STATE OF ILLINOIS, PETITIONER V. EDWARD RODRIGUEZ

   No. 88-2018

   In The Supreme Court Of The United States

   October Term, 1989

   On Writ Of Certiorari To The Appellate Court Of Illinois, First
Judicial District

   Brief For The United States As Amicus Curiae Supporting Petitioner

           TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      The officers' entry into respondent's apartment,
      based on an apparently valid consent by a third
      party, was lawful
           A. A search that reasonably appears valid at
              the time of the intrusion does not violate
              the Fourth Amendment, even if the factual
              premise for the search is subsequently
              found to be mistaken
           B. A search based on the consent of a party
              who appears to have authority to give
              such consent is valid if the officers
              reasonably believe that the consenting
              party has the proper authority
           C. Under the foregoing standards, the entry
              into respondent's apartment was lawful
   Conclusion

                          QUESTION PRESENTED

   The United States will address the following question:

   Whether the warrantless entry of a dwelling is justified under the
Fourth Amendment when law enforcement officers reasonably, but
mistakenly, believe that the person who permits the entry has
authority to do so.

                     INTEREST OF THE UNITED STATES

   This case presents the question whether the warrantless entry of a
dwelling is justified under the Fourth Amendment when law enforcement
officers reasonably, but mistakenly, believe that the person who
permits the entry has authority to do so.  Federal agents frequently
undertake searches in reliance on the consent of persons who appear to
have authority to consent to the search.  Even though the agents may
reasonably believe that the search was properly supported by consent,
that belief sometimes turns out to be wrong in light of facts that
subsequently emerge.  Because the Court's decision will govern the
admissibility of evidence gathered in such instances, the United
States has a significant law enforcement interest in this case.

                               STATEMENT

   1. On July 26, 1985, at 2:30 p.m., Chicago, Illinois, police
officers James Entress and Ricky Gutierrez went to a home at 3554
South Wolcott in Chicago in response to a call from another officer.
At the home, the officers met Gail Fischer and her mother.  Fischer
had a black eye, bruises on her neck, and a swollen jaw.  Fischer told
the officers that earlier that day respondent had beaten her at their
apartment at 3519 South California Street in Chicago.  Fischer also
said that respondent had for a time refused to let her leave the
apartment.  Entress asked Fischer whether she wished to sign a
complaint against respondent.  After briefly hesitating, Fischer said
that she did.  Fischer said that she believed respondent was sleeping
at the apartment at the time and that she would let the officers in
with her key to arrest him.  /1/ Pet. App. 2-3;  R. 3-6, 10, 14, 16,
24, 33, 49-50, 84-85.

   The officers accompanied Fischer to the apartment at 3519 South
California.  One officer secured the rear exits, while the other two
went to the front door of the apartment with Fischer.  Fischer used
her key to let the officers into the apartment;  she then returned to
the police car.  Officers Entress and Gutierrez walked through the
living room of the apartment and found respondent sleeping in the
bedroom.  In the living room, the officers saw narcotics paraphernalia
and an open Tupperware jar containing white powder, which the officers
believed was cocaine.  In the bedroom, the officers saw two open
attache cases containing clear plastic bags filled with white powder
and a small amount of marijuana.  The officers woke respondent and
arrested him.  Respondent said that he wanted to get money from a
dresser drawer before leaving.  In the drawer, the officers saw
another clear packet containing white powder.  Pet. App. 4-5;  R. 13,
17-22, 29-32, 72.

   2. Based on the narcotics and paraphernalia found at his apartment,
respondent was charged with possession of cocaine with intent to
distribut it, and possession of marijuana.  Respondent moved to
suppress the evidence found at the apartment on the ground that
Fischer's consent was ineffective to justify the officers' entry.  R.
165-167, 177-178.

   a. At the suppression hearing, Officer Entress testified that he
believed Fischer had authority to consent to the entry of the
apartment, because he thought she lived there.  Officer Entress
recalled that Fischer said that "all her property was there and that
she had been living there." /2/ Officer Entress also testified that
Fischer "kept using the word 'our'" to refer to the apartment at 3519
South California;  at no time did she refer to it as respondent's
apartment.  /3/ Officer Entress added that Fischer had said she had
been beaten at the South California apartment.  Finally, Officer
Entress noted that Fischer had "stated that this was her key," and
that she had used the key to open the apartment door.  R. 6, 10, 11,
16-17, 26-28.

