dissenting:
Because I am of the opinion that the police officers who entered the bedroom where appellant was sleeping lacked the requisite objectively reasonable belief that the landlord could give them permission to be there, I respectfully dissent.
The district court found that the landlord did not have common authority over, or joint access to, any common areas of the premises at the time of the police entry. According to the district court, the consent previously given by the landlord was “stale” by the time of the entry because of the change in the configuration of the dwelling units from a single room occupancy set-up to apartment units encompassing the former single room units. However, the district court determined that it was reasonable for the police to operate under the consent given for the search of the common areas of the building as they existed before the reincarnation of the structure as an apartment dwelling. On the basis of that consent, the district court noted that “the officers had established a pattern of regular, unannounced entries into the building that were not predicated on the specific prior consent of either the tenants or [the landlord].”
In Illinois v. Rodriguez, 497 U.S. 177, 179, 110 S.Ct. 2793, 2796, 111 L.Ed.2d 148 (1990), the Supreme Court answered the following question in the affirmative:
Whether a warrantless entry is valid when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not do so.
Applying Illinois v. Rodriguez, we have determined that it is not reasonable for police to believe that a landlord who enters an apartment for the purpose of switching off electrical appliances from time to time has common authority with the tenant over the leased premises. United States v. Brown, 961 F.2d 1039, 1041 (2d Cir.1992) (per curiam).
A landlord of an apartment building may give a valid consent to search a commonly used basement, United States v. Kellerman, 431 F.2d 319, 321, 324 (2d Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 356, 27 L.Ed.2d 266 (1970), or a common hallway, United States v. Kelly, 551 F.2d 760, 764 (8th Cir.), cert. denied, 433 U.S. 912, 97 S.Ct. 2981, 53 L.Ed.2d 1097 (1977), where the landlord has joint access or control. As to such areas, it is eminently reasonable for police officers to believe that the landlord possesses authority to confer upon them the consent to enter. The general rule, of course, is that a landlord does not possess common authority with his tenant over an apartment or other dwelling unit, see Chapman v. United States, 365 U.S. 610, 616-18, 81 S.Ct. 776, 779-81, 5 L.Ed.2d 828 (1961), and a police officer who acts without some verification to support his belief that the landlord possesses such authority does not act reasonably.
In view of the foregoing, it is of little consequence that the premises occupied by the appellant were perceived by the police to be under single-room occupancy. The police entered from the outside of the building directly into a kitchen formerly utilized by the single-room tenants. They made this entry under the purported authority of a landlord who gave them an open-ended license to enter his building, apparently at any time of the day or night. On the basis of this unrestricted third-party consent, which apparently also was without temporal limitations, the police regularly entered the building and proceeded directly into the living areas without announcing their authority to enter and without obtaining specific prior consent from the landlord or the occupants. The entry of the police from the outside into the kitchen in this instance enabled them to see from the kitchen into the bedroom where appellant was sleeping, the landlord previously having removed the door to the bedroom. The police then awakened appellant and began to question him. This was the first knowledge that appellant had that the police were present in the building.
Assuming as we must that the single-room occupancy configuration still prevailed and that the kitchen through which the police entered was available for the use of all the single room occupants on the first floor, it cannot be said that the kitchen was a place *189where the landlord exercised joint access or control. There certainly was nothing in the record to demonstrate the landlord’s authority over that area, other than the fact that he purported to confer upon the police a general warrant to enter the building. A kitchen may be a common area for the use of tenants without being under the joint control of the landlord. Under the government’s theory, the landlord could grant the police access to locked bathrooms shared by the single room tenants on the first floor of the building. The landlord provided the kitchen and the bathrooms for the use of the tenants residing there but did not retain the type of joint control that he might have retained in the case of a basement or a hallway.
It seems to me unreasonable for a police officer to assume that, merely because the landlord gives him a key, he can barge into a living area, albeit one shared by other tenants. A warrantless search is an exception, Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973), and the police should start out with that principle in mind. When the police receive a landlord’s consent to enter an apartment or a living area shared with other tenants, they should be under a duty to inquire regarding the authority of the landlord. Under the circumstances of this case, I just do not believe that the police acted under a reasonable belief of proper consent when they proceeded into the kitchen and then into the bedroom of this dwelling house. The police should not be encouraged to rely upon an open-ended, non-specific consent given by a landlord with dubious authority to authorize an invasion of the type described here.