Quinlan's Narcotics Law Pop Quiz

From: Quinlan Law Enforcement E-News Report September 25, 2008.

Question:

Lawicki went to the sheriff's office to try and regain custody of her infant daughter. Lawicki explained she lived with her boyfriend Ryerson and their daughter in a home on Gillette Lane. Lawicki was accompanied by Curley, with whom she was staying, although she told the officers she was not romantically involved with him. Lawicki stated that she had left Gillette Lane three days earlier after an argument with Ryerson, and had then returned to get her daughter and belongings. She claimed she could not enter the home because Ryerson (who was then in jail because he had traveled to Illinois in violation of his probation) had changed the locks while she was away. The police told Lawicki she could break a window as long as she lived there. Lawicki did so, and Krumscheid, an employee of Ryerson's entrusted to care for the house, reported a burglary to the police. The next day, police interviewed Lawicki about the alleged burglary. Once again accompanied by Curley, Lawicki told the officers that she had lived at Gillette Lane for the past 10 months, although she and Ryerson were divorced. She also told the officers that Ryerson sold drugs and stored weapons at the residence, including a submachine gun. The police asked Lawicki if they could search the residence, and Lawicki signed a permission to search form. The police went to Gillette Lane with Lawicki. Before entering, Lawicki correctly anticipated and warned the police about a "vicious cat" inside the house. She said the house was in Ryerson's name, but that she had bought the property with him and lived there with their baby. While the officers searched the residence, Lawicki went to the basement and retrieved some business records for the Dells Cab Company, a taxicab company she and Ryerson co-owned and ran from the residence. The house also contained Lawicki's and her baby's personal items, including clothes and toys. During the search, the police discovered a machine gun, rolling papers, and a digital scale. Did Lawicki have the authority to consent to the search?


Answer:

Yes. Although a third party generally could not consent to a warrantless search of another's home, there was an exception where the government could show by a preponderance of the evidence that the third party possessed common authority or a sufficient relationship to the property being searched. The authority to consent did not depend on property law distinctions, but instead depended on whether there was mutual use of the property by people who generally had joint access or control. Under these circumstances, Lawicki had authority to consent to the search. Lawicki was Ryerson's ex-wife and then-current girlfriend. Although Lawicki was staying with Curley at the time of the search, she told the police that her relationship with him was not romantic. She had lived at Gillette Lane with Ryerson and their infant daughter for 10 months before the search, which was a significant amount of time. Ryerson did not claim he kicked her out of the house; rather, Lawicki appeared to have left on her own accord after a tiff with him, and took only an overnight bag when she left. Even if she had planned to move out, she had not done so at the time of the search. As the officers noticed, Lawicki had left many of her and her baby's belongings in the home. Moreover, Lawicki remained connected to the home through her co-ownership of the Dells Cab Company. There was no evidence that Lawicki had quit her managerial role or sold her stake in the company before the search. Consequently, Lawicki sill had a right to access the company records kept in the basement of the house. This right of business access, by itself, would not have given Lawicki the power to consent to entry into the home, but combined with Lawicki's long-term and continuing residence at Gillette Lane, Lawicki had a sufficient relationship to the home to have actual authority to permit the search.

Citation: U.S. v. Ryerson, 2008 WL 4248193 (7th Cir. 2008)