“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link

 

Trump Sixth Circuit judge Eric Murphy cast the deciding vote to allow police to search a man’s apartment based on the consent of the man’s grandmother, who made clear that she did not live there. The May 2021 decision was in United States v Rogers.

Police were investigating Shawn Ford for possible participation in several robberies in Cleveland. They obtained a search warrant for Ford’s residence, but the warrant covered only the upstairs apartment unit. Rather than also getting a warrant for the downstairs unit when they learned from a relative that Ford also lived there, police approached Ford’s grandmother, who explained that she did not live in the downstairs unit although she sometimes kept property there and had keys to it. The police decided she could consent to a search of the downstairs unit and they did not need to proceed with getting a warrant, she agreed to sign a form to that effect, and police seized several objects later used in prosecuting Ford, including a firearm that the grandmother said was hers. The lower court denied a motion to suppress the items seized from Ford’s downstairs apartment, he was convicted for taking part in the robberies, and he appealed based on, among other things, what he contended was improper police search and seizure of items in the downstairs apartment.

Trump judge Murphy cast the deciding vote to reject Ford’s appeal and to uphold the search and seizure. The majority pointed out that a search based on consent is considered proper if the person providing consent had “apparent authority” to do so, and maintained that the grandmother’s statement that she stored items in the downstairs unit and had keys was sufficient for a “reasonable officer” to concluded that the grandmother had “joint access or control for most purposes,” as the Supreme Court put it in a 1974 case, and thus had apparent authority to consent.

Judge Eric Clay dissented. He pointed out that the majority had misused the language quoted in the 1974 case, because in that very decision, in a phrase “omitted” by the majority, the Supreme Court made clear that it is “co-inhabitants” of a dwelling that have authority to consent to a search, which was clearly not the case here. Later Court decisions, Clay continued, have “confirmed the critical role of co-occupancy” for purposes of consenting to a search. The record is “clear” in this case, Clay wrote, that Ford’s grandmother “told the police” she was not living in the downstairs apartment and had not lived there for “half a year.” There was no “apparent authority” even under the majority’s erroneous formulation of the test, Clay went on, since the record did not demonstrate that the grandmother claimed to have “joint access or control for most purposes,” but instead only that she had keys and went to the unit “every now and again” to check on her property. Clay concluded that there was “no justification” for the police search based on apparent authority, that the police should have obtained a warrant, and that the motion to suppress the results of the improper search should have been granted.

This case is important not only to Shawn Ford, but also as another example of Trump judges helping uphold police misconduct and allowing police in future cases to avoid the Constitution’s search warrant requirement and search someone’s home without valid consent. To help counterbalance the votes of Trump judges like Murphy, it is important for our fight for our courts for the Senate to confirm judicial nominees by President Biden as promptly as possible.