dissenting:
I believe that the officers in this case could have reasonably concluded that the defendant’s grandmother had apparent common authority over the attic, along with the area necessary to reach the attic. Therefore, I believe that the search was valid. Accordingly, I respectfully dissent.
Before they entered the attic, the police knew the following facts, which are indicative of the officers’ reasonable conclusion that the grandmother had common authority over the attic: (1) the grandmother owned the building in question, which merely looked like an old house and not separate apartments; (2) the grandmother told the officers that her grandson “lived upstairs”; (3) the grandmother had personal items stored in the attic; (4) the grandmother had already been in the attic earlier that same day; (5) the second floor to the house had interior access, and there was no lock on the door separating the upstairs from the downstairs; and (6) the door to the attic was open. Plus, the officers testified that the grandmother led them to the attic herself; although the grandmother testified that she merely directed them, either version fosters the conclusion that her consent apparently was valid. Most significantly, the grandmother never revealed the crucial fact that the attic was part of a separate apartment. Thus, all that the police knew about the attic itself indicated that the grandmother could access it at will.
However, the officers also knew that they could reach the attic only by passing through living quarters that the grandmother had leased to the defendant. I believe that this case creates an issue of first impression as to whether the officers reasonably believed that the grandmother had common authority over the attic, knowing that she would have to go into the kitchen area of the defendant’s apartment to access the attic.
It is well established that, although a landlord generally does not have common authority over leased premises, she nevertheless may be authorized to enter the premises for a limited purpose. For example, a landlord may have the contractual right to enter a tenant’s apartment to inspect it or make repairs at reasonable times. See Sedrel, 184 Ill. App. 3d at 1081. Obviously, such a limited right of access does not entitle the landlord to authorize a valid search of the apartment. See Sedrel, 184 Ill. App. 3d at 1080-81. However, it does allow the landlord to permit the police to enter for the same limited purpose. See United States v. Impink, 728 F.2d 1228, 1232 (9th Cir. 1984).
The police reasonably concluded that the grandmother had common authority over the attic; therefore, they could reasonably conclude that she also had the right to enter the second floor for the limited purpose of accessing the attic. Indeed, because the attic could be accessed in no other practical manner, no other conclusion made sense. The majority looks at the situation in hindsight to determine that the officers should have made further inquiry. However, I believe that the officers in this case made a reasonable response to the situation facing them at the time, and the fact that a reasonable mistake was made in determining the grandmother’s authority to consent does not give rise to an unreasonable search. See W LaFave, Search & Seizure § 8.3(g), at 745 (3d ed. 1996). The need to briefly traverse the second-floor kitchen did not destroy the grandmother’s apparent common authority over the attic. Instead, the need to traverse that area merely supported the officers’ reasonable belief that she had common authority to do so in order to enter the attic. Under these circumstances, I would conclude that the search of the attic was constitutionally valid.