   Fischer and her mother testified that Fischer had moved into the
apartment at 3519 South California with respondent in December 1984.
On July 1, 1985, however, respondent had asked her to move out until
Fischer's two-year-old child was toilet trained and weaned.  With her
mother's assistance, Fischer and her children had then moved to her
mother's house, leaving her key to 3519 South California at the
apartment.  Fischer took her clothes with her, but she did not take
her other possessions from the apartment;  those included her
furniture, her stove, her refrigerator, and her dishes.  Fischer's
mother anticipated that after "the baby was bottle broke and potty
trained," Fischer would move back to the apartment.  R. 40-46, 71-74.

   Between July 1 and July 26, Fischer lived at her mother's house.
She visited respondent at the South California Street apartment nearly
every day and spent between three and five nights there.  However,
Fischer neither contributed to the July rent nor invited her friends
to the apartment after moving out.  Fischer testified that on July 26,
after respondent had beaten her and locked her in the apartment,
Fischer took the key, without respondent's knowledge, in order to let
herself out.  Pet. App. 6-8;  R. 40-46, 71-74, 79.

   b. The trial court granted respondent's motion to suppress.  The
court rejected the State's argument that the officers could lawfully
enter the apartment if they had a reasonable belief that Fischer was
authorized to permit them to enter.  The court ruled that the State's
argument was foreclosed by People v. Miller, 400 Ill. 2d 154, 238
N.E.2d 407, cert. denied, 393 U.S. 961 (1968), "which would not allow
for police to act on the apparent authority of (a) person in allowing
the search of an apartment." R. 139.

   Applying the test set forth in United States v. Matlock, 415 U.S.
164 (1974), the trial court also concluded that Fischer did not have
actual authority to consent to the entry.  The court identified
several "controlling factors." These included the fact that Fischer
was "not a usual resident, let alone an exclusive resident" at the
apartment, but was "a rather infrequent visitor or resident or guest
or invitee." Moreover, Fischer was not on the lease, did not pay rent,
had moved her clothes, and, "most importantly," had moved her children
from the apartment.  The court found the evidence about Fischer's
possession of the key to be equivocal;  Fischer testified at the
suppression hearing that she had taken the key, but the court found
that that evidence was "negated" by Fischer's testimony at the
preliminary hearing that respondent gave the key to her.  Balancing
those factors, the court concluded that Fischer "didnot have the right
or control over that apartment to allow the police entry." R. 139-142.

   3. The Appellate Court of Illinois, First Judicial District,
affirmed.  The court noted that even though this case involves a
consent to enter rather than a consent to search, the same principles
control, because "the validity of a warrantless seizure of evidence in
plain view depends on the validity of the entry by the officers
seizing the evidence." The court then held that the trial court had
properly rejected the State's contention that Fischer's consent was
sufficient to justify the entry, because governing Illinois precedents
held that warrantless entries and searches may not be upheld on the
ground that the consenting party had apparent authority to consent.
Pet. App. 8-9 (citing People v. Vought, 174 Ill. App. 3d 563, 528
N.E.2d 1095 (1988), cert. denied, 109 S. Ct. 3228 (1989), and People
v. Bochniak, 93 Ill. App. 3d 575, 417 N.E.2d 722 (1981), cert. denied,
455 U.S. 938 (1982)).  /4/

   The appellate court also upheld the trial court's conclusion that
Fischer lacked authority to consent to the entry.  Reviewing the
factors that the trial court found to be controlling on that issue,
the court agreed that Fischer "did not have the common authority over
the defendant's apartment that was necessary to make her consent
valid." Pet. App. 10, 12-14.

   4. The Illinois Supreme Court denied a petition for review.  Pet.
   3.

                          SUMMARY OF ARGUMENT

   1. The Fourth Amendment requires that searches and seizures be
reasonable.  The question whether a particular law enforcement
practice is reasonable is answered by balancing the competing
governmental and private interests implicated by the practice.
Because criminal investigations necessarily involve weighing and
acting on probabilities, this Court has recognized that the law of
search and seizure is founded upon the assessment of probabilities in
light of the available facts.

   Applying those principles, the Court has held that an intrusion
that reasonably appears to be justified based on circumstances
existing at the time is not rendered invalid because of facts that
emerge later.  Thus, in Hill v. California, 401 U.S. 797 (1971), the
Court held that an arrest of the wrong person based on a reasonable
mistake in identity is not an "unreasonable" arrest.  And in Maryland
v. Garrison, 480 U.S. 79 (1987), the Court held that a
warrant-authorized search of the wrong apartment based on a reasonable
factual error about the place to be searched is not an "unreasonable"
search.

