The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gary Gene SANDERS, Jr., Defendant-Appellee.
No. 95SA224.
Supreme Court of Colorado, En Banc.
Nov. 6, 1995.
In this case, the court of appeals read our prior cases as requiring proof of a usable quantity of the substance as a necessary element of the crime and concluded that there was insufficient evidence from which the jury could find usable quantity. It held that the principle stated in the Theel case precluded conviction of Ceja for possession of cocaine.
In Theel, the police recovered three plastic baggies from the pocket of the defendant‘s jacket. Two of them contained traces of marijuana, and the other contained dog food. Theel testified that he had borrowed the jacket from a friend; that he had found three empty baggies in the pocket, that he had placed dog food in one and a sandwich in the other, and had kept the third for later. We found that the minute quantity of marijuana in the baggies was insufficient to establish knowing possession of a controlled substance, and that there was no other evidence from which knowledge could be inferred. Theel, 505 P.2d at 965.
Theel does not hold that usable quantity is an element of the crime, but rather is consistent with our prior cases in holding that, where the amount of contraband is less than a usable quantity, other evidence may be necessary to establish knowing possession. A usable quantity of contraband is not by itself an element of the crime; knowing possession is. Possession of a usable quantity is evidence of a knowing possession. Absent a usable quantity, the prosecution must present other evidence from which a jury can reasonably infer knowledge.
III.
Here, the jury was permitted to infer that Ceja knew she was in possession of cocaine from evidence other than the amount of cocaine on the pen casing and on the scale. Specifically, the prosecution introduced evidence that Ceja owned the fanny pack in which the cocaine was found, that she was in possession of numerous items of drug paraphernalia, and that she acted in an evasive manner when confronted by the police officer. We find that this evidence, when viewed in the context of the cocaine residue on the pen casing and scale kit, was enough to support the jury‘s finding that Ceja knowingly possessed cocaine. We therefore reverse and remand this case to the court of appeals with directions to reinstate the judgment of conviction and sentence imposed on Alicia Ceja by the district court for possession of cocaine.
David F. Vela, State Public Defender, Brian N. Connors, Deputy State Public Defender, Salida, for Defendant-Appellee.
Justice ERICKSON delivered the Opinion of the Court.
This is an interlocutory appeal by the prosecution pursuant to
I
On December 24, 1994, the Fremont County Sheriff‘s Office responded to a complaint relating to an incident between Gary Sanders, the defendant, and a woman with whom he lived. The woman told Deputy Sheriff Houska that she went to a bar with the defendant, got into an argument with him, and then attempted to drive away in his pickup truck.1 The defendant jumped into the back of the truck and worked his way into the passenger compartment. He pulled the woman‘s hair, punched her in the face, and threatened to kill her. The defendant stepped out of the truck and removed a .22 caliber rifle from the truck. As the woman accelerated away, she heard a “pop,” and the back window of the truck shattered.
The deputies examined the truck and observed a gunshot hole in the rear window. At that time, the deputies did not know the whereabouts of the defendant, or the location of the rifle. The woman told the deputies that the defendant could be at the trailer home she shared with him. She stated that she and the defendant had been living together for over a year in a trailer at 2160 Washington, Number 6, in Cañon City.
The woman signed a form consenting to a search of the trailer at 2160 Washington, Number 6, and gave Deputy Houska a key to the trailer. The consent form authorized the Fremont County Sheriff‘s Office and the Cañon City Police Department to conduct a “complete search” of the trailer.2 Law enforcement officers arrived at the trailer, announced their presence and, after the defen
The defendant was charged by information with assault in the second degree, menacing with a deadly weapon, prohibited use of weapons, third degree assault, misdemeanor menacing, resisting arrest, and domestic violence. Defense counsel filed a motion to suppress the evidence seized from the trailer. The district court declared the search invalid because the deputies did not obtain consent from the defendant who was present and able to object at the time of the search. The district court suppressed the evidence seized from the trailer as the fruits of an illegal search.
II
A search conducted without a warrant supported by probable cause is unconstitutional, subject to a few specifically established and well-delineated exceptions.3 A search conducted pursuant to consent freely and voluntarily given is one of the exceptions which eliminates the need for a warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854 (1973); People v. Savage, 630 P.2d 1070, 1073 (Colo.1981). In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the United States Supreme Court established that valid consent may be given by a defendant or by a third party with “common authority” over the premises to be searched. Id. at 169-72, 94 S.Ct. at 992-94; see Savage, 630 P.2d at 1073 (adopting the Matlock standard for determining issues of consent under the Colorado Constitution); People v. McKinstrey, 852 P.2d 467, 470-71 (Colo.1993) (same). The Supreme Court stated:
Common 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 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, 94 S.Ct. at 993 n. 7 (citations omitted).
