case law update

Seventh Circuit: Mere Verbal Protest Insufficient for Joint Occupant to Negate Consent to Search by Other Joint Occupant

A warrantless search of a basement for her live-in grandson’s explosives did not violate the grandson’s Fourth Amendment rights, where he was not an active participant in the request for the grandmother’s consent, according to the U.S. Court of Appeals for the Seventh Circuit.

Bodie Witzlib’s aunt and uncle told police that their nephew held “anti-government beliefs,” was unpredictable, didn’t take the medications prescribed for his “mental health issues,” and been seen making and storing M-80s in the grandmother’s house.

Within hours, local and federal law enforcement arrived at the grandmother’s house without a warrant and knocked on the door. Witzlib answered and, at the officers’ request, went to the driveway of the house where officers told him they needed to conduct a “safety check” of the house in response to “a fireworks complaint.” Witzlib demanded a warrant and said he wouldn’t consent to a search.

Officers ignored Witzlib’s verbal protests, returned to the door, and asked the grandmother whether she’d let them search the house for fireworks. She said yes and told the officers that her grandson had been making fireworks in the basement. When officers went there, they found about a thousand M-80s. Subsequent searches revealed further incriminating evidence.

Witzlib appealed his subsequent conviction, for violating federal law by manufacturing and dealing in explosive material without a license, arguing, in part, that his grandmother’s consent was insufficient for law enforcement to have searched the basement of his home.  

Judge Richard Posner, wrote for the court that Witzlib’s position was unreasonable. “It would be one thing had the police wanted to search [Witzlib’s] bedroom…But the police only wanted to search the basement, which was no more Witzlib’s private space than the living room was.” Thus, Judge Posner reasoned, “joint access” theory applied, permitting one joint occupant from consenting to a search of a common area without obtaining permission of the other.  

Addressing U.S. Supreme Court case law suggesting that “a potential defendant with self-interest in objecting” who is “in fact at the door and objecting” can bar a consent search authorized by a joint occupant, but not a potential defendant who is “nearby but not invited to take part in the threshold colloquy,” Judge Posner wrote, “Witzlib, standing in the driveway, was in the second category.”

The Seventh Circuit accordingly affirmed the constitutionality of the initial basement search and the subsequent searches, thus affirming Witzlib’s conviction.

Read the full case: U.S. v. Witzlib


This case law update was written by James P. Garay Heelan, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases

Posted in Case Law Update

Tags: case law update, seventh circuit

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