   2. The principles announced in Hill and Garrison control this case.
 Under those principles, a search based on consent is justified when
it is supported by a reasonable, but mistaken, belief that a
consenting party is authorized to consent to the search.

   The consent search is a valuable tool of law enforcement that
should not be undermined by rules that frustrate its utility.
Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973).  Moreover, a
search based on consent does not require an individual "waiver" of a
person's Fourth Amendment rights;  consent can validly be provided by
a third party.  United States v. Matlock, 415 U.S. 164 (1974).

   Apparent authority to consent should be held sufficient for three
reasons.  First, a rule requiring a showing of apparent authority
adequately restricts the discretion of law enforcement officers by
requiring that they comply with objective, ascertainable rules.  See
Delaware v. Prouse, 440 U.S. 648, 654 (1979).  Subjective good faith
is not enough;  the officer's judgment as to the existence of apparent
authority must be well founded.  Second, retrospective invalidation of
consent searches that appear reasonable at the time would impose
substantial cost on all consent searches by deterring the police in
many instances from acting on consents that appear (and are) perfectly
valid.  Third, a strict requirement of actual authority exceeds what
is required to protect reasonable expectations of privacy.  An
individual's claim to be free from official in vasion is qualified by
the need to tolerate the kinds of errors based on reasonable but
erroneous judgments that inevitably occur during routine police work.

   3. Applying these principles, the entry of respondent's apartment
satisfied the Fourth Amendment.  The officers reasonably believed that
Gail Fischer was authorized to consent to the entry.  Fischer
explained to the officers that she had been beaten by respondent at
their apartment, and she said she "had been living there." She also
stated that all of her belongings were at the apartment.
Significantly, she had a key to the apartment, which she told the
officers she would use to let them in.  Fischer accompanied the
officers to the apartment, where she produced the key and used it to
open the door.  Under these circumstances, there was no objective
reason for the officers to question her authority to permit them to
enter.  Consequently, the evidence found in plain view following the
entry of the apartment should not have been suppressed.

                               ARGUMENT

   THE OFFICERS' ENTRY INTO RESPONDENT'S APARTMENT, BASED ON
APPARENTLY VALID CONSENT BY A THIRD PARTY, WAS LAWFUL

   A. A Search That Reasonably Appears Valid At The Time Of The
Intrusion Does Not Violate The Fourth Amendment, Even If The Factual
Premise For The Search Is Subsequently Found To Be Mistaken

   This Court has emphasized that "(t)he essential purpose of the
proscriptions in the Fourth Amendment is to impose a standard of
'reasonableness' upon the exercise of discretion by government
officials, including law enforcement agents, in order 'to safeguard
the privacy and security of individuals against arbitrary invasions.'"
Delaware v. Prouse, 440 U.S. 648, 653-654 (1979) (footnote omitted).
The requirement of reasonableness in the exercise of discretion does
not impose unrealistic restraints upon official conduct, but prohibits
only "arbitrary and oppressive interference by enforcement officials."
United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976).  In each
case, the fundamental question is whether the intrusion is reasonable.
 Skinner v. Railway Labor Executives' Ass'n, 109 S.Ct. 1402, 1414
(1989);  New Jersey v. T.L.O., 469 U.S. 325, 340 (1985).  It is well
established that the reasonableness of a particular practice is
determined by "balancing its intrusion on the individual's Fourth
Amendment interests against it promotion of legitimate governmental
interests." United States v. Villamonte-Marquez, 462 U.S. 579, 588
(1983) (quoting Delaware v. Prouse, 440 U.S. at 654);  Skinner v.
Railway Labor Executives' Ass'n, 109 S. Ct. at 1414.

   In a variety of contexts, this Court has made clear that the law of
search and seizure is founded upon the assessment of probabilities in
light of the available facts.  The ascertainment of probable cause,
for example, "as the very name implies, * * * deal(s) with
probabilities.  These are not technical;  they are the factual and
practical considerations of everyday life on which reasonable and
prudent men, not legal technicians, act." Brinegar v. United States,
338 U.S. 160, 175 (1949);  Illinois v. Gates, 462 U.S. 213, 231-232
(1983).  Likewise, the concept of reasonable suspicion "does not deal
with hard certainties, but with probabilities." United States v.
Sokolow, 109 S. Ct. 1581, 1585 (1989) (quoting United States v.
Cortez, 449 U.S. 411, 417 (1981)).

