Who’s That Knocking at Your Door?: Third Party Consents to Police Entry
Searches by consent make a police officer’s job easier because neither probable cause nor a search warrant is required. But what should be a rather cut-and-dried area of the law to understand and apply is anything but, as “consent searches” are fertile ground for suppression litigation in courtrooms all over the country. Was the consent voluntary? Was it a broad or narrow consent? Did the person who gave consent know it could be withheld? Was the consent expressed or implied, and if implied, is that O.K.? When, as here, the consent comes from a third party, issues relating to actual or apparent authority to consent and the relationship between the parties come to the fore.
United States v. Ladell, 127 F.3d 622 (7th Cir. 1997)
As stated above, issues arising from consent to enter or search have led to a large amount of litigation in the trial courts and the courts of appeal. This legal thicket only gets thornier when the consent received was given not by the defendant, but rather by a third party, particularly when the location is the defendant’s residence. This article aims to examine the law of third party consents to enter a residence as applied by the appellate courts in the State of Florida and compare it to its application in the federal courts.
Legal Background
The bedrock source of law pertaining to search and seizure issues is, of course, the Fourth Amendment to the U.S. Constitution1 and its counterpart in the Florida Constitution.2 These constitutional sources forbid law enforcement authorities from performing warrantless “unreasonable searches and seizures.” An individual’s residence is afforded the greatest level of protection under the Fourth Amendment; the courts essentially have banned all warrantless searches of homes except where justified by exigent circumstances3 or by a valid consent to search.4
Consent searches were approved by the U.S. Supreme Court in Schneckloth v. Bustamante, 412 U.S. 218 (1973), as “a constitutionally permissible and wholly legitimate aspect of effective police activity.”5 For a consent to search to be valid, the consent must be given freely and voluntarily.6 The government has the burden of proof in establishing that a consent was given voluntarily.7 Voluntariness is determined by weighing the totality of the circumstances.8
A consent to search may be given by someone other than the individual directly affected by the search. This third party must reasonably appear to those seeking consent to share control of the premises or items to be searched.9 The rationale behind permitting searches based upon third party consents was articulated by the U.S. Supreme Court in Frazier v. Cupp, 394 U.S. 731 (1969), wherein Justice Marshall stated that by allowing another person access to a particular place or item, the defendant was assuming the risk that the third party would allow others to search it.10
In Matlock v. U.S., 415 U.S. 164 (1974), the U.S. Supreme Court formally validated the view that:
when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.
Sixteen years later, the Court revisited third party consents in Illinois v. Rodriguez, 497 U.S. 177 (1990), and held that a third party consent to enter a residence may be validly based upon an officer’s reasonable belief that the consenting third party had the apparent authority to consent, even though it is subsequently learned that the third party lacked the actual authority to do so. The Rodriguez court added that the police should not accept at face value every third party assertion of authority; rather, the police must make further inquiries where a reasonable person would question the validity of the assertion of authority.11 Applying this standard of reasonableness is where problems arise in the Florida courts.
Identifying the Problem
• Difficulties in Applying Reasonable Man Standard in Florida
The problems with present-day third party consent analysis in Florida are perhaps best exemplified in Cooper v. State, 706 So. 2d 369 (Fla.2d DCA 1998). In Cooper, a detective’s investigation of some vehicle burglaries led him to a certain motel room. The motel management informed the detective the renter was a woman, and that two other men (one of whom was the defendant, Cooper) were presently occupying the room. The detective knocked at the door, which was answered by a teenaged girl. The detective identified himself, told the girl he was looking for the two male occupants, and asked to come in. He was admitted entry, and saw in plain view items which appeared to be taken in the burglaries. Cooper was asleep on the bed and, after some difficulty, was awakened by the girl and the detective. Cooper then consented to a full search of the room, which turned up more items taken in the burglaries. In court, the detective stated that he never questioned the girl’s authority to grant him entry, but instead felt that he had no reason to believe that she did not have that authority, believing that the girl had common authority over the room was based simply on the fact that she had opened the door.
