Eye on Eagle

Issue before the Court: Whether detectives had consent, based on apparent authority, to enter an apartment within a
two-family home where they arrested Mr. Cuencas?1

Factual Background: Mr. Cuencas and his co-defendant Mr. Gavin were accused of kidnapping and then
participating in/knowing the plan was to later murder a rival drug dealer. After they were
both identified by witnesses who saw the kidnapping, the police went to an apartment
building “where the police believed they could be found,” (it was later revealed that it was
Mr. Gavin’s apartment). The police did not obtain a warrant first.

The building was a two-story, two-family house. The officers knocked on the external door
multiple times. Then they knocked on a first-floor window. A man, who the officers did not
recognize and who was later determined to be Mr. Jeter, looked out the window and finally
came to the exterior door and opened it. The officers asked, “Mind if we come in and talk to
you?” Mr. Jeter opened the door wider, revealing a vestibule with doors to two apartments:
one on the first floor and one leading to stairs and an upstairs apartment. Mr. Jeter never
gave a verbal response to the officers, and the officers never asked Mr. Jeter any questions
about who he was, if he lived in the building, or what he was doing there. The officers took
Mr. Jeter’s gesture to mean they could enter the building, which they did.
From the vestibule, both apartment doors were open, and both apartment doors had visible
locks on them. A detective saw Mr. Cuencas through the open door to the first-floor
apartment, entered the apartment, and arrested both co-defendants. Mr. Cuencas was taken
to the precinct, where he gave a statement; a search of the apartment revealed evidence used
at trial.

Held: (1) Because the officers only sought consent to enter the common vestibule to speak to the
person who answered the exterior door, they did not have permission to enter the firstfloor
apartment, which had a separate door and lock.

(2) There was no record support for the conclusion that Mr. Jeter appeared to have the
authority to consent to enter the first-floor apartment because “a reasonable belief of
apparent authority requires some claim of authority by the person granting consent.”
Seeing the person through a window by the first-floor apartment before he came to the
exterior door was not enough.

CAL Observes: Obviously, Cuencas will be helpful in cases where practitioners are challenging consent.

Especially in cases where police are looking to enter a multi-unit building, Cuencas highlights
the difference between consent to enter a common area vs. an individual unit, and the
factors that delineate those spaces, like external doors and locks. In Cuencas, it was
important that the police never asked for permission to enter the individual unit, only the
vestibule; therefore, Cuencas can be used to demand something more from officers when
asking for permission to enter.

Cuencas also demands specific evidence to support the conclusion that a third-party has
apparent authority, “such as Mr. Jeter identifying himself [as] the building’s landlord,
displaying keys to the first-floor apartment, or unlocking and entering the apartment.”
Cuencas allows practitioners to require more than tacit behavior like vague gesturing,
especially when the third party is unknown to the police: “some affirmative statement
claiming authority or concrete demonstration of authority.” [Caveat: the majority does some
questionable distinguishing in footnote 5 in cases where the police knock on the door to a
particular unit where they know the suspect lives.]

Ultimately, the biggest disagreement between the majority and dissent is over the Court’s
jurisdiction. The dissent acknowledges that “any number of perfectly reasonable hearing
court judges might have determined based on this record that there was only consent to
enter the vestibule and not the apartment, or even that there was no consent at all.” It
disagreed, though, that this wasn’t a mixed question of law and fact; it thought there was
some “record support for the determination below” that the officers had consent to enter
the apartment. Cuencas may be a model for practitioners trying to frame their leave
applications as questions of law: that, as Chief Judge Wilson explained in the majority, the
issue is one of the minimum factual showing necessary to constitute an accepted legal theory.