BB&K Police Bulletin: Warrantless Searches and Consent Granted by Houseguests: Houseguest Could Not Consent to Search of Specific Areas in Home

Overview: The Ninth Circuit recently reversed a trial court’s denial of a motion to suppress the fruits of a home search. The court found the government had the burden of establishing a houseguest had the “apparent authority” to consent to search of “specific areas” where DEA agents ultimately found narcotics. The panel held the DEA agents had limited knowledge about the residence to hold an objectively reasonable belief the houseguest could consent to a search of the master bedroom and bathroom or the areas beyond a door inside the master bedroom. The court also found the “protective sweep” and “plain view” doctrines did not apply.

Training Points: Law enforcement conducting a warrantless search of a residence based upon consent provided by a person present in the residence (who may or may not be a “houseguest”), should gather information about the legal occupants of the residence prior to entering. Further, it is important to ask for and receive identifying information from the “houseguests” and information about their control or authority over the residence. Where necessary and supported, officers should obtain permission from the person to search the “entire premises.” Such information helps to insulate the consensual search from a motion to suppress.

Summary Analysis: In U.S. v. Arreguin, Arreguin was charged with and pled guilty to narcotics offenses after DEA agents located narcotics during a search of his residence. DEA agents were conducting a “knock and talk” investigation at a residence. Upon arrival, the agents asked a “houseguest” if they could “look around” the residence but did not request permission to search the entire premises. Upon entry, the agents rushed in and quickly began rummaging through the residence inspecting various rooms. They not only entered the master suite, but also entered an area beyond a second door located inside the master suite. The court noted that the agents knew virtually nothing about: (1) the houseguest; (2) the various separate rooms and areas inside the residence; or (3) the nature and extent of the houseguest’s connection to those separate areas. The court found the agents knew far too little to hold an objectively reasonable belief that the houseguest could consent to a search of those areas. There was no evidence the houseguest had joint use, access or control over the master bedroom and master bathroom area.

Topics:  Consent, DEA, Reasonableness Factors, Warrantless Searches

Published In: Constitutional Law Updates, Criminal Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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