Law Enforcement Bulletin

Sign up for newsletters and other news
Media > Newsletters > Law Enforcement Bulletin > December 2014 > Search & Seizure (Mistaken Identify, Common Authority, and Consent to Search): State of Ohio v. Port

Law Enforcement Bulletin RSS feeds

Search & Seizure (Mistaken Identify, Common Authority, and Consent to Search): State of Ohio v. Portman

Question:  Is consent from a third-party valid if they lie about their identity resulting in your mistaken belief that they have authority to give the consent?
Quick Answer: Maybe.  If the information you are given by the person seems reliable and leads you to the reasonable conclusion that they are able to give actual consent to search, then your reliance on their information is justified, even if they are lying. 
State of Ohio v. Portman, Second Appellate District, Clark County, Sept. 26, 2014
Facts:  A female escort was repeatedly raped in the basement of a clothing shop owned by Duane Portman.  She identified Portman as the perpetrator alleging he threatened her with a gun.  At one point there was a scuffle and she grabbed his gun, shooting in Portman’s direction as she ran away.  She then went to the hospital.  Later that evening Portman drove himself to another hospital with a gunshot wound to the face.  His injuries drew suspicion in light of the reported sexual assault and shooting. When Portman’s girlfriend arrived at the hospital she identified herself as his “wife” and gave police permission to search “their” vehicle and “their” business—even giving officers a set of keys to open the clothing shop door.  Portman also identified the girlfriend as his wife to hospital staff so she was allowed to visit in his room.  Upon search of the store and car, blood was found in both locations, with a handgun in plain view in the basement of the store.  Based on this, officers obtained a warrant to search the vehicle and business.  Portman alleges the evidence should be suppressed because the girlfriend lacked authority to give consent.
Importance:  Consent to search can be obtained from the individual who owns the property or from a third-party who has common authority over the property—actual ownership/authority is not necessary.  Common authority means the third-party has joint access, control, or mutual use of the property.  A person with common authority can consent to a search in areas they control or are common.  Even if the officer erroneously believes a third-party is authorized to give consent, the consent is valid if the officer could reasonably conclude that the third-party had apparent authority to consent. Here, the officers were dealing with a woman who claimed she was married to Portman and had joint ownership of the business and car. She also produced keys to the business.  Based on these facts, reliance on the girlfriend’s representations was reasonable and the consent was deemed to be authorized.
Keep in mind:  The determination about whether or not the person has common authority is one of objective reasonableness.  In other words, the reasonableness of your determination is judged against what an objective officer would believe under the same facts.  In this case, the officers were told by Portman and the girlfriend that she was his wife.  She also had keys and referred to the property and vehicle as “ours”.  A reasonable officer in the same situation would believe she had the authority to consent.  In fact, most of the officers dealing with the situation believed she was his wife and documented that fact in the reports. 
Another Look:  Consider the following cases addressing the question of common authority and consent to search:
  • Ex-girlfriend with a key and personal items in residence is a close call: John Bump was accused of sexually abusing two children.  One child was the son of live-in-girlfriend Lora Carmen.  Carmen kept all of her possessions in the home and shared joint access to the computer. When Carmen learned of the allegations she stopped sleeping at his residence and moved some of her personal items out.  The police then called Carmen to obtain her permission to search the residence. She agreed, explained the current living situation, and met the officers at the residence.  At no time did she tell officers she had permanently moved out. Carmen unlocked the door and let the officers into the residence.  The computer and other evidence were seized. The court determined it was a close call whether the police had a reasonable belief that Carmen had authority over Bump’s residence at the time of the search.  Ultimately, the court determined that possession of the key to the residence and the fact she still had items there were major factors in showing authority over the property. As a result, her consent was valid.  State of Ohio v. Bump, Third Appellate District, Logan County, Mar. 18, 2013
  • Estranged girlfriend gives consent for a general search, reasonable to include examination of specific items:  Police responded to a call on an alleged shooting, taking Bobby Lee Roberts into custody. Upon entering the home, the officer detected the odor of gunpowder, saw a .40 caliber casing on the floor, and an apparent bullet hole in the wall. The officer asked the victim, Robert’s girlfriend, where the guns were kept in the house.  She showed him a closet in the bedroom and asked the officer to remove all the weapons. The officer searched the closet finding a number of firearms, as well as a cigar box that contained drug paraphernalia. Roberts argued his estranged girlfriend was not able to give valid consent to search the cigar box, even if the closet was considered “common”.  The scope of a search is generally defined by its expressed object and in this case the girlfriend testified that she specifically gave the officer permission to search for guns. There was no indication that she limited the scope of the search or that she told the officer how many guns were in the closet. Based on the totality of the circumstances, the girlfriend’s consent to search the closet for firearms, specifically a handgun, would reasonably include the cigar box.  State of Ohio v. Roberts, Ninth Appellate District, Medina County, Sept. 22, 2014
More on Search and Seizure
Not a seizure if the person is sleeping: While on patrol you notice a vehicle back into a parking space in an apartment complex.  After a few minutes, you note the car is still running and no one had exited.  Finding that suspicious, you approach and notice a man slumped over the driver’s seat.  You knock on the window and the man does not respond.  Your partner opens the passenger door, reaches inside, turns off the engine, and removes the key.  At this point, the man wakes up and you ask him a few questions.  The man is very confused.  You note a strong odor of alcohol and bloodshot, glassy eyes.  A field sobriety test confirms the man is impaired and you arrest him.  Was entry into the car a seizure?  The court in Ridley says no.  Because Brian Ridley was not capable of deciding whether he was free to leave because he was sleeping and unaware of the officers, the officers’ approach to his car cannot be considered a restraint of his personal liberty and therefore not a seizure under the Fourth Amendment. The person must be aware of the restraint to trigger their Constitutional rights.  City of Columbus v. Ridley, Tenth District, Franklin County, Sept. 30, 2014
Consent to search a purse means I can search the wallet too: You stop a vehicle with a headlight out and expired tags.  After obtaining the driver’s information, you determine the car should be towed and order the driver and passenger to get out. You ask the passenger for identification.  She gives you her name and social security number.  A search in LEADS comes back clean, but you remember her name as someone possibility associated in a theft case. The passenger denies any involvement in the case.  You ask to search her purse and she agrees.  Inside you find her wallet containing identification cards that are not hers.  One of the cards has the name of a theft victim.  You arrest the passenger. By opening and searching the wallet did you go beyond the scope of consent?  The court in Korb said no.  Under the circumstances the officer reasonably understood the scope of the consent to include the wallet because it was contained in the purse.  At no point did Ashley Korb give limitations to or state an objection about the search.  She stood next to the officer and was cooperative during the entire process. State of Ohio v. Korb, Eleventh Appellate District, Lake County, Oct. 14, 2014