Ninth Circuit Finds that DEA Agents Unreasonably Relied Upon Consent of House Guest to Search Residence

Written by FEDagent on 05 December 2013. Posted in Case Law Update

Multiple Special Agents of the Drug Enforcement Administration (“DEA”) conducted a knock and talk at the home of Omar Arreguin.  When they knocked on the door, a houseguest, Elias Valenica, Jr. answered the door.  The police asked Mr. Valencia if they could enter, he said that they could, and Special Agents entered and conducted a sweep, discovering suspected drugs and a large quantity of cash, and obtaining incriminating statements.  The United States Court of Appeals for the Ninth Circuit found that the Special Agents had not lawfully entered the residence, because Mr. Valencia did not have authority to consent to a search, and the Special Agents had insufficient reason to believe he possessed authority to consent to a search.  

At 11:00 a.m. on August 16, 2008, DEA Special Agents John Rubio, Paul McQuay, Chad Corbin, Group Supervisor Daniel Neill, and other law enforcement officers conducted a “knock and talk” at a residence in Riverside, CA.  The residence was the home of Omar Arreguin, his wife, Maria Ledesma-Olivares, and their infant. A houseguest, Elias Valencia, Jr., was also present.

Special Agent Rubio knocked on the door several times before a “sleepy-looking” Elias Valencia opened the door.  Special Agent Rubio held a brief conversation with Mr. Valencia, explaining that they were DEA Special Agents, and informing him that they “know this house.  There was drug-related activity before.  We would like to come in and look around.  Can we come in?”

With the door open, Special Agents Rubio and McQuay could see into the entry area of the home.  They were able to see Ms. Ledesma-Olivares, who was holding an infant.  They were also able to see Mr. Arreguin, who was holding a shoebox.  Mr. Arreguin disappeared and re-appeared approximately four times.  

Mr. Valencia informed the Special Agents that that were free to enter and they quickly did so.  Neither Mr. Arreguin nor Ms. Ledesma-Olivares expressed any objections to the Special Agents’ entry.  Special Agents then entered the residence.  Mr. Arreguin swiftly walked down the hallway to the master bedroom.  Special Agents McQuay and Corbin directed him to stop and return to the main entrance area.  He returned about 30 seconds later.  

Then, Special Agent Rubio began talking with Mr. Arreguin, and Special Agents McQuay and Corbin conducted a cursory safety sweep.  Special Agent McQuay quickly proceeded to the master bedroom because that is where Mr. Arreguin had briefly disappeared to.  Once in the master bedroom, he was able to observe that the shoebox which Mr. Arreguin had held was in the attached master bathroom.  Special Agent McQuay approached the box, which had its cover removed, and observed a white powder inside the box.  The box was then seized.  

The Special Agents proceeded to sweep the garage.  Inside of the garage was a parked Toyota Corolla.  Special Agent McQuay observed through the vehicle’s windows that there were bundles of cash protruding from a Gucci bag.  The cash, which amounted to $176,990, was seized.  

After those seizures, the Special Agents spoke alone with Mr. Arreguin.  They informed Mr. Arreguin that he should sign a consent to search form because it would be beneficial to him.  Specifically, the Special Agents explained that they “would not refer Ms. Ledesma-Olivares’s case to immigration.”  Mr. Arreguin then signed the consent to search form, and led the Special Agents back to the Corolla and revealed a secret compartment containing five individually wrapped bricks of methamphetamine.  

Subsequently, the Special Agents interviewed Mr. Valencia, and he presented evidence that he was from Atlanta, GA.  The Special Agents learned, apparently for the first time, that Mr. Valencia was a houseguest.  

In the United States District Court for the Central District of California, Mr. Arreguin was indicted under 21 U.S.C. § 841, he moved to suppress the shoebox, the white substance, the Gucci bag, and the cash, claiming the Agents lacked consent for their warrantless search of the residence. After the district court denied the suppression motion, Mr. Arreguin entered a conditional guilty plea and appealed denial of the suppression motion for the United States Court of Appeals for the Ninth Circuit.  

In its decision, the court of appeals initially explained that a valid consent search of a home does not violate the Fourth Amendment, but that where consent is subsequently contested, it is the government which has the burden of proving that it had obtained consent to search.  

