STATE v MCLEES

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, No. 91-335 IN THE SUPREME COURT OF THE STATE OF MONTANA 2000 MT 6 STAIE OF MONTANA, APPEAL FROM: District Court of the Fifth Judicial District, In and for the County of Madison, The Honorable Frank M. Davis, Judge presiding. COIINSEL OF RECORD: For Appellant: Jack H. Morris, Jardine & Morris, Whitehall, Montana For Respondent: Joseph P. Mazurek, Montana Attorney General, Patricia J. Jordan, Assistant Montana Attorney General; Robert R. Zenker, Madison County Attorney, Virginia City, Montana Submitted on Briefs: June 3, 1999 Decided: January 11,200O Filet1: Justice William E. Hunt, Sr. delivered the Opinion of the Court. 81 Appellant Travis McLees, (Travis) appealsfrom the Order of the District Court of the Fifth Judicial District of the State of Montana, Madison County, denying his motion to suppressevidence and admitting evidence obtained in a searchof Travis s apartment. We reverse. 72 Did the District Court err in denying Travis s motion to suppressevidence obtained when his grandfather consentedto the warrantless search of Travis s apartment? FACTUAL BACKGROUND ll3 On November 25, 1995, the Madison County Sheriffs Department received reports of two burglaries and thefts. Chief Deputy Sheriff, Merlin Ehlers (Deputy Ehlers) investigated the break-ins, one at the Harrison school, the other at the studio of Michelle Walker in Harrison, Montana. Travis had been at Walker s studio the day before to deliver wooden doll baseshis father had made for her. Walker indicated that while in her studio, Travis had paid an unusual amount of attention to a stereo which was now missing. At the time, Travis also had a pending chargein Gallatin County for the burglary of a Three Forks school and was known to have broken into the Harrison school when he was a student there. 74 Deputy Ehlerswent to the home ofTravis s mother, Jennifer Flesch (Flesch), in Pony, Montana. Fleschtold Deputy Ehlers that Travis was living with his grandfather Earl McLees (Earl) in Three Forks, Montana. Deputy Ehlers had known Earl for years and had been to 2 Earl s home before on personal business. On November 26, 1995, Deputy Ehlers went to Earl s residence at 55 Frontage Road, in Three Forks, to look for Travis. ll5 Upon arriving at Earl s residence,Deputy Ehlers askedwhether Travis was staying there. Earl informed Deputy Ehlers that Travis was living in the apartment which Earl owned next door at 59 Frontage Road. Earl told Deputy Ehlers that Travis had slept in the apartment the night before but had left that morning. Deputy Ehlers did not have a search warrant but askedEarl if he could look in the apartmentfor possibleevidenceof the Harrison school burglary. Earl and Deputy Ehlers went to the front door of the apartment, but found it locked. BecauseEarl did not have a key to the front door, he and Deputy Ehlers went around to the shop which adjoined the apartment from the rear. The two then entered the apartment through an unlocked door leading from the shop to the apartment. 76 Upon entering the apartment, Deputy Ehlers noticed some drug paraphernalia and what he believed to be items taken from the Harrison school. Ehlers then telephoned the Gallatin County Sheriffs Office to have them send out an officer from that jurisdiction, Three Forks Marshall, Keith King (Officer King) responded to the scene and entered the apartment. At that time, Officer King and Deputy Ehlersdiscussed whether they should have a search warrant. Officer King returned to his office in Three Forks where he called the Gallatin County Attorney s office and received the opinion that based on Officer King s description of the situation, a consent search would be sufficient. During Officer King s absence,Deputy Ehlers stayed at the apartment to securethe site. 17 Officer King returned to the apartment with a consent-to-searchform, which Earl signed. Deputy Ehlers and Officer King then searchedand photographedthe apartment, and seized several items of evidence. A few days later, Deputy Ehlers returned without a warrant, and Earl again allowed him to enter the apartment. A warrant for Travis s arrest was issuedon November 30, 1995,and Travis was arrestedseveralmonths later. Reserving the right to appealthe denial of his motion to suppress,Travis pleadedguilty to two counts of burglary, two counts of theft, and one count of criminal mischief. ll8 Did the District Court err in denying Travis s motion to suppressevidence obtained when his grandfather consentedto the warrantless searchof Travis s apartment? 