Lead Opinion
Agеnt Wolfe, a state parole officer, received a tip that Cecil Shields, a parole absconder subject to an active warrant, was residing at 400 Swissvale Avenue, Apartment 15, Wilkinsburg, Pennsylvania. Agent Wolfe conveyed the tip to Detective Knox of the Wilkinsburg Police Department, who, along with other officers, went to the apartment in search of Shields. Detective Knox knew from prior contacts that appellant was the leaseholder of the apartment.
Detective Knox knocked on thе apartment door. A man who identified himself as Thornton answered the door. Detective Knox showed Thornton a wanted poster of Shields and asked Thornton whether he knew him; Thornton responded he did not. Detective Knox asked Thornton whether appellant was in the apartment, and Thornton said “no, he would be back shortly.” N.T. Suppression Hearing, 6/30/04, at 62. Thornton stated he was there temporarily, and he and another man in the apartment had been there for about a day. Detective Knox asked Thornton whether he was in charge of the apartment. Thornton responded, “yes.” Id., at 8. Detective Knox asked Thornton for permission to search the apartment for Shields; Thornton consented.
Detective Knox and his partner entered the apartment. In the living room, Detective Knox observed one or two plastic baggies containing a light brown substance. Believing it to be heroin, Detective Knox seized it. Meanwhile, Detective Knox’s partner found a digital scale in the kitchen sink with white residue on it, which Detective Knox alsо seized. Detective Knox returned to his vehicle, where he tested the baggies and scale for the presence of heroin. Based on the positive results he obtained, Detective Knox secured a search warrant for the apartment, which yielded cocaine, more heroin, a handgun, and more items associated with packaging drugs.
Consequently, appellant was arrested and charged with possession with intent to deliver, possession of a controlled substance, possession of drug parаphernalia, and person not to'
The Superior Court affirmed, holding the police officers reasonably believed Thornton had valid authority to consent to the search. Commonwealth v. Strader, No. 1769 WDA 2004,
Judge Klein dissented; he distinguished Hughes, stating “[t]he critical fact in Hughes, not present in this case, was that the residence being searched was that of a parolee who had given previous consent to any search by parole officers.” Id., at 1 (Klein, J., dissenting). Judge Klein opined Thornton’s telling the police he was responsible for the apartment until appellant returned was not dispositive of the issue, noting there are varying degrees of responsibility, and a temporary houseguest may simply be responsible “to close the windows when it starts to rain or to use a plunger on a stopped up sink.” Id., at 8. Therefore, Judge Klein would have reversed the judgment of sentence and ordered the evidence suppressed.
We granted allowance of appeal to resolve the issue, as appellant framed it:
Can the police reasonably believe that a person answering a door has the authority to allow them to enter when they know for a fact who lives in the apartment, when they know for a fact that no one present in the apartment lives there,*426 when- they know for a fact that the people present only recently arrived at the apartment, and when they know for a fact the legal tenant is expected back shortly[?]
Petition for Allowance of Appeal, at 4.
When reviewing suppression motions, we are bound by the suppression court’s factual findings that the record supports, but we are not bound by the suppression court’s conclusions of law. Commonwealth v. Gaul,
Appellant argues since police knew he lived in the apartment, Thornton did not live there and only recently arrived, and because appellant was due back shortly, police did not act reasonably in accepting Thornton’s consent to search the apartment. More specifically, appellant argues “[i]f the surrounding circumstances indicate ... the person giving сonsent does not actually live there, ... police may not accept an invitation to enter.” Appellant’s Brief, at 9. Appellant also argues police acted “more unreasonably than ... police in Hughes.” Id., at 10. Appellant does not argue the Pennsylvania Constitution grants him greater protection than the Fourth Amendment to United States Constitution, nor does he cite the factors set forth in Commonwealth v. Edmunds,
The Fourth Amendment protects the people from unreasonable searches and seizures. In the Interest of D.M.,
A third party with apparent authority over the area to be searched may provide police with consent to search. United States v. Matlock,
In Hughes, police officers went to a suspected parole violator’s residence, and on the front porch of the house found several teenage girls. Police asked the girls whether Hughes was home; the girls responded he was not. One officer asked for permission to enter the house to look for Hughes; the girls consented and opened the door. Upon entry, the officers found evidenсe of various drug offenses. At trial, Hughes moved to suppress this evidence, but the trial court admitted it, and the Superior Court affirmed. Hughes, at 896-98.