   As in any decisionmaking process governed by probabilities, there
will inevitably be instances of error.  The prospect of error in the
judgments made by law enforcement officials, however, does not
invalidate an intrusion that reasonably appeared to be justified based
on circumstances known to the officers at the time of the intrusion.
See Graham v. Connor, 109 S. Ct. 1865, 1872 (1989).  This principle
underlies the fundamental rule that "(t)he validity of (an) arrest
does not depend on whether the suspect actually committed a crime;
the mere fact that the suspect is later acquitted * * * is irrelevant
to the validity of the arrest." Michigan v. DeFillippo, 443 U.S. 31,
36 (1979);  see Gerstein v. Pugh, 420 U.S. 103, 119-123 (1975).

   In Hill v. California, 401 U.S. 797 (1971), the Court applied this
principle in upholding an arrest based on mistaken identity.  In that
case, the police, supported by probable cause, went to Hill's
apartment to arrest him.  Finding a person fitting Hill's description,
they arrested the person and searched the apartment.  The arrestee,
however, turned out not to be Hill.  The Court held that the fact that
the police mistakenly arrested the wrong person did not invalidate the
subsequent search.  The arrest of a person as a result of a reasonable
mistake in identity, the Court stated, is still a "reasonable arrest."
Id. at 802.  "(S)ufficient probability, not certainty, is the
touchstone of reasonableness under the Fourth Amendment and on the
record before us the officers' mistake was understandable and the
arrest a reasonable response to the situation facing them at the
time." Id. at 804.  Consequently, "(w)hen judged in accordance with
the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act, the arrest and
subsequent search were reasonable and valid under the Fourth
Amendment." Id. a 804-805 (citation omitted).

   The Court applied the same principle in Maryland v. Garrison, 480
U.S. 79 (1987).  There, the Court held that a search of the wrong
apartment, based on a reasonable factual error in conducting a
warrant-authorized search, did not violate the Fourth Amendment.  The
police had obtained a warrant for a suspect's "third floor apartment"
and had executed it, reasonably believing that there was only one
apartment on the third floor of the building described in the warrant.
 Id. at 80.  After beginning the search and discovering narcotics,
however, the officers realized that the third floor was divided into
two units and that they were in the wrong apartment.  The Court held
that the contraband that the officers found in that apartment was not
gathered in violation of the Fourth Amendment.  The Court first
determined that the warrant was not invalid for lack of particularity
in describing the "place to be searched," even though in retrospect it
was apparent that the warrant was overboard.  The proper test, the
Court stated, is to "judge the constitutionality of (the officers')
conduct in light of the information available to them at the time they
acted." Id. at 85.

   Relying on Hill's rationale, the Court in Garrison likewise held
that the officers' execution of the warrant was reasonable.  The Court
recognized "the need to allow some latitude for honest mistakes that
are made by officers in the dangeous and difficult process of making
arrests and executing search warrants," 480 U.S. at 87.  In addition,
the Garrison Court stated that the "objectively understandable and
reasonable" mistake that put the officers in the wrong dwelling did
not offend the principle of reasonableness that underlies the Fourth
Amendment.  Id. at 88.

   B. A Search Based On The Consent Of A Party Who Appears To Have
Authority To Give Such Consent Is Valid If The Officers Reasonably
Believe That The Consenting Party Has The Proper Authority

   The principles announced in Hill and Garrison justify a consent
search based on a reasonable, but mistaken, belief that the consenting
party is authorized to permit the search.  To begin with, it has long
been recognized that the consent search is a valuable means for law
enforcement officers to gather information.  Schneckloth v.
Bustamonte, 412 U.S. 218, 222 (1973).  When a search is supported by
consent, neither a warrant not probable cause is required.  Id. at
219.  Inasmuch as consent searches "are part of the standard
investigatory techniques of law enforcement agencies," the Court has
refused to constrain them by "artificial restrictions * * * (that)
would jeopardize their basic validity." Id. at 229, 231-232.  /5/

   The Constitution does not require that an individual personally
consent to the search of his property before a consent search can be
valid.  In United States v. Matlock, 415 U.S. 164 (1974), the Court
held that police may conduct a warrantless search of a person's
dwelling on the basis of the consent of a third party who has common
authority over the dwelling.  The Court explained that such consent
rests "on mutual use of the property by persons generally having joint
access or control for most purposes, so that it is reasonable to
recognize that any of the coinhabitants has the right to permit the
inspection in his own right and that the others have assumed the risk
that one of their number might permit the common area to be searched."
Id. at 171 n.7;  see Frazier v. Cupp, 394 U.S. 731, 740 (1969).
Matlock, however, explicitly reserved the question whether, absent
proof of actual authority, a search is nevertheless justified when
"the searching officers reasonably believed that (the third party) had
sufficient authority over the premises to consent to the search." 415
U.S. at 177 n.14.

