Search and Seizure — warrantless searches — consent

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United States Court of Appeals For the Seventh Circuit

Criminal

Search and Seizure — warrantless searches — consent

Where the defendant’s niece cared for the defendant’s daughter, she had apparent authority to consent to a search of his apartment.

“We think the facts of the present case as found by the district judge place it slightly nearer the cohabitation pole. As a single, working parent of a young child, the defendant needed considerable help and some of it was given by his niece and aunt (particularly the former) in his home. He was fortunate in being able to turn for help to two relatives who were also neighbors of his. He was more likely to trust them than a nonrelative. He gave them the run of the apartment to take care of the child (to get clothes for the child, for example—one of the things the niece told the officers she did in the apartment). The apartment was very small—it’s not as if there had been a children’s wing to which the relatives could have confined themselves when attending the child. Sometimes there were other children in the apartment, invited to play with the defendant’s child—the relatives were authorized to admit them.”

“The defendant’s lawyer describes the niece as a mere babysitter. She was more than that. Although neither she nor her mother lived in the defendant’s apartment, when they were there they were in loco parentis. Had the child’s mother lived there, her authority to allow the search could not have been questioned. The defendant’s aunt and niece together were not quite a surrogate mother, but neither were they just neighbors with a key. That the defendant kept a large quantity of cocaine in a closet of this small apartment suggests that he reposed an unusual degree of trust in his aunt and niece and thus had delegated to them a large measure of authority over the apartment when he was not there.”

Affirmed.

12-1805 U.S. v. Garcia

Appeal from the United States District Court for the Northern District of Illinois, St. Eve, J., Posner, J.