Opinion
Docket No. 25917.
Filed June 5, 2001.
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Ronald J. Wilper, District Judge.
Order denying motion to suppress evidence, reversed.
Ronaldo A. Coulter, State Appellate Public Defender; Richard J. Hansen, Deputy Appellate Public Defender, Boise, for appellant. Richard J. Hansen argued.
Hon. Alan G. Lance, Attorney General; T. Paul Krueger II, Deputy Attorney General, Boise, for respondent. T. Paul Krueger II argued.
This appeal requires that we consider the propriety of a police search of a fanny pack based upon the consent of a person other than the owner. As a result of the search, Rexann Barker was convicted of possession of a controlled substance. She contends that the district court erred in denying her motion to suppress the drugs that were found in the fanny pack during a police search of Barker's apartment.
FACTS AND PROCEDURAL HISTORY
Approximately two years before the search, Barker's boyfriend, John Tate, had consented to the search of his residence as a term of parole. In December 1998, Tate was wanted on an arrest warrant for parole violations, including a positive result on a urinalysis test for drugs.
After receiving information that Tate was no longer living at his prior residence, Tate's parole officer learned that Tate had been seen at Barker's apartment. On December 10, 1998, the parole officer, accompanied by several Ada County sheriff's deputies, found Tate standing outside Barker's apartment and arrested him. When asked where he had been, Tate responded that he had been at Barker's apartment for a couple of weeks.
After Tate was arrested, the parole officer and sheriff's deputies went into Barker's apartment to search for evidence of Tate's possible drug use. When the parole officer told Barker that they were going to search the apartment, Barker responded that Tate stayed there off and on, but did not reside there. The officers nevertheless proceeded with the search. One of the deputies discovered a fanny pack in the bathroom adjacent to the master bedroom after a drug dog alerted on the fanny pack. The deputy asked Barker whether she owned the fanny pack and she responded that she did. The detective then opened the fanny pack, discovering a sixteenth of an ounce of methamphetamine. Barker was arrested and charged with possession of a controlled substance, Idaho Code § 37-2732(c).
Barker filed a motion to suppress the evidence found in the fanny pack. The district court denied the suppression motion, holding that Tate's consent validated the search of the apartment, including the fanny pack. On appeal, Barker challenges the district court's denial of her suppression motion.
ANALYSIS
The Fourth Amendment to the United States Constitution prohibits warrantless searches of a person's home or effects in the absence of an exception to the warrant requirement. Welsh v. Wisconsin, 466 U.S. 740 (1984); Payton v. New York, 445 U.S. 573 (1980). We recently held that a probationer's or parolee's waiver of Fourth Amendment rights and consent to searches, given as a condition of the probation or parole, is valid and may justify a warrantless search of that person's residence, even if the residence is shared by others. See State v. Misner, ___ Idaho ___, 16 P.3d 953 (Ct.App. 2000). However, when the police rely upon third-party consent to search an individual's home or belongings, the consent must come from a person who possesses "common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171 (1974). The burden of establishing that common authority rests upon the State. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 2797 (1990); State v. Johnson, 110 Idaho 516, 522, 716 P.2d 1288, 1294 (1986); State v. Benson, 133 Idaho 152, 155, 983 P.2d 225, 228 (Ct.App. 1999). Actual authority to consent to a search arises from "`mutual use of the property by persons generally having joint access or control for most purposes,' as in the case of married couples or joint tenants." State v. Brauch, 133 Idaho 215, 219, 984 P.2d 703, 707 (1999) (quoting United States v. Matlock, 415 U.S. 164, 171, n. 7 (1974)).
Here, Barker contends that the State failed in two respects to justify the search of her apartment and her fanny pack on the basis of Tate's parolee waiver. First, she contends that the State did not adequately prove the specific terms and content of Tate's waiver to show that it encompassed a consent to search his residence. Second, she contends that even if Tate's consent was adequately proven, it did not justify the search of Barker's fanny pack because the officers were on notice that the fanny pack belonged to Barker and not to Tate. We conclude that the second issue is dispositive, requiring reversal, and we therefore do not address the first issue.
Barker does not challenge the district court's finding that the information possessed by the officers justified their belief that Tate resided at Barker's apartment.
The prosecutor did not place in evidence the written Fourth Amendment waiver/consent to search signed by Tate as a condition of his parole but merely elicited general testimony from Tate's parole officer about the existence of the consent. We caution prosecutors that it is far preferable to place the written consent into evidence to avoid sufficiency of the evidence issues on appeal.