   In our view, the reasonable appearance of authority by a third
party to consent to a search or an entry provides adequate grounds for
the police to act.  Several reasons support this view.  First, an
apparent authority rule satisfies the fundamental requirement that the
discretion of law enforcement officers be cabined by objective,
ascertainable rules.  Under the rule we propose, a government agent
must have a reasonable basis for believing that a person has authority
to consent before acting on such consent.  A "subjective good-faith
belief" is not sufficient.  Hill, 401 U.S. at 804.  Rather, "the
reasonableness standard * * * requires, at a minimum, that the facts
upon which an intrusion is based be capable of measurement against 'an
objective standard.'" Delaware v. Prouse, 440 U.S. at 654.  As in
other Fourth Amendment settings, the question is "whether the
officers' actions are 'objectively reasonable' in light of the facts
and circumstances confronting them, without regard to their underlying
intent or motivation." Graham v. Connor, 109 S. Ct. at 1872.  The
reasonableness of the officers' action "must be judged from the
perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight." Ibid.

   If the police act unreasonably in forming their views, and the
consenting person is found to lack proper authority, the search or
entry is not valid.  To adopt the additional limitation that a search
that appeared reasonable at the time must be declared "unreasonable"
because of subsequently discovered facts would provide no additional
restraint on the exercise of official discretion.  A search that
reasonably appears to be supported by consent is not "arbitrary" or
"oppressive." United States v. Martinez-Fuerte, 428 U.S. at 554.
Consequently, a strict actual authority limitation is not needed to
serve the Fourth Amendment's purpose of confining the exercise of
discretion by government officials within reasonable bounds.  See
Delaware v. Prouse, 440 U.S. at 654.  /6/

   Second, a rule that requires courts to invalidate consent searches
that appear reasonable at the time would not be limited in its effects
to searches in which actual authority is ultimately found to be
absent;  it would impose substantial costs on all consent searches.
Knowledge that an apparently valid consent can later be invalidated
would deter officers from accepting many perfectly legitimate
consents, for fear that the searches based on those consents might
later be held unlawful and the officers subject to criticism,
administrative action, or even damages.  Compare Anderson v.
Creighton, 483 U.S. 635 (1987).  Police officers facing a seemingly
reasonable invitation to search would have to detour from the pursuit
of evidence in order to engage in a distracting side inquiry into the
exact relationship of the consenting party to the premises to be
searched.  Moreover, there would be no practicable stopping point to
any such investigation, since even a reasonably thorough inquiry might
fail to reveal the consenting party's lack of authority.  /7/

   Rejection of the apparent authority rule would thus impair a
practice that is of great use to the efficient conduct of
investigations.  That result is at odds with the concern expressed in
Schneckloth, 412 U.S. at 228, not to inhibit consent searches unduly.
The impact would be felt not only by the police, but also by "the
community (, which) has a real interest in encouraging consent, for
the resulting search may yield necessary evidence for the solution and
prosecution of crime, evidence that may insure that a wholly innocent
person is not wrongly charged with a criminal offense." Id. at 243.
/8/

   Third, while a strict actual authority requirement would strongly
protect privacy interests, we believe that the scope of that rule
would exceed what is required to protect reasonable expectations of
privacy.  Cf.  California v. Greenwood, 108 S. Ct. 1625, 1628 (1988)
("An expectation of privacy does not give rise to Fourth Amendment
protection * * * unless society is prepared to accept that expectation
as objectively reasonable.").  We acknowledge, of course, the profound
interests in privacy that surround an individual's home and the
importance of the home in the hierarchy of values protected by the
Fourth Amendment.  See, e.g., Payton v. New York, 445 U.S. 573 (1980);
 Steagald v. United States, 451 U.S. 204 (1981);  Welsh v. Wisconsin,
466 U.S. 740 (1984).  Nevertheless, the Fourth Amendment was not
designed to erect an absolute barrier against entry of a home by
officials, or to guarantee error-free police work in making the
decision to enter.  /9/ Its command is one of reasonableness,
embodying a compromise between individual security and the legitimate
aims of law enforcement.  One aspect of this principle, as shown by
Hill and Garrison, is that the police may lawfully act on plausible,
reliable information, even though that information is subsequently
shown to be wrong.  To the extent that freedom from official invasion
is safeguarded by the Fourth Amendment, that interest is qualified by
the need for tolerance of reasonable mistakes in order to protect the
ability of the police to discharge their mission.

