Ex-girlfriend can authorize police search of boyfriend's house

Here's a case that drives home the principle that a man's home is not always his castle. It may also be the castle of people who live there and have authority to invite the police over the threshold. For this reason, a search resulting from the ex-girlfriend's invitation got the boyfriend arrested.

The case is United States v. McGee, decided on April 24. Responding to an emergency call, the police came to the house and observed McGee (the boyfriend) running away. They also saw Ellison (the girlfriend) standing outside the house. She told the police that she was breaking up with McGee but he ran off with the keys which prevented her from retrieving her belongings. After proving that she lived there, the police allowed her to break a window to enter the house, and after that happened, she asked the police to wait around while she packed up all her stuff.

What happened next is the reason why this case wound up in court. As the Second Circuit describes it, "While retrieving her clothing from the front closet, Ellison informed the officer that McGee had guns hidden in that closet. The officer asked Ellison twice whether he could check the closet, to which she replied, '[G]o right ahead.' The officer and his back-up discovered a rifle, three shotguns, ammunition for a handgun, and a bulletproof vest of the type that is used by the police."

But that's not all. When the police went upstairs to watch Ellison pack up more of her stuff, they saw a photograph sticking out from the mattress. Ellison told the police they could look at it. Not good for McGee. The picture showed him holding a gun. Ellison also allowed the police to keep the picture.

So the question is, could this incriminating evidence be used against McGee? It was his house, but he did not allow the police inside, and he sure did not allow them to take the guns and photograph. Here's the basic rule, from a 1974 Supreme Court decision:

A warrantless police search of a defendant’s private premises which would otherwise violate the defendant’s rights under the Fourth Amendment is lawful if conducted pursuant to the consent, voluntarily given, of another person who has authority to consent by reason of that person’s “common authority over or other sufficient relationship to the premises .” United States v. Matlock, 415 U.S. 164, 171 (1974).

Years later, the Supreme Court added a wrinkle to this rule in holding that someone with "apparent authority" can allow the police inside the house, even if they did not have actual authority. In an attempt to get around this legal standard, McGee says that his ex-girlfriend had no authority -- actual or apparent -- because he locked her out of the house. McGee relies on a precedent that rejected a police search after the girlfriend allowed them into the defendant's locked study and no one was allowed to enter.

The Court of Appeals says that "McGee's argument is by no means unreasonable." The Court even says that McGee's argument is "respectable." But McGee loses. While the presence or absence of locks on the door is helpful in deciding whether someone else can let the police inside your house, "McGee did not lock Ellison out of the house and take away her key with the intention of excluding her from continuing to live in his house with him." The Court of Appeals explains:

McGee did not lock Ellison out of the house and take away her key with the intention of excluding her from continuing to live in his house with him. By locking the door, he was not saying, “Get out of my house and stay out.” To the contrary, McGee locked her bags in the house and locked her out temporarily in an effort to prevent her from leaving the house. Far from seeking to expel her from the house, his conduct was designed to insure that she would continue to reside in it. He was simply trying to put her baggage out of her reach so that she would not depart. While it is true that in doing so he temporarily prevented her from entering the house, that was an incidental consequence of his action rather than his objective.

In cases involving police searches and locked doors, the Second Circuit concludes, "The question in each case turns on the meaning of the locked door." In this case, "The objective of the locked door in this case was only to separate Ellison from her baggage, so as to prevent her from ceasing to occupy the premises she invited the police to search." As Ellison still had "access" to the house, she was authorized to invite the police inside, and the search was legal.