19 The standardof review of a district court's denial of a motion to suppressis whether the court s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. Stnte v. &gal (1997), 281 Mont. 250, 257, 934 P.2d 176, 180 (ovewuled inpart by State v. KunefA 1998 MT 287, 291 Mont. 474, 970 P.2d 556). 7llO [Wlatrantless searchesconducted inside a home areper se unreasonable, subject only to a few specifically establishedand well-delineated exceptions. State v. Hubbe (1997), 286 Mont. 200,212,951 P.2d 971,978 (citing Katz v. United States(1967), 389 U.S. 347,357, 88 SCt. 507, 514, 19 L.Ed. 2d 576, 585). One such exception is when the search is conductedpursuant to a consentthat is freely and voluntarily given. Hubbel, 286 Mont. at 212, 951 P.2d at 978 (citing Sclzneclzlotlz Bustanzonte(1973), 412 U.S. 218, 222, 93 v. S.Ct. 2041, 2045, 36 L.Ed.2d 854, 860). [Wlhen the prosecution seeks to justify a 4 warrantless searchby proof of a voluntary consent,it is not limited to proof that consent was given by the defendant, but may show that permission to searchwas obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. State v. Sourenson (1979), 180 Mont. 269,275, 590 P.2d 136, 140 (citing UnitedStates v. A4atlock(1974), 415 U.S. 164, 171,94 S.Ct. 988,993,39 L.Ed.2d. 249-50). The Statehasthe burden of showing that the consentwas voluntary. Stnte v. Kim (1989), 239 Mont. 189, 196,779 P.2d 512, 517. 711 The District Court found that Earl had common authority to consent to a search of the premises. [and] gavethat consentvoluntarily. . Travis arguesthat Earl did not have sufficient joint control over the apartment at 59 FrontageRoad to consentto the search. We agree. As Travis points out, Earl s residenceat 55 Frontage Road and the apartment at 59 Frontage Road are physically separatebuildings. Earl lived in his home but did not reside in, and did not have a key to, Travis s apartment. The record reflects that Earl would sometimes enter the apartment to watch television with his son, Scott McLees (Scott), or perhapsto wake Travis for work. Earl testified that he would knock and amrouncehimself before entering the apartment. 712 In order to let Deputy Ehlers into the apartment, Earl had to take him around to the back of the building, into the attachedworkshop and through an unlocked back door to the apartment. Travis had been living in the apartmentwith Scott, his father, for approximately six months and Scott had given him permissionto stay there while he was gone; this was an 5 agreement Earl was not involved in. Scott paid no rent to Earl and there was no rental agreement. Scott usually residedin the apartmentbut was out of the state at the time and had left the back door to the workshop unlocked becauseno one could rind a key to it. 713 The Statearguesthat Earl s consentwas valid becauseno landlord-tenantrelationship existed between Earl and Travis; Travis s living arrangementwas with Scott, not Earl, and therefore Earl never relinquishedauthority or control of the apartment to him. It claims that Travis was a temporary guest in Earl s apartment, that he paid no rent or utilities, and that he lived out of a duffel bag. The State also maintains that a special relationship between a defendant and the owner of an apartment together with no formal landlord-tenant agreement are important benchmarks under thesecircumstances. We note that the casescited by the State for this proposition are not controlling, and they are distinguishable from the caseat bar. None of the cited casesconcern one family member renting a separateresidence to another, but rather reflect instanceswhere one family member has permitted another to stay in their home as a guest. In all but one casecited by the State, (Adams v. State (Okla. Crim. Ct. App. 1982), 645 P.2d 1028)(defendantstaying in sister s garageapartment), the owner of the home and the defendant lived together in the same residence. In People v. Lucero (Colo. Ct. App. 1985), 720 P.2d 604, also cited by the State,the court relied on the fact that there was no landlord-tenant relationship and no rent paid, referring to the defendant as a tenant at sufferance. LLK~YO 606. However, asthe United StatesSupremeCourt pointed at out in Matlock, [clommon authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by personsgenerally havingjoint accessor control for most purposes, so that it is reasonableto recognizethat any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumedthe risk that one of their number might permit the common area to be searched. Matlock, 415 U.S. at 171, 94 S.Ct. at 993, 39 L.Ed.2d at 250 n.7. 