Margaret Katze, a federal public defender in New Mexico, successfully defended a suppression order holding that officers lacked actual or apparent authority to search in United States v. Kos, No. 06-2187 (10th Cir. Aug. 21, 2007). The Tenth Circuit recited the following facts from the record:
[S]even Albuquerque police officers arrived at Mr. Cos's apartment at approximately 3:00 p.m. to serve the arrest warrant. Feather Ricker, Mr. Cos's nineteen-year-old friend, answered the door.
Ms. Ricker testified at the hearing on the motion to suppress that she had known Mr. Cos for about a month, that they were "[r]eally good friends" who were "[j]ust getting to know each other," and that they would "go out sometimes." She also testified that she never had a key to Mr. Cos's apartment, that she was not living there, that she did not pay the rent, and that her name was not on the lease. Before June 29, 2005, Ms. Ricker had been alone in the apartment once or twice, when Mr. Cos went to the store, and she had spent the night there on two or three occasions. However, she did not keep any of her personal belongings in the apartment. Ms. Ricker added that she lived at another apartment complex and that Mr. Cos did not help her financially.
The Tenth Circuit applied United States v. Rith, 164 F.3d 1323, 1329 (10th Cir. 1999), which is its own precedent applying United States v. Matlock, 415 U.S. 164, 169-72 (1974) (discussing actual authority) and concluded that Ricker did not have actual authority to consent:
as the district court also observed, there are additional facts indicating that Ms. Ricker "was more like an occasional visitor whom [Mr.] Cos allowed to visit, rather than one who asserted a right to access the property jointly with [Mr.] Cos." Id. Ms. Ricker did not leave her personal belongings in the apartment, but instead took them with her when she left, indicating that she could not come and go as she pleased. Further, she had only been alone in the apartment on two occasions before the day of the search, and each occasion was only for a brief period. Ms. Ricker's limited access to the apartment is therefore insufficient to demonstrate actual authority under the first Rith inquiry.
The Court also agreed with the district court that the government had failed to show apparent authority:
Again, we agree with the district court's thorough analysis rejecting the government's contentions. Even if accompanied by young children, a third party's mere presence on the premises to be searched is not sufficient to establish that a man of reasonable caution would believe that she had "mutual use of the property by virtue of joint access, or . . . control for most purposes over it." See Rith, 164 F.3d at 1329. Instead, the government must offer some additional evidence to support a claim of apparent authority.
The Tenth Circuit also rejected any claim of "good-faith" and affirmed the suppression order.
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