A recent case from the 2nd Appellate District dealt, in part, with the issue of whether a third-party or family member can provide consent to search your house in Ohio. The case, State v. West, began when Jasmin West was at home with her three children, her father, Thomas West, and her grandfather.
Mr. West came upstairs and, after stepping in dog feces, began yelling profanities at Jasmin’s child. Mr. West left the residence and later returned intoxicated. He put a shotgun on a table and went to the basement to retrieve a handgun. Jasmin hid the shotgun. When Jasmin refused to return the shotgun, Mr. West fired the handgun near Jasmin’s head and threatened to kill Jasmin and her children. Jasmin and her children fled the residence and called the police.
A deputy with the Greene County Sheriff’s Department responded to the scene and found Jasmin and her child several houses away. Mr. West was arrested at the scene. Jasmin gave the deputies permission to search the home’s yard, where a shotgun and shells were found.
A detective with the Greene County Sheriff’s Department returned to the home at a later date to find the handgun. Jasmin executed a consent to search form, but the handgun was not located. Jasmin called the detective later after finding the handgun. The detective returned to the home and, after Jasmin signed a consent to search form again, located the handgun.
West was indicted on two counts of felonious assault pursuant to R.C. 2903.11 with accompanying firearm specifications; two counts of weapons under disability in violation of R.C. 2923.13; and one count of tampering with evidence in violation of R.C. 2921.12. A motion to suppress was filed, arguing that the search conducted by law enforcement was in violation of West’s constitutional rights. The motion was denied and West was found guilty at trial.
Consent to Search by Third-Party or Family Member
West raised a number of issues on appeal, including arguing that the necessary consent was not provided for a warrantless search of the residence. Specifically, West argued that the search that uncovered the shotgun and handgun was invalid as the police did not have a warrant and Jasmin did not have authority to consent to the search because she was a tenant in the house which belonged to her grandfather.
The Fourth Amendment to the United States Constitution requires law enforcement to obtain a warrant based on probable cause prior to any search, unless a recognized exception applies. Valid consent is one such exception.
When the person from whom consent is sought is not the defendant, in addition to the voluntariness of the permission, the authority of that person to consent can be an issue.
“A police officer may validly enter and search a home, without a warrant, when the officer has obtained the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a non-present co-occupant.” See State v. Keggan.
Consent can be given by a third-party, but the third-party must possess “common authority over the area sought to be searched.” See State v. Miller. Common authority turns 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 co-inhabitants has the right to permit the inspect 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. See State v. Pugh.
“Reasonable Belief” to Consent to Search
The United States Supreme Court has applied a “reasonable belief” standard for determining whether law enforcement’s reliance upon the consent of a third-party was proper. Before a trial court can conclude that a warrantless search was valid on the basis of a third-party consent, the court must first determine that the facts supported a reasonable belief by the officer that the third-party had authority to consent to search.
Jointly Controlled Property
What if the entire property is jointly controlled (ex. married couple, co-tenants of an apartment)? When the property to be searched is under the joint control of the defendant and a third-party, the authority of the third-party to consent turns on whether the defendant is present at the time of the search.
If the defendant is not present at the time of the search, the third-party has authority to consent. This is valid, even if the third-party lacks authority to consent, provided law enforcement had a reasonable belief to conclude that the third-party had authority. See U.S. v. Matlock.
If the defendant is present at the time of the search, the police may not rely on third-party consent if the defendant objects to the search. See Georgia v. Randolph.
The 2nd District Court of Appeals agreed with the trial court. The court found that Jasmin provided valid consent and the area searched was a common area shared by the occupants of the residence. Jasmin told detectives that she owned the house and wanted the house searched for the guns.
Even if Jasmin did not have actual authority to consent, law enforcement acted under a reasonable belief that Jasmin had authority to consent. Moreover, the search of the house was limited to common areas. Thus, the search was valid.
Columbus and Delaware, Ohio Criminal Defense Attorney
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