Third Party Consent to Search and Scope of Consent

[RSR26]

What is the name of your state? What is the name of your state? Florida


Cops go to defendant's house to arrest him. They knock on door and an unknown man answers the door and says "come in." Question here is-- does the man who answerd the door have actual or apparent authority to allow cops into house. Since cops knew nothing about him, he did not have apparent authority. But what about actual? Well the facts later revealed that the man answering the door was staying as a temporary guest at the defendant's home to attend defendant's wedding. My position is that a transient guess does not have actual authority to allow entry; the person allowing entry must have more substantial property rights in the dwelling before allowing in the police.

second issue is that the cops asked the man where the defendant was, to which he said "he's in the back room asleep" and he pointed to the room. From this statement, the cops entered teh man's bedroom and are now arguing that they had "implied consent" from the man. Im saying that the man's answer was not a consent to search, but rather the answer to the officer's question. What say the rest of you.

 

[JETX]

Your logic is flawed.

1) The person who answered the door DID have apparent authority, since he was obviously IN the property at the time. Now, if the police had just asked some guy on the street and HE gave entry permission, that would be different. Simply, the police had no reason to doubt the authority of a person IN the property.

2) "Im saying that the man's answer was not a consent to search, but rather the answer to the officer's question."
I agree that the statement was the answer to the officers question. No 'search' was conducted to find the person. In fact the police were directed to him. And since they were there to arrest you/him, I would assume that they had a warrant for your arrest, which upon identifying you, we presume they did.

3) "What say the rest of you."
I don't see any problem with your scenario... as presented.

 

[RSR26]

you say "no search" was conducted to find him. what do you call it when the cops enter a man's room with the door closed? Is that not a search? They entered a man's bedroom without any specific permission and, of course, without a warrant. Maybe in your world that is not a "search" but I think opening a man's bedroom is a search.

So your position is basically that anyone in a house has apparent authority to let anyone in? Guess I will have to tell my maid next time she's here not to let the cops in.

 

[talianna]

OK, you're saying the police showed up out of the blue with no warrant to arrest you/whoever?

Or are you saying that they didn't have a search warrant to search for you in the house? If you're saying that, well- never mind... I'm trying to be nice.

 

[RSR26]

Of course these cops didnt have a search warrant. And its not me for whatever that is worth. Im saying that not any person sitting in one's house has authority to allow people in.

 

[talianna]

But did they have an ARREST warrant????

 

[RSR26]

no they did NOT have ANY warrant.

 

[stephenk]

Your earlier post was right - you would tell your maid NOT to allow the police to come in.

The police are not supposed to determine who in the house has "authority" to allow someone in the house. If an adult answers the door, that person has implied authority to allow or not allow someone in the house.

Were the police looking for someone as a result of a recent crime? Did they arrest the person in the bedroom?

 

[RSR26]

fortunately the cases on apparent authority state that just because a person is in your house, does not mean it is reasonable for a cop to rely on his consent to enter. From the cases I have read, it is clear that a person answering the door, without more, does not provide implied or apparent authority. Im concerned with whether he had "actual" authority. Since he was a guest, rather than living there on a full time basis, did he have actual authority to let the cops in?

yes the cops were investigating a recent crime and yes they arrested the man in the bedroom.

 

[blidiot]

Is this an exercise for a law school problem, or is this a real-life case?

In real-life, and according to the Courts (of course laws vary by states and I don't know Florida law), the police have very limited circumstances under which they may enter a premise to conduct a search. Yes, you are right, technically, they conducted a search, in the scenario you presented.

Note: "You" means the subject of the arrest, not necessarily you.)

1. Exigent Circumstances: They saw you in there and had a warrant for your arrest, or, they were in fresh pursuit of you, or the house was on fire and they went in to check on the occupants and save them, or they were called on a crime and had a duty to check for victims, etc.

2. Consent: The person at the door gave consent to search, they then found out where you were and arrested you.

3. Search Warrant: They had a valid warant to search the premises, issued on a sworn affidavit amounting to probable cause.

4. Arrest Warrant: They had a valid arrest warrant for you, issued by a Judge who had authority to issue it.

Sounds like a combination of 1 and 2. There was not a warrant, therefor it sounds as if the police were looking for the suspect in fresh pursuit. They have a reasonable time to make efforts to pursue a person after an incident, including going into his/her home.

How long after the incident, or after the police were notified of the incident, did they come looking for the man?

Generally, the police don't know who lives in a home, who has an expectation of privacy, etc. I go to your door and the maid answers and allows us in, it is a presumption that she had authority to allow people in. She could have refused, which she also has your authority to do. (Yes, you should tell all persons at your home to refuse access by the police - unless it is a bonafide emergency, then they can still have access for limited purposes, or fresh pursuit.) Since the man staying in the house was there with permission, and he was staying there for some period of time, and he was not committing a crime therein, he also has an expectation of privacy. He waived it by allowing the police in.

I don't agree that they had "implied consent" after the guest pointed out the room. They now had knowledge of the suspect's whereabouts and could act on it. Also, search warrants ware not generally necessary in most states, if there is a valid arrest warrant, or, if there are exigent circumstances.

If they had no exigent circumstances, no fresh pursuit, no arrest warrant, they had no right to search. But they did have the consent of the person who opened the door and it sounds as if they had fresh pursuit. They should have knocked on the bedroom door and waited until someone answered. I think they could even have had the guest go to the room and wake the suspect up and tell him the police were outside. The guest had a right to let the police into the common area, but not into the closed bedroom because he had no general access to it.