Opinion
No. 51916-6-I.
Filed: June 14, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 02-1-01516-1. Judgment or order under review. Date filed: 02/10/2003. Judge signing: Hon. Gerald L Knight.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Nancy P Collins, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Susan F Wilk, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent/Cross-Appellant, Thomas Marshal Curtis, Snohomish County Pros Ofc, 3000 Rockefeller Ave # 504, Everett, WA 98201-4060.
Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Pam Dangel, a friend of Robert Morse's and a temporary resident in his apartment, consented to a search of Morse's apartment. Morse claims the warrantless search violated article I, section 7 of the Washington State Constitution and the Fourth Amendment to the United States Constitution. The trial court ruled Dangel had either actual or apparent authority to consent. We affirm the trial court's decision to deny Morse's motion to suppress and we affirm his conviction.
FACTS
On January 29, 2002, Everett Police Department Officers Jeff Hendrickson and Daryl Eby went to an Everett apartment complex to arrest Sarah Wall for multiple outstanding felony warrants. The officers spoke to the apartment complex manager, Lisa Barker. Barker told the officers that a "bounty hunter" had contacted Wall at apartment C 108 within the previous few days and that Robert Morse was the only person on the lease for the apartment. Pam Dangel answered the door of apartment C 108. Officers Hendrickson and Eby identified themselves and told Dangel they were trying to locate Wall for outstanding felony warrants. Dangel told the officers Wall was not in the apartment and had been asked to leave a few days earlier. The officers asked Dangel if they could come in and verify that Wall was not there. Dangel agreed they could come in and check to see if Wall was there. After they entered the apartment, Officer Hendrickson asked Dangel additional questions. Dangel told Officer Hendrickson she was Morse's friend and she and her husband were temporarily living in his apartment. Dangel also told Officer Hendrickson she had not seen Wall in over a week. While Officer Hendrickson talked to Dangel, Officer Eby searched the apartment for Wall. About ten feet away from the front door Officer Eby saw an open bedroom door. He looked in the room and saw a man, later identified as Morse, sitting on the bed. As he stepped into the bedroom, Officer Eby identified himself and told the man he was verifying that Wall was not in the apartment. When Officer Eby looked toward the bedroom closet he saw drug-related items on a desk, including a triple beam balance scale, packing material, and a bag of white chalky material. The man on the bed volunteered that he smoked methamphetamine because he suffered from Parkinson's disease. After Officer Eby checked the closet for Wall, he asked Officer Hendrickson to come into the bedroom.
Clerk's Papers (CP) at 47.
Officer Hendrickson testified that as he entered the room he immediately saw the drug-related items on the desk. Officer Hendrickson testified that the drugs were visible from outside the room.
Officer Hendrickson arrested the man on the bed for possession of methamphetamine and advised him of his Miranda rights. For the first time, the man identified himself as Robert Morse. Morse acknowledged he understood his rights and agreed to waive them. The officers asked Morse if he would consent to a further search of the apartment. They advised Morse he could refuse to consent and limit the scope of the search. Morse agreed to a further search.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The State charged Morse with one count of possession of methamphetamine. Morse moved to suppress the methamphetamine. He argued Dangel did not have actual or apparent authority to consent to search his apartment. Morse also argued that when the officers found him in the bedroom they should have obtained his consent before entering to search for Wall.
Officer Hendrickson, Officer Eby, Barker and Dangel testified at the motion to suppress hearing. The trial court concluded Dangel had either actual or apparent authority to consent to search Morse's apartment and denied the motion to suppress.
The court entered Findings of Fact and Conclusions of Law Pursuant to CrR 3.6 and CrR 3.5.
The case was tried to the court on stipulated facts. Morse was convicted of possession of methamphetamine and received a standard-range sentence. He appeals and challenges the trial court's decision to deny his motion to suppress.
ANALYSIS Authority to Consent to a Search
Morse argues the trial court erred in deciding that Dangel had actual or apparent authority to consent to the officers' entry and search of his apartment. The trial court concluded Dangel had actual authority to consent to a search of Morse's apartment because her uncontradicted testimony established that her friendship with Morse was of such duration and character that she had authority to allow entry to anyone she chose. The trial court also concluded that, even if Dangel did not have actual authority, she had apparent authority because her conduct indicated she was in control of the premises and the officers could reasonably believe she had authority to consent.
On appeal of a suppression ruling, we review a trial court's conclusions of law de novo and we review findings of fact to determine whether they are supported by substantial evidence in the record. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. Id.