1714 In Matlock, the issuebefore the SupremeCourt was whether the third party who had consentedto the searchof the bedroom where Matlock was staying had a relationship to the room sufficient to make her consentvalid against Matlock. The Court found that the third party s consentto searchthe bedroom was sufficient where; 1) the room bore every evidence that it was also occupied by a woman; 2) she indicated that she and Matlock slept in the bedroom regularly, including that morning; 3) she told police that she and Matlock shared a dresserin the room; and 4) she told police that the women s clothing in the room was hers. SeeMatlock, 415 U.S. at 161-172, 94 S.Ct. at 990-93,39 L.Ed.2d at 247-50. 115 We begin our analysis of whether Earl had authority to consent to the search of the apartment, by noting that Travis claims Earl was coerced into giving his consent. After a review of the record, however, we agree with the District Court that although Earl was possibly intimidated and let Deputy Ehlers into the apartment on a friendly basis, there is no evidenceto suggesthis consentwas coerced. As a result, we must analyze only whether Earl s consent to the search was valid at the time he permitted Deputy Ehlers to enter the apartment. 716 In determining that Earl had common authority to consent to a search of the premises, the District Court relied on the fact that Travis did not pay rent or utilities, did not have a rental agreementwith Earl, did not furnish the apartment with his own property, and kept his belongingsin duffel bagswhile his father s personalbelongingswere in the dresser drawers. Basedon thesefacts, the District Court found that it is reasonableto concludethat Travis assumedthe risk that his grandfather could and would asserthis own control over the premises at any time Earl exercisedhis authority as owner, grandfather, and host to enter the apartment at will regularly for a number of reasons- all known to Travis l/17 . We conclude that the evidence in the record is insufticient to show that Earl had common authority over the apartment. Although Earl was the owner of the apartment, and no rental agreementexistedbetween Travis and Earl, thesefactors do not create mutual use of the property, or joint access and control for most purposes, which would create common authority. Earl testified that he never went to the apartmentif Scott was not around. He said he did not have free accessand would knock before he went in. Earl was obviously not a cohabitant ofthe apartment, did not share in its use, and could not consent to a search on that basis. Scott was the regular inhabitant of the apartment, and while he may have had joint authority and control to consentto the search,Earl did not. We concludethat it was not reasonable for the District Court to find that Travis assumed the risk that Earl could and would assert control over the premises at any time. The State failed to meet its burden of establishingthat Earl had common authority over Travis s apartment. Unless Earl had other sufficient relationship to the apartment, his consentwas invalid. 118 Earl testified that he, at times, gained accessto the apartment in order to visit with Scott or to watch a ball game. The fact that Earl owned the apartment is not dispositive where Travis, who was living in the apartment, had a reasonableexpectation of privacy. Assuming Earl had authority to accessthe apartment for such purposes, it was limited to those activities. SeeSol-renson,180 Mont. at 276,590 P.2d 141 (Authority of neighbor to enter defendant shome to water plants in defendant s absencewas not authority to consent a to a searchof the home). Earl, therefore, did not possess sufficient relationship with the apartment which would give him authority to consent to a search. Therefore, the District Court erroneously concludedthat basedon thesefacts, Earl had common authority over the apartment sufficient to consent to the search. 