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Seventh Circuit: Woman Answering Door of Suspect’s Residence Wearing Bathrobe Does Not Constitute Apparent Authority to Consent to Search

by Chad Marks

The U.S. Court of Appeals for the Seventh Circuit asked itself an interesting question, viz.: “Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect’s residence?” The Court held that it is not.

Dimitris Terry returned home after taking his son to school. When he exited his car, DEA agents placed him under arrest. Once under arrest, he was transported to the DEA’s Chicago field office for questioning.

Two agents stayed behind and knocked on the door of Terry’s apartment. A woman in a bathrobe answered the door and let the agents in upon their request. No one asked the woman who she was, how she was related to Terry, or whether she lived in the apartment. All the agents knew at that time was this woman answered the door looking sleepy in a bathrobe. She was presented with a consent to search form, which she promptly signed.

After the search was already underway, agents asked the woman who she was. This is when they learned that she was the mother of Terry’s son, but she did not live at the apartment. Rather than ceasing their search at that moment, they continued with their search for about an hour. The search turned up letters addressed to Terry showing proof of residence, four cellphones, and a suspected drug ledger.

Terry was charged with possession and conspiracy to possess and distribute heroin in violation of 21 U.S.C. §§ 841(a) and 846. He moved the court to suppress the evidence recovered from the search arguing that it was unlawful because the woman in the bathrobe, Ena Carson, had neither actual nor apparent authority to consent to the search. He pointed out that had the agents inquired they would have discovered that Carson did not live at the apartment and had no authority to consent to the search of his residence.

The district court held an evidentiary hearing in which both Terry and the agents testified. Upon conclusion of the hearing, the court denied the motion finding that it was reasonable for the agents to assume Carson lived at the residence and had authority to consent to the search.

The Seventh Circuit reversed that decision by answering its own question that it is not reasonable for officers to assume that a woman who answers the door in a bathrobe without any additional information has authority to consent to a search of a male suspect’s residence.

The Fourth Amendment prohibits the government from searching someone’s property absent a warrant. There are recognized exceptions to the warrant requirement such as where a third party may give consent when such person has actual or apparent authority to give such consent to search. United States v. Basinski, 226 F.3d 829 (7th Cir. 2000).

However, in the present case, Carson had neither actual nor apparent authority to grant consent to search Terry’s residence. The Court noted that at the start of the search agents only knew that Terry left Carson alone in the apartment for about 45 minutes, she was wearing a bathrobe, appeared sleepy, and consented to the search without hesitation. With this limited information regarding who she was and her relationship to Terry and his residence, the Court concluded that she did not have apparent authority to grant consent. As such, agents were required to gather additional facts to determine whether she had actual authority to grant consent.

In ruling to reverse the denial of Terry’s suppression motion, the Court stated, “A bathrobe alone does not clothe someone with apparent authority over a residence, even at 10:00 in the morning.”

Accordingly, the Court reversed the district court’s denial of Terry’s motion to suppress evidence gathered during the search of his residence and remanded the case for proceedings consistent with its opinion. See: United States v. Terry, 915 F.3d 1141 (7th Cir. 2019). 

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