“If sinners entice thee, consent thou not.”
The Proverbs, 1:10
Warrants are generally required to satisfy the reasonableness requirement for criminal searches under the Fourth Amendment to the U.S. Constitution and its parallel provision, Article I, § 10 of the Minnesota State Constitution.
There are, however, a number of exceptions to the warrant requirement. One of those that springs up occasionally is that of consent, a doctrine that allows warrantless searches to occur if they are undertaken with appropriate permission.
A pair of recent rulings of the state and federal appellate courts for Minnesota recently addressed cases involving consent to searches and reached differing results. The Minnesota Court of Appeals held that consent was lacking, affirming a decision of the trial court, and therefore, the search was invalid and the resulting evidence suppressed. Meanwhile, the 8th Circuit Court of Appeals upheld a warrantless search based upon consent.
The cases share some similarities. Both involve warrantless searches of bedrooms occupied by defendants, where inculpatory evidence was found. But the result of the two cases differed.
A brouhaha over the search of the bedroom that a woman occupied in her grandmother’s home, based upon the grandmother’s consent, resulted in suppression of evidence of drugs in State v. Stuart, 2017 Minn. App. LEXIS 229 (Minn. App. March 13, 2017)(unpublished). Law enforcement officials in Nobles County found drugs while conducting a search of a bedroom in the home of the drug owner’s grandmother, where the drug owner lived. The bedroom occupant was very inebriated when she seemingly gave consent to a search of the home after she was arrested and hand cuffed and escorted to a squad car. The officers then went to the house where the grandmother consented to a search of the bedroom and drugs were found there.
The Nobles County District Court upheld a motion to suppress the evidence on grounds that the defendant’s consent was not valid because her “will was overborne” and the grandmother did not have authority to consent to a search of the bedroom.
The state took an interlocutory appeal, which the appellate court affirmed. The sole issue was whether granny’s consent was valid. Agreeing with the trial court, the appellate court ruled that it was not because she did not have a right to allow the warrantless search.
Although the state claimed that the defendant lacked standing to challenge the search, it may have waived that issue by not timely raising it below. However, there was a sufficient factual record to address the issue without prejudice to the defendant.
On the merits, consent was lacking. The granddaughter, a “welcome, overnight guest” at the residence, had a “subjective expectation of privacy in her bedroom at the residence.” This expectation of privacy gave her standing to challenge the search.
The validity of the grandmother’s consent turned on whether the grandmother had mutual use of the bedroom. While the law is “less clear” regarding adults, like this defendant, who live with their parents or other relatives, compared to conventional landlords, who cannot give consent, and spouses who can, third party consent was lacking here. Case law decided by the U.S. Supreme Court and the Minnesota Supreme Court emphasize the mutual use requirement, which was a pivotal issue in this case. The record did not show that the grandmother had shared a mutual use of the bedroom, which proscribed her from giving consent to the search.
Nor was there any evidence that the officers had a reasonable belief that the grandmother had mutual use. Therefore, there was no valid basis to overturn the trial court’s decision that the grandmother did not have authority to consent to the search of her granddaughter’s bedroom. The lower court’s determination was upheld, resulting in suppression of the evidence and, presumably, ultimate dismissal of the case.
Another bedroom search had a better result for the authorities in U.S. v. Ortega-Montalvo, 850 F.3d 429 (8th Cir. March 8, 2017). The key evidence in the case consisted of three identification documents that were seized from the defendant’s apartment following an immigration raid. Arriving at the apartment without a warrant, law enforcement officers questioned the occupant who answered the door, and also arrested the defendant, whose bedroom they searched and found the inculpatory documents. The officers maintained that the defendant and the occupant both gave consent to searching the defendant’s bedroom, which yielded the materials.
The case turned on whether the occupant gave valid consent to the search, as the lower court determined. The 8th Circuit affirmed, holding that, even though the occupant acknowledged he was unlawfully in the country, which the defendant claimed made the consent “coercive.” But whether consent was truly “voluntary” was a “question of fact to be determined from the totality of all of the circumstances.”
The circumstances included the occupant’s age, his general intelligence and education, whether he was intoxicated at the time of consent, whether the consent occurred after receiving Miranda rights, and whether the person was aware of the rights and protections due to previous arrests, along with several other factors. In this case, those factors all cut in favor of consent, which was not obtained through coercion or deception.
An ensuing protective sweep of the facility, which resulted in the search of the bedroom, did not exceed the scope of the consent. The officers had sufficient facts to do so because they knew that the defendant had allegedly entered the county and may be present in the apartment. Because they also knew he had a prior conviction for aggravated assault on a police officer, they were justified in conducting a warrantless search to see if the apartment harbored dangerous individuals.
The extension of a traffic stop to a full-scale vehicle search was upheld by the 8th
Circuit in U. S. V. Murillo-Salgado, 854 F.3d 407 (8th Cir. April 13, 2017). The case arose out of a routine traffic stop of a truck driving through Missouri, which yielded a large cache of cocaine hidden in an air compressor in the vehicle, resulting in a drug conviction for the passenger.
The 8th Circuit affirmed, holding that the initial stop was permissible and the ensuing search was properly based on consent. The officer who made the stop had “reasonable suspicion” of wrongdoing based upon inconsistent and implausible responses made by the driver to various questions and some furtive behavior by the passenger.
The court explained that because the traffic stop was not impermissibly expanded or prolonged, the ensuing consent by the driver to conduct the search was valid. Therefore, the lower court properly rejected a motion to suppress the contraband and the conviction was upheld.
These cases reflect the vagaries that occur when law enforcement conduct warrantless searches ostensibly based on consent. Sometimes they can be valid, and sometimes they cannot.
Some other exceptions to warrant request
- Incident to lawful arrest;
- Plain view;
- Terry v. Ohio pat down frisk;
- Vehicles if probable cause exists;
- Exigent circumstances.
Originally published in Minnesota Lawyer.