The Cooper court overturned the trial court’s finding that the detective’s entry into the motel room was lawful, holding that under the Rodriguez standard the detective could not reasonably infer that the girl was authorized to permit his entry, and that he “did not exercise caution, but instead jumped to a conclusion that was not warranted by the circumstances.”12
A similar case to Cooper is Williams v. State, 788 So. 2d 334 (Fla. 5th DCA 2001). The case may be summarized as follows: The Daytona Beach police department received several complaints that drugs were being sold out of a particular motel room. Six police officers in uniform went to the room and knocked on the room door. Their stated purpose was to conduct a “knock and talk,” i.e., to speak to the room occupant and attempt to obtain a consent to search for drugs. After knocking, a voice called out, “Who is it?” One officer responded with his first name. A woman (one Quain) then answered the door and, stepping back, said, “Come in.” The officers entered and saw a man (Williams) sitting on a bed, next to a night stand upon which is a baggie containing what appeared to be cannabis. Williams picked up the baggie and attempted to eat it. The officer prevented him from eating it, recovered the baggie, and arrested Williams for possession of cannabis. A search incident to this arrest revealed more illegal drugs and paraphernalia in the room. The police subsequently learned that the woman who answered the door was the motel manager and the girlfriend of Williams. The trial court upheld the entry of the police on the basis that the woman had the apparent authority to permit the police to enter the room, but the ruling was reversed by the Fifth District Court of Appeal, who remanded the case for the trial court to determine if the woman had actual authority to consent to the entry.
Here, as in Cooper, the court held the actions of the police did not comport with the requirements of Rodriguez, and that merely because the person who answered the door consented to the entry, the police were not entitled to believe that the person had the authority to consent:
Here, the police, based on nothing more than an unidentified woman with no known connection to the motel room other than her act of opening the door, concluded that she had the actual or apparent authority to consent to such entry. We find that conclusion to be unsupported by the facts then known to the police officers. For the foregoing reasons, we conclude that the trial court erred in denying the motion to suppress.13
Along these same lines, a more recent case is Moore v. State, 830 So. 2d 883 (Fla. 2d DCA 2002). In Moore, the facts as related seem a bit muddled but the following appears to have occurred: The police were watching an apartment after receiving information of drug activity there. The police knew the listed renters were a woman and her two children, and they knew the defendant, Mr. Moore, frequented the apartment. After seeing two men and a woman enter, the police went to the door and knocked, with the intent of speaking to the occupants. A man (not Moore) answered and allowed them entry saying, “Come in” or “I have no problem.” Subsequently, Moore was located in the apartment and charged with possession of cocaine found in plain view in an upstairs room.
The Moore court, citing Rodriguez, held the motion to suppress14 filed in this case should have been granted, finding that
Here, the record provides no factual support for a conclusion that the officers possessed a reasonable, albeit erroneous, belief that the person consenting to the entry had the authority to do so. Instead, the facts demonstrate that the officers knew nothing about the status of the man responding; his connection to the apartment was never confirmed. Unfortunately, in their eagerness to investigate an uncorroborated anonymous tip, the officers took no time to ascertain whether the person who answered the door could lawfully consent to their entry.15
The problem with the Cooper, Moore, and Williams decisions is that these courts recognize the reasonable man standard of Rodriguez, but then seemingly choose to ignore it. In Rodriguez, the U.S. Supreme Court said it is conceivable that there may be circumstances where despite a clear consent to enter by a person claiming authority to consent, there are facts which would give a reasonable man pause; on this no one could disagree. But, by choosing to use the word “conceivable” the Rodriguez court clearly implied that such circumstances would not be the norm, but rather the exception, entailing an unusual or quirky fact pattern. But there are no such weird circumstances facing the police in Cooper, Williams, or Moore. The facts of these cases are precisely of the type whereby to expect the police to inquire further would be entirely unreasonable, i.e., no reasonable person would be expected to do so in these circumstances. Indeed, one would strain to invent circumstances where the woman answering the door would not have the authority to allow entry, e.g., that she is an intruder unknown to the renter.16
The Cooper court made an interesting statement, which was cited in both Williams and Moore : “The mere fact that an unknown person opens the door when a police officer knocks cannot, standing alone, support a reasonable belief that the person possesses authority to consent to the officer’s entry.”17
The holding of the Cooper opinion is grounded upon this rather remarkable statement, an ipse dixit, unsupported by citation, which is simply contrary to normal human experience. The fallacy can be demonstrated simply by substituting “an individual” for “a police officer” in the sentence. It would plainly be reasonable for a person to make this assumption under these circumstances, and would in fact do so without a moment’s pause for consideration.
