Woman in a Bathrobe Didn’t Have Authority to Consent to Search

by | February 20, 2019

United States v. Terry, 2019 (7th Cir 2019)

Agents from the Drug Enforcement Administration executed an arrest warrant for Dimitris Terry due to his involvement with a conspiracy to possess and distribute heroin. Officers wanted to arrest him quietly and quickly, hoping to secure his cooperation in providing information about others involved in the drug distribution. When the officers saw Terry arrive home after taking his son to school, they arrested him when he got out of his car.

While Terry was taken to be questioned, officers knocked on his front door and a sleepy woman in a bathrobe answered. The officers told her they had just arrested Terry and asked to come inside; she invited them in. They didn’t ask her who she was, whether or how she was related to Terry, or whether she lived at the apartment.

The officers then asked for and obtained written consent to search the apartment, which produced evidence linking Terry to heroin distribution. During the search, they spoke with the woman about her relationship with Terry. She explained she was the mother of Terry’s son, who lived at the apartment, but she did not live there.

The court noted a “bathrobe alone does not clothe someone with apparent authority over a residence, even at 10:00 in the morning.”

Meanwhile, at the office, Terry declined to sign a Miranda rights waiver. He told the officers “he was not going to sign the form or initial it; that, you know, this wasn’t his first go-around with law enforcement … but he was willing to talk.” Terry answered questions about the investigation and made incriminating statements about his role in the conspiracy to distribute heroin. Terry did not consent to the search of the apartment (although it isn’t clear whether the officers asked).

Terry asked the court to suppress both the evidence recovered from the search and his verbal statements. He claimed the search was unlawful because the woman in the bathrobe lacked actual and apparent authority to consent to a search. He also claimed he didn’t understand he was waiving his Miranda rights when he answered questions. Thus, he claimed the implied or verbal waiver was invalid and his post-arrest statements should be suppressed.

Prior to this case, Terry had been arrested at least 17 times as an adult—so it really wasn’t “his first go-around.” The trial court found Terry’s claim that he didn’t understand his answers to questions would be used against him was “simply not credible” in light of his prior experience in the criminal justice system, his level of college education (including criminal justice studies), and his business successes. The appellate court held “Terry’s education, sophistication, and familiarity with the criminal justice system provided sufficient evidence that he understood his rights when the agents read them to him.”

The court was not convinced the officers could reasonably believe the woman in the bathrobe had authority to consent to the search of Terry’s apartment. The court focused on what the officers knew at the time they sought consent to search, before they asked the woman about her relationship with Terry. The most reasonable inference from a sleepy woman answering the door at 10:00 a.m. in a bathrobe was she was an overnight guest: “That might have been an indication that she lived with him, but there are multiple other possibilities. She could have been a one-time guest, a periodic guest, a friend or relative visiting for a couple of days—or she may have had some other relationship to Terry.”

The court held it was unreasonable for the officers to assume she lived there and had apparent authority to consent to a search. In the face of several plausible explanations for the woman answering the door in a bathrobe, the officers had a duty to ask further questions about her relationship to Terry and her living arrangements, if any, at the apartment. The court noted a “bathrobe alone does not clothe someone with apparent authority over a residence, even at 10:00 in the morning.” Thus, Terry was entitled to suppression of the evidence found in the apartment.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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