableness" is not the only requirement for a search. I agree that in addition to the "common authority" and "apparent authority" doctrines that Tanya and I have mentioned, there might be a some kind of exigent circumstance -- such as there might have been somebody hurt or there might have been a criminal stillpresent. (For a collection of burlary cases supporting such a search see State v. Faretra, 750 A.2d 166 (N.J. App. 2000)). But from the decription provided neither of those sound likely.
That said, there just isn't any kind of blanket crime scene exception to the warrant requirement. United States v. Erickson, 991 F.2d 529 (9th Cir. 1993) (where neighbors said the suspected burglars departed by car over an hour earlier, police looking in basement window of residence thought to have been burglarized constituted an illegal search despite claim police engaged in lawful "community caretaking function" as (i) warrantless search for such reason still requires "exigent circumstances" not present here given passage of time; and (ii) even if police trying to act for householder's benefit, that person is still entitled to protection of the Fourth Amendment); United States v. Selberg, 630 F.2d 1292 (8th Cir. 1980), (police entry unlawful where neighbor who was asked by defendant to watch his house trailer while defendant was away saw defendant depart and leave front door open and called police when door still open one day later but there was no sign of forced entry.) Consider this quote from a recent US SCT case: "We noted that police may make warrantless entries onto premises if they reasonably believe a person is in need of immediate aid and may make prompt warrantless searches of a homicide scene for possible other victims or a killer on the premises, 437 U.S. at 392, but we rejected any general "murder scene exception" as "inconsistent with the Fourth and Fourteenth Amendments -- . . . the warrantless search of Mincey's apartment was not constitutionally permissible simply because a homicide had recently occurred there." 437 U.S. at 395. Flippo v. West Virginia, 120 S.Ct. 7, 8 (1999). Also consider Thompson v. Louisiana, 105 S.Ct. 409 (1984) in that case the defendant's daugther called police to say that her mother had just shot her father and O.D'ed on drugs. 35 minutes after the victim and defendant where transported away, a search was conducted. Held: inadmissible.
What I thought was wrong with Corea was that if somebody lives in an apartment there ought to be a heavy presumption that he has authority to consent to a search of any part of that apartment. That's the way commone sense ought to be vindicated here. <>
Posts: 527 | Location: Fort Worth, Texas, | Registered: May 23, 2001
OK, it looks like I have to expand my imagination. I still say this case may be different. It appears to me the roommate had already been in the room and personally observed the signs of forced entry and ransacking. Isn't that information worth something as far as determining whether its reasonable for the police to enter to try to verify what they've been told? But you're saying they either have to find a magistrate or someone who can give valid consent, just because its a residence. Maybe under facts like these the US Supreme Court would recognize that there should be no separate requirement of a warrant when the entry (search) is reasonable. See Hulit, 982 S.W.2d at 435-6. The exigent circumstances requirement is related only to the "warrant clause". So, Craig, feel free to give us some more facts.
The officer entered the room after looking through the open door and observing that the room had been ransacked and the window broken out. The officer proceeded with the investigation by entering the room with the roomate's permission and dusting for fingerprints. The drugs were found inside a chest with pull-out drawers that held rings and other jewelry. The drawers had been pulled out in random fashion as if somebody had been looking through the drawers. While dusting the drawers for prints the officer observed the drugs in the drawer.
Our position in this case is that it was reasonable under the circumstances to enter the room and investigate. This case is unlike the other cases as noted above because a "true" victim contacted the police and asked for an investigation into the crime.
Craig: You say a "true victim" contacted the police. Was ANY part of the apartment other than the roommates room burglarized? I teach a Criminal Justice course at a local college, with a focus on search and seizure issues, and it looks to me like the "apparent authority" argument will serve you better in this case than a "reasonableness" argument -- which could be met with a defense argument that it would have been just as reasonable for the officer to go get a warrant. So a key issue would be the information available to the officer regarding the occupants of the apartment, and maybe even who all was on the lease. Good luck.
Posts: 52 | Location: Fort Stockton, Texas USA | Registered: April 04, 2001