Before this Court, three Justices agreed “[t]he actions of the girls provided the officers with the reasonable belief that the girls possessed common authority over the premises permitting them to provide valid consent to enter the residence.” Hughes, at 901. Two Justices disagreed, but concurred in the result in light of the reduced privacy expectation of Hughes as a parolee pursuаnt to the parole exception to the warrant requirement. Id., at 905 (Saylor, J., concurring); id., at 906 (Lamb, J., concurring). Two Justices dissented, opining the apparent authority exception was not made out. Id., at 906-OS (Cappy, C.J., dissenting, joined by Nigro, J.). Although none of the three conclusions we reached in Hughes garnered a majority, all recognized the apparent authority exception; our disagreement concerned the application of the exception to the facts.
Here, we initially affirm Hughes’ recognition of an apparent authority exсeption as the United States Supreme Court has clearly held there is an apparent authority exception to the warrant requirement under the Fourth Amendment. We also affirm the finding below that police reasonably believed Thornton had authority to consent to the search. Police spoke with Thornton, an adult, who obviously was inside the apartment they sought to search; in Hughes, police asked girls sitting outside the residence if they could enter after the girls said Hughes was not home. Here, police did not immediately ask Thornton if they could enter; instead, they spoke
As Judge Klein notes, people in another’s home may or may not have much authority, for homeowners may or may not spell out for guests or people happening to be in their home exactly what authority they have. However, the question is what is apparent, not actual, and the reasonableness of the police belief in that apparent authority. From the perspective of police at the time of the encounter here, it was reasonable to conclude Thornton had the authority to control who entered the apartment. Thornton said he was in charge and he let police in. The totality of circumstances in each case controls whether police have a reasonable belief the person consenting to the search has authority to do so. We decline to adopt Judge Klein’s reasoning, which would require proof of actual authority, which is not the rule the United States Supreme Court has established.
We also note it is more reasonable for police to believe the person has the authority to grant consent to search for a fugitive; they did not seek to search through the homeowner’s private papers and other materials. As with any suppression claim, it is the information known at the time, not that learned after the fact, that controls the legal analysis. A search for a fugitive is generally short in duration, as it is hard to hide a person from view, particularly inside a smaller residence like an apartment. Entry here did not involve a search for drugs, even though probable cause for drugs became apparent after entry.
Order affirmed. Jurisdiction relinquished.
Notes
. See U.S. Const, amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
Dissenting Opinion
dissenting.
To the extent that the majority recognizes the apparent authority doctrine as a viable exception to the Fourth Amendment, I agree. The critical inquiry in this case, therefore, should simply be one into the reasonableness of the police’s belief that the individual named Thornton had the apparent authority to consent to a search of Appellant’s home. Based on all of the facts in this case, in my view, this belief cannot fairly be characterized as reasonable. The majority finds otherwise, and I am compelled to dissent.
In United States v. Matlock,
The Court first fоund that the State had failed to prove that the victim had the actual authority to consent to police entry. Thus, Matlock was facially inapplicable to the case. Rodriguez, at 181-82,
The Court initially rejected Rodriguez’s argument that permitting a reasonable belief in common authority would result in a vicarious waiver of a person’s Fourth Amendment rights. Justice Scalia drew a distinction between rights that protect a fair criminal trial, i.e., those rights which require a knowing and intelligent waiver, and those rights guaranteed under the Fourth Amendment, which the Court held requires no such waiver. Indeed, the Court stated that “[w]hat [a person] is assured by the Fourth Amendment itself, however, is not that no government search of his house will occur unless he consents; but that no search will occur that is ‘unreasonable.’ ” Id. at 183,
In parting, the Court noted that its holding is not unlimited and that a police officer cannot always accept an invitation into someone else’s home. The Court stated:
Even when thе invitation 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. As with other factual determinations bearing upon search and seizure, determination of consent to enter must “be 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?” If not, then warrantless entry without further inquiry is unlawful unless actual authority exists. But if so, the search is valid.
