108 Wash. App. 257 | Wash. Ct. App. | 2001
Jack Dewayne Hoggatt, Jr., appeals convictions for theft of a firearm (Count I) and unlawful possession of a firearm (Count II). The State cross-appeals an exceptional sentence downward on Count I. We affirm the convictions on both counts and the sentence on Count II. We reverse and remand for resentencing on Count I.
In the spring of 1999, Hoggatt was living in a house
The house Hoggatt and Clark shared was two doors down from Hoggatt’s father’s house, and Hoggatt’s father owned a .380 handgun. During the afternoon of May 26, 1999, while Hoggatt and his father were together at the father’s house, Hoggatt asked his father for money. When his father refused, Hoggatt grabbed the .380 handgun and said he would give it back only if his father gave him $20. The father again refused, so Hoggatt took the gun and left. The father called the police to say his gun had been stolen.
At about 4 p.m., Officer Stair went to the father’s house. While he was interviewing the father about what had happened, Hoggatt called and demanded $100 for the gun. At this point, according to the trial court’s unchallenged finding or conclusion, Stair had probable cause to arrest Hoggatt for theft of a firearm and for unlawful possession of a firearm in the first degree.
Stair went to Hoggatt’s nearby house, but no one answered the door. As Stair was walking away, some neighbors said they had just seen Hoggatt inside the residence. Stair asked the neighbors to call him if they saw Hoggatt again.
An hour or so later, Stair returned to Hoggatt’s house. Clark was now home, and she allowed Stair to search the house. When Stair did not find Hoggatt, he “told Clark that she needed to call dispatch when [Hoggatt] returned.”
At about 6:30 p.m., a neighbor called 911 to say that Hoggatt had returned home. Stair went back to Hoggatt’s house and knocked on the front door. Clark “pulled the front door wide open and pointed to the kitchen.”
On June 1, 1999, the State charged Hoggatt with theft of a firearm in Count I and unlawful possession of a firearm in Count II. Hoggatt moved to suppress, claiming that Stair’s warrantless entry had been unlawful and that all resulting evidence was inadmissible. The State responded that Stair’s entry had been lawful due either to Clark’s consent or exigent circumstances.
On July 27, 1999, the trial court denied the motion to suppress. It ruled that Stair’s entry had been justified by Clark’s consent, but not by exigent circumstances. The jury convicted on both counts, and Hoggatt filed this appeal.
The main issue on appeal is whether Stair lawfully arrested Hoggatt and seized the gun. To analyze that issue, we address two separate questions. In section I, we ask whether Stair was lawfully admitted into the living room area of the home that he and Clark shared. In section II, we
I
Generally, an officer without a warrant may not enter a home to make an arrest.
Hoggatt advances two arguments on consent. First, he contends that Clark did not consent voluntarily to Stair’s entry into the home. Second, he contends that even if Clark consented voluntarily, she could not consent on his behalf; he had to personally consent where he was in plain sight a few feet away. We take each argument in turn.
A
Consent must be given voluntarily.
When Clark testified at the suppression hearing, she suggested that Stair and other officers had coerced her into allowing Stair to enter the home. When Stair testified at the suppression hearing, he said that he had not coerced Clark, and that Clark had manifested consent by opening the door and gesturing toward Hoggatt. The trier of fact had the right to credit Clark’s or Stair’s version, and it did not err by crediting Stair’s.
B
The more difficult problem is whether Clark’s voluntary consent bound Hoggatt, who was a few feet away in the kitchen but visible from the front door. Translated into general terms, the problem is whether one cohabitant of a residence may consent to an officer’s entering the common living area of the residence, without the consent of a second cohabitant who is present nearby. We examine federal law first and state law second.
1
The leading federal case is United States v. Matlock.
Based on Matlock, it is clear that Clark’s consent bound Hoggatt for purposes of the Fourth Amendment. Clark had common authority to admit a visitor into the common living area of the house she shared with Hoggatt, it is reasonable and customary in our society that one cohabitant do that
2
State law emanates primarily from three cases. In State v. Mathe,
First, a consenting party must be able to permit the search in his own right. Second, it must be reasonable to find that the defendant has assumed the risk that a co-occupant might permit a search[22 ]
The court explained in a footnote:
These two prongs are closely intertwined. If a person has joint control over an area, it may be proper to presume that the defendant reasonably assumes the risk that the joint control*266 may be authorized to allow a search. Thus, when joint control is found, assumption of the risk usually follows. The reverse, however, is not true. Without the right to control or exercise joint possession of a given area, no assumption of the risk analysis can validate the search.[23 ]
The court concluded that Hartz lacked any authority over the defendant’s bedroom; that the first prong was not met; and thus that the police had entered the defendant’s bedroom without valid consent.
