LYNN ADELMAN, District Judge.
The government charged defendant Donaven Jackson with possessing ammunition as a felon, contrary to 18 U.S.C. § 922(g)(1). Defendant moved to suppress evidence seized from his home pursuant to a consent search and from his cell phone pursuant to a search warrant. He argued that his ex-girlfriend lacked authority to admit the police into his home and that the warrant did not authorize a search of the contents of his phone. A magistrate judge held an evidentiary hearing on the consent issue and recommended that defendant's motion be denied. Defendant objects, and I now consider the matter de novo. See Fed.R.Crim.P. 59(b).
On May 7, 2012, City of Kenosha police officers Knight and Torres responded to a domestic violence complaint from Shantrice King at 7104 37th Avenue. (R. 19 at 1 ¶ 2). Defendant was the lessee of the residence located at that address. His was the only name on the lease. The lease specified that the premises were to be used as the residence of defendant and his two minor children; it prohibited occupancy by guests for more than two weeks absent the landlord's written consent.
Outside the residence, the officers encountered defendant, King, their two or three year old child Jamauri and King's friend Jamaica Presha. Torres noticed a small rip in the back of defendant's T-shirt. (R. 19 at 1 ¶ 2.) King told Knight that defendant had directed her to move out of the residence and that he began removing her clothes from a closet on the second floor. She then followed him upstairs, and the two argued. Defendant went downstairs to the dining room and began to take keys off King's key ring. King snatched the keys from defendant, and defendant grabbed her by the face and neck and pushed her against the wall. King resisted and grabbed defendant's shirt. Defendant then pushed King over a love-seat, and King called 911. While King was on the phone, defendant went downstairs and returned with a firearm but King did not see what he did with it. Defendant did not have the gun when the police arrived. (R. 19 at 1-2 ¶ 3; Ex. B at 6.) Upon arrival, Knight observed that King was shaking, appeared nervous and had a cut on her finger; however, he saw no marks on her face or neck.
After the interview, Knight and King looked for the gun but did not find it. The police arrested defendant and subsequently discovered that he was a felon. Knight then called King and asked her to try to find the gun and to call him if she found it. King, who was not at the residence when she received the call, did not call Knight to report finding the gun. (Id. at 2 ¶ 6.) Detective Johnson then took over the domestic violence matter, reviewed Knight's report and King and Presha's witness statements, and spoke to Torres. (Tr. at 11-12.) Knight's report listed King as the complainant and stated that she, Jamauri and Presha lived at 7104 37th Avenue. (Tr. at 14-15; Ex. B at 1-2.) However, in her statement, Presha listed a Sycamore, Illinois address. (Ex. B at 5; see also Tr. at 36.) Johnson asked Torres to prepare a report based on his interaction with defendant. In that report, Torres stated that defendant "denied striking his live-in girlfriend, Shantrice King" and "said he did not touch her other than to push her away when he tried to get his keys." (Ex. B at 11; see also Tr. at 17.)
The next day, May 8, Johnson called King and asked her if the police could come to the 37th Avenue residence to look for the gun. (Tr. at 18.) King was not at the residence when she received the call. She agreed to meet Johnson at the residence at 5:00 p.m. (Id. at 19.) When Johnson arrived at the residence, King was not there. She subsequently arrived in a vehicle accompanied by Jamauri and Presha. (Id.) The residence has an enclosed front porch through which one can enter a living room through a wooden door. (Id. at 21-22; see also Ex. C, a photo of the front entrance.) King and Johnson entered the porch through an unlocked door, and King then used a key to unlock the wooden door. (Tr. at 22.) At that point, Johnson stated that the police wanted to look for the handgun and asked King to consent to a search of the home. (Id. at 24.) Johnson testified that:
(Id.) King consented to a search of the premises and signed a consent form. (Id. at 25; Ex. 3 A; R. 19 at 2 ¶ 7.) Johnson advised police officer Schaal and three assisting officers to look for the gun. (Tr. at 26.)
Schaal noticed some boxes, bags and children's toys on the porch. (Id. at 42.) The living room was empty except for an entertainment center with a large-screen TV, some DVDs, movies and games. (Id. at 42-43.) In the basement, Schaal noticed a mat reading "Snoop's man cave." He knew that defendant's nickname was "Snoop." (Id. at 43.) In the basement, in a living area with a couch and television, officers recovered ammunition, a quantity of crack cocaine, drug paraphernalia, a gun lock and personal effects but no gun. (R. 19 at 2 ¶ 8.)
After assisting with the search, Johnson spoke again with King. She told him that she had lived at the residence for about a year with defendant and their son.
On May 10, officer Viola obtained a search warrant for a cell phone taken from defendant after his arrest. The phone was with defendant's other personal property at the Kenosha detention center. (R. 19 at 3 ¶¶ 12-13.) In his supporting affidavit, Viola relied on evidence gathered during the search of defendant's home. (Ex. D-3 at 6.) A court commissioner issued the warrant,
Warrantless searches of a home are presumptively unreasonable. E.g., Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). However, the Fourth Amendment accommodates consensual searches as a voluntary consent "lifts" the warrant requirement. United States v. Stribling, 94 F.3d 321, 324 (7th Cir.1996). The government bears the burden of proving consent by a preponderance of the evidence. United States v. Jackson, 598 F.3d 340, 346 (7th Cir.2010).
