MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
Plaintiff alleges that defendant, acting under color of state law, violated her Fourth Amendment right to be free from unreasonable searches when defendant searched her apartment without a warrant. Defendant moves for summary judgment, arguing that a constitutional violation did not occur because plaintiff's daughter consented to the search (Doc. 36). Plaintiff filed a cross-motion for summary judgment (Doc. 40). For the following reasons, the court grants defendant's motion for summary judgment and denies plaintiff's motion.
I. Factual Background
On June 2, 2012, defendant was investigating the theft of some tools. He was advised that plaintiff's adult daughter, Ana Ledesma, had been working in the area from which the tools were missing. Defendant was taken to an apartment and told that it was Ms. Ledesma's residence.
Ms. Ledesma came out of the apartment and spoke with defendant. Defendant explained why he was contacting her, and Ms. Ledesma told him that she did not have the tools. Defendant asked whether she lived in the apartment, and she said she did. Defendant then asked whether he could look around the apartment, and Ms. Ledesma told him to go on in. Defendant did not threaten Ms. Ledesma, and she agrees that he was professional and appropriate in his conduct towards her. Defendant did not have a warrant to search the apartment.
Ms. Ledesma followed defendant into the apartment. While in the apartment, defendant just looked around and did not move or rearrange any of the belongings inside the apartment. As he approached the back part of the apartment, defendant encountered plaintiff. Plaintiff told him to leave, and he did.
Although Ms. Ledesma is not on the lease, she considered the apartment her home. She had lived in the living room portion of the apartment for two or three months before defendant entered the apartment in June 2012. Ms. Ledesma had a dresser and closet for her clothing and her personal belongings in the apartment. She had a key to the apartment, received mail at the apartment, and was paying some form of rent. Plaintiff never told Ms. Ledesma that she could not access any part of the apartment. And plaintiff and Ms. Ledesma filed a federal complaint in another lawsuit in August 2012 alleging that plaintiff's apartment was Ms. Ledesma's residential address.
Plaintiff brings a claim under 42 U.S.C. § 1983, alleging that defendant, while acting under color of law, violated her Fourth Amendment rights when he searched her apartment without a warrant. Defendant moves for summary judgment, arguing that no reasonable jury could find a constitutional violation because plaintiff's daughter consented to the search. See Fed.R.Civ.P. 56(a) (outlining the summary judgment standard); see West v. Atkins, 487 U.S. 42, 48 (1988) (explaining that a plaintiff asserting a claim under 42 U.S.C. § 1983 must establish a constitutional violation by a person acting under color of state law).
The Fourth Amendment prohibits unreasonable searches of a person's home. A warrantless search of an individual's home is unreasonable unless the search falls within an exception. United States v. Cos, 498 F.3d 1115, 1123 (10th Cir. 2007). One exception to the warrant requirement is a consensual search. Id. at 1124.
Valid consent to search has two elements. United States v. Sanchez, 608 F.3d 685, 689 (10th Cir. 2010). First, the consent must be obtained from the owner of the property or, in certain circumstances, from a third party that possesses actual or apparent authority to consent to the search. Id. Second, the consent must be "freely and voluntarily given." Id.
Defendant argues that, based on the record evidence, no reasonable jury could find that Ms. Ledesma lacked actual authority to consent to the search of the apartment. The court agrees. A third party has actual authority to consent to the search of property when the third party has "mutual use of the property by virtue of joint access." United States v. Rith, 164 F.3d 1323, 1329 (10th Cir. 1999). Mutual use of the property by virtue of joint access is a fact-intensive inquiry. Id.; see also Cos, 498 F.3d at 1119 (outlining facts that suggest actual authority).
Here, the record establishes that Ms. Ledesma: (1) had a key to the apartment, (2) admitted she lived there, (3) considered the apartment her home, (4) listed the apartment as her residential address in a federal complaint filed in August 2012, (5) received mail at the apartment, (5) kept clothing and personal belongings at the apartment, (6) paid rent of some form, and (7) was never told that she could not access any part of the apartment. The only evidence identified by plaintiff that suggests that Ms. Ledesma lacked actual authority is the lease agreement, which does not list Ms. Ledesma. Although this lone fact is relevant, it is not controlling. See United States v. Matlock, 415 U.S. 164, 171 n.7 (1974) (explaining that "common authority" is not based on property law). The court concludes that, in light of all the record evidence, no reasonable jury could find that Ms. Ledesma lacked actual authority.
Defendant also argues that no reasonable jury could find that Ms. Ledesma's consent was involuntary. Again, the court agrees. Consent is voluntary when there is clear and positive evidence that consent was "unequivocal and specific and freely and intelligently given" and the officers did not ...