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United States v. Bausch

United States District Court, D. Montana, Butte Division

March 8, 2017



          Dana L. Christensen, Chief District Judge United States District

         Before the Court is Defendant's Motion to Suppress (Doc. 18). For the reasons given below, the Court denies Defendant's motion.

         Factual Background

         At 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.

         That 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.

         Law 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.


         Bausch 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.

         The 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 (2014).

         Although 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.

         Unless 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 1134.

         Here, 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 residence.

         Consent 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).

         Here, 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 ...

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