Does a homeowner's live-in boyfriend or girlfriend have the "apparent authority" to consent to a warrantless search of the property? What if the live-in boyfriend/girlfriend had no key and had shown up at the police station the morning of the search claiming to have been "thrown out" of the house? Would it matter if the police knew the relationship had gone on for several years and was particularly turbulent (i.e. on-again, off-again, with repeated domestic violence calls to the police)?

United States v. Penney, decided today by a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, raises these questions, and more. This area's not my specialty, but I'm inclined to side with the dissent. It seems to me the police had ample reason to question the homeowner's girlfriend's apparent authority. I would also think they could have obtained a search warrant had she been as willing to report on her lover's activities as she was to lead the police through the home.