The Cooper, Williams, and Moore decisions all share one more characteristic: They make no of mention of the underlying basis for third party consents, i.e., assumption of risk.
• Assumption of Risk—The Foundation of Third Party Consents
The logical and legal basis for validating third party consents to search is a fairly simple one: assumption of risk. As stated in 1969 by the U.S. Supreme Court in Frazier, wherein the defendant challenged a search of a duffel bag pursuant to a consent by a joint user of the bag:
Petitioner argues that Rawls only had actual permission to use one compartment of the bag and that he had no authority to consent to a search of the other compartments. We will not, however, engage in such metaphysical subtleties in judging the efficacy of Rawls’ consent. Petitioner, in allowing Rawls to use the bag and in leaving it in his house, must be taken to have assumed the risk that Rawls would allow someone else to look inside. (Emphasis added)18
In 1974, the U.S. Supreme Court reiterated this in State v. Matlock :
Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements … but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
An acknowledgment or discussion of this assumption of risk foundation for third party consents appears nowhere in the Williams, Cooper, and Moore opinions.19 Clearly, the individual defendants in each of these cases had assumed the risk that the other individual invitees within their residence would answer the door and allow entry to others.
• Status of “Entries” Under the Fourth Amendment
The Williams, Cooper, and Moore cases demonstrate the need for the judiciary to recognize an important point, i.e., the difference between forced warrantless entries and consensual entries. This is a distinction rarely made in the case law, yet it is one which seems more and more clear the closer one examines the law on consents.
The U.S. Supreme Court stated in 1972: “(P)hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court for the Eastern District of Michigan, Southern Division, et al., 407 U.S. 297 at 313 (1972). Certainly, there are few acts or threats more invidious to a free society than a military or police force forcibly entering a citizen’s home without impartial judicial review and sanction. This was fresh in the minds in the founding fathers when the Fourth Amendment was drafted, and it remains fresh to those who have lived under totalitarian rule in modern times. But contrast these thuggish scenes of violence to that of a policeman knocking on a door asking to speak to the individual answering the door and being invited inside. While this too is a “physical entry,” it is of such a fundamentally different nature that for the courts to rigidly deal with it on the same status as a forcible entry leads to absurd results.
This was recognized in the federal courts as far back as 1964, where the Ninth Circuit Court of Appeal in Davis v. U.S. , 327 F.2d 301 (9th Cir. 1964), examined a consensual entry by the police into a residence, the consent given by the defendant’s eight-year-old daughter:
The eight-year-old Pamela who opened the door, and the defendant himself, testified on the motion to suppress. When the defendant was on the stand, he made no claim that Pamela’s actions in opening the door or inviting the men in was in any way unusual or unauthorized, nor did Pamela testify that the opening of the door or telling the officers to come in was against the instructions of either of her parents. From all the evidence before it, the trial court was entitled to conclude then that her opening the door and invitation to enter were not unusual or unexpected or unauthorized acts. There was no evidence that the officers, in any way, suggested or requested an invitation to enter to search the house, or either by “compulsion of authority” or by physically breaking or while the right of officers to thrust themselves into a home is of grave concern (citation omitted), there was no evidence of thrusting. (emphasis added)20
The Fourth Amendment does not contain the word “entry,” as it does the words “search and seizure.” In one sense, this is not an idle point. Only things that have been illegally acquired by the police—things for which the police search and seize—namely, physical evidence or statements by the defendant, are subject to the exclusionary rule. An illegal entry by the police, standing alone, where no evidence is acquired is of little or no import to a criminal defendant’s case. Where the police commit a criminal or civil trespass there may be subsequent legal repercussions to them personally or to their employer, but the criminal defendant’s case will likely not be affected, as it would be by an illegal search or seizure.
