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Colorado Court of Appeals Opinions || September 24, 2015 Colorado Court of Appeals -- September 24, 2015
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Court of Appeals No. 12CA0715 The People of the State of Colorado, Plaintiff-Appellee, v. Mikel Morehead, Defendant-Appellant.
ORDER REVERSED, JUDGMENT REVERSED,
Division V Announced September 24, 2015 Cynthia H. Coffman, Attorney General, Ethan E. Zweig, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Douglas K. Wilson, Colorado State Public Defender, Meghan M. Morris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1        Defendant, Mikel Morehead, appeals the judgment of conviction entered on a jury verdict finding him guilty of possessing methamphetamine, possession of methamphetamine with intent to distribute, and seven gambling charges. Much of the inculpatory evidence at trial resulted from a warrantless search of defendantâs house. The search was consented to by N.H., defendantâs long-time girlfriend, whom he had recently âkicked outâ of the house. Upon review of these facts, which present several novel questions in the law of third-party consent, we conclude that N.H. had neither actual nor apparent authority to consent to the search. Therefore, we reverse and remand for a new trial. I. Background ¶2        Defendant lived with N.H. for eight years in the downstairs residence of a subdivided house that his mother owned, but for which he paid the mortgage. After defendant kicked N.H. out, she began staying with a friend. Three days after she was kicked out, N.H. was in the process of moving some of her possessions out of the house when she got into an altercation with defendant. The altercation resulted in defendantâs arrest on a domestic violence charge, and N.H. then told the police that she wanted to discuss defendantâs other criminal activities, which she described as operating gambling machines and dealing methamphetamine. N.H. gave consent for the police to search defendantâs residence. Without a warrant, the police searched a portion of defendantâs residence, and that search revealed the presence of illegal gambling machines and padlocked doors. ¶3        Immediately after the warrantless search, the police began the process to obtain a warrant to search the residence. A second search was conducted pursuant to a warrant, and that search revealed incriminating evidence that defendant was involved in dealing methamphetamine and illegal gambling. Because the trial court found that N.H. had both actual and apparent authority to consent to the search of the house, it denied defendantâs motion to suppress all of the evidence, and, after a jury trial, defendant was convicted of all charges. II. Actual and Apparent Authority ¶4        Defendant first contends that the trial court erred in determining that N.H. had authority to consent to the warrantless search of his house. We agree. A. Standard of Review and Applicable Law
¶5        In reviewing a trial courtâs ruling on a suppression motion, we defer to the courtâs findings of fact, but analyze de novo the application of legal standards to those facts. People v. Kazmierski,
¶6        âThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .â U.S. Const. amend. IV. Our nation has long recognized that the home â the center of private life â is entitled to special protection. Georgia v. Randolph,
¶7        One exception to the warrant requirement is a search conducted pursuant to validly given consent. Id.; Schneckloth v. Bustamonte,
¶8        âCommon authorityâ rests on âmutual 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.â Id. at 171 n.7. âThe burden of establishing that common authority rests upon the State.â Rodriguez,
¶9        Even if a third party does not have actual authority to consent to a search, the search is still constitutional if the police have a reasonable good-faith belief that the consenting party has common authority over, or other sufficient relationship to, the premises or effects sought to be inspected. Id. at 188-89; People v. McKinstrey,
¶10        Apparent authority is not established solely on the basis that the third party believes she is authorized to consent, McKinstrey, B. Discussion 1. Actual Authority ¶11        In Rodriguez, the Supreme Court held that the defendantâs girlfriend, who had moved out of their previously shared residence a month before the search, âobviouslyâ did not have common authority to consent to a search. Id. at 181-82. In reaching that conclusion, the Court considered these additional facts relevant: She took her and her childrenâs clothing with her, though leaving behind some furniture and household effects. During the period after July 1 she sometimes spent the night at Rodriguezâs apartment, but never invited her friends there, and never went there herself when he was not home. Her name was not on the lease nor did she contribute to the rent. She had a key to the apartment, which she said at trial she had taken without Rodriguezâs knowledge (though she testified at the preliminary hearing that Rodriguez had given her the key). Id. at 181. ¶12        The facts here are substantially similar to those in Rodriguez. Just as Rodriguezâs girlfriend was not married to Rodriguez, N.H. was