LEO consent search exempts need to confirm ownership of each container

LEO allowed to bypass asking about container ownership after receiving valid search consent

LEO — law enforcement officers — home searches can only lawfully take place with a valid search warrant, sufficient consent from an authorized person, or (hopefully infrequently) exigent circumstances. As a Fairfax criminal lawyer, I know that police search / Fourth Amendment caselaw is not as friendly to criminal defendants and civil liberties as it should be. A case in point comes from this week’s Virginia Court of Appeals decision okaying a “consent” search and subsequent search warrant, where the criminal defendant was not the consenting party to searching the premises nor searching his own exclusively owned closed containers. Bryant v. Virginia, __ Va. App. __ (June 16, 2020).

Beware leaving your sensitive or private items where someone in authority might end up letting LEO search and seize it

Coshaun Tyrell Bryant’s criminal case nightmare started when police came to the home of him and his live-in girlfriend on a domestic violence call. As is too common, only after LEO arrested (for giving police false information) and took Bryant to a police car (thus depriving him of the opportunity to meaningfully object to anyone else’s consent to search his home), police got his girlfriend’s consent to search the entire home. On top of that, his girlfriend very helpfully let the police know which property and containers were Bryant’s, which just happened to contain the only contraband items found by police on the premises.

Once cops obtain valid consent to search a home, they have no obligation to separately inquire a about the ownership of each container found therein

When LEO has “already obtained consent to search a dwelling, they are not required to seek confirmation of the ownership for every backpack, suitcase, or other closed container they come across during their search. See Glenn, 275 Va. at 135. See also Melgar, 227 F.3d at 1042.” Bryant. Consequently, the Virginia Court of Appeals upheld the search of his home that was based both on his girlfriend’s consent and subsequent search warrant. That search yielded Bryant’s prosecution, conviction and sentencing for possession of ammunition by a convicted felon and possession of more than five pounds of marijuana with intent to distribute.

Tainted information in a search warrant application gets excised in determining probable cause

In the event that any evidence found by LEO during the pre-warrant consent search of Bryant’s home was unlawfully obtained and relied upon for obtaining a search warrant that found further contraband, “it is proper for the appellate court to exclude the tainted part of the affidavit and then to determine whether the untainted portion of the affidavit (that was not obtained in violation of the Fourth Amendment) supports a finding of probable cause to issue a search warrant. See United States v. Gillenwaters, 890 F.2d 679, 681-82 (4th Cir. 1989).” Bryant. Here, the Virginia Court of Appeals found that excising the any tainted part of the search warrant affidavit still made for a validly-issued search warrant of Bryant’s home.

Lessons learned from this Bryant home search case

The lessons learned from this Bryant home search case include:

• Our privacy is already limited with the police, and less so when we let sensitive property (whether contraband or not) be left somewhere where another person can validly consent to a LEO search.
• An occupant of a home can object to the search consent of another occupant, but only if the occupant is present to voice such an objection. Police know that, so may seek a lawful reason to arrest one of the occupants before asking the remaining occupant for consent to search.
• If you engage in behavior that will attract police investigation, beware the possibility that contraband on the premises will be found by cops in the process.

Fairfax criminal defense lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor, and DUI prosecutions in Northern Virginia and beyond, including Fairfax, Arlington, Loudoun and Prince William Counties. Call 703-383-1100 for a free consultation with Jon Katz about your court-pending criminal or DWI case.