Crime & Federalism

The defendant lives at home with his mother, but he has his own room.  Police go to the defendant's home, place him in handcuffs, and put him in the back seat of a police car.  The police then ask the defendant's mother for permission to search his room.  The mother consents and police find inculpatory evidence.  Is the search constitutional?

A unanimous three-judge panel said, "Yes."  In United States v. Jones, No. 01-1215 (2d Cir., Oct. 5, 2004), Judge Cardamone, joined by Judges Newman and Katzmann, wrote:

The defendant concedes that his mother had permission to access his room, and had actually entered it a number of times to clean it. Further, it is uncontested that there was no lock on his bedroom door, which was a room located within his mother's bedroom. That proof demonstrates that she had access and permission to enter, and could indeed enter at any time. Under the law of this Circuit, this evidence is sufficient to show that the mother had actual authority to consent to the search of her son's bedroom. See Koch v. Town of Brattleboro, 287 F.3d 162, 167 (2d Cir. 2002).

Once a person gives authority, to be shared in common, with another over certain premises, any hope that a search of those premises based on that other person's consent will be found a Fourth Amendment violation is slim at best. The reason for this conclusion is because the Supreme Court made clear that common authority rests on the notion that any co-inhabitant can permit inspection in his/her own right and others, including defendant, have assumed the risk that such permission to search might occur. Matlock, 415 U.S. at 171 n.7. Accordingly, the defendant's decision to permit his mother joint access to his bedroom limits his reasonable expectation of privacy in that room, and to that extent also limits his Fourth Amendment protection in the effects seized there. See id.

Moreover, the case law does not support Lewis' claim that the officers should have asked his permission to search since he was outside of the apartment in handcuffs in a police car at the time of the search. Supreme Court and Second Circuit law establishes that in situations where the defendant is present -- and even in situations where the defendant has already refused consent -- the officers may nevertheless rely on consent from a third party who has the requisite authority to give it. See, e.g., Matlock, 415 U.S. at 166, 171 (warrantless search may be justified based on the consent of a third party with proper authority even when the arrested defendant was on the scene and available to give consent); United States v. Davis, 967 F.2d 84, 86-88 (2d Cir. 1992) (third-party consent justified a search and seizure despite fact that defendant was in the custody of police in squad car outside and was never asked to consent); see also United States v. Sumlin, 567 F.2d 684, 687-88 (6th Cir. 1977) (holding that since Matlock did not rely on the defendant's absence in order to justify third-party consent, but instead relied on an assumption of risk analysis, it was not constitutionally significant that defendant refused to consent to the search before the officers requested and were given third-party consent). In consequence, the search of Lewis' bedroom while he was present outside does not violate his Fourth Amendment rights.

Slip opinion at 11-13 (emphasis added).