recognizing that in the modern era, it is not unreasonable for police to not conduct further investigation as to whether someone’s name is on a lease, “as it is a reality in today’s 9 world that consenting adults often co-habitat [sic] together without benefit of legal formalities — including those formalities relating to the establishment of property interests”
How later courts described this case
- recognizing that in the modern era, it is not unreasonable for police to not conduct further investigation as to whether someone’s name is on a lease, “as it is a reality in today’s 9 world that consenting adults often co-habitat [sic] together without benefit of legal formalities — including those formalities relating to the establishment of property interests”
- 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
- finding, under the manifest-miscarriage-of-justice standard, that evidence of shotguns next to $1,300 in cash in a closet could support a conclusion that the shotguns were strategically located
- indicating that the “sure and irreversible course” standard was adopted to govern typical anticipatory search warrants-those sought to conduct searches triggered by a police-controlled delivery
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
dissenting.
I disagree with the Court’s holding that the local Soddy-Daisy police had the authority under the Fourth Amendment to search Penney’s home without a warrant on August 19, 2003, because Bowman, as Penney’s intermittent, live-in girlfriend, had the “apparent authority” to consent to the warrantless search. Therefore, I disagree with Section II.B.1 of the Court’s opinion. “Apparent authority” is absent because the local police had observed and knew that the girlfriend had just come to the police station that morning where she had stated that Penney had made her leave his house — had actually “thrown her out.” They knew that she had no key and that they would, and did, have to break into the house. The record is clear that they also had observed and knew that Penney had followed the girlfriend to the police station and had told the police he had removed her from his home and did not want her staying there any longer. He made a request of the police that she be kept off of his property. All of these facts are clear in the record. The Court does not deny that these are the facts of the case. It does not point to any factual dispute to be resolved concerning these facts.
Based on these undisputed facts, it is beyond me to understand how the girlfriend could have any kind of authority, actual or apparent, from Penney to consent to a search of his home. In my view, the Court has not performed its judicial duties in an impartial manner on this issue and has simply followed its inclination to favor the authority of the police over the liberty of the individual citizen granted by the Fourth Amendment. “The right of the people to be secure in their ... homes ... against unreasonable searches and sei *318 zures” has been openly abridged. The decision here is simply a backhanded way of repealing the exclusionary rule and extinguishing the protections of the Fourth Amendment because the law, as written by the Founders, is inconvenient and hinders criminal convictions. What should be an open and shut Fourth Amendment violation is spun as a close case and decided in favor of the police.