held that rd party consent searches of the defendants home must be reviewed under the two prong test set forth by this court in the united states versus davis those two prongs are very simple and straightforward the st is access the nd is authority the government concedes that there was no warrant and the only judicially available exception to the work requirement was voluntary consent however the government also has to concede that there was no consent from the defendant for the search of defendant this supposed consent of a wife in a situation where at that point they had no reason to believe that the wife was not also living there because and he never said oh she doesn't live here if you i don't believe it was that clear cut i think it was more along the lines of we can get consent we will get consent this all happened none of the interactions with the defendant or the complaint occur at the house here's here's my problem i agree with you completely you had to go the government police had to rely on somebody acting is if they can give consent in an ordinary rd party situation but where you have a husband and wife we have a husband is accused of beating up on the wife at us why isn't it perfectly reasonable at that point for government to believe that the wife used living with us and has given a consent which if you was living with them would be a valid concern so then up to the point where they get to have a house and then there's my mother's testimony no no that isn't what's going on she isn't living here which i think is pretty clear the district judge didn't believe that she said that now he didn't do a very good job on that point but i think it's pretty clear he didn't believe her circuit and there's been no case in front of the supreme court where a rd party consent whether it's under the actual authority or the apparent authority analysis occurs in a scenario where there is no access by the person who's giving consent and the st prong doesn't the failure of the police to have actual access by the rd party who's giving them consent negates the why wasn't but she sent her things were there they were married in it turned out in fact that her clothes were there they had been living in that in that bedroom you think that the legitimacy of their entry depends on whether she had a key in her pocket or not i think under the case law the st prong of davis requires access and there is no record developed that there was ever any question to her by the police asking about access about the ability to access with a key she drove from the residence to where she lived she was a probation she was on probation the reality is the government even concedes that she didn't have actual earth already this case does fall down to reasonable ness reasonableness is where the police just wrong and if they were wrong was that there are reasonable but that's an analysis that occurs under the authority privilege portion of the two prong test not the access portion and that's where the legally erroneous conclusion of law in fact occurs at the district court level because there is no suggestion in the record that the complaint had any ability to get and give access to the police to the defendant's apartment while this case stands for is the precedent that any person can sign a preprinted form giving access without limitation because that's the words of the police right on the form without limitation despite the fact that they know you're you're not you're not drawing a distinction between any person and a husband and a wife you know acknowledge any other presumptions that might be reasonable to draw i think in two thousand and seventeen it's very difficult to quantify relationships of individuals to he start to name there was an additional interview at the police station for albany city police department with a complaint and an interview with the defendant at the police station in all of those interviews and all of those times you said in passing was something well the police clearly knew he was on work release and they clearly knew that he was on work release for the state prison term at the time of his interview because it was brought up in the interview quite answer my question that i want to know what they had before them should have been enough to signal that this was a different situation i don't believe the law allows that to be ignorant and to purposefully remain ignorant there is no meaningful information that could be was developed or obtained during the testimony of three detectives concerning anything that wasn't written down in the file and there was nothing written down in the file of no other than she was the wife of the defendant thank you your honor if i'm the govern consent to the search of the residence that she told them they shared second there was no clear error in the district to see courts evident although implicit rejection of the testimony of mr connally's mother that she denied that co your honor he didn't say specifically she did not object but what he did say is that she was shown the consent and turned and show them to the bedroom he also has a footnote saying even if i were to credit that testimony that she objected it wouldn't matter so i think when you read the decision i don't think there's any room for the notion that credit her testimony that she objected couldn't have been there's no evidence here that he ever told us mother don't let anyone into the support and don't let anyone into the spectrum the question is the remedy and the supreme court has been very clear that you know if what you're considering is who's who's for the men of violation occurred here and which is the remedy of suppression of evidence and a person in mr kali's position cannot rely on the potential or alleged violation of another person's amendment right to seek suppression i don't think the supreme court has said that it was no permission to go in right that he was complaining about their broods true right but if you look at your honor the georgia versus randolph supreme court expressly said we are not addressing that issue about when you have people living more than one person two people living a rd party tenet jacks not the defendant here it depends on what happened at the time a please cite entry and so in the georgia versus randolph is that we're not addressing a situation where police show up at the door searching for evidence against the defendant and another party objects to their entering they say we're not addressing that and justice briar's and i'm signing on is the th vote on the specific facts not other facts and if you look i think it's a georgia versus rand offices and i think there are authority over and sufficient relationship to the promises and the question is can does the apparent authority doctrine extend to the question of whether there was common authority can police reasonably recently belie facts that would suggest to a reasonable person that there was common authority and in illinois versus rodriguez the supreme court's answer that in no uncertain terms davis and turning then to the suggestion that th somehow relied on or has required the person giving consent to have actual access that is not the case in mickey the person who is giving access couldn't get into the apartment but the court said that's not the question the question is whether that person had common authority to enter if they were if you have to look at the reason they were locked out is not just that the fact that they did not have access at that time and here there's no indication that  out in fact contrary to what defendant says in the reply brief there is actually testimony from mrs sorry from mr carlie's mother that his wife did have a set of keys said when he when he was asked when the apartment on north island street was described as where you guys live out he did not say no that's not where we live that's where she lives that he described the benson street apartment where she gave the initial interview as the apartment of her mother and grandmother not her apartment all in all the reasons no reason for the police to doubt her apparent authority to grant access  violence and on this is that in the middle of the night under these circumstances i don't think the police can be faulted for not having an i miss connally accompanying them to the apartment i don't think there's you want to create a rule that a victim  of domestic violence is forced to return to the scene of the attack in order to let police in i don't that's i think precisely the kind of really do not want to create and one could perfect it's a very dangerous precedent to state that a complaining witness who has no ability to access a defendant's home can sign a consent form and the police can use that consent form to enter the reality of this case is with that piece of paper the police had no ability is ear or ability to enter the residence to conduct a search and to seize any items they found there and the question is who  use my st argument is no because they don't ever get to the issue did she have authority because she there was no access there was no ability for her to let this complaining witness to what the police access so whether she had of the analysis of was the mistake reasonable as to whether she had authority is something the police never should have gotten to because she did not give them access if she had a key which i don't think the record says she did if she had a key why did they not repeatedly on the door they had no ability to access absent the ability of a rd party to consent to the search of a defendant's home and to access we never get to the issues of actual of already or when the police make that mistake when they are in your not saying that she needed to be physically present if she had had the keys and given those keys to the officers which she then have you have my consent i'm married to this guy you know go look and see what you find it would seem that at a minimum that would be required to provide the police not just your authority but your actual ability to get inside as a precondition to determine whether in fact you have authority or was just open if the door was open and they had of already from somebody who was not present i would think they can probably enter but absent the ability to access that authority whether it's right or wrong is meaningless thank you for your time thank you both will