not married to defendant. N.H., like Rodriguezâs girlfriend, had recently moved out but still had personal property in the residence. Neither N.H. nor Rodriguezâs girlfriend had an ownership or then-current possessory interest in the residence. Rodriguezâs girlfriend was not a party to the lease and did not contribute to the rent. Here, the only evidence regarding ownership showed that defendantâs mother owned the house and defendant paid the mortgage and utility bills. (Though the trial court found that â[d]efendant and his mother are legal owners of the house,â we find no support for such co-ownership in the record.) Both Rodriguezâs girlfriend and N.H. had keys to the residence, though, in Rodriguez, the girlfriend testified at trial that she had taken the keys without Rodriguezâs knowledge (despite previous testimony to the contrary). ¶13        We are unpersuaded that the distinctions drawn by the People require a result different from that reached by the Rodriguez Court. The People highlight that N.H. âhad accessâ to the home when defendant was not at home and was able to invite a friend to help her move, while the girlfriend in Rodriguez ânever invited her friends [to the residence], and never went [to the residence] herself when [Rodriguez] was not home.â Id. at 181. But defendant knew that N.H. was âaccess[ing]â the house that day to move her possessions out, he was in and out of the house himself that day, and he knew that N.H.âs friend was there.
¶14        More to the point, the trial courtâs findings do not show that N.H. had access for âmost purposes.â See Matlock,
¶15        The Peopleâs other attempts to distinguish Rodriguez are no more persuasive. The People point to a lack of evidence that defendant ever attempted to dispossess N.H. of keys, and contrast this with the testimony in Rodriguez that the girlfriend had taken keys to the residence without Rodriguezâs knowledge. But the Court in Rodriguez indicated that it was not relying on the girlfriendâs testimony about the keys when it expressly recognized that the trial testimony was directly contradicted by the girlfriendâs pretrial testimony. Further, the fact that, here, N.H. had only moved out three days before the search is not dispositive. Cf. Rodriguez,
¶16        We also reject the Peopleâs attempt to downplay the significance of N.H.âs lack of a continuing property interest after moving out. The People rely on this quote from Matlock: âCommon 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.â
¶17        We do not read Matlock, Stoner, or Chapman to mean that property law is irrelevant to a common authority analysis. Instead, we read them to mean that a review of property interests does not necessarily control the analysis. See 4 Wayne R. LaFave, Search and Seizure § 8.3(a), at 192 (5th ed. 2012) (â[Chapmanâs language limiting property analysis] is not to say, of course, that the law of property is totally irrelevant . . . .â). Our review of cases analyzing common authority shows support for our interpretation; courts (including the Chapman Court) consistently consider the existence or lack of a property interest as part of the common authority analysis. See Chapman,
¶18        Indeed, in cases analyzing the common authority of a person who moved out of the property subject to search, the existence or lack of a continuing property interest appears to be an important factor, if not the determining factor. The People cite no case, and we have found none, in which a court held that a person who had moved out of a residence, and had no continuing property interest, still retained common authority. Cf. Rodriguez,
¶19        On the other hand, numerous cases have held that common authority existed where a person moved out and had a continuing property interest, usually where consent to search was given by a spouse who had moved out of the marital home. See, e.g., United States v. Trzaska,
¶20        In addition to being supported by case law, our interpretation is consistent with the definition of common authority from Matlock. Under Matlock, common authority comes from some combination of three components: use, access, and control. See Matlock, ¶21        We therefore conclude that Rodriguez guides our decision and that the People failed to prove that N.H. had actual authority to consent to the search of the common areas of defendantâs house. 2. Apparent Authority ¶22        In contrast with actual authority, apparent authority is determined by an objective assessment of the circumstances known to the police officers. Thus, we begin our analysis with a recitation of those circumstances. At all times relevant to our analysis of the warrantless search and later search pursuant to a warrant, defendant remained in police custody and away from the residence. a. Findings Supported by the Record ¶23        The following facts were found by the trial court, with record support. ¶24        After defendant had been arrested for an alleged act of domestic violence against N.H. earlier in the day, N.H. told the police that she wanted to discuss other criminal allegations against defendant. She was referred to Investigator Boyle. ¶25        In her interview with Boyle, N.H. represented that she had been in a relationship with defendant for twelve years and that she had lived at the house for eight years. N.H. said she had full access to the common areas of the residence and intermittent access to other padlocked areas. She described in detail the contents of those areas and the activities that went on inside, including the selling of methamphetamine and operation of gambling machines. During the interview, other police officers were sent to conduct surveillance on the house, and they observed a person briefly stop by the house, driving a white truck. When N.H. was given a description of the driver, she identified him as âJohn,â and she said that he was a regular methamphetamine customer of defendantâs. Before the search, the police confirmed that the driverâs vehicle was registered to a man named âJohn.