Assuming arguendo that Tate gave valid advance consent to a search of any residence that he occupied and that the officers reasonably believed that he was, at the time of the search, residing with Barker in her apartment, the pertinent inquiry is whether Tate's consent to a search of his residence authorized a warrantless search of the fanny pack. We have been directed to no previous Idaho appellate court decision involving the search of a container belonging to the defendant based upon consent given by a third party. Idaho courts have, however, considered a third party's authority to consent to a search of the defendant's residence or bedroom. See, e.g., State v. McCaughey, 127 Idaho 669, 904 P.2d 939 (1995) (holding that officer reasonably believed that estranged wife who was temporarily residing with defendant possessed authority to consent to search of locked room after being told by wife that she was married to the defendant and was living in the home); Misner, supra (holding that probationer's consent to search of residence as a term of probation authorized officers to enter defendant's home where officers reasonably believed that probationer resided there); State v. Benson, 133 Idaho 152, 983 P.2d 225 (Ct.App. 1999) (holding that homeowner did not have authority to consent to search of detached garage in which homeowner's daughter and her boyfriend were living where daughter used a padlock to prevent access to the garage when she was not present and homeowner could not access the garage without occupant's permission); State v. Hawkins, 131 Idaho 396, 400-01, 958 P.2d 22, 26-27 (Ct.App. 1998) (holding that owner of motor home in which her brother had been residing possessed apparent authority to consent to a search after brother had suddenly packed bags and left town); State v. Ham, 113 Idaho 405, 744 P.2d 133 (Ct.App. 1987) (holding that the defendant's mother, who rented a bedroom in her apartment to the defendant, possessed sufficient use, access, control and authority over the defendant's bedroom to give a valid consent to a search of the room). That line of cases establishes that even where the third party may have lacked actual authority to consent to a search of the premises, a warrantless search will be upheld if the government agents reasonably believed that the consenting person possessed authority to give permission for a search. Brauch, 133 Idaho at 219, 984 P.2d at 707; McCaughey, 127 Idaho at 672, 904 P.2d at 942; Hawkins, 131 Idaho at 400, 958 P.2d at 26. As expressed by the United States Supreme Court, the officers' conduct is "judged against an objective standard: would the facts available to the officer at the moment . . . `warrant a man of reasonable caution in the belief' that the consenting party had authority over the premises?" Rodriguez, 497 U.S. at 188 (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)).
Where the subject of the challenged search was a closed container rather than premises, other jurisdictions have applied a similar standard, examining the reasonableness of the officer's belief that the consenting person possessed authority over the object to be searched. The Ninth Circuit Court of Appeals held in United States v. Davis, 932 F.2d 752, 758 (9th Cir. 1991), that "police must have reasonable suspicion, that an item to be searched is owned, controlled, or possessed by probationer, in order for the item to fall within the permissible bounds of a probation search." Another case factually similar to the case at hand is Milton v. State, 879 P.2d 1031 (Alaska Ct.App. 1994), in which officers relied upon a probationer's consent to search the entire apartment where the probationer lived with another individual. The officers discovered a suitcase in the closet of the other resident's bedroom. They opened the suitcase and found narcotics. The Alaska Court of Appeals held that a probationer's physical access to an entire residence that is shared with other occupants did not equate to authority to consent to the search of the entire contents of the house:
In the case of a shared residence, the probation officer's search may extend to all areas of the residence over which the probationer has control, even if that control is not exclusive. This includes common areas of the residence. Therefore, the probation officer may search areas of the house and items of property within the house to the extent that the officer has reason to believe that the area or item searched is owned, possessed, or controlled by the probationer — even if it later turns out that the area or item searched was in the exclusive possession of the homeowner.
By agreeing to house [the probationer, the other resident] gave up his right to object to a search of these dimensions, but he retained his right to object to a search that exceeded these dimensions. . . . .
The fact that the probationer may be physically capable of gaining access to areas or items within the house is not decisive when determining the scope of the authorized search. A boarder or a guest may be physically capable of invading any space within the house, or of obtaining physical access to any item within it, without the knowledge of the householder. If the law allowed a probation officer to search any area or item that the probationer might have gained access to, practically everything within the house would be subject to search. Such a result is contrary to the established law in this area, which requires that the probation officer have a reasonable suspicion that the area or item to be searched is within the "ownership, possession, or control of the probationer."
Id. at 1035-36 (quoting United States v. Davis, 932 F.2d at 760).
Although not involving probation or parole searches, other cases addressing third-party consent for the search of containers are instructive. These include United States v. Salinas-Cano, 959 F.2d 861 (10th Cir. 1992), in which the defendant had left a suitcase in his girlfriend's apartment, where he stayed several nights a week. After arresting the defendant for a drug purchase, the police came to the apartment wishing to search the defendant's belongings. The girlfriend consented to the search. When asked about the suitcase, she expressly denied ownership. Nevertheless, relying on the consent of the girlfriend, the officers opened the suitcase and discovered contraband. The Tenth Circuit Court of Appeals held that the girlfriend's capacity to consent to the search of the apartment did not extend to the suitcase in which she had no interest or right of control. The court stated, "The government must . . . come forward with persuasive evidence of both shared use and joint access or control of a container in order to support third party consent." Id. at 864. The court identified three factors that help determine whether the government can demonstrate a host's authority to consent to the search of items in her home. The first factor is the type of container at issue, for "certain types of containers historically command a high degree of privacy. . . ." Id. As examples, the court noted that a greater expectation of privacy attaches to an overnight bag, suitcase, footlocker or strongbox than to plastic buckets, cardboard boxes or the content of audiotapes. The second factor is any precautions that were taken by the owner which may manifest a subjective expectation of privacy as, for example, locking the container or forbidding the host to open the container. The third factor is the apparent nature of the consenting party's lack of interest in the item. Id. In Salinas-Cano, the court concluded that because there was "simply no evidence in this record that [the girlfriend] exercised mutual use or possessed the joint interest and control over the suitcase necessary to legitimize her consent to search it," suppression was required. Id. at 865.