In State v. Leach,
Where the police have obtained consent to search from an individual possessing, at best, equal control over the premises, that consent remains valid against a cohabitant, who also possesses equal control, only while the cohabitant is absent. However, should the cohabitant be present and able to object, the police must also obtain the cohabitant’s consent.[25 ]
Thus, the officer should have requested and obtained the defendant’s consent “when confronted with [the defendant’s] presence,”
In State v. Walker,
To understand Mathe and Walker, we distinguish between (1) a searching officer’s initial entry into the area of a home into which visitors are customarily received (e.g., the living room) and (2) a searching officer’s intrusion into parts of the home into which visitors are not customarily received (e.g., a couple’s bedroom). Neither the Mathe court nor the Walker court found unlawful the searching officer’s
To understand Leach, we make two distinctions. One is between (a) a searching officer’s initial entry into that area of an office in which customers and other visitors are customarily received (e.g., the front reception desk) and (b) a searching officer’s intrusion into other areas of the office (e.g., the employer’s or manager’s personal workspace, desk drawers, or cabinets). The other distinction is between (1) the relationship of employer and employee, in which the employer generally has a superior right to control who is admitted to the office, and (2) the relationship between or among those who cohabit a home. The Leach court held that after an officer encounters an employer, he or she may not search the rear portions of the office based only on an employee’s consent. The Leach court did not hold that an officer may not enter the front reception area of an office (i.e., into that area of the office into which customers and others are customarily received) based only on an employee’s consent.
Because of these distinctions, we conclude that Mathe, Leach, and Walker do not control here. The question here is whether one of two cohabitants can validly admit an officer into their living room (i.e., into that area of their house in
Because Mathe, Leach, and Walker do not control, we revert to Matlock’s basic idea of assumption of risk: Does one cohabitant of a home assume the risk that an officer will enter that part of the home customarily used to receive guests (e.g., the living room), based only on the consent of a different cohabitant? The answer is yes in our view. It is common and customary for one cohabitant to admit guests into the living room area of a home when another cohabitant is present and not objecting; and because that is common and customary, it is fair to infer, at least in the absence of unusual circumstances, that the other cohabitant “assumes the risk” of that occurring. This is true, moreover, even when the other cohabitant does not assume the risk that the one cohabitant will admit an officer to parts of the home (or office) that are not customarily used to receive visitors.
Applying this conclusion here, we hold that Hoggatt assumed the risk that Clark, his cohabitant, would allow Stair to enter their living room area without his consent or participation. Accordingly, Hoggatt was bound by Clark’s voluntary consent to Stair’s entry, and Stair was acting lawfully when he stepped across the threshold and into the living room area.
II
The next question is whether Stair lawfully approached Hoggatt, arrested him, and seized the gun. The answer turns on plain view.
The first requirement is met here. Stair saw Hoggatt from the porch, and he saw the gun as he stepped over the threshold after receiving Clark’s consent.
The second requirement is met here. Clark consented to Stair’s entry into the living room area into which guests would ordinarily be received. Hoggatt had assumed the risk that she would do that. The living room area effectively included the kitchen in which Hoggatt was standing; the house was small, and neither room was separated from the other.
The third requirement is met here. Stair had probable cause to seize Hoggatt and the gun before he went to the house, and thus probable cause to seize both after he was in the house. We conclude that Stair seized Hoggatt and the gun lawfully, and that the trial court properly denied Hoggatt’s motion to suppress.
A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Seinfeld and Bridgewater, JJ., concur.
Suppl. Clerk’s Papers (SCP) at 18 (Finding of Fact 19).
Id. (Finding of Fact 21). Clark gave contrary testimony. She said that Stair and other officers demanded rather than asked to seárch the house. They told her that if she did not “cooperate,” she “would be in trouble,” and she assumed “that they would take [her] to the jail for something.” Report of Proceedings (RP) at 31. As they left, they told her “to call them as soon as [she] saw ... or heard from
SCP at 18 (Finding of Fact 24).