â ¶26        After the interview, Boyle went with N.H. to the house. Entry into defendantâs residence involved first entering an exterior door that led to a common landing shared by both residences, and then proceeding through an interior door into defendantâs downstairs residence. N.H. telephoned defendantâs son, C.M., in an attempt to have him open the exterior door. When C.M. appeared, he told the officers that they could not enter without defendantâs consent and that N.H. could not enter without defendant being present. Lieutenant Jones told C.M. that N.H. had a right to be at the residence and C.M. ultimately opened the exterior door, but C.M. told N.H. that she would need keys to get into the interior downstairs door. ¶27        At some point, N.H. went to her truck, which was parked in front of the house, to get keys. N.H.âs truck was in the driveway, full of her belongings, and at some point her bed was leaning against the truck (though it is unclear whether the bed was still leaning on the truck when the officers arrived). One officer testified that N.H. had to âdig[]â through the truck, and another testified that N.H. âwas looking through some stuffâ in the truck. N.H. found keys in the truck and was able to unlock the interior door to defendantâs residence. The illegal gambling machines and padlocked doors were inside that interior door. b. Application of Law to the Facts ¶28        Some of the information known to the police, standing alone, would allow the officers to reasonably believe that N.H. had authority to consent to the search. N.H. represented that she lived in the house and that she was in a relationship with defendant. The officers were aware that she had been at the residence earlier in the day, engaged in an altercation with defendant. Her description of the property suggested that she had detailed knowledge of it. She knew defendantâs son C.M., and she had keys to the interior door.
¶29        However, other circumstances created doubt about whether N.H. had authority to consent to a search. She claimed to have been living with defendant for years, but first went to the police to report drug and gambling activity on the day of the alleged domestic violence incident; this indicated that she might have had a motive to lie about her right of access to the house. Next, rather than open the exterior door with her own key, she phoned C.M. to ask him to open the door. This could have indicated to a dispassionate observer that she did not have a key to the exterior door. See LaFave, Search and Seizure § 8.3(g), at 248 (noting that need to circumvent a lock creates ambiguity requiring further inquiry into authority to consent to search); cf. State v. Foreman,
¶30        Most significantly, C.M. told the officers that neither they nor N.H. could enter without defendant present. Although C.M.âs personal objection carried little legal weight as to the search of the downstairs unit because he was not a co-tenant of that unit, see Randolph,
¶31        Several avenues of inquiry were readily available to the police. See United States v. Waller,
¶32        Under these circumstances, it was, at best, unclear whether N.H. had authority to consent to a search, and the police should have made further inquiry into N.H.âs authority before entering the residence without a warrant. Thus, we conclude that she did not have apparent authority to consent to the search. See Rodriguez, c. Neither Actual Nor Apparent Authority Existed ¶33        We have determined that N.H. had neither actual nor apparent authority to consent to a search of defendantâs residence. We therefore conclude that the warrantless search of defendantâs house violated the Fourth Amendment. 3. Harmlessness
¶34        The People argue that any error was harmless. We note that their harmlessness argument is of a different nature than what is typically argued in Fourth Amendment cases. Significantly, the People do not argue that admission of the evidence from the searches was harmless. Instead, they argue that any error in the trial courtâs finding that there was no Fourth Amendment violation was harmless, because they assert that the evidence from the searches could have been admitted under exceptions to the exclusionary rule. According to the People, the evidence discovered during the later warrant-based search either (a) was not the fruit of the illegal search or (b) would have been inevitably discovered. Because the People did not raise these arguments in the trial court, they are not preserved for our review, and we will not consider them. See People v. Briggs,