119 The State contends that even if Earl did not have authority to give consent, representationsmade by Earl to the officers at the time of the search support a finding that the officers believed Earl had authority to consent, even if he did not. They maintain that under the doctrine of apparent authority, a searchis valid if consent is given by a person who police reasonably, but mistakenly, believe hasjoint authority over the premises. This issuewas first addressed the United StatesSupremeCourt in Illinois v. Rodriguez (1990), by 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148. g20 In Rodriguez, Gail Fischer told police that Rodriguez had assaultedher in a certain apartment in Chicago, Illinois. Shereferred to this apartment as our apartment and said that she had clothes and furniture there. She then traveled to the apartment with police, unlocked the door with her key, and gave the officers permission to enter. The police didn t have an arrest warrant for Rodriguez, or a searchwarrant for the apartment. Upon entering the apartment, the officers observed drugs and drug paraphernalia and found Rodriguez asleepin the bedroom. There, they discovered more drugs, arrested Rodriguez, and seized the drugs and paraphernalia. After being chargedwith possessionof a controlled substance Rodriguez moved to suppressall evidence seized at the time of his arrest, claiming that Fischer had vacated the apartment several weeks earlier and therefore had no authority to consentto the entry. Rodriguez, 497 U.S. at 180, 110 S.Ct. at 2796-97, 111 L.Ed.2d at 15556. 72 1 Finding that Fischer had no joint accessor control for most purposes, the Supreme Court explainedwhat it called the general rule with respectto what is necessaryto satisfy the reasonableness requirement of the Fourth Amendment: [i]t is apparentthat in order to satisfy the reasonableness requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government-whether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer conducting a searchand seizureunder one of the exceptionsto the warrant requirement--is not that they always be correct, but that they always be reasonable. [B] ecause many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must 10 be those of reasonable men, acting on facts leading sensibly to their conclusions of probability (citation omitted). Rodriguez, 497 U.S. at 185-86, 110 S.Ct. at 2800, 111 L.Ed.2d at 159-60 122 The majority then stated that it saw no reasonto depart from this general rule with respect to facts bearing upon the authority to consent to a search, and set forth a test for determining the constitutional validity of a warrantless search pursuant to the consent exception to the warrant requirement: determination of consent to enter must be judged against an objective standard: would the facts availableto the officer at the moment. warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? If not, then the warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid. Rodriguez, at 188-89, 110 S.Ct. at 2801, 111 L.Ed.2d at 161 (citation omitted). 723 Although this Court has previously examined the issue of third-party consent, the doctrine of apparent authority as it applies to third-party consent searcheshas never been substantively addressed in Montana. Travis argues that the warrantless search of the apartment absent Earl s actual authority to consent violated his rights under the Fourth Amendment of the U.S. Constitution as well as under Article II. Sections 10 and 11 of the Montana Constitution. Because Montana s unique constitutional schemeaffords citizens broader protection of their right to privacy than does the Fourth Amendment to the United StatesConstitution, we usually need not consider the Fourth Amendment issue. Hubbel, 286 Mont. at 211, 951 P.2d at 977. However, becauseArticle II, Section 11 of the Montana 11 Constitution mirrors the Fourth Amendment to the United StatesConstitution, we analyze most searchand seizurequestionsarisingunder Article II, Section 11 using traditional Fourth Amendment principles. Siegd, 124 281 Mont. at 264, 934 P.2d at 184, Article II, Sections 10 and 11 of the Montana Constitution provide: Section 10. Right of privacy. The right of individual privacy is essentialto the well-being of a free society and shall not be infringed without the showing of a compelling state interest. Art. II, Sec. 10, Mont.Const. Section 11. Searches and seizures. The people shall be secure in their persons,papers, homes and effects from unreasonablesearchesand seizures. No warrant to searchany place, or seizeany personor thing shall issuewithout describing the place to be searchedor the person to be seized, or without probable cause, supported by oath or affirmation reduced to writing. Art. II, Sec. 11, Mont.Const. 