Common Authority Over Shared Property as Basis for Search and Seizure

By Reddin & Singer

Home Computer

In order to conduct a constitutional search and seizure of an individual’s property, the Fourth Amendment requires that law enforcement has either probable cause to conduct such a search or consent from the individual who owns the property. Unique issues arise when property is jointly owned by two or more individuals, such as when a landlord and a tenant are both technically owners of an apartment, or when a car is owned by two different individuals. A recent case before the Seventh Circuit considers whether an individual with “authority” over property, but not ownership, can consent to a search that ultimately results in criminal charges against the owner.

In United States v. Wright, police responded to a domestic dispute between Mr. Wright and his ex-girlfriend, Ms. Hamilton. During the investigation of the dispute, Ms. Hamilton referred to Mr. Wright as a “pedophile.” On the next day, investigators specializing in crimes against children contacted Ms. Hamilton to follow up on this comment. Ms. Hamilton explained that Mr. Wright had visited a website called “Jailbait,” which investigators knew often featured images of underage children. The investigators asked Ms. Hamilton if she used the computer that Mr. Wright used, which she did, and they asked for her consent to search it. She agreed. When investigators viewed the computer hard drive, they found child pornography on the computer. Wright was charged with possession of child pornography, and he moved to suppress evidence from the computer search, which he said was obtained without the necessary consent from him. The trial court disagreed, finding that since Hamilton and her children regularly used the computer for family activities, Hamilton had common authority over the computer and could give valid consent for the computer to be searched.

The Seventh Circuit noted that in order for a search to be constitutional, police can obtain consent from a defendant or from a third party that has common authority over the property that the police want to search. Common authority occurs when there is mutual use of the property “by persons generally having joint access or control for most purposes.” However, consent to general property is not sufficient. Law enforcement must obtain consent for the specific area to be searched. Here, Mr. Wright argued that although Ms. Hamilton had common authority over the apartment they shared, she did not have authority over the computer because it was his.

The Seventh Circuit disagreed. It found that it was clear she had common authority over the computer because it functioned as a family computer, and Hamilton and her kids freely used it to watch movies, surf the internet, and do research online. Additionally, the court also noted that Mr. Wright left the computer at the apartment even after he moved out, giving Ms. Hamilton free access to the computer. Even though Mr. Wright and Ms. Hamilton were technically split up at the time, the Seventh Circuit noted that an ex-partner can continue to exercise authority if he or she continues to have access to the property. Accordingly, the Seventh Circuit affirmed the district court’s denial of the motion to suppress.

If you are a criminal defendant whose property has been searched without your consent, you may have an argument that the police lacked probable cause or the necessary consent to justify a constitutional search. If third parties allegedly provided the consent necessary, a sophisticated defense attorney can assist you in arguing that such third parties lacked the necessary authority to provide such consent. At Reddin & Singer, LLP, our experienced Milwaukee child pornography lawyers are available to assist you. To find out more about how to protect your rights during the sentencing phase, do not hesitate to contact the law offices of Reddin & Singer, LLP online or give us a call at (414) 271-6400.