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Nevada Court of Appeals Rules Police May Not Conduct Warrantless Search Based on Third-Party Consent Where No Effort Made to Determine Whether Person Has Authority to Do So

by Richard Resch

The Nevada Court of Appeals ruled that law enforcement officers cannot conduct a warrantless search of a bedroom inside a shared residence by obtaining the consent of a third party without first asking about the living arrangements within the residence. The specific question at issue had not been squarely addressed by Nevada courts.

In January 2016, Gertrude Green’s vehicle was rear-ended at a red light in a hit-and-run. The male suspect was driving a truck. Police found a license plate at the scene that didn’t belong to Green’s vehicle. Dispatch advised that the plate belonged to a truck registered to Andrew Lastine. Deputy Francisco Gamboa went to the address listed on the registration.

Upon arrival, he observed a truck in the driveway of the residence with obvious front-end damage, and the license plate on it matched the one found at the accident scene. Gamboa also noticed footprints in the snow from the truck to the house. He then initiated a “knock and talk” investigation.

Robert Lastine answered the door and stepped outside. Gamboa advised him about the events leading up to the current discussion. Robert stated that Andrew is his nephew, owns the truck, and is likely in “the back bedroom.” Gamboa asked permission to enter the house to “find the owner of the truck,” and Robert said, “go get him.”

For his safety, Gamboa waited for back-up before going into the house. He didn’t attempt to get a telephonic search warrant while waiting. When Deputy Martin Obos arrived, they entered. Robert guided them to a hallway and pointed to a closed bedroom door. He indicated that Andrew would likely be in the bedroom.

At the door, the deputies announced themselves. There was no response, so they pushed open the door. They saw the silhouette of a person under a blanket on the bed who was later identified as Andrew. The deputies observed a pair of snowy and muddy shoes in the room together with footprints that apparently matched those leading from the truck.

Andrew was placed under arrest, and the arresting officer performed a search incident to arrest. A set of keys was found in his pants pocket. The officer used a key to unlock the truck and start it.

He was charged with leaving the scene of an accident involving personal injury. He sought to suppress all evidence gathered following the warrantless entry into his bedroom together with the warrantless entry into his truck. The trial court denied the majority of his suppression motion, granting only the suppression of the fact that the keys discovered in his pants unlocked and started the truck.

At trial, the jury found him guilty, and he was sentenced to three to 10 years in prison. He appealed.

On appeal, Andrew argued that the trial court erred in denying his motion to suppress because Robert lacked actual or apparent authority to consent to a search of his bedroom because it did not constitute “a commonly shared area.” Furthermore, he argued that there were no exigent circumstances justifying the warrantless entry into his bedroom. The Court of Appeals agreed.

The Court began its analysis by explaining valid third-party consent is a recognized exception to the Fourth Amendment’s warrant requirement. United States v. Matlock, 415 U.S. 164 (1974). The third party must possess “actual authority over or other sufficient relationship to the premises or effects sought to be inspected.” Id. Even if it turns out that the third party lacked actual authority, the warrantless search may nevertheless be valid under the apparent authority doctrine if police reasonably believed that the third party did in fact have actual authority based upon the available facts. Id. The government has the burden of establishing actual or apparent authority. Illinois v. Rodriguez, 497 U.S. 177 (1990).

Turning to the question of whether Robert had actual authority to consent to a search of Andrew’s bedroom, the Court ruled that he did not. Actual authority exists where the defendant and a third party have mutual use of or joint control of the location at issue. State v. Taylor, 968 P.2d 315 (Nev. 1998). Although Robert and Andrew cohabitated in the house, Robert did not have equal access to and control over Andrew’s bedroom. Robert testified that he did not freely enter the room and always knocked before entering; it was not a shared space. Consequently, the Court concluded that Robert lacked actual authority to consent to a search of the room.

Similarly, the Court agreed with Andrew’s argument that Robert lacked apparent authority because the deputies didn’t have sufficient facts available to them to make that determination. The Court observed that apparent authority is actually a misnomer because a third party doesn’t possess apparent authority. Instead, it exists when the available facts reasonably lead police to believe the third party has actual authority to consent. Illinois v. Rodriguez, 497 U.S. 177 (1990). The U.S. Supreme Court has instructed that when police search a location based upon third-party consent “in a state of near-ignorance” without inquiring about the person’s authority, they lack an objectively reasonable belief in the third-party’s authority to consent. Id.

In the present case, neither deputy made any inquiries into the living arrangements in the house. Specifically, they failed to ask about the use, access, or control over the bedroom at issue. That is, their warrantless entry based upon Robert’s third-party consent was “in a state of near-ignorance.” They neglected to ensure that he had authority to consent to the warrantless intrusion into Andrew’s bedroom, and thus their reliance on Robert’s consent was not objectively reasonable.

Since Robert lacked actual authority to consent and the deputies did not have an objectively reasonable belief that he had such authority, the Court concluded “the deputies’ warrantless search was constitutionally unreasonable.” The Court ruled that the trial court erred in denying Andrew’s motion to suppress in its entirety, and the error was not harmless beyond a reasonable doubt.

Accordingly, the Court reversed the conviction and remanded with instructions to grant the motion to suppress all evidence gathered as a result of the illegal entry into the bedroom. See: Lastine v. State, 2018 Nev. App. LEXIS 5 (2018). 

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