In People v. Gonzalez, 644 N.Y.S.2d 673 (N.Y. 1996), the New York Court of Appeals held that an apartment resident's consent did not allow officers to search a duffel bag under the defendant's bed. Officers investigating a murder went to the apartment where the defendant, another suspect (Sean DeJesus) and his sister (Kim DeJesus) lived. One of the officers asked Kim if she had seen either the defendant or Sean with a gun. She said yes and allowed the officers into the apartment to search Sean's room. Kim identified Sean's bed and the defendant's bed. One of the officers looked under the mattress on the defendant's bed and discovered a zipped duffel bag. The officer unzipped the bag and discovered a shotgun. Id. at 674. On appeal, the court observed, "Overwhelmingly, the courts have thus rejected the sufficiency of a host's general consent to search premises to validate the search of a guest's overnight bag, purse, dresser drawers used exclusively for the guest's personal effects, or similar objects." Id. at 675.
The court also held that the government bears the burden to show, by a preponderance of the evidence, that the third party had either actual or apparent authority over the container. Id. at 676. Thus, the court concluded that the State failed to meet its burden because there were no factual circumstances to support a reasonable belief that Kim had common authority — through mutual use, joint access, or control — over the duffel bag. Id.
In United States v. Basinski, 226 F.3d 829 (7th Cir. 2000), the defendant, who was being investigated by the FBI for jewelry thefts, asked Friedman to keep the defendant's locked briefcase in Friedman's barn. Later, Friedman led FBI agents to the barn and the briefcase.
Without getting a warrant, the agents opened the briefcase and discovered incriminating evidence. Summarizing the law on the matter, the court stated that "where a defendant allows a third party to exercise actual or apparent authority over the defendant's property, he is considered to have assumed the risk that the third party might permit access to others, including government agents." Id. at 834. The court also observed that "apparent authority turns on the government's knowledge of the third party's use of, control over, and access to the container to be searched, because these characteristics are particularly probative of whether the individual has authority over the property." Id. The court noted that the agents knew at the time Basinski's briefcase was opened that Basinski was the sole owner, and although he had entrusted the briefcase to Friedman for storage, the agents knew that Friedman had no key to the locked briefcase, nor access to or possessory interest in its contents. They also knew that Basinski had instructed Friedman never to open the briefcase and to destroy its contents rather than allow anyone else to look inside. The court concluded that Friedman did not have apparent authority to consent to the search of the briefcase, and no reasonable government agent could believe that he did.
The constitutional standards discussed in the foregoing cases compel this Court to hold that the search of Barker's fanny pack was unlawful. The State has not demonstrated that the law enforcement officers had any reason to believe that Tate owned or had joint possession, use or control over the fanny pack. To the contrary, the officers had heard Barker make a claim of ownership, a claim that bore indicia of credibility in view of the fact that it was made when Barker knew that a drug dog was being used in the search of the premises. Neither the location where the pack was found nor any other circumstances gave the officers reason to doubt Barker's ownership or to believe that Tate had joint use or control of the pack.
We do not suggest that an officer must always accept at face value an assertion or denial of ownership or control made by the parolee or a cohabitant. "The officer should not be bound by the [assertion] in the face of overwhelming evidence of its falsity." Davis, 932 F.2d at 760 (quoting People v. Boyd, 274 Cal.Rptr. 100, 108 (Cal.Ct.App. 1990)). Reasonable belief that a parolee or probationer owns or controls an item may be based upon circumstances observed by or known to the officer other than statements made by the inhabitants of the residence where the item is found. However, the warrantless opening of a container and examination of its contents that is predicated upon third-party consent will be upheld only if the State can demonstrate that the totality of the circumstances gave the officer a reasonable basis to believe that the consenting person owned or possessed the item or had common authority over it through joint use or control. Law enforcement officers may not search a closed container in the face of persuasive evidence that the consenting party has neither a proprietary interest in the container nor common authority over it. Accordingly, we conclude that Tate's consent to the search of his residence, given two years earlier as a condition of parole, did not justify the officers' search of the fanny pack in the face of Barker's credible, uncontradicted assertion of ownership.
CONCLUSION
The State did not meet its burden of proving that Tate owned or had joint access or control over the fanny pack giving him authority to consent to its search. Therefore, we hold that the warrantless search of the fanny pack violated Barker's Fourth Amendment rights. The denial of the motion to suppress is therefore reversed, the judgment of conviction is vacated, and the case is remanded to the district court.
Judge PERRY and Judge Pro Tem HART CONCUR.