Warrantless searches are per se unreasonable under the Fourth Amendment and article I, section 7 of the Washington Constitution unless they fall within "a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996). The State has the burden of establishing that a warrantless search falls within one of the exceptions. State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1029 (1998); Hendrickson, 129 Wn.2d at 70. Consent to search is an exception to the warrant requirement. State v. Mathe, 102 Wn.2d 537, 541, 688 P.2d 859 (1984). Consent is valid if (1) it is voluntary; (2) the person granting consent has authority; and (3) the search does not exceed the scope of the consent given. Walker, 136 Wn.2d at 682. A totality of the circumstances test is used to determine whether the consent is valid. State v. Bustamante-Davila, 138 Wn.2d 964, 981, 983 P.2d 590 (1999).
There are two types of authority that support consent to search without a warrant: actual and apparent authority. A third party has actual authority to consent if he or she 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, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Mathe, 102 Wn.2d at 541. Common authority exists where there is a mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. Matlock, 415 U.S. at 171 n. 7. A person has apparent authority to consent to search if he or she "appears to have authority, so long as police have a reasonable belief in the authority of the person giving consent." State v. Holmes, 108 Wn. App. 511, 519, 31 P.3d 716 (2001).
The Washington Supreme Court adopted the Matlock approach in Mathe as the proper guide to determine questions of consent under article 1, section 7 of the Washington Constitution. See Mathe, 102 Wn.2d at 543-44.
Morse relies on Mathe, 102 Wn.2d 537, State v. Rison, 116 Wn. App. 955, 69 P.3d 362 (2003), rev. denied, 151 Wn.2d 1008, 87 P.3d 1184 (2004), and Holmes, 108 Wn. App. 511, to argue Dangel did not have common authority over his apartment and therefore did not have actual authority to consent to enter and search for Wall. Morse's reliance on these cases is misplaced.
In Mathe, the Court held that a landlord who leased a bedroom to the defendant could not consent to a search of the bedroom he leased to the defendant. In Rison, the court concluded that a tenant did not have actual authority over an eyeglasses case left in the apartment by a guest because the tenant did not own, use, possess or control the eyeglasses case. And in Holmes, it was undisputed that the consenting party did not have actual authority over the defendant's home.
Unlike Mathe, there is no contention that some portion of Morse's apartment was subleased to Dangel or that Morse and Dangel had any sort of landlord-tenant relationship. Unlike Rison, undisputed evidence established Dangel lived in Morse's apartment at the time of the search and had some degree of control over it, and unlike Holmes, Dangel's actual authority was not undisputed.
According to the uncontradicted testimony, although Dangel was not listed on Morse's lease, she was a longtime friend of Morse's and a temporary resident of his apartment. Dangel said she had control over the apartment and could allow entry to anyone she wanted. Dangel also testified that the officers asked her permission to enter the apartment and advised her that she did not have to consent to a search. The disputed testimony concerned whether Dangel voluntarily agreed to let the officers enter Morse's apartment to search for Wall. The officers testified that when they asked Dangel for permission to enter and search for Wall she said, "sure, come on in." Dangel testified she did not give the officers permission to enter the apartment and the officers "intimidated [her] and forced their way in." The trial court found the officers' testimony that Dangel consented to search the apartment for Wall more credible. The trial court's credibility determination about the conflicting testimony of the officers and Dangel will not be disturbed on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Substantial evidence supports the trial court's findings and the trial court's conclusion that Dangel had actual authority to consent to the search of Morse's apartment was not error.
Morse argues that because he was the sole signator on the lease, Dangel had only an inferior interest in the apartment and could not consent to a search. Morse had not provided any citation to authority to support his argument. Arguments that are not supported by citation to authority will not be addressed on appeal. State v. Lord, 117 Wn.2d 829, 853, 822 P.2d 177 (1991); see RAP 10.3(a)(5).
Report of Proceedings (RP) at 8, 27.
RP at 47. Dangel testified that she told the officers at the door she was just staying in the apartment and did not live there, and that she protested when the officers forced their way in, saying, "I don't have the right to let you in here, I'm not on the lease." RP at 57.
Morse also argues the trial court erred when it concluded Dangel had apparent authority to consent to a search of his home. He contends the officers did not obtain enough information from Dangel to reasonably conclude she had the authority to consent to enter the apartment and search for Wall.
In Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), the Court held that an officer's reasonable belief in the apparent authority of a third party to consent to a search validates an entry whether or not the authority in fact existed. The Washington Supreme Court adopted this standard in State v. Ryland, 120 Wn.2d 325, 840 P.2d 197 (1992) (adopting the reasoning of the dissent in State v. Ryland, 65 Wn. App. 806, 810, 829 P.2d 806 (1992)). However, when the circumstances are ambiguous, police officers must make reasonable inquiries to determine whether the third party can consent. Holmes, 108 Wn. App. at 519. An objective standard is used to decide whether there was reason to believe a third person had authority to consent. Holmes, 108 Wn. App. at 519.