Another important consideration is the difference between a consent to a mere entry versus a consent to a search. There seems to be a substantive dissimilarity between requesting to be consensually admitted to the threshold of a residence—which can be done by a member of the general public without raising an eyebrow—and requesting consent to search that residence. A search is obviously far more intrusive and invasive, and a consent obtained to do so should require a far more exacting analysis by the judiciary.
The Approach in Federal Courts
The federal courts have approached this issue in a manner more suited to a reasonable interpretation of Rodriguez. Probably the case closest factually is United States v. Rosario, 962 F.2d 733 (7th Cir. 1992). In Rosario, the police responded to a call at a motel that a perceptible small of marijuana was coming from a particular room. The police determined to whom the room was registered, one Augusto Estrada. A check of his driver’s license revealed him to be 46 years of age. Four police officers went to the room and knocked. A man, apparently much younger than 46 (later identified as one Vilaro), answered the door. The police explained they were responding to the reported odor of marijuana emanating from the room and requested permission to enter. The man who answered quickly gestured for the police to enter, opened the door fully, and stepped back to allow them in. The police entered and eventually ended up arresting Estrada and the appellant, Rosario, after finding them in possession of cocaine.
Rosario challenged the warrantless entry of the police into the room, alleging the police lacked sufficient information to reasonably believe that Vilaro had the apparent authority to consent to their entry, especially since Vilaro was clearly younger than the registered renter of the room. The Seventh DCA rejected the defendant’s claim and upheld the entry, reasoning that after the room door was opened:
allowing Vilaro unfettered access to the door, the appellants also gave him discretion to decide whom to admit, thereby sacrificing some degree of their privacy. Since “[t]he underpinning of third-party consent is assumption of risk,” one’s expectation of privacy in such a situation “is not absolute, but contingent in large measure on the decisions of another.” (citation omitted). . . . In short, nothing about the interaction between Vilaro and the officers at the door conceivably could have undermined a reasonable person’s impression that Vilaro was vested with the power to allow whomever he pleased into Room 315.21
The Rosario court then rejected the claim that the age differential between the man who answered the door (Vilaro) and the known age of the renter (Estrada) required the officers to make further inquiry of the individual who answered the door:
Despite the appellants’ arguments to the contrary, the record indicates that the officers actually received ample information to conclude with reason that Vilaro possessed the authority to allow them into the room. No further inquiry was required of them because Vilaro acted at all times as though he were the keeper of the door to Room 315. Neither of the defendants endeavored to challenge such appearances.22
The Rosario court thus deemed the entry by the police as reasonable, where the person answering the door “projected an aura of authority upon which one can reasonably rely,” even where the police had reason to believe this person was not the registered renter of the motel room. Rodriguez would seem to require no more. It would indeed be an unusual situation where an individual answering a knock at the door of a motel room would not “project an air of authority”; the mere fact they answer the door would seem to raise a presumption that they have the authority to permit entry. Where the individual would lack such “an air of authority,” it would be incumbent upon the police to inquire further as to their status.
Another federal case factually on point is U.S. v. Gutierrez-Hermosillo, 142 F.3d 1225 (10th Cir. 1998), in which four agents from the DEA and U.S. Border Patrol went to the motel room registered to the defendant at 6:00 am, after a drug dog alerted to a truck in the motel parking lot. The truck was listed on the defendant’s room registration. The agents knocked on the motel room door and a female answered, “Who is it?” An agent replied, “The police” and the door was opened by the defendant’s 14-year-old daughter. The agents knew from a previous contact with the defendant that his daughter was traveling with him. The daughter allowed the agents in at their request. This entry led to a subsequent consent by the defendant to search the truck, resulting in the discovery of a large amount of marijuana hidden inside.
