Decision here.
Romero and a bunch of his friends met a couple of other guys (one of whom is Mr. Friday, the victim in this case) at a Sonic Drive in one night. They apparently hit it off, because they spent the night driving around, getting drunk at casinos, nearly getting in gunfights, and generally making asses of themselves. Eventually, Romero dropped off Mr. Friday's friend at home, and then he and his friends (and Mr. Friday) continued their night of drunkenness and good will towards all.
A few hours later, Mr. Friday was dead of a couple of shotgun blasts to the head. He was found a couple miles from where Mr. Friday's friend was dropped off. After talking to Mr. Friday's friend and to the casino security guards, the cops had enough information to identify Romero's car as the one involved. They got a search warrant for the car, to search for firearms, ammo, blood, tissue, and other murder evidence. Then they showed up at Romero's place to serve it.
There are two residences on Romero's lot, and his car was parked between them. They went to the one in back and knocked on the door. They were planning on conducting a protective sweep. They knocked on the door, and Romero's stepfather told them Romero wasn't there. He gave them permission to do their sweep. While they were searching the house, they went into Romero's bedroom (where he was sleeping), and found a shotgun along with the hat that he was seen wearing in surveillance footage. They woke him up, and he agreed to talk to them outside.
While sitting in the front seat of one of their cars, Romero confessed to killing Mr. Friday. He admitted that the shotgun in his room was the one he had used, and gave his own consent to a search of his room. He was convicted at trial of second degree murder after unsuccessfully moving for the suppression of all the evidence from the search of the car and his house. He appealed.
Romero argued that the search warrant did not establish probable cause to believe that there was evidence of the murder in his car. Given that the car was the last place that Friday was seen alive, that Friday's friend knew there was a long gun of some sort in the car, and that the autopsy and crime scene investigation had determined that Friday was killed with a close-range shotgun blast and had been killed somewhere other than where his body was found, the court held that not only was there probable cause to believe that the car held evidence, but the police would have been remiss if they did not seek to search it.
Romero also argued that the search of his room was unreasonable, since his stepfather didn't have authority to give that consent. Romero's door did have a lock on it, but it wasn't a lock which was readily apparent from outside the room and it wasn't locked when the cops tried the door.
As far as third party consent goes, consent is valid if a person either has actual authority to consent to a search or if they have apparent authority. Actual authority is established by showing that the person either had mutual use of the property by virtue of joint access, or that the person had control over the property for most purposes. Apparent authority is established by showing that the facts known to the police at the time of the search would lead them to reasonably believe that there was actual authority.
Under existing Tenth circuit precedent, when a child lives with a parent there is a presumption that the parent has authority to consent to a search of the entire home (it's not absolute, of course. But the presumption is there). This presumption also extends to step-children, and although Romero's door did have a lock that might have rebutted the presumption, the cops didn't know that until later.
The search warrant was held to be valid, as was the step-father's consent to search the house (including Romero's room), and Romero's conviction was affirmed.
No comments:
Post a Comment