Id. at 19 (Finding of Fact 31). Clark testified that she let Stair in only “because they had told me that that’s what I was supposed to do.” RP at 34. The trial court did not credit her testimony, finding instead that she had acted voluntarily.
New York v. Harris, 495 U.S. 14, 17, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990); Steagald v. United States, 451 U.S. 204, 211-12, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981); Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).
Steagald, 451 U.S. at 211; State v. Leach, 113 Wn.2d 735, 738, 782 P.2d 1035 (1989); State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1998); State v. Cantrell, 124 Wn.2d 183, 187, 875 P.2d 1208 (1994); State v. Mathe, 102 Wn.2d 537, 541, 688 P.2d 859 (1984); State v. Chichester, 48 Wn. App. 257, 259, 261, 738 P.2d 329 (1987).
The State has neither cross-appealed nor assigned error to that finding.
State v. Johnson, 104 Wn. App. 489, 503, 17 P.3d 3 (2001); see also Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Bustamante-Davila, 138 Wn.2d 964, 981, 983 P.2d 590 (1999); State v. McCrorey, 70 Wn. App. 103, 108, 851 P.2d 1234, review denied, 122 Wn.2d 1013 (1993).
Bustamante-Davila, 138 Wn.2d at 981; State v. Shoemaker, 85 Wn.2d 207, 211-12, 533 P.2d 123 (1975); McCrorey, 70 Wn. App. at 108.
State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994); State v. Lemus, 103 Wn. App. 94, 98-99, 11 P.3d 326 (2000).
Bumper v. North Carolina, 391 U.S. 543, 548 n.9, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968) (consent must be shown by clear and convincing evidence); In re Dependency of C.B., 61 Wn. App. 280, 282-83, 810 P.2d 518 (1991) (to produce substantial evidence is to meet burden of production; when burden of persuasion is clear and convincing evidence, burden of production is met if trier could find fact by clear and convincing evidence). See also State v. Ferrier, 136 Wn.2d 103, 116, 960 P.2d 927 (1998); State v. Faford, 128 Wn.2d 476, 489, 910 P.2d 447 (1996); State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975 (1990).
United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974).
Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969).
Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).
Matlock, 415 U.S. at 171.
Matlock, 415 U.S. at 171 n.7; Leach, 113 Wn.2d at 739.
State v. Mathe, 102 Wn.2d 537, 688 P.2d 859 (1984).
Mathe, 102 Wn.2d at 540. In fact, they rented two bedrooms, but the second was not relevant to the case.
Mathe, 102 Wn.2d at 541.
Mathe, 102 Wn.2d at 543; see also Walker, 136 Wn.2d at 685-86; Leach, 113 Wn.2d at 739; Cantrell, 124 Wn.2d at 188-89.
Mathe, 102 Wn.2d at 543-44; see also Leach, 113 Wn.2d at 739-40.
Mathe, 102 Wn.2d at 544 n.l.
Leach, 113 Wn.2d 735, 782 P.2d 1035 (1989).
Leach, 113 Wn.2d at 744.
Leach, 113 Wn.2d at 744.
State v. Walker, 136 Wn.2d 678, 965 P.2d 1079 (1998).
Walker, 136 Wn.2d at 684.
Walker, 136 Wn.2d at 686.
Walker, 136 Wn.2d at 685-86; Cantrell, 124 Wn.2d at 188-89; Leach, 113 Wn.2d at 739; Mathe, 102 Wn.2d at 543.
At the viewing stage, the officer may or may not be intruding on privacy. E.g., State v. Bobic, 140 Wn.2d 250, 258, 996 P.2d 610 (2000); State v. Dyreson, 104 Wn. App. 703, 709-10, 17 P.3d 668 (2001). If the officer is not intruding on privacy, the situation is called “open view.” E.g., Dyreson, 104 Wn. App. at 709; Lemus, 103 Wn. App. at 102; State v. Dykstra, 84 Wn. App. 186, 191, 926 P.2d 929 (1996). If the officer is intruding on privacy, the situation is called “plain view,” e.g., State v. Myers, 117 Wn.2d 332, 346, 815 P.2d 761 (1991), Lemus, 103 Wn. App. at 102, and the officer must have “prior justification for the intrusion.” See also Bustamante-Davila, 138 Wn.2d at 982; State v. Gocken, 71 Wn. App. 267, 278, 857 P.2d 1074 (1993), review denied, 123 Wn.2d 1024 (1994); State v. Rodriguez, 65 Wn. App. 409, 416, 828 P.2d 636, review denied, 119 Wn.2d 1019 (1992).