   In our view, the apparent authority standard properly accommodates
competing interests by imposing an objective restraint on official
conduct, measured by events facing the officers at the time.  /10/ The
courts of appeals that have addressed the issue have uniformly adopted
that view, /11/ as have the vast majority of state courts that have
considered the matter.  /12/

   The apparent authority rule is fully consistent with this Court's
decisions in Stoner v. California, 376 U.S. 483 (1964), and Chapman v.
United States, 365 U.S. 610 (1961).  In Stoner, the Court held that
the police officers' reliance on the authority of a hotel desk clerk
to admit them to an absent guest's room was insufficient because "the
rights protected by the Fourth Amendment are not to be eroded by
strained applications of the law of agency or by unrealistic doctrines
of 'apparent authority.'" 376 U.S. at 488.  /13/ In Chapman, the Court
held that a search was not valid when a landlord, smelling an "odor of
mash" at his tenant's house, called the local police officers and told
them they could go inside.  365 U.S. at 611.

   Stoner and Chapman simply underscore that the police may not rely
on persons who plainly lack the indicia of authority to permit the
search or entry in question.  In neither Stoner nor Chapman were the
police misled about the relationship between the consenting party and
the premises to be searched.  The police simply accepted conssents
from persons who could not reasonably be thought to have authority to
consent.  /14/ That factor distinguishes those decisions from cases in
which the police make a reasonable mistake of fact about a third
party's apparent authority.  /15/

   C. Under The Foregoing Standards, The Entry Into Respondent's
Apartment Was Lawful

   The officers who entered respondent's apartment reasonably believed
that Gail Fischer was authorized to consent to the entry.  As we
previously described more fully, Fischer explained to the officers
that she had been beaten by respondent at their apartment, and she
stated that she had been living there.  Fischer repeatedly referred to
the apartment as being "ours," and mentioned that all of her
belongings were there.  Significantly, Fischer had the key to the
apartment, which she used to open the door.

   These facts were sufficient to justify the officers' conclusion
that Fischer had the authority to consent to their entry into the
apartment.  The situation presented itself to the police as an
unfortunate, but routine, domestic dispute;  the police accepted the
victim's consent to give them access to "her" apartment.  There was no
reason for the officers to doubt the validity of that consent.  Even
if the officers had spontaneously probed to discover from Fischer the
details of her recent living arrangements, it is far from clear that
they would have been able to discover that Fischer lacked the
requisite authority to permit the entry.  /16/ Accordingly, the
evidence found in plain view following the entry of the apartment
should not have been suppressed.  /17/

                              CONCLUSION

   The judgment of the Appellate Court of Illinois, First Judicial
District, should be reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   MICHAEL R. DREEBEN

      Assistant to the Solicitor General

   DECEMBER 1989

   /1/ At the suppression hearing, Officer Entress testified that he
asked Fischer whether respondent dealt in narcotics, as Entress had
recalled hearing that a person with respondent's name was involved
with narcotics.  Fischer did not reply.  Officer Entress testified
that he then said that if Fischer was afraid "of us going into your
apartment and locking him up," Fischer should say so and the officers
would not go in.  After thinking for a moment, Fischer said that she
wanted to file a complaint and would open the door for the officers.
Pet. App. 4;  R. 24, 28.

   /2/ Respondent's counsel sought to impeach Officer Entress with his
testimony from the preliminary hearing, where he testified that
Fischer had said she "used to" live at the South California apartment.
 Officer Entress indicated that his best recollection was that Fischer
said "she had been living there." R. 11-12;  Pet. App. 3.  Neither of
the courts below made findings regarding Fischer's exact words.

   /3/ Officer Entress's testimony that Fischer referred to the
apartment as "our" apartment was corroborated by her mother.  R. 54.

