United States District Court, D. Montana, Butte Division
L. Christensen, Chief District Judge United States District
the Court is Defendant's Motion to Suppress (Doc. 18).
For the reasons given below, the Court denies Defendant's
approximately 6:00 p.m. on July 24, 2016, Madison County law
enforcement officers arrived at Defendant Jason Bausch's
residence in Ennis, Montana, following a report that a woman
(“KG”) was being held there against her will.
About a half an hour later, KG ran out of the house, with
Bausch following and yelling. Following a brief struggle,
officers subdued and then arrested Bausch.
night, Madison County Sheriff Roger Thompson applied for and
received a search warrant to search the residence. The
warrant authorized a search for: (1) a Colt .45 handgun; (2)
papers written by Bausch regarding his relationship with KG
or with others; (3) papers showing dominion and control of
the residence; and (4) property belonging to KG. At 11:00
p.m., Officer Thompson, with the assistance of three Madison
County deputies, arrived to execute the search warrant. KG
and a victim advocate arrived at the house at that time, too.
KG informed officers that she had been Bausch's live-in
girlfriend for several months and that she was there to
collect her belongings.
enforcement searched the residence for about two hours. KG
was at the house for approximately half of the search. The
officers asked KG for advice in locating the items enumerated
on the warrant, and she assisted in the officers in finding
the Colt .45. KG also located and showed to law enforcement
officers three auto sears; Bausch's possession of the
auto sears forms the basis of the federal charges at issue.
argues that the physical evidence supporting the
government's charges should be suppressed because: (1) KG
was acting as a government agent when she turned the auto
sears over to law enforcement; (2) the search and seizure of
the auto sears exceeded the scope of the search warrant; and
(3) the evidence-the auto sears themselves-should be
suppressed. The government disagrees that KG was acting as a
government agent. More to the point, the government argues
that KG, an inhabitant of the house, consented to the search.
The Court does not reach Bausch's arguments for
suppression because it determines that, under the consent
exception to the warrant requirement, the search did not
violate the Fourth Amendment when KG, a resident of the home,
offered the evidence that Bausch now seeks to suppress.
Fourth Amendment protects against “unreasonable
searches and seizures” and requires that warrants may
issue only “upon probable cause . . . and particularly
describing the place to be searched, and the persons or
things to be seized.” U.S. Const. amend. IV. The Fourth
Amendment does not itself specify when a warrant is required.
Fernandez v. California, 134 S.Ct. 1126, 1132
a warrant generally must issue before a home may be searched,
“certain categories of permissible warrantless searches
have long been recognized, ” including consent
searches. Fernandez, 134 S.Ct. at 1132.
“Consent searches are part of the standard
investigatory techniques of law enforcement agencies.”
Schneckloth v. Bustamente, 412 U.S. 218, 231-32.
When “properly conducted, ” they are
“constitutionally permissible and wholly legitimate
aspect[s] of effective police activity.” Id.
at 228. Two subsidiary issues mus be resolved in order to
determine whether the consent exception to the warrant
requirement applies here. First, did law enforcement
reasonably believe that KG had the authority to consent to
the search? And second, if so, did KG give consent? The Court
answers both questions in the affirmative.
a “physically present inhabitant” expressly
refuses consent, Georgia v. Randolph, 547 U.S. 103,
122-23 (2006), “consent by one resident of jointly
occupied premises is generally sufficient to justify a
warrantless search.” Fernandez, 134 S.Ct. at
1133. Where law enforcement reasonably believes that the
person giving consent is a resident, the consent exception
applies-even if the individual was not truly a resident and
did not, in fact, have actual dominion over the home.
Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990).
Moreover, the consent of one co-tenant supersedes the wishes
of an absent resident-even where absence is due to the
resident's arrest by the law enforcement officers that go
on to conduct the search. Fernandez, 134 S.Ct. at
the officers reasonably believed that KG had authority to
consent to the search. Before the search occurred, as
evidenced by Sheriff Thompson's initial application for a
search warrant, officers saw the crime as likely one of
domestic violence and knew that KG lived with Bausch. (Doc.
28-3 at 3-4.) According to Bausch, during the search, Sheriff
Thompson believed that KG was on the scene to collect her
belongings. (Doc. 23 at 3.) These facts gave rise to a
reasonable inference that KG was a co-tenant of the
must be voluntarily given, but it may be implied from the
circumstances. Schneckloth v. Bustamente, 412 U.S.
at 222; United States v. Rosi, 27 F.3d 409, 411-12
(9th Cir. 1994). The government bears a fairly heavy burden
of establishing the existence of effective consent
“when consent would be inferred to enter and search a
home.” Rosi, 27 F.3d at 411-12 (citation and
internal quotation marks omitted). That burden may be met
when a resident willingly cooperated with law enforcement
officers, offering, for example, information about the
location of evidence. Id. at 413-14; see also
United States v. Gilbert, 774 F.2d 962, 963 (9th Cir.
1985) (per curium); United States v. Meifa, 953 F.2d
461, 466 (9th Cir. 1991); United States v. Ziegler,
474 F.3d 1184, 1191 (9th Cir. 2007).
there is no question that KG willingly cooperated with
officers during the search. KG offered information about the
specific items described within the search warrant,
particularly the Colt .45. What is more, she voluntarily
located and showed to officers the three auto sears, which as
Bausch notes, were not described in the search warrant and
were well-hidden from view. The officers were not looking
for-nor did they expect to find-the auto sears. Indeed,
Bausch contends that there would have been no federal charges
were it not for KG's eager participation in the search,
as the officers would not have found these items but for her
assistance. The facts, as developed in Bausch's own
brief, make it clear that KG was happy to help law
enforcement with the search. If consent may be inferred from
a suggestion that evidence may be found in a particular area,
Rosi, 27 F.3d at ...