Id. at 188-89,
The facts of the instant case demonstrate, as Justice Scalia envisioned, a situation where a reasonable person would con-
Timothy Wolfe, an agent with the Pennsylvania Board of Probation and Parole, received anonymous information that Cecil Shields, a parole violator, was staying at 400 Swissvale Avenue, Apartment 15, in Wilkinsburg, Pennsylvania. Wolfe contacted Detective Knox of the Wilkinsburg Police Department and requested that he check the apartment for Shields. Commonwealth v. Strader,
Knox, along with other Wilkinsburg officers, went to the residence and knocked on the door. Based on previous contacts, Detective Knox knew that Appellant, Vincent Strader, resided at this address. However, a man named Thornton answered the door and Appellant was not present in the residence at the time. There was also another unidentified man in the apartment. Id. Detective Knox showed Thornton a poster of Shields and asked if he knew him and whether he was in the apartment. Thornton responded “no” to each question. Id.
Thornton informed Detective Knox that he had only been there for about a day after arriving from Tennessee. He further indicated that the unidentified man arrived shortly before the рolice arrived. Detective Knox then asked Thornton if he was in charge of the apartment, to which Thornton responded “yes.” Id. Thornton also informed the detective that he was responsible for the apartment until Appellant returned. Detective Knox requested permission to search of the apartment for Shields. Thornton consented and allowed the officers into Appellant’s home. Id.
While in the home searching for Shields, the officers observed what they believed to be heroin in plastic baggiеs sitting in plain view on a shelving unit. Id. at 3. The officers also found two scales, one of which had white residue on it. The suspected heroin and scales were seized and tested for the presence of narcotics. The tests yielded positive results. Based on this information, a search warrant was obtained and
The majority states that “[t]he totality of the circumstances in each case controls whether police have a reasonable belief the person consenting to the search has apparent authority to do so.” Majority Opinion at 635. However, the majority relies not on the totality of the facts, but rather only on two of them: (1) Thornton was inside the apartment; and (2) Thornton told the police that he was in control of the apartment. Id. The majority seemingly ignores the remainder of the facts, eaсh of which militates against their conclusion.
First, the officers knew that the apartment was Appellant’s residence. When the officers arrived, Appellant was not there. However, they were told by Thornton that “he would be back shortly.” N.T. Suppression Hearing, 6/30/04 at 62. Next, they learned that Thornton was not a permanent resident, but an individual who arrived the day before from Tennessee. Reasonable minds would not disagree that, with just these facts, Thornton lacked the authority to consent to police entry into Appellant’s home. This is quite different from the facts in Rodriguez where the person admitting the police officers into the home referred to it as “our” home and used her own key to admit the police into the property.
Nonetheless, the police, however, did not end their inquiry. They proceeded to ask whether Thornton was in control of the apartment. Thornton stated that he was. The police officers, apparently ignoring what would clearly be a reasonable judgment that Thornton lacked the requisite authority, chоse to believe Thornton’s bare statement that he was in control. They conducted no further inquiry as to the extent of his control, or whether he possessed that control at all. They simply chose to disregard what was obvious, and take the word of Thornton, a man who arrived at the home less then twenty-four hours prior to the police themselves. These officers did not act reasonably. Even if it could be demonstrated that Thornton was “in charge” of the apartment, I would nonetheless conclude that the officers’ judgment was
To be clear, I am not suggesting that a babysitter or houseguest, or other temporary resident responding to a
For these reasons, I dissent.