This means, among other things, that when an officer is intruding on a reasonable expectation of privacy, the officer must not exceed the scope of the warrant, consent, or other source of authority under which he or she acts. E.g., Bustamante-Davila, 138 Wn.2d at 983-84; State v. Murray, 84 Wn.2d 527, 534, 527 P.2d 1303 (1974), cert. denied, 421 U.S. 1004 (1975); Johnson, 104 Wn. App. at 501; State v. King, 89 Wn. App. 612, 617, 949 P.2d 856 (1998); State v. Watkins, 76 Wn. App. 726, 730-31, 887 P.2d 492 (1995). It used to be said that the officer must “inadvertently discover” the incriminating evidence. E.g., Coolidge, 403 U.S. at 466; State v. Dimmer, 7 Wn. App. 31, 33, 497 P.2d 613, review denied, 81 Wn.2d 1003 (1972). That idea, however, has since been discredited, or at least refined, by both federal and state courts. E.g., Horton v. California, 496 U.S. 128, 130, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990); State v. Hudson, 124 Wn.2d 107, 114 n.l, 874 P.2d 160 (1994); State v. Fowler, 76 Wn. App. 168, 173, 883 P.2d 338 (1994), review denied, 126 Wn.2d 1009 (1995); State v. Graffius, 74 Wn. App. 23, 30 n.2, 871 P.2d 1115 (1994); State v. Goodin, 67 Wn. App. 623, 627, 838 P.2d 135 (1992), review denied, 121 Wn.2d 1019 (1993); State v. Wright, 61 Wn. App. 819, 824 n.7, 810 P.2d 935, review denied, 117 Wn.2d 1012 (1991). Yet the idea seems to persist in cases where it makes no difference. E.g., Bustamante-Davila, 138 Wn.2d at 982; Myers, 117 Wn.2d at 346-47; Gocken, 71 Wn. App. at 276-78; Rodriguez, 65 Wn. App. at 416.
Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993); Arizona v. Hicks, 480 U.S. 321, 326, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987); Bustamante-Davila, 138 Wn.2d at 982-83; Hudson, 124 Wn.2d at 114; Myers, 117 Wn.2d at 346-47; Murray, 84 Wn.2d at 534; Johnson, 104 Wn. App. at 501; State v. O’Neill, 104 Wn. App. 850, 861, 866, 17 P.3d 682 (2001); Lemus, 103 Wn. App. at 102; Watkins, 76 Wn. App. at 731.
Dickerson, 508 U.S. at 375; Myers, 117 Wn.2d at 346-47; State v. Lair, 95 Wn.2d 706, 716, 630 P.2d 427 (1981); Johnson, 104 Wn. App. at 501; O’Neill, 104 Wn. App. at 865-66.
Dickerson, 508 U.S. at 375; Hudson, 124 Wn.2d at 114; Myers, 117 Wn.2d at 346; Johnson, 104 Wn. App. at 501; O’Neill, 104 Wn. App. at 860-61; Lemus, 103 Wn. App. at 102.
Stair testified that he “saw the firearm as [he] stepped up onto the doorway.” RP (July 27, 1999) at 14.
Stair testified that “[i]f you step into the living area — it’s the living room and the kitchen right together. It’s all one room.” Id.
See Bustamante-Davila, 138 Wn.2d at 969 (officers in defendant’s living room with his consent lawfully observed, reached, and seized a “rifle standing against the west living room wall”); Lair, 95 Wn.2d at 708, 719 (officers may seize contraband discovered while executing a search warrant for marijuana); King, 89 Wn. App. at 618-22 (officers executing consent search may briefly detain person and seize gun unexpectedly discovered during search); Rodriguez, 65 Wn. App. at 413, 416 (officers in apartment with occupant’s consent lawfully observed, reached and seized items on dining room table “about 10 feet from the entrance door”). Cf. Gocken, 71 Wn. App. at 277 (officers lawfully inside the condominium to perform “health and safety check” lawfully observed and reached tape around bathroom door).