¶35        Constitutional error requires reversal unless the error was harmless beyond a reasonable doubt. People v. Burola,
¶36        In determining that the People failed to preserve the argument they now raise, we recognize that âappellate courts have the discretion to affirm decisions, particularly denial of suppression motions, on any basis for which there is a record sufficient to permit conclusions of law, even though they may be on grounds other than those relied upon by the trial court.â Moody v. People,
¶37        However, the record contains no evidence to support the Peopleâs new theories of admissibility. There was no evidence that the officersâ decision to seek a warrant was wholly independent of what they saw during the illegal search. The fact that they did not begin the process to obtain a search warrant until after the illegal search suggests that there was no such independent decision. See People v. Syrie,
¶38        The People also argue that defendant âconsented to the search and directed police to the contraband.â This refers to defendantâs conduct after the following events occurred: he had been placed in police custody, the police had obtained a warrant, and he knew that the officers were cutting padlocks to obtain entry to locked portions of defendantâs residence. We reject the Peopleâs consent argument because any purported consent was clearly not attenuated from the officersâ prior illegal entry. See People v. Rodriguez,
¶39        Aarness does not compel a contrary conclusion. There, although the prosecution had not raised the doctrine of exigent circumstances in the trial court, the supreme court addressed the doctrine sua sponte because the doctrine was âso inextricably intertwined with the [reasonable belief] analysis for which [the court] granted certiorari that the issue of exigent circumstances [was] properly beforeâ the supreme court. Aarness, ¶40        The People do not argue that the admission of the evidence obtained from the warrantless search, and from the resulting warrant-based search, was harmless beyond a reasonable doubt. In any event, we conclude that its admission could not meet that standard. Because we cannot say that defendantâs conviction was surely unattributable to the illegal search, we must reverse the trial courtâs suppression order, reverse defendantâs conviction, and remand for further proceedings. 4. Remand
¶41        We requested supplemental briefing from the parties, asking whether the prosecution should be able to raise arguments regarding attenuation and the exclusionary-rule exceptions on remand even though it failed to raise those arguments in the original suppression hearing. This question was left open by the supreme court in Briggs, see ¶42        We conclude that the prosecution is precluded from arguing on remand that any of the evidence derived from the unconstitutional search should still be admitted under the attenuation doctrine or one of the exceptions to the exclusionary rule. Therefore, the evidence from the warrantless search must be suppressed, along with the fruits of the warrantless search, including any statements from defendantâs three phone calls with police following the warrantless search and all evidence obtained during the later warrant-based search of defendantâs residence.
¶43        We acknowledge that, in People v. Schoondermark,
¶44        People v. Quintero,
¶45        Indeed, more recent decisions of the Colorado Supreme Court tend to deny the prosecution a ââsecond bite at the appleââ where it âfailed to carry its evidentiary burdenâ at the suppression hearing. People v. Null,
¶46        Moody,
¶47        This same rationale cautions against allowing the prosecution to present a previously unargued theory of admissibility on remand in this case. The prosecution bore the burden at the suppression hearing to demonstrate that evidence derived from the warrantless search was admissible. See Outlaw v. People, ¶48        Moreover, the original suppression hearing was held four years ago, and âgiven the passage of time, there is no reasonable possibility that the trial court could develop a better record upon which to proceed.â Id. at 617.
¶49The Peopleâs reliance on cases that remanded for an analysis under the good-faith exception is misplaced. Cf. People v. Eirish, ¶50        Guided by Moody and Syrie, we conclude that, on remand, the trial court may not consider new arguments for admission of the evidence. The evidence is suppressed. III. Remaining Arguments
¶51        Defendantâs remaining contentions include one alternative suppression argument and two contentions of trial error. Because our decision renders the alternative suppression argument moot, and because we cannot predict whether the remaining issues would recur in any retrial, we do not address these remaining contentions. See People v. Becker, IV. Conclusion ¶52        The suppression order is reversed, the judgment of conviction is reversed, and the case is remanded for a new trial. JUDGE ROMÃN and JUDGE ASHBY concur. These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here. Colorado Court of Appeals Opinions || September 24, 2015 Back |
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