A third party cannot consent to a search of another's home unless the third party possesses common authority over, or other sufficient relationship to, the premises. United States v. Ryerson, 545 F.3d 483, 488 (7th Cir.2008). The consent of a third party who possesses or appears to possess common authority is valid as against the absent, non-consenting person who shares such authority. Jackson, 598 F.3d at 346 (citing Georgia v. Randolph, 547 U.S. 103, 110, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006); United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)). Actual or apparent authority will suffice for a consent search. United States v. Chaidez, 919 F.2d 1193, 1201 (7th Cir.1990). In the present case, defendant contends that King had neither.
Actual authority does not depend on property law distinctions but on whether there is "`mutual use of the property by persons generally having joint access or control for most purposes.'" Ryerson, 545 F.3d at 487 (quoting Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988). The idea is that when a person shares space, he "assumes the risk" that his co-habitant might consent to a search, at least of common areas and areas to which the other has access. See United States v. Ladell, 127 F.3d 622, 624 (7th Cir.1997); United States v. Duran, 957 F.2d 499, 504 (7th Cir.1992).
Apparent authority exists when, prior to commencement of the search, the facts are such that a person of reasonable caution would believe that the consenting person had authority over the premises. Ryerson, 545 F.3d at 489; see also Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ("The Constitution is no more violated when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises, than it is violated when they enter without a warrant because they reasonably (though erroneously) believe they are in pursuit of a violent felon who is about to escape."). This does not mean that the police may assume authority whenever they are invited inside. "Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry." Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793; see also United States v. Alexander, 573 F.3d 465, 474 (7th Cir.2009) (noting that an officer has a duty to inquire further as to a third party's authority to consent to a search if the surrounding circumstances make that person's authority questionable).
Facts that suggest a finding of actual or apparent authority include: (1) possession of a key to the premises; (2) the person's admission that she lives at the residence in question; (3) possession of a driver's license
Because actual authority does not rest on property law distinctions, the fact that defendant was the sole leaseholder does not mean that King, who had lived with him and their child at the residence for about a year, could not consent to an entry. See, e.g., Ryerson, 545 F.3d at 487-88 (finding actual authority where the defendant's girlfriend and their child had lived with him at the subject residence for ten months before the search and explaining that the defendant assumed the risk that his girlfriend, who continued to use the property to store her personal belongings and records for their co-owned business, would return after she left following an argument); see also Jackson, 598 F.3d at 347 (collecting cases).
In the present case, however, defendant revoked King's permission to remain in his home and thus terminated the risk that he had assumed. Cf. Ryerson, 545 F.3d at 485 (referring to the girlfriend's continuing residence in the defendant's home). He did so unequivocally. He ordered King (and her friend) to go, removed her clothes from a closet and attempted to retrieve his keys to the house. When King snatched the keys back from him, he allegedly assaulted her. To establish a valid consent, the government must establish by a preponderance of the evidence that defendant authorized King to remain in the residence. The government presents no evidence that at any time after ordering King to leave defendant changed his mind and authorized her to remain in the house. Nor does the government present any evidence that King had any other lawful basis for remaining. Cf. id. at 488 (rejecting, based on a note the defendant wrote to a jailor suggesting that he still considered her a lawful co-habitant, the defendant's claim that he revoked the girlfriend's actual authority after she left).
The government speculates that King's ejection may have been temporary, a heat of the moment thing resulting from a domestic dispute. While people in stressful situations sometimes says things they later retract, there is no evidence of this in the present case. Cf. United States v. Penney, 576 F.3d 297, 309 (6th Cir.2009) (finding apparent authority where, although the defendant had ejected his girlfriend from his home just prior to the consent search at issue, the police knew from past experience that the couple frequently quarreled and reconciled and had no reason to think the situation was different); Ryerson, 545 F.3d at 487 (finding actual authority where, although the defendant's girlfriend
The government contends that, if defendant really wanted King out, he could have used his superior size to remove her clothes from the house, take back his keys and force her to go. Apparently, defendant did try to retrieve the keys but King snatched them, leading to a physical altercation.
The government relies primarily on apparent authority to sustain the search, arguing that it was reasonable for Johnson to accept King's assertion that she lived at the residence. The government contends that the police had no reason to question this assertion because King's statement about defendant's assault on her was credible in that it was corroborated by Presha and by the rip in defendant's shirt and the cut on King's hand. But the issue is not whether King's complaint that defendant assaulted her was credible but whether it was reasonable for the officers, who knew that defendant had kicked King out of his home, to believe that King retained authority to consent to a search of it. And King's statement about what happened between
The officers were also aware of other facts raising red flags. When Knight called King to ask her to look for the gun, she was not at defendant's home. Nor did she find the gun. Likewise, when Johnson called King to set up a search, King was not at the residence. And when Johnson met King she did not come from inside the house; rather, she, Jamauri and Presha arrived in a car suggesting that the three of them were residing elsewhere. Cf. Ryerson, 545 F.3d at 485 (finding actual and apparent authority when the defendant's girlfriend left their daughter and her belongings behind after she left). Further, the officers found boxes and bags on the porch and virtually nothing in the living room, indicating that someone had or was moving out.
