Upon a suppression motion, "[i]t is the government's burden, by a preponderance of the evidence, to show through clear and positive testimony that . . . valid and voluntary consent to the search was obtained." United States v. Davis, 283 Fed.Appx. 370, 373 (6th Cir. 2008) (quoting United States v. Worley, 193 F.3d 380, 385 (6th Cir. 1999)). A search pursuant to third-party consent will not violate the Fourth Amendment so long as the party granting consent had either actual authority or apparent authority to do so.
A live-in girlfriend may voluntarily consent to a search of her shared residence. United States v. Ables, 280 F. App'x 513, 518 (6th Cir. 2008) (unpublished) (collecting cases); United States v. Grayer, 232 F. App'x 446, 449 (6th Cir. 2007) (unpublished) (collecting cases); see also United States v. Davis, 283 F. App'x 370, 373 (6th Cir. 2008) (unpublished) (holding that a co-occupant has "common authority to consent to a search"). In addition, Loudenslager testified that, though Scioli had an out-of-state driver's license and lived with Defendant for four months, she shared a bedroom with him, kept clothes at their apartment, and was listed in the police database as living there due to prior incidents—all which led Loudenslager to "reasonably believe" that Scioli had "authority over the [apartment] in common with [Defendant]."
On a suppression motion, "[i]t is the government's burden, by a preponderance of the evidence, to show through clear and positive testimony that . . . valid and voluntary consent to the search was obtained." United States v. Davis, 283 F. App'x 370, 373 (6th Cir. 2008) (quoting United States v. Worley, 193 F.3d 380, 385 (6th Cir. 1999)). Whether Berry had actual authority to consent to the search is a close question, but we need not answer it because Berry had apparent authority.
These arguments are based on Randolph's warning against upholding searches where there is "evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection." Randolph, 547 U.S. at 121, 126 S.Ct. 1515; see, e.g., United States v. Stanley, 351 Fed.Appx. 69, 72 (6th Cir. 2009) (rejecting a suppression argument based on Randolph because, while the defendant was present when the co-tenant gave consent, he "did not refuse to consent to search the apartment" and "did not object after [the co-tenant] gave her consent"); United States v. Penney, 576 F.3d 297, 309 (6th Cir. 2009) (rejecting Randolph-based argument where defendant did not object but was never asked for consent even though he "was in custody at the same police station when and where" his co-tenant gave consent); United States v. Davis, 283 Fed.Appx. 370 (6th Cir. 2008) (rejecting suppression argument because "[a]t the time the search was conducted, [the defendant] was asleep in the house and did not respond to the police officers' request to gain entry" and thus "was unavailable to object to the search and did not in fact refuse consent"); Ayoub, 498 F.3d at 540-41 (rejecting defendant's allegation that the police intentionally bypassed him in order to ask someone else with apparent authority for consent to search). In sharp contrast to the defendants in these cases, Tatman actually objected to Clark's entry and did so while Clark was still standing in his front doorway and well before the search began.
Furthermore, it is the Government's burden, by a preponderance of the evidence, to show that “valid and voluntary consent to the search was obtained.” United States v. Davis, 283 Fed.Appx. 370, 373 (6th Cir. 2008) (quoting United States v. Worley, 193 F.3d 380, 385 (6th Cir. 1999)).
In Illinois v. Rodriguez, the Supreme Court held that the search of an apartment is reasonable when a resident with common authority gives consent while the defendant is asleep inside at the time of entry. Rodriguez, 497 U.S. at 179-80, 188-89; see also United States v. Davis, 283 F. App'x 370, 373 (6th Cir. 2008) (finding that defendant who was asleep and did not respond to police officer's requests to enter was unavailable to refuse consent).
Thus, the Government must establish “by a preponderance of the evidence, ... through clear and positive testimony that ... valid and voluntary consent to the search was obtained.” United States v. Davis, 283 Fed.Appx. 370, 373 (6th Cir.2008) (quoting United States v. Worley, 193 F.3d 380, 385 (6th Cir.1999)). There is no issue here as to voluntariness, but the Government likewise must “bear[ ] the burden of establishing the effectiveness of a third party's consent.”
The government bears the burden to prove, "by a preponderance of the evidence and through clear and positive testimony, that 'valid and voluntary consent to the search was obtained.'" Id. (quoting United States v. Davis, 283 F. App'x 370, 372-73 (6th Cir. 2008)). The government has not sustained this burden, and the evidence that was seized in violation of Mr. Schultz's Fourth Amendment rights will be suppressed.