Sunday, May 3rd, 2009

If You Love Her, Let Her Go

United States v. McGee, No. 07-4509-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Livingston, CJJ)

A Rochester police officer responded to 911 call at defendant McGee’s home. When the officer arrived, he saw McGee running away through the backyard. McGee’s girlfriend was outside the house. She told the officer that she lived there with McGee, but was trying to move out. She had packed her bags and put them on the front porch, but McGee, to prevent her from leaving, had grabbed her bags, put them back inside, locked the door and taken away her keys. She asked the officer to break down the door so she could retrieve her belongings. He refused, but once she proved she really lived there, he let her break in herself.

The officer then accompanied her while she collected belongings. When she observed that McGee stored guns in the front closet, the officer asked for permission to search and she agreed. The officer found four firearms, ammunition and a bulletproof vest. In the bedroom, the officer saw photographs protruding from under the mattress. The girlfriend gave him permission both to look at and keep them. They showed McGee holding a gun.

McGee was convicted of possessing the firearms. On appeal, he challenged the denial of his motion to suppress, and the circuit affirmed. The court found that officer reasonably concluded that the girlfriend had the authority to consent to a search.

McGee relied primarily on Moore v. Andreno, 505 F.3d 203 (2d Cir. 2007), in which a girlfriend’s consent was found to be ineffective. In Moore, the girlfriend gave the police consent to enter and search Moore’s study after she cut a lock on the door. The lock had been placed on the door to keep her out, and the police knew it. McGee argued that his girlfriend had similarly been locked out and thus lacked “access” to the house.

While the court found this argument “by no means unreasonable,” it nevertheless disagreed. A third-party’s access to a premises “depends on the understandings communicated by the titular owner to that person.” The girlfriend in Moore lacked access to the study because the lock was intended to keep her out.

Here, by contrast, although McGee had locked the girlfriend out of the house, his purpose was different. “McGee did not lock [her] out of the house and take away her key with the intention of excluding her from continuing to live in his house with him. … 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.” Accordingly, the girlfriend had “access” to McGee’s house in the sense in which the term is used in analyzing this type of Fourth Amendment issue.

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