Key Authority For The Detective 's Warrantless Search Of Archer 's Home

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Johnson did not have the actual authority to consent to the detective’s warrantless search of Archer’s home. Actual authority is held by a third party who has common authority with property-owner over the property. Hubert, 313 S.W.3d at 561. In Texas, the state has the burden of proving that a third party has the actual authority to lawfully consent to a warrantless search of someone else’s property. Id. 561. Common authority over property is determined by the “mutual use of the property by persons generally having joint access and control for most purposes.” Matlock, 415 U.S. at 171, n.7.
Correspondingly, Texas appellate courts have consistently held that third parties do not have actual authority to consent to searches of areas of which
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415 U.S. at 175-77. Further, in Garcia, it was held that a third-party landlord has the common authority necessary to consent to a warrantless search of an area, even if it is locked off, if there is clear evidence that the third party has expressly been given the rights to use and enter the area without any limits in scope or duration. 887 S.W.2d at 851-852. Moreover, in Shelton, the court held that an ex-wife had the authority to consent to the search of her ex-husband’s home, which she had moved out of, when the ex-wife still possessed unchecked access to her ex-spouse’s home. 337 F.3d at 538.
In the case at hand, Johnson did not have the actual authority necessary to provide lawful consent for the detective’s warrantless search of Archer’s home. Like the third party in Malone and Corea, it was evident that Johnson did not have common authority over Archer’s property and only made use of a few rooms of the property. See Malone, 163 W.3d at 796-97; Corea52 S.W.3d at 316; (C.R. 11-12, Order ¶¶ 11, 14). Further, like the third party giving consent in Corea, Johnson’s temporary use of Archer’s residence was essentially limited to only one room the residence. See 52 S.W.3d at 316; (C.R. 11, Order ¶ 11). Notably, the argument for Johnson, a neighbor who only uses Archer’s home to perform mundane household chores when Archer is on one of his infrequent business trips, having the common authority over an area necessary to

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