Here, the district court determined that Matlock did not apply where the consenting co-occupant is absent and law enforcement officers conduct a warrantless search without obtaining the consent of the physically present co-occupant, who was the defendant in this case. The fact that the defendant was present at the time the law enforcement officers searched the trailer does not vitiate the co-occupant‘s consent. The valid consent of a person with “common authority” will justify a warrantless search of a residence despite the physical presence of a nonconsenting co-occupant. United States v. Donlin, 982 F.2d 31, 33 (1st Cir.1992) (stating that valid consent given by a third party with “common authority” remains valid even
The Supreme Court‘s holding in Matlock did not depend on the defendant‘s absence at the time of the search, but focused on whether or not the permission to search was obtained from a third party who possessed “common authority” over the premises.4 Childs, 944 F.2d at 494; Sumlin, 567 F.2d at 687-88. In Matlock, the defendant was arrested in his front yard and the law enforcement officers did not ask him for consent. 415 U.S. at 166, 94 S.Ct. at 990. Instead, the officers obtained consent to search from a woman who shared the house with Matlock. Id. The Supreme Court concluded that the co-occupant‘s consent, standing alone, justified the warrantless search notwithstanding Matlock‘s physical presence on the premises.5 Matlock, 415 U.S. at 171, 94 S.Ct. at 993; see Childs, 944 F.2d at 494.
In the present case, the district court reasoned that the defendant who was physically present at the time of the search cannot be said to have assumed the risk that the woman who was his co-occupant would vicariously waive his Fourth Amendment rights and his rights under Article II, section 7 of the Colorado Constitution. We disagree. The rationale behind third party consent is that a co-occupant assumes the risk that his co-occupant may expose the common areas of their residence to a search:
[A]n individual who possesses the requisite degree of control over specific premises is vested in his own right with the authority to permit an official inspection of such premises and ... this authority is not circumscribed by any “reasonable expectation of privacy” belonging to co-occupants. Whether the principle is characterized as an “assumption of risk” or a relinquishment of the “expectation of privacy” guaranteed by the Fourth Amendment, the fact remains that where an individual shares with others common authority over premises or property, he has no right to prevent a search in the face of the knowing and voluntary consent of a co-occupant with equal authority.
Cosme, 422 N.Y.S.2d at 654, 397 N.E.2d at 1321 (analyzing Matlock, 415 U.S. 164, 94 S.Ct. 988).
The rationale is not dependent upon the defendant‘s consent or non-consent to the search. Here, the facts are undisputed. The sheriff deputies did not ask the defendant for his consent and the defendant did not consent or object to the search.
Even though the district court determined that the woman with whom the defendant lived possessed the requisite “common authority” to consent to a search of the entire trailer, the court suppressed the evidence seized in the search of the trailer. We find Matlock controlling and hold that the law enforcement officers did not violate the defendant‘s constitutional rights when they searched the trailer pursuant to the woman‘s consent. In our view, where one co-occupant has victimized the other, the emergency nature and exigent circumstances provide an additional reason for validating a co-occupant‘s consent to a warrantless search when the nonconsenting co-occupant is present. See Donlin, 982 F.2d 31; Hendrix, 595 F.2d 883; United States v. Lawless, 465 F.2d 422 (4th Cir.1972); State v. Middaugh, 12 Or.App. 589, 507 P.2d 42 (1973); Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.3(e) at 253 (2d ed. 1987).
Accordingly, we reverse the suppression order and remand to the district court for further proceedings consistent with this opinion.
SCOTT, J., specially concurs, and LOHR, J., joins in the special concurrence.
Justice SCOTT specially concurring:
I concur in the result reached by the majority; however, I write separately to emphasize the narrow factual circumstances that control the present case. I agree with the majority that “[t]he fact that the defendant was present at the time the law enforcement officers searched the trailer [home] does not vitiate the co-occupant‘s consent.” Maj. op. at 1313. Therefore, I join the judgment of the majority, which reversed the order suppressing evidence obtained as a result of the search.
However, as correctly noted by the majority, under the facts of this interlocutory appeal, “the defendant did not consent or object to the search.” Maj. op. at 1315. Thus, we are not confronted with a case in which the defendant objected to the search. Nonetheless, the majority rejects the rationale of several state supreme court cases which have held “that a present objecting occupant cannot have assumed the risk that an absent third party will vicariously waive his Fourth Amendment rights.” Maj. op. at 1314-1315, n. 5. The majority unnecessarily reaches an apparent conflict between two lines of decisional law.1 In the present case, we are not
Although the defendant did not consent to the search, the record confirms that he failed to object. Thus, we are only presented with a case in which one co-occupant with common authority consents to a search and the other does not object. If the defendant affirmatively objected to the search of the premises, the sheriff‘s deputies would have been confronted with conflicting and presumably equal statements regarding consent. A defendant‘s affirmative objection, in person, to a search would constitute a different factual context than raised in the instant case. Such an objection might negate the assumption of risk implicit in the majority‘s rationale; however, it was not argued by either party. It is not a question presented for resolution by these facts.
While I too would reverse, the facts of the present case do not warrant the broad legal proposition advanced by the majority. I therefore join its judgment but by force of a more limited analysis.
I am authorized to say that Justice LOHR joins in this special concurrence.
Justice ERICKSON
Notes
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 particularly describing the place to be searched, and the persons or things to be seized.
Article II, section 7 of the Colorado Constitution provides:The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and no warrant to search any place or seize any person or things shall issue without describing the place to be searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing.
Contrary to the defendant‘s contention, the cases which follow Matlock and hold that a co-occupant‘s consent is sufficient to justify a search despite the objections of a physically present co-occupant do not afford significant weight to the location of the consenting co-occupant at the time of the search. See Hendrix, 595 F.2d at 884-85 (wife gave police consent to search apartment shared with husband and remained at sister‘s apartment away from her residence when the search occurred); Frame, 609 P.2d at 831 (wife met with police away from residence shared with husband, gave police consent to search residence, but remained away from residence when the search occurred).