   /4/ Both Vought and Bochniak relied on the Illinois Supreme Court's
decision in People v. Miller, 40 Ill. 2d at 159, 238 N.E.2d at 409,
where that court applied the Fourth Amendment to suppress evidence
found during the search of a guest's car parked in a homeowner's
garage;  the court held that the apparent authority of the homeowner
to consent to the search of the car did not "waive" the guest's
constitutional rights.

   /5/ In part to protect the usefulness of consent searches,
Schneckloth held that a strict "voluntariness" standard, requiring a
free and intelligent waiver of a known constitutional right, cf.
Johnson v. Zerbst, 304 U.S. 458 (1938), does not apply to consent
searches;  instead, a totality-of-the-circumstances test governs the
inquiry.  412 U.S. at 235-248.

   /6/ There is also no reason to believe that the deterrent purposes
of the exclusionary rule would be served by applying it to consent
searches conducted in reasonable reliance on persons with apparent
authority.  See United States v. Sledge, 650 F.2d 1075, 1077 (9th Cir.
1981).  However, "(t)he question whether the exclusionary rule's
remedy is appropriate in a particular context has long been regarded
as an issue separate from the question whether the Fourth Amendment
rights of the party seeking to invoke the rule were violated by police
conduct." Illinois v. Gates, 462 U.S. 213, 223 (1983).  In our view,
the Court should resolve the issue in this case by holding that no
unconstitutional police practice has occurred, thereby obviating the
need to consider whether the exclusionary rule should be applied in
this context.  Cf. United States v. Leon, 468 U.S. 897 (1984);
Illinois v. Krull, 480 U.S. 340 (1987).

   /7/ As the Seventh Circuit has observed:

         Going beneath the surface of the information in hand * * *
      would make the outcome of the search depend on niceties of
      property or marital law far removed from the concerns of the
      Fourth Amendment.  consents would become untrustworthy unless
      the police spent additional time investigating the authority of
      the person who gave consent, which in a case like ours would
      require knowledge of Illinois domestic relations law and the
      living arrangements of the couple.

   United States v. Rodriguez, 888 F.2d 519, 523 (1989).

   /8/ A critic of the apparent authority rule concedes that the
ultimate effect of requiring actual authority regardless of
appearances would be that "(t)he only sensible guide for the police is
that they should never rely on consent as the basis for a search
unless they must.  If they do search relying on consent, they should
be prepared to meet a heavy burden of proof that consent was in fact
meaningfully given.  And even then, because of the difficulties of
proof, they should expect to be told often that the search was not
proper." Weinreb, Generalities of the Fourth Amendment, 42 U. Chi. L.
Rev. 47, 64 (1974).

   /9/ Cf. Brower v. County of Inyo, 109 S. Ct. 1378, 1381 (1989)
("(T)he Fourth Amendment addresses 'misuse of power,' * * * not the
accidental effects of otherwise lawful government conduct.").

   /10/ While we have described the rule as one of "apparent
authority," following the usage of the courts of appeals, see, e.g.,
United States v. Rodriguez, 888 F.2d at 523, the principles underlying
the rule are entirely distinct from the apparent authority doctrine of
agency law.  See American Society of Mechanical Engineers, Inc. v.
Hydrolevel Corp., 456 U.S. 556, 565-566 (1982).  In agency law, the
apparent authority of an agent supports the imposition of liability
upon a principal because the agent is in a position to "affect the
legal relations of (the principal) by transactions with third
persons." Id. at 566 n.5 (quoting Restatement (Second) of Agency,
Section 8 (1957)).  In the consent search context, by contrast, the
concept of "apparent authority" refers to the reasonable appearance of
authority from the vantage point of officials whose action is being
judged.  The application of the Fourth Amendment, which "is
quintessentially a regulation of the police," Amsterdam, Perspectives
on the Fourth Amendment, 58 Minn. L. Rev. 349, 371 (1974) does not
turn 0  on concepts invoked in state agency law any more than it turns
on state property or tort law.  See California v. Greenwood, 108 S.
Ct. at 1625;  Dow Chemical Co. v. United States, 476 U.S. 227, 232
(1986);  Matlock, 415 U.S. at 171 n.7.

