Sunday, December 19, 2010

When Does Someone Have Apparent Authority to Consent to a Search?

On September 9th, the Seventh Circuit (which geographically embraces Illinois) issued an interesting decision illustrating the "apparent authority" exception to the Fourth Amendment. In U.S. v. King, No. 09-1974, slip op. (7th Cir. September 9, 2010), the defendant, a high-ranking member of the Latin Kings street gang, was charged with and convicted of "conspiracy to possess with intent to distribute in excess of five kilograms of cocaine and attempted possession with intent intent to distribute 500 grams or more of cocaine." King, No. 09-1974, slip op. at 1-2. Jesse Guajardo, a low-ranking Latin King who was also a secret government informant, contracted with defendant and defendant's superior to provide protection for Guajardo's cocaine business in exchange for money and cocaine. Id. at 2. Guajardo told defendant that he had received 10 kilos of cocaine and that he would soon be receiving more, for which he would need protection. Id. at 3-4. For protection of the cocaine, Guajardo paid defendant $2,000 and promised to pay him a kilo of cocaine at a later time. Id. at 4. Guajardo later delivered a "sham" kilo of cocaine to a small taco restaurant which defendant and another gang member owned. Id. Defendant accepted the kilo of cocaine and hid it above a refrigerator in the back of the restaurant. Id. Defendant was arrested the next day. Id. at 5.

At 9:00 am on the day of defendant's arrest, plain clothes officers arrived at the restaurant, which was not scheduled to open until 11:00 am. At around 9:45, a cook in the restaurant opened the door and allowed the officers in. King, No. 09-1974, slip op. at 5. An alarm went off, and the cook disabled it by entering the code. Id. The cook told the officers that he was not the owner, but just the cook. Id. The cook orally consented to a search of the premises, which yielded the sham kilo of cocaine above the refrigerator Id. at 6. After he was indicted, the defendant moved to suppress the sham kilo seized from the restaurant, which was denied. Id.

At issue was "whether Cabrera-Lopez [the cook] had authority to consent to the search and whether his consent was voluntary." Id. The Fourth Amendment generally protects against warrantless searches (with several exceptions). However, "'A warrantless search does not violate the Fourth Amendment if a person possessing, or reasonably believed to possess, authority over the premises voluntarily consents to the search.'" King, No. 09-197, slip op. at 9 [citations omitted]. "Apparent authority" turns on "whether the facts available to the officer at the time would allow a person of reasonable caution to believe that the consenting party had authority over the premises." Id. [citations omitted]. On the issue of apparent authority, the court found that the cook had apparent authority to consent to the search because he "had keys to the restaurant and the code to deactivate the alarm" and "He also opened the restaurant alone," which lead the officers to reasonable believe that "he had full control over the premises, including the authority to grant access to others." Id. at 10.

King is distinguishable from the seminal apparent authority case of Stoner v. California, 376 U.S. 483 (1964). In Stoner, police officers in search of an armed robber found a checkbook containing stubs for checks that had been written to a local hotel. Id. at 484. The officers went to the hotel and asked the hotel night clerk if anyone by defendant's name was staying there. Id. at 484-85. The night clerk responded in the affirmative, gave the officers permission to enter defendant's hotel room, led the officers to the room, and opened the room, wherein evidence from the robberies was discovered. Id. at 485-86. At issue was whether the night clerk had "apparent authority" to consent to the search. The Court held that the clerk did not have apparent authority to consent to the search of the defendant's hotel room because the defendant's Fourth Amendment rights belonged to him and not the clerk nor the hotel, and that, therefore, he was the only person who "could waive [his Fourth Amendment] rights by word or deed, either directly or through an agent," which he did not do. Id. at 489. Because the defendant did not directly waive his Fourth Amendment right directly or through an agency relationship with the hotel or its employees, the hotel clerk did not possess apparent authority to consent to the search. Id.

The facts of King and Stoner are similar. Police officers entered a business hoping to ultimately discover evidence linked to defendant. Defendant was not present, but another person on the premises was. The person on the premises allowed the officers behind locked doors, where they eventually found the evidence from defendant that they were looking for. So why did the King court rule opposite of the Stoner court? Apparent authority is loosely modeled on a principal-agent relationship. In a principal-agent relationship, the principal gives the agent the authority to act on its behalf. The principal is therefore generally liable for the actions of the agent. In an apparent authority situation, a police officer determines that the agent has authority to consent to the search of the principle's property because the principle has given him the authority to do so. In King, the police officers formed this belief because the cook had the security code, the keys to the restaurant, and he opened it himself. The cook in King (the agent) was given control over the restaurant by the defendant (the principle). Therefore, the agent-cook could consent to the search of the restaurant on the behalf of the principal-defendant. In Stoner, however, there was no agency relationship between the defendant and the clerk. The defendant consented to cleaning staff entering his room, but he did not give the clerk any authority to allow people into his room. Therefore, there was no apparent authority.

A question of apparent authority will depend on the facts. If the person allowing the police entry to the area was given control of that area by one with superior rights to the area, they probably have apparent authority to consent to a search of the area. If that person was not given control of the area by one with superior rights to the area, they probably do not have apparent authority to consent to a search of the area.

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