The 10th Circuit Court of Appeals found that two other federal circuits had held that a minor may have the capacity to consent to the entry of law enforcement officers, and focused on the defendant’s assuming the risk that others may answer the door:
We agree that minority does not, per se, bar a finding of actual authority to grant third-party consent to entry. After analyzing the relevant case law and the testimony presented at the hearing on Defendant’s Motion to Suppress, we hold that the officers could reasonably believe that Nora had the authority to allow them to enter the motel room. Nora appeared to be 14 years old, and she answered the door of the motel room. The officers knew that she was traveling in the company of her father. These facts are sufficient to establish the officers’ reasonable belief that Nora had mutual use of the motel room and that Defendant assumed the risk that she would permit the officers to enter the motel room.23
Permitting third party consents to enter is not a recent trend in the federal courts. At least two pre- Rodriguez cases permitted such consensual entries.
The first, Davis v. U.S. , 327 F.2d 301, dealt with two U.S. Customs agents who went to the defendant’s residence to speak with him about some information they had received that he was trafficking in marijuana. Their knock at the door was answered by the defendant’s eight-year-old daughter. The agents expressed a desire to speak with “Albert Davis.” Her response was to invite them in. The agents noticed marijuana in plain view, and the affair went downhill from there for Mr. Davis.
The Ninth Circuit upheld the proceedings, dismissing the defendant’s claim that the agents needed probable cause to enter the premises:
Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof—whether the questioner be a pollster, a salesman, or an officer of the law.24
The court added:
It was not unlawful for the officers to do as the testimony here showed: knock on the door, and when the door was opened, state, “I would like to talk to Albert Davis.” When the one who opened the door said, “Come in,”’ neither the time, nor the officers’ intent, nor the total circumstances, nor the Fourth Amendment demanded that they should remain outside.25
The Davis court was impressed that the agents’ intent in going to the residence was not to conduct a search nor to arrest anyone; rather, their purpose was simply to speak to the defendant. The court found no constitutional infirmities in their actions.
The second pre- Rodriguez case was U.S. v. Turbyville, 525 F.2d 57 (8th Cir. 1975). Here, the Eighth Circuit Court of Appeals upheld a consent to enter obtained from the defendant’s co-occupant (albeit temporary), finding that the consenting party had common authority over the residence. The court also found that the consenter’s act in opening the door a few feet and stepping back constituted an implied invitation to enter the premises.
Conclusion
The Florida appellate courts have been unduly restrictive in demanding that police officers interrogate those who respond to a police knock at the door of a residence before accepting an invitation to enter. These opinions require the individual policeman in such a situation to behave in a manner contrary to normal personal interaction. A better, more reasoned approach is found in the federal court cases on this point. These federal cases more closely hew to the standards and analyses set out by the U.S. Supreme Court to govern such situations.
1 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”
2 Fla. Const. art. 1, §12 states in regard to search and seizure rights that “(They) shall be construed in conformity with the 4th Amendment of the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.”
3 Warden v. Hayden , 387 U.S. 294 (1967).
4 United States v. Shaibu , 920 F.2d 1423 (9th Cir. 1990).
5 The Schneckloth Court stated at 228–29: “In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence.. . . And in those cases where there is probable cause to arrest or search, but where the police lack a warrant, a consent search may still be valuable. If the search is conducted and proves fruitless, that in itself may convince the police that an arrest with its possible stigma and embarrassment is unnecessary, or that a far more extensive search pursuant to a warrant is not justified. In short, a search pursuant to consent may result in considerably less inconvenience for the subject of the search, and, properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity.”
The Court added at 231–32: “Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person’s home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning. The police may seek to investigate further suspicious circumstances or to follow up leads developed in questioning persons at the scene of a crime. These situations are a far cry from the structured atmosphere of a trial where, assisted by counsel if he chooses, a defendant is informed of his trial rights.”
