Who Has Authority to Consent to a Search? Still No “Crisp Answer”

Police wished to search the apartment of Victor Garcia, whom they had just arrested for drug trafficking.  They did not wish to obtain a warrant.  Fortunately, they found Garcia’s 18-year-old niece, who had a key and was most accommodating.  Inside the apartment, the officers found 13 kilograms of cocaine.  Could the evidence be used against Garcia?  Yes, said the Northern District of Illinois, holding that the officers had a reasonable belief that the niece had been authorized to allow a search of her uncle’s apartment.

On appeal, the Seventh Circuit affirmed earlier today in United States v. Garcia (No. 12-1805).

Judge Posner, writing for the panel, observed, “The question of the authority of someone not the occupant of a home to consent to a search of it arises frequently but has never received a crisp general treatment and probably never will.”  (4)

Posner described the problem in terms of a spectrum without a clear dividing line:


Difficult as it is to draw the line, we can at least mark the extremes—at one extreme a couple married or unmarried (so much cohabitation today is nonmarital) sharing a home. Each spouse or partner has the full run of the house. Each can let anyone in and authorize the visitor to look around—even to look in a closet. At the other extreme are the neighbor who has a key, the babysitter, the hotel staff: their authority over the place of residence is specific and limited; they are not authorized to compromise the resident’s privacy beyond what they have to do to perform their authorized tasks. If such persons could authorize a police search, personal privacy would be gravely compromised because the average person would be afraid to refuse a police officer’s request to let them into a house to which the person had a key, to search. (5)

With this spectrum in mind, the court ruled against Garcia, emphasizing the high level of trust he had in the niece:

We think the facts of the present case as found by the district judge place it slightly nearer the cohabitation pole. As a single, working parent of a young child, the

defendant needed considerable help and some of it was given by his niece and aunt (particularly the former) in his home. He was fortunate in being able to turn for help to two relatives who were also neighbors of his. He was more likely to trust them than a nonrela- tive. He gave them the run of the apartment to take care of the child (to get clothes for the child, for example—one of the things the niece told the officers she did in the apartment). The apartment was very small—it’s not as if there had been a children’s wing to which the relatives could have confined themselves when attending the child. Sometimes there were other children in the apartment, invited to play with the defendant’s child—the relatives were authorized to admit them.

The defendant’s lawyer describes the niece as a mere babysitter. She was more than that. Although neither she nor her mother lived in the defendant’s apartment, when they were there they were in loco parentis. Had the child’s mother lived there, her authority to allow the search could not have been questioned. The defendant’s aunt and niece together were not quite a surrogate mother, but neither were they just neighbors with a key. That the defendant kept a large quantity of cocaine in a closet of this small apartment suggests that he reposed an unusual degree of trust in his aunt and niece and thus had delegated to them a large measure of authority over the apartment when he was not there. (5-6)

In short, still no “crisp answer,” but rather a fact-intensive, case-specific holding that will join earlier precedent in supplying another benchmark on the consent spectrum.

Cross posted at Seventh Circuit Cases.