Saturday, April 30, 2005

Be sure not to unpack your incriminating evidence.

One Mr. Loomis was staying at his sister's house after being released from jail. For two nights, he slept on a pull-out couch in his sister's living room. The sister was even nice enough to drag an unused dresser into the living room for his use while staying with her. Unfortunately, the police came calling on the third day of Mr. Loomis' stay, suspecting that he may have been involved in a murder the day before. The sister's family courtesy extended only so far. She gave the police consent to search the dresser being used by her brother, and bloodstained clothing and incriminating letters were found. Mr. Loomis moved to suppress the evidence found in the dresser, arguing that his sister did not have the authority to consent to the search. In a 3-2 memorandum decision, the Fourth Department upheld the trial court's decision, finding the "Defendant's sister was the undisputed owner of the dresser, which was located in a common area of her residence, and it is uncontroverted that she gave the police consent to search that piece of furniture without a warrant." (People v Loomis, KA 02-02746.) The majority found these facts sufficient to conclude that the sister had "common authority over the dresser" sufficient to give her the right to permit the search. (Id.)

Judges Hurlbutt and Martoche dissented, noting that,

a homeowner's authority over the premises does not extend to a 'guest's closed container (or similar item) . . . customarily used to hold one's most personal belongings'. Thus, '[o]verwhelmingly, the courts have . . . rejected the sufficiency of a host's general consent to search premises to validate the search of a guest's overnight bag, purse, dresser drawers used exclusively for the guest's personal effects, or similar objects.'

(Id. at 3 [citing People v Gonzalez, 88 NY2d 289, 295][emphasis in original].)

Given the burden to establish the sister's "common authority" over the dresser, and further given the undisputed proof developed at the hearing (that the "dresser, owned by defendant's sister, had been placed in the living room for the exclusive use of defendant, and had not been used by anyone else" [Id.]), the dissenters would have held that the People failed to meet their burden to prove the sister had authority to consent to the search.

The majority did not attempt to distinguish Gonzalez, which is odd since it seems Gonzalez is a Court of Appeals decision factually on-point and seemingly dispositive against the majority's argument. One wonders if the majority's decision would have been any different if the sister had loaned Mr. Loomis a duffel bag to keep his stuff in, and the police had searched the duffel bag containing Mr. Loomis' personal items on her consent. It doesn't seem like the sister's authority to consent to a search of her brother's possessions should turn on the type of container she allows him to exclusively use while a guest, but the majority's opinion would seem to hold otherwise. I guess the lesson to learn is that, while an overnight guest at a friend's or relative's house, keep your incriminating evidence in your own suitcase (or instruct your host on the niceties of Fourth Department precedent and make sure they know enough not to consent to a search of your stuff).