6 Florida v. Royer , 460 U.S. 491 (1983).
7 U.S. v. Mendenhall , 446 U.S. 544 (1980).
8 Schneckloth , 412 U.S. at 227.
9 In Matlock , a 6-3 majority of the U.S. Supreme Court rejected the view of Justice Douglas that, absent exigent circumstances, the Fourth Amendment mandates that if the police can secure a search warrant, they must do so, and that no consent may override this principle. The majority also rejected the view of Justices Brennan and Marshall that for a consent to be valid, the government must demonstrate that “(the consenting party) consented knowing that she was not required to consent.” Matlock , 415 U.S. at 1001.
10 Frazier , 394 U.S. 731 (1969), wherein the defendant challenged a search of a duffel bag pursuant to a consent by a joint user of the bag: “Petitioner argues that Rawls only had actual permission to use one compartment of the bag and that he had no authority to consent to a search of the other compartments. We will not, however, engage in such metaphysical subtleties in judging the efficacy of Rawls’ consent. Petitioner, in allowing Rawls to use the bag and in leaving it in his house, must be taken to have assumed the risk that Rawls would allow someone else to look inside.” 394 U.S. at 740.
11 Rodriguez , 497 U.S. at 188–89.
12 Cooper , 706 So. 2d at 372.
13 Williams , 788 So. 2d at 337.
14 There is no indication in Moore that the state raised the issue of whether the defendant had the requisite standing to object to the entry by the police.
15 Moore , 830 So. 2d at 886. This writer would suggest the following analysis: The police were greeted at the door by an unknown man. The police requested entry to speak to Mr. Moore. They had no reason to believe the man was not authorized to allow entry as exemplified by the fact that he peacefully answered the door. There was no sign of an argument or trouble inside the apartment, not anything to indicate that the lawful resident was not aware of the man’s presence or had a problem with him answering the door. It would not be uncommon for an apartment dweller to have visitors over and for them to answer a knock at the door, nor unreasonable for another to believe the visitor was authorized to allow them entry.
16 This may be best illustrated by slightly changing the facts of Williams . Suppose that, rather than going to the motel room for the purpose of investigating a narcotics complaint, the police went there to return a lost wallet. The police knock on the door, a woman answers and invites them in. Would it be reasonable then to expect the police to question the woman about her authority to invite them in? Of course not; such behavior would run counter to normal human interaction and affairs. What if it were not the police knocking on the door, but rather a salesperson or a pollster? Would we reasonably expect a person in that position to question the adult woman who answers the motel room door about her authority to invite them in? Again, the answer is obviously no.
The motive of the police in going to the residence (be it a motel room or a single-family home) is of no moment constitutionally. The U.S. Supreme Court has shied away from using a subjective standard in examining the actions of police under the Fourth Amendment. Horton v. California , 496 U.S. 128, 138-7-38 (1990). The Court said in Whren v. U.S ., 517 U.S. 806, 813 (1996), “(W)e have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers.”
17 Cooper , 706 So. 2d at 371–72.
18 See supra note 10.
19 The Florida Supreme Court expressly adopted the assumption of risk foundation for third party consent searches in Saavedra v. State , 622 So. 2d 952, at 956-57 (Fla. Sup. Ct. 1993).
20 Davis , 327 F.2d at 304.
21 Rosario , 962 F.2d at 737.
22 Id. at 738.
23 Gutierrez-Hermosillo , 142 F.3d at 1231 (emphasis added).
24 Davis , 327 F.2d at 303.
25 Id . at 305.
Joseph D. Robinson is an assistant state attorney and chief of the felony screening unit of the Miami-Dade State Attorney’s Office. He received his B.S. from the University of Illinois in 1976 and his J.D. from Northern Illinois University in 1981. He previously wrote A Loitering and Prowling Primer , published in the November 1997 Florida Bar Journal.
