2015 COA 131
Colo. Ct. App.2015Background
- Morehead lived in the downstairs unit of a house owned by his mother; he paid the mortgage and utilities. He and his long‑term girlfriend N.H. had recently separated and N.H. had been "kicked out" and was staying with a friend.
- Three days after being kicked out, N.H. returned to move belongings, got into an altercation with Morehead, and Morehead was arrested for domestic violence.
- N.H. told police she wanted to report Morehead’s alleged gambling and methamphetamine activity, described locked areas and contents, and accompanied Investigator Boyle to the residence.
- Police entered the residence without a warrant based on N.H.’s consent (she produced keys from her truck after some searching) and discovered gambling machines and padlocked doors; officers thereafter sought and obtained a warrant and conducted a second search that uncovered additional incriminating evidence.
- The trial court denied Morehead’s suppression motion, finding N.H. had actual and apparent authority to consent; a jury convicted Morehead on drug and gambling charges. On appeal the court reversed, holding N.H. had neither actual nor apparent authority and suppressed the evidence.
Issues
| Issue | People’s Argument | Morehead’s Argument | Held |
|---|---|---|---|
| Whether N.H. had actual authority to consent to a search of Morehead’s residence | N.H. was a long‑time cohabitant with keys and access and thus had common authority | N.H. had moved out, was staying elsewhere, had limited access for the purpose of moving belongings, and lacked ongoing property/control interest | No — court held N.H. lacked actual authority (Matlock/Rodriguez controlling) |
| Whether police reasonably relied on N.H.’s apparent authority | Officers had facts (N.H.’s statements, keys, detailed knowledge, identification of a customer) supporting a reasonable belief she had authority | Circumstances (she was moving out, searched her truck for keys, son said entry required Morehead) created ambiguity requiring further inquiry | No — court held apparent authority was not established; officers should have made further inquiry |
| Whether admission of search fruits was harmless or otherwise admissible (attenuation/inevitable discovery) | The later warrant search and Morehead’s post‑arrest conduct would make the evidence admissible or inevitably discovered | People failed to preserve these arguments at suppression hearing; evidence was tainted by unlawful entry | Not considered on merits — court declined to entertain unpreserved theories; error not shown harmless beyond a reasonable doubt |
| Whether the prosecution may raise exclusionary‑rule exceptions on remand | Prosecution urged ability to argue exceptions on remand | Morehead argued prosecution waived unraised theories and cannot get a "second bite" | The court held prosecution is precluded on remand from asserting attenuation/inevitable discovery/other exceptions because they were not presented at suppression hearing |
Key Cases Cited
- Illinois v. Rodriguez, 497 U.S. 177 (1990) (third‑party consent requires actual common authority or reasonable belief in it)
- United States v. Matlock, 415 U.S. 164 (1974) (consent by third party with common authority justifies warrantless search)
- Schneckloth v. Bustamante, 412 U.S. 218 (1973) (consent to search must be voluntary)
- Georgia v. Randolph, 547 U.S. 103 (2006) (occupant’s objection can defeat third‑party consent for shared premises)
- Terry v. Ohio, 392 U.S. 1 (1968) (objective‑standard inquiry for reasonable belief/authority)
- People v. McKinstrey, 852 P.2d 467 (Colo. 1993) (apparent authority requires reasonable inquiries when circumstances are ambiguous)