108 Wash. App. 511 | Wash. Ct. App. | 2001
Police entered Jesse Holmes’ residence on the strength of a consent to search given by Cynthia
FACTS
Late on the night of September 28, 1999, a Seattle police officer stopped Cynthia Gilbert for speeding. A strong odor of alcohol emanated from her car, and the officer observed a snifter of alcohol next to a baggie containing what appeared to be crack cocaine. The officer arrested Gilbert, and in the search incident to arrest, found approximately 31 grams of cocaine bagged in small increments and $2,500 in small bills. Gilbert told the officer that in a few weeks, she was scheduled to begin a 10-year sentence for federal drug trafficking.
Gilbert wanted to work out a way to remain free until she reported to federal prison. She professed she was simply a delivery person, and offered to take the officer to the dealer, whom she identified as Jesse Holmes. She alleged Holmes possessed several ounces of cocaine, and that he shared her apartment in Lake City, where he could then be found. Gilbert’s only evidence of her residence there was an old phone bill addressed to her at the Lake City address. Gilbert produced paperwork that verified her story about her pending federal incarceration; a computer check also verified that the Lake City address was one with which Gilbert had “some sort of history of contact or had used that address in the past.”
Gilbert signed a consent to search. At approximately 2:00 a.m., at least four officers accompanied Gilbert to the Lake City apartment. At the door, Gilbert revealed she did not
Because Gilbert had told them Holmes had access to a weapon, two officers went to secure him. Holmes and a woman were in his bedroom. One of the officers escorted Holmes to the living room and informed him of his rights; the other observed a crack pipe and other drug paraphernalia in his room.
The arresting officer told Holmes that Gilbert said he was dealing drugs. Agitated, Holmes denied the allegations, saying he was an addict, not a dealer, and that any cocaine in the apartment was for personal use. The officer counseled Holmes to calm down, and told him “if that’s true, then all we’re looking at is just a possession case for you.”
After Holmes was transferred to the precinct, the officers escorted Gilbert to an address in Seattle for which she did have keys, mail, and belongings, and from which they recovered substantial quantities of cocaine and cash.
Holmes was charged with possession of cocaine. He moved to suppress the evidence against him on grounds the search of his apartment was unlawful because Gilbert lacked authority to consent. The court admitted the evi
DISCUSSION
On appeal of a suppression ruling, we review a trial court’s conclusions of law de novo, and apply the substantial evidence standard to findings of fact.
Holmes’ Consent
Warrantless searches are generally condemned.
[W]hen police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home. The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter,[17 ]
But if Gilbert’s consent was sufficient to authorize the initial intrusion, no violation of Ferrier occurred.
Gilbert’s Consent
A third party may consent to a search if he or she possesses “common authority over or other sufficient relationship to the premises or effects sought to be inspected.”
It is undisputed that Gilbert did not actually have such authority. But the Fourth Amendment
Under sound application of the apparent authority rule, police are required to make reasonable inquiries when they find themselves in ambiguous circumstances.
Circumstances here certainly suggested ample room for doubt. To begin with, the information indicating Gilbert lived at the Lake City apartment was limited to Gilbert’s statement that she lived there with Homes, her possession of an envelope addressed to her there (the record does not reveal the postmark date), and a computer report that she had been associated with that address in the past. Other information indicated an urgent need for farther inquiry.
Access and permission to enter are the hallmarks of common authority.
Reversed.
Cox and Appelwick, JJ., concur.
136 Wn.2d 103, 960 P.2d 927 (1998).
Report of Proceedings (RP) (Mar. 1, 2000) at 13.
RP (Mar. 1, 2000) at 21-22.
Ms. Foy's status as either guest or coresident is not clear; no issue was raised as to her authority to invite the officers into the apartment.
RP (Mar. 1, 2000) at 29-30.
State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
136 Wn.2d 103, 960 P.2d 927 (1998).
Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996) (under the Washington Constitution, warrantless searches are unreasonable per se).
Hendrickson, 129 Wn.2d at 70 (quoting Arkansas v. Sanders, 442 U.S. 753, 759, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979)).
Hendrickson, 129 Wn.2d at 70.
State v. Mathe, 102 Wn.2d 537, 541, 688 P.2d 859 (1984).
State v. Johnson, 104 Wn. App. 409, 415, 16 P.3d 680, review denied, 143 Wn.2d 1024 (2001).
State v. Young, 123 Wn.2d 173, 185, 867 P.2d 593 (1994) (quoting State v. Chrisman, 100 Wn.2d 814, 820, 676 P.2d 419 (1984)).
Ferrier, 136 Wn.2d at 115.
Ferrier, 136 Wn.2d at 115.
Ferrier, 136 Wn.2d at 116.
Ferrier, 136 Wn.2d at 118-19 (emphasis added). See also State v. Williams, 142 Wn.2d 17, 28, 11 P.3d 714 (2000) (Ferrier rule applies where police seek to conduct a search for contraband without obtaining a search warrant). Where police officers are not conducting a knock and talk procedure to obtain consent to search, courts employ a totality of the circumstances test to determine whether
United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); Mathe, 102 Wn.2d at 541.
Matlock, 415 U.S. at 171 n.7.
Holmes argues that the doctrine of apparent authority violates article I, section 7 of the state constitution. Ordinarily we would address the state constitutional issue first. See Robinson v. City of Seattle, 102 Wn. App. 795, 808, 10 P.3d 452 (2000) (noting courts should address state constitutional issues before federal constitutional issues). But given our holding that the doctrine was improperly invoked on these facts, we do not reach the constitutional question. See City of Seattle v. Williams, 128 Wn.2d 341, 347, 908 P.2d 359 (1995) (if it is not necessary to reach a constitutional question in order to resolve an issue before an appellate court, the court should decline to do so).
Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