125 To determine whether there has been an unlawful search pursuant to Montana s Constitution, we look to two factors: (1) whether the person has an actual expectation of privacy that society is willing to recognize as objectively reasonable;and (2) the nature of the state s intrusion. Hubbel, 286 Mont. at 208, 951 P.2d at 975-76. At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by warrant, and that expectation is plainly one that society is prepared to recognize as justifiable. State V. Sclzeetz, Mont. 41,48-49, 950 P.2d 722,726. The fundamental purpose of the Fourth 186 Amendment s prohibition againstunreasonable searches seizuresis to protect the privacy and 12 and security of individuals and safeguardthe sanctity of the home againstarbitrary invasions by governmental officials. Dorwart v. Caruwny, 1998MT 191,1]21,290 Mont. 196,121, 966 P.2d 1121,121. 726 The State does not claim that exigent circumstances existed which would have prevented Ehlers from obtaining a searchwarrant prior to the entry and search of Travis s apartment. Courts have indicated the rationale behind the warrant requirement; [t]he presenceof a searchwarrant servesa high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safehaven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemedtoo precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Sorrenson, 180 Mont at 274, 590 P.2d at 140. The primary purpose of the exclusionary rule is to deter future unlawful police conduct by making evidence which the State obtains through a searchand seizurein violation of the Fourth Amendment, inadmissablein criminal proceedings. State v. Pipkin, 1998MT 143,l 12,289 Mont. 240,T 12,961 P.2d 733,l 12. The result is that in the absence of one of the recognized exceptions to the warrant requirement, a search made without a warrant is unlawful and any evidence which results from the search should be suppressed. Pipkin, 7 12. 127 In adopting the apparent authority rule in Rodriguez, the Supreme Court explained what the exclusionary rule provides under the Fourth Amendment; [w]hat Rodriguez is assuredby the trial right of the exclusionary rule, where it applies,is that no evidenceseizedin violation of the Fourth Amendment will 13 be introduced at his trial unlesshe consents. What he is assuredby the Fourth Amendment itself, however, is not that no governmentsearchof his housewill occur unless he consents; but that no such search will occur that is unreasonable.. . Ro&iguez, 497 U.S. at 183-84, 110 S.Ct. at 2799, 111 L.Ed. 2d at 158. There are various elements, of course, that can make a search of a person s house reasonable - one of which is the consentof the person or his cotenant Here, we also have not held that the Fourth Amendment requires factual accuracy. Rodriguez, 497 U.S. at 185, 110 S.Ct. at 2799, 111 L.Ed. 2d at 159 The Constitution is no more violated when officers enter without a warrant becausethey reasonably(though erroneously)believe that the personwho has consentedto their entry is a resident of the premises, than it is violated when they enter without a warrant becausethey reasonably (though erroneously) believe they are in pursuit of a violent felon who is about to escape. Rodriguez,497U.S.at 128 186, llOS.Ct.at2800, 111 L.Ed.2dat 160. In Montana, however, we analyze such a situation in light of our citizens enhanced right to privacy. [Elxcept in certain carefully defined classesof cases,a searchof property without proper consent is warrant. Do7wa7~~, u727ws072nble unless it has been authorized by a valid search 121 (emphasisadded). Unlike its federal counterpart,Article II, Section 10 protects againstinvasionsof privacy. Hawai i, whose constitution also specifically grants the right of privacy to its citizens has declined to follow Rodriguez, based on that constitutional provision. In declining to adopt the doctrine of apparentauthority, the Hawai i Supreme Court stated; [alllowing warrantless searchesof an individual s home without the consent of someoneauthorizedto give it, absentany exigent circumstances,would fly 14 in the face of this protection. Indeed, an invasion of privacy is no less of an invasion if the governmental officials are reasonable in their mistaken belief that the third party possesses authority to consent. This is because, the regardlessof whether the police actedin good faith, the individual s privacy is still invaded when the police searchhis or her personal belongings without permission. State v. Lopez (Haw. 1995), 896 P.2d 889, 902. 