Finally, it is important to note what the police did not know at the time King consented: they did not know how long King had lived at the residence, whether she was a co-owner or co-lessee, whether she paid any portion of the rent, or whether she performed any household chores. And they didn't ask. Nor did they check King's driver's license or mailing address. Despite the many signs that King no longer lived at the residence, the police made no serious inquiry into her authority. Had they made such an inquiry, they would have discovered that defendant was the sole lessee and that he had a right to revoke her shared authority over the premises. King said nothing suggesting the contrary.
United States v. Goins, 437 F.3d 644 (7th Cir.2006) offers an example of the sort of careful inquiry that the officers should have made. There, the defendant's girlfriend called the police after an argument, claiming that he had assaulted her and requesting a police escort to gather her belongings. Id. at 645. An officer met the girlfriend outside the defendant's residence and took her to a nearby police substation. At the substation, she told the officer that she had been dating the defendant for approximately five months and had been living with him at his residence on-and-off for several months. She showed the officers a key to the home and reported that she performed household chores for the defendant such as cleaning, cooking and doing laundry. She also stated that she had clothing and household items at the defendant's residence and wished to get them that evening because she intended to move out. Id. at 646.
After the girlfriend mentioned that the defendant kept drugs and a gun at his house, the officer contacted a drug investigator, and the girlfriend repeated her connection to the defendant's home to the investigator: she had a key to the apartment, she had been staying there for several months, and she did various household chores, including laundry, cooking and straightening up. Id. Officers took the girlfriend to the residence, where she admitted them with her key. Prior to commencing a search, however, the officers double-checked her connection to the residence: she showed the investigator her key, repeated that she had personal belongings in the house and showed him some of her belongings. She also stated that she cooked for the defendant, had free
Under these circumstances, the court had little difficulty in finding that the officers satisfied their duty of inquiry:
Id. at 649.
In the present case, conversely, the officers asked only if King lived at the residence. Despite the red flags raised by the circumstances leading to defendant's arrest and the officers' own observations, they asked King nothing about her connection to the premises. Nor did they conduct any independent investigation such as, for example, contacting the landlord or checking utility records. It is also worth noting that no exigency required the police to proceed as they did. The police could easily have obtained a warrant to search the house as they did for the Jeep parked outside. Cf. Ladell, 127 F.3d at 624 (noting that the officers obtained consent during an ongoing domestic violence incident in which the defendant's sister and mother feared he would shoot someone). In sum, the government fails to meet its burden of showing by a preponderance of evidence that the facts were such that a person of reasonable caution would believe that King had authority to consent to a search of defendant's residence.
The Fourth Amendment requires that a search warrant contain a particular description of the place to be searched and the persons or things to be seized. E.g., Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987); United States v. Jones, 54 F.3d 1285, 1289-90 (7th Cir.1995). Defendant notes that the warrant allowed the officers to search the evidence bureau and seize his cell phone but not to download its contents. See United States v. Payton, 573 F.3d 859, 864 (9th Cir.2009) (holding that the search of a computer without explicit authorization in the warrant exceeded the scope of that warrant); see also United States v. Flores-Lopez, 670 F.3d 803, 805 (7th Cir. 2012) (stating that "a modern cell phone is a computer"). Though the officers ostensibly wanted — and the court commissioner may have believed he was granting — permission for the latter, the warrant authorized only the former. See Payton, 573 F.3d at 862 (holding that after-the-fact testimony as to the issuing judge's intent could not cure the failure of the warrant to authorize the search of computers).
The government responds that, read in a common sense fashion, the "premises" referenced in the search warrant meant the cell phone; the police would not need a warrant to search their own evidence bureau. Even if the warrant did not actually authorize a search of the phone, the officers
As defendant noted in his post-hearing brief before the magistrate judge, because the police relied on evidence seized from his home to establish probable cause for the warrant, the subsequent search of the cell phone was derivative of the residential search. (R. 29 at 1 n. 1.) Having concluded that the residential search violated the Fourth Amendment, I am uncertain whether, removing from the application the evidence unlawfully obtained, a sufficient basis to establish probable cause for the issuance of a search warrant remains. See Segura v. United States, 468 U.S. 796, 814-15, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984); United States v. Markling, 7 F.3d 1309, 1315 (7th Cir.1993). At the conference scheduled for December 20, I will give the parties an opportunity to address this issue, as well as whether the search of the cell phone still matters.
(Ex. D-3 at 1-2.)