The court of appeals further elaborated that the government may meet its burden to show consent by demonstrating that: (1) a third party had “shared use and joint access to or control over a searched area”; or (2) “the owner of the property to be searched has expressly authorized a third party to give consent to the search.”  If the government cannot present proof that the consenting party had actual authority to consent to the search, then the government “may establish consent by means of the ‘apparent authority doctrine.’” 

“Under the apparent authority doctrine, a search is valid if the government proves that the officers who conducted it reasonably believed that the person from whom they obtained consent had the actual authority to grant that consent.’ [United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1993)]  ‘Apparent authority is measured by an objective standard of reasonableness, and requires an examination of the actual consent as well as the surrounding circumstances.’ United States v. Ruiz, 428 F.3d 877, 881 (9th Cir. 2005). Thus, in assessing whether an officer’s belief was objectively reasonable, the court considers ‘the facts available to the officer at the moment.’ Illinois v. Rodriguez, 497 U.S. 177, 188 (1990).” 

“[T]he Supreme Court teaches that a mere invitation to enter a particular premises is not itself adequate for apparent-authority purposes.  ‘Even when the invitation [to search] is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry.’ Rodriguez, 497 U.S. at 188 (emphasis added). Similarly, Ninth Circuit law provides that the ‘mere fact of’ a third party’s access to an area, ‘without more, does not indicate that the access was authorized’ and that the third party had authority to consent to a search of the area. [United States v. Reid, 226 F.3d 1020, 1025 (9th Cir. 2000).]” 

In light of these relevant legal standards, the court of appeals then analyzed the facts of this case.  The court of appeals noted that the Special Agents knew “virtually nothing” about Mr. Valencia, the home, or Mr. Valencia’s connection with the various parts of the home.  Although the Special Agents should have had some idea of who resided at the home prior to their knock and talk, they encountered an individual who they were unfamiliar with in Mr. Valencia, and yet did not ask him any further questions before they “quickly rushed past him” in order to “start rummaging around the Arreguins’ home.” . . .  “[T]he Agents were proceeding in a state of near-ignorance when they searched both the master suite and the area behind the second door in the master suite. They knew far too little to hold an objectively reasonable belief that Valencia could consent to a search of those areas.” 

The court of appeals went on to explain that “Valencia’s answering of the Residence door is not, in and of itself, adequate to justify a reasonable belief that he had authority to consent to a search of the master suite.”  Furthermore “[t]he fact of Valencia’s presence inside the Residence at 11 a.m. is similarly unhelpful to the government. It is ‘hardly unusual to have’ three or four ‘visitors at one’s home,’ or guests who might visit ‘late at night’ and then perhaps spend a late morning sleeping in one’s home. United States v. Rios, 449 F.3d 1009, 1015 (9th Cir. 2006). Individual schedules for working, visiting friends, receiving guests, and sleeping vary tremendously.” 

The government argued that Mr. Arreguin and Ms. Ledesma-Olivares’s presence and failure to object when Mr. Valencia consented to the Agents’ entry were additional factors supporting Mr. Valencia’s apparent authority to consent. However, the court of appeals found this unpersuasive, as the record indicated that at the moment Mr. Valencia gave his consent, the Agents still did not know anything about him or the other two adults near the foyer, “including which, if any of the them, lived in the Residence.”  Since the agents did not know that the actual residents were present and not objecting at the time consent was given, the government could not claim that as supporting justification after the fact.  

Of the remaining relevant facts known to Special Agents, the court considered the fact that Mr. Arreguin disappeared and placed a shoebox in the master bedroom should have indicated to Special Agents that it was he, and not Mr. Valencia, who had authority over the master suite.  

The government argued in the alternative, that the objects had been discovered during a protective sweep, and that the items were in plain view.   The court of appeals refused to consider the protective sweep argument as it had not been presented as a basis for authority to search at the district court, and thus it would be improper to consider on appeal.  The court of appeals further elaborated that the plain view doctrine is only applicable when officers are lawfully present, and the DEA Special Agents were not lawfully present.  

Accordingly, the court of appeals reversed the district court and suppressed the discovery of the shoebox, the white substance, the Gucci bag, and the cash.  The court of appeals remanded the matter to the district court with instructions to determine whether the methamphetamine bricks and Mr. Arreguin’s incriminating statements were admissible evidence, or if they too were obtained in violation of the Fourth Amendment.  

This case, United States v. Arreguin, is available here.