Sunday, November 13, 2005

Case o' The Week: Questionable search meets the Gould standard, US v. Ruiz

The uncle of a parolee who wasn’t in the trailer house had objectively reasonable apparent authority to consent to a search of a bag that wasn’t his – or so holds Judge Ronald Gould (left) in United States v. Abel Ike Ruiz, __ F.3d. __, No. 04-30516 (9th Cir. Nov. 7, 2005), available here. This disappointing Fourth Amendment decision illustrates how broad the exceptions to the warrant requirement have become.

Players: Fisher, Gould, and Bea; Gould authors.

Facts: A parole officer and Portland cops come to search a trailer home and find the parolees’ uncle (the parolee himself never appears in the case). Id. at 15192. An officer later testifies that he believed the uncle lived in the trailer. Id. at 15193. The uncle consents to let the officers enter the trailer and confirm that the parolee wasn’t there. Id. When they came in, they found defendant Ruiz (not the parolee) on a pull-out bed. Id. An officer saw a triangular, cloth case on a shelf a foot above the bed, which he recognized as a “gun case.” Id. The cop asked for and received permission to search the case from the uncle. Id. He found a .22. Id. A further search revealed a .38 and a speed loader. Id. In federal court Ruiz’s suppression motion is denied, and he is convicted of § 922(g)(1), felon in possession. Id.

Issue(s): “Assuming that [the uncle] did not have actual authority to consent to the search, we address whether he had apparent authority to do so.” Id. at 15195 (emphasis added).

Held: “We conclude that, based on the statement and surrounding circumstances, [the uncle] had apparent authority to consent to the search under the standards that we derive from Dearing.” Id. at 15197.

Of Note: In Ruiz, the Court applies a three-part test from United States v. Dearing, 9 F.3d 1428, 1429-30 (9th Cir. 1993): “First, did the search officer believe some untrue fact that was then used to assess the extent of the consent-giver’s use of and access to or control over the area searched? Second, was it under the circumstances objectively reasonable to believe that the fact was true? Finally, assuming the truth of the reasonably believed but untrue fact, would the consent-giver have had actual authority?” Id. at 15195. The big question of Ruiz was whether it was objectively reasonable for the officer to believe the uncle had authority over the gun case – even though the uncle said that he didn’t know what was in the case, and never claimed that it was his. Note how far from constitutional bedrock this case strays: it is OK for a third party, who doesn’t really have authority, to consent to a search of property that isn’t his, as long as the third party reasonably appears to have apparent authority.

How to Use: The slim silver lining in Ruiz is that the Ninth affirms the principle that third party consent doesn’t extend to all containers in a residence. Id. at 15198. For example, a boyfriend can’t consent to a search of a woman’s purse in a jointly-shared car. Id. The defense strategy should thus be to develop the factual record distancing the third party’s actual authority over the container. (For example, did the uncle ever say that it wasn’t his bag? Never saw the bag? Didn’t know who owned the bag? Any of those facts would have helped).

For Further Reading: Judge Ronald Gould was nominated by Clinton. A former Sixth Circuit and Supreme Court clerk, Judge Gould was a Perkins Coie attorney and law professor. See profile here . During the confirmation proceedings, Republican Senator Sessions endorsed Judge Gould, noting that he was an Eagle Scout and acknowledging his triumph over his disability (the judge has M.S. and attends oral argument in a wheelchair). Senator Sessions did, however, express concerns about the continued “activism” of the Ninth Circuit and hoped that Gould would not continue that trend. See statement here. At least in the field of criminal law, Senator Sessions can rest assured: Judge Gould has fallen squarely within the national norm. See, e.g., United States v. Weiland, 420 F.3d 1062 (9th 2005) (Gould, J., author) (permitting use of prior convictions despite Crawford objections to absence of cross-examination, Tashima, J., dissenting); United States v. Young, 420 F.3d 915 (9th Cir. 2005) (Gould, J., author) (upholding “constructive possession” conviction and rejecting defense challenge to over-broad warrant).

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


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