729 In Lopez, police were called to investigatea robbery at the houseof Daniel and Kelly Hauanio. See Lopez, 896 P.2d at 893-95. Detective Guilleimo, who was assigned to continue the investigation, later telephoned Kelly s mother and told her he wanted to interview Kelly and Daniel and go into the Hauanios house to continue the investigation. Kelly s mother told Detective Guillermo that the Hauanios were staying at a hotel in Hilo, Hawai i. 730 Without the Hauanios permission, Kelly s mother volunteered to take Guillermo to the house herself. Shemet him there and they enteredthrough a closed door which was not able to be locked. While there Guillermo confiscated a cellophane container filled with cocainewhich he found on the floor of the masterbedroom. Basedon this information alone, the police obtained a warrant to search the Hauanios home. While executing the warrant, police found evidence linking the Hauanios to a large cocaine delivery already under investigation. The circuit court grantedthe Hauaniosmotion to suppressthe evidenceseized by the police, concluding that the state had not established that Kelly grantedher mother the authority to consent to Guillermo s entry. Becausethe entry was without consent, the evidencehe recovered from the Hauanio housewas suppressed.Lopez, 896 P.2d at 896. On 15 appeal, the prosecution conceded that Kelly s mother did not have actual authority to consentto Detective Guillemro s entranceinto the house,but argued that shehad apparent authority. Lopez, 896 P.2d at 899. 131 The Supreme Court of Hawai i declined to adopt the federal concept of apparent authority from Rodriguez stating; [o]ur willingness to afford greaterprotection of individual privacy rights than is provided on the federal level arisesfrom our view [that] the right to be free of unreasonable searches seizuresunder article I, section 5 [which later and becamearticle I, section71of the Hawai i Constitution is enforceableby a rule of reason which requires that governmental intrusions into the personnl pvivncy of citizens of this State be no greater in intensity than absolutely necessmy. . At this point, we simply cannot say that it is necessary to allow third parties to consent to searches of an individual s personal and private belongings when they are devoid of any authority to do so. Our constitution guaranteesmore to the citizens of the State of Hawai i. Lopez, 896 P.2d at 901-902 (emphasis in original). 732 Article I, section 7 of Hawai i s Constitution specifically protects against invasions of privacy. Lopez, 896 P.2d at 897. We agreewith the Hawai i court s refusal to extend the doctrine of apparent authority basedon this right to privacy. In light of Montana citizens similar increasedright to privacy under Article II, Sections 10 and 11, we now hold that for third-party consentto be valid as againstthe defendant,the consentingparty must have actual authority to do so. BecauseDeputy Ehlers searchof Travis s apartment was not consented to by an individual possessing actual authority, the searchviolated Article II, Sections 10 and 11 of the Montana Constitution. The evidence seizedin that searchshould be suppressed. 16 733 The State argued in the District Court that if Earl s consent was invalid then the evidence should be admitted under the independent source and inevitable discovery rules. The District Court did not rule on these issues. 734 We reverse the judgment of the District Court as to the evidence obtained in the warrantless searchof Travis s apartmentandremand to the District Court for a detennination of whether the evidenceis admissibleunder the independentsource or inevitable discovery rules. 735 Reversed and remanded. We Concur: u 7 /&L&-i&-, Justice January 11,200O CERTIFICATE OF SERVICE I hereby certify that the attached document was sent by United States mail, prepaid, to the following named: JACK H MORRIS ESQ JARDINE AND MORRIS BOX 488 WHITEHALL MT 59759-0488 HON JOSEPH P MAZUREK ATTORNEY GENERAL MIKE WELLENSTEIN ASSISTANT 2 15 NORTH SANDERS HELENA MT 59620 ROBERT R ZENKER DEPUTY COUNTY ATTORNEY BOX 36 VIRGlNIA CITY MT 59755-0036 32 . ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA BY: 06: Deputy u

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