   /11/ See, e.g., United States v. Rodriguez, 888 F.2d at 523 ("The
question posed by the Fourth Amendment is whether the search is
'reasonable', and it is reasonable to act on the basis of apparently
valid consent.");  United States v. Yarbrough, 852 F.2d 1522 (9th Cir.
1985), cert. denied, 109 S. Ct. 171 (1988);  United States v. Miller,
800 F.2d 129, 133 (7th Cir. 1986);  United States v. Hamilton, 792
F.2d 837, 842 (9th Cir. 1986);  United States v. Sledge, 650 F.2d
1075, 1080-1081 (9th Cir. 1981) (Kennedy, J.) ("(A) search is 00  not
invalid where a police officer in good faith relies on what
reasonably, if mistakenly, appears to be a third party's authority to
consent to the search.");  United States v. Isom, 588 F.2d 858, 861
(2d Cir. 1978);  cf. United States v. Peterson, 524 F.2d 167, 180-81
(4th Cir. 1975) ("At the very least, Mrs. Peterson possessed 'the
necessary appearance of authority * * *' to validate a search based on
her consent." Compare Riley v. Gray, 674 F.2d 522, 528 n.7 (6th Cir.
1982) (refusing to apply the doctrine based factually implausible
claim).

   /12/ See, e.g., Nix v. State, 621 P.2d 1347, 1349 (Alaska 1981)
("We now align ourselves with those authorities, representing the
majority view, which hold that apparent authority alone is
required.");  People v. Adams, 53 N.Y.2d 1, 422 N.E.2d 537, 439
N.Y.S.2d 877, cert denied, 454 U.S. 854 (1981);  3 W. LaFave, Search
and Seizure, Section 8.3(g), 262-263 n.98 (2d ed. 1987 & Supp. 1989)
(collecting cases).  See also Model Code of Pre-Arraignment Procedure,
Section in the case * * * of (c) search of premises, by a person who
by ownership or otherwise, is apparently entitled to determine the
giving or withholding of consent.").  But see People v. Miller, supra;
 State v. Carsey, 59 Or. App. 225, 650 P.2d 987, aff'd, 295 Or. 32,
664 P.2d 1085 000000  (1982).

   /13/ Stoner also stated that only the guest could "waive" his
rights with regard to the search, "either directly or through an
agent." 376 U.S. at 489.  That language does not address the issue in
this case.  The concept of "waiver" is not the source of authority for
a consent search based on the actual authority of a third party, cf.
Schneckloth v. Bustamonte, 412 U.S. at 245 ("a 'waiver' approach to
consent searches would be thoroughly inconsistent with our decisions
that have approved 'third party consents'"), and it has no relevance
to a search justified by a third party's apparent authority.  The
justification for such a search is the reasonableness of police action
based on the information the police have before them.

   /14/ As one commentator has recognized, in Stoner "the police were
in no sense mistaken as to the essential facts, namely that the
consenting party was only the clerk and that the room was currently
rented by the defendant.  * * * That is, Stoner involved a mistake of
law rather than a mistake of fact, which does not come within the
apparent authority doctrine." 3 W. LaFave, Search and Seizure, Section
8.3(g), at 262 & n.96 (2d ed. 1987).

   /15/ The Ninth Circuit, which has taken the lead in developing the
apparent authority doctrine, has had no difficulty in finding a lack
of justification for searches authorized by landlords, United States
v. Warner, 843 F.2d 401, 403 (1988), or hotel managers, United States
v. Winsor, 846 F.2d 1569, 1571 (1988) (en banc), on appropriate facts.

   /16/ The State has urged in its petition (Pet. 27-31) that the
appellate court erred in its application of Matlock to the facts of
this case.  There is substantial force to that argument.  Compare
United States v. Trzaska, 859 F.2d 1118, 1120 (2d Cir. 1988) (consent
was validly given by estranged wife who had only recently moved out,
still retained a key to the residence, and still had her personal
belongings there), cert. denied, 110 S. Ct. 123 (1989);  United States
v. Guzman, 852 F.2d 1117, 1121-1122 (9th Cir. 1988) (consent was
validly given by wife whose name was on lease and who sometimes
resided at the defendant's apartment and had a key);  United States v.
Crouthers, 669 F.2d 635, 642-643 (10th Cir. 1982) (consent was validly
given by wife who had moved in with parents but retained key to
apartment and had not abandoned marriage).  Regardless of whether the
courts below erred in their application of Matlock (a question that we
do not believe need be reached), the closeness of the question
strengthens the case for concluding that the officers acted reasonably
in reaching their on-the-spot judgment that Fischer's consent was
adequate.

   /17/ Because the Illinois courts have not passed on the application
of apparent authority principles to the facts of this case, the Court
may wish to remand the case for initial consideration of that issue by
those courts.  Cf. United States v. Matlock, 415 U.S. at 177-178.