See also Rodriguez, 497 U.S. at 188 ("Even when the [consent] is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry.")
Morse relies on Holmes to argue that, given the circumstances, the officers did not have a reasonable basis to believe Dangel had authority to consent to their entry and should have asked about her authority to consent. In Holmes, a woman who was arrested for possession of cocaine said she shared an apartment with Holmes, who was her drug dealer. She signed a consent to search Holmes' apartment, but when they arrived at the apartment she could not find her key. The officers entered and searched Holmes' apartment and found drugs. Holmes and another occupant of the apartment told the officers the woman did not live there. On appeal, this court invalidated the search because, given the circumstances, the police should have inquired further about whether the woman had authority to consent to the search.
Morse argues the statement in Holmes that "officers may not always take third-party consent at face value" creates a per se rule. Holmes, 108 Wn. App. at 519. While the Holmes decision requires police officers "to make reasonable inquiries when they find themselves in ambiguous circumstances," it does not create a per se rule. Holmes, 108 Wn. App. at 519.
Here, the trial court found that, throughout her interaction with the officers, Dangel acted as if she was in control of the premises. Dangel answered the door when the officers knocked and agreed to let them in. At no time did she check with anyone inside the apartment nor did she say that anyone else was inside. Substantial evidence supports the trial court's findings and the trial court did not err when it concluded that the circumstances were not ambiguous, that no further inquiry was necessary, and that the officers could reasonably believe Dangel had authority to consent to a search of Morse's apartment.
Scope of Search
Based on Matlock, Mathe and Rison, Morse argues that even if Dangel had actual or apparent authority to consent to search his apartment, she did not have authority to consent to search his bedroom. In all three cases, the issue was whether the defendant had exclusive possession over the searched area. Matlock, 415 U.S. 164 (considering whether woman who claimed to share the defendant's bedroom had authority to consent to search of that room, where the defendant alone rented the bedroom from the owner of the house); Mathe, 102 Wn.2d at 544 (landlord did not have authority to consent to a search of a leased room of which the tenant-defendant had exclusive possession); Rison, 116 Wn. App. at 961 (third party who did not own, possess or control a container within his home could not consent to a search of that container). Here, there was no testimony that Morse had exclusive possession of the bedroom or that Dangel's control of the apartment was limited. To the contrary, Dangel testified she could go anywhere in the apartment she wanted and she had authority to allow entry to anyone she chose. When Dangel let the officers into Morse's apartment to search for Wall she did not limit the scope of their search.
Officer Eby's search for Wall in the closet in Morse's bedroom was within the scope of Dangel's consent. Dangel's consent to verify whether Wall was in Morse's apartment included searching any place where a person might reasonably be expected to be, including the bedroom. See State v. Mueller, 63 Wn. App. 720, 722, 821 P.2d 1267 (1992).
Finally, Morse argues the search of his bedroom was invalid based on State v. Leach, 113 Wn.2d 735, 739-40, 782 P.2d 1035 (1989). In Leach, the Court held that when a cohabitant with equal control over the premises is present, the police must obtain the cohabitant's consent to search. Where the police have obtained consent to search from an individual possessing, at best, equal control over the premises, that consent remains valid against a cohabitant, who also possesses equal control, only while the cohabitant is absent. However, should the cohabitant be present and able to object, the police must also obtain the cohabitant's consent. Leach, 113 Wn.2d at 744.
Morse also argued in his motion to suppress brief that under Leach the officers were required to get his consent before entering his bedroom. But this argument was not raised again or pursued in the hearing on his motion to suppress.
When Dangel consented to search Morse's apartment, there is no evidence the officers knew or were told Morse was in the apartment. When Officer Eby saw the man in the bedroom, he immediately told the man he was checking to verify whether Wall was in the apartment. The man did not identify himself or object to Officer Eby's presence. It was only after the man was arrested that the officers learned he was Morse. The officers then asked Morse if he would consent to a further search of the apartment and said he could refuse to consent and limit the scope of the search. Morse agreed the officers could search his apartment. Under these circumstances, the search of Morse's bedroom was not invalid under Leach.
CONCLUSION
Substantial evidence supports the trial court's findings and the court did not err when it concluded that Dangel had actual or apparent authority to consent to the search of Morse's apartment and that the search was within the scope of Dangel's consent. We affirm the trial court's decision to deny Morse's motion to suppress and we affirm Morse's conviction for possession of methamphetamine.
COLEMAN and COX, concur.