Seventh Circuit Finds that a Defendant’s Niece, Who Was Also His Childcare Provider, Had Authority to Consent to a Search of the Defendant’s Home

Victor Garcia was arrested for attempting to possess cocaine.  Subsequent to his arrest, law enforcement officers found his adult niece at his apartment, and she consented to a search of the apartment, which the United States Court of Appeals for the Seventh Circuit found to be valid. 

On March 3, 2010, law enforcement officers from a Drug Enforcement Administration (“DEA”) taskforce arrested Victor Garcia for purchasing what Garcia believed was 32 kilograms of cocaine for $477,020, though in reality the seller was working with the DEA in a sting and the substance was not actually cocaine.  

Subsequent to Garcia’s arrest, Officers Jason Everett and Robert Kotsianis went to Garcia’s apartment where Garcia's adult sister, Raquel Garcia, his 18-year-old niece, Monica Dominguez, and his minor son, Victor Garcia Jr., were.  Officers learned that Garcia was very rarely home and Dominguez was Garcia Jr.’s primary caregiver.  She had been given a key and unlimited access to Garcia’s apartment, she made sure that Garcia Jr. attended school and was often present at Garcia’s apartment when Garcia Jr. returned from school, and Garcia provided her with the means to upkeep the apartment and to purchase clothes and other goods for Garcia Jr. 

Officers Everett and Kotsianis asked for permission to search Garcia’s apartment from Dominguez, who consented.  Within the apartment, 13 kilograms of actual cocaine were discovered in a closet where Garcia Jr.’s clothing was kept. 

Before the United States District Court for the Northern District of Illinois, Garcia moved to suppress the 13 kilograms of cocaine found in his apartment on the basis that his home had been illegally searched.  When his suppression motion was denied, Garcia pled guilty to attempting to possess and intending to distribute cocaine for which he received a sentence of 120 months.  His guilty plea, however, preserved the right to appeal the suppression decision and, if successful on appeal, to withdraw the guilty plea; Garcia believed that if the 13 kilograms of cocaine were suppressed, he might have an opportunity to prevail against the charge of attempted distribution. 

Thus, Garcia appealed the suppression denial to the Unites States Court of Appeals for the Seventh Circuit.  In a decision delivered by Judge Posner, the court of appeals held that Dominguez had authority to consent to a search and thus the denial of the suppression motion was proper. 

The court of appeals noted that the proper test for determining whether Dominguez had authority to consent was established by Supreme Court precedent, which held the proper test was an evaluation of “mutual use of the property by persons generally having joint access or control for most purposes.”  United States v. Matlock, 415 U.S. 164, 171 n.7 (1974).

From there, the court of appeals explained that the question of mutual control and authority of the property searched exists on a spectrum.  On one end, a cohabitating or married couple who essentially share all or almost all of their property in common would clearly have authority to provide consent over the shared living premises.  On the other end, a neighbor or babysitter who has been provided a key for the purposes of caring for children or pets, or are only authorized to be on the premises for some other limited purpose, do not have authority to consent to the search of the home, and allowing them to provide such consent would pose a grave danger to personal privacy. 

In this case, however, the court of appeals found that Garcia’s situation was closer to the cohabitation end of the spectrum than mere babysitting.  Garcia provided Dominguez a key and unlimited access to the entire apartment without his supervision (as opposed to confining the child supervision activities to a children’s playroom or similar limited area), he selected family members to assist him because he trusted them to make decisions on his behalf, and he gave them the means to upkeep the apartment and to meet Garcia Jr.’s needs.  He allowed Dominguez discretion in whether other children would be admitted to the apartment to play with Garcia Jr., and Dominguez spent considerable time at the apartment.  Although Dominguez’s name might not have been on the apartment lease, Dominguez was not merely an occasional visitor, but a regular presence in the premises; although she was not a surrogate mother, she was not a mere babysitter.  In all, she exercised substantial discretionary authority over the premises and the property searched, and in particular over the closet where the cocaine was found, given that Dominguez was responsible for making sure Garcia Jr. had clean clothes which were kept in the closet. 

The court of appeals also noted, as a secondary matter, that the Officers involved had no motive to violate Garcia’s Fourth Amendment rights.  Subsequent to Garcia’s lawful arrest, they were entitled to seek out a warrant and remove other from the premises so as to preserve evidence.  A warrant would have almost certainly been granted, and the only reason the Officers did not pursue one was because Dominguez gave consent.  Based on this fact, the court of appeals inferred that the Officers would have only acted in the manner they did if they were confident they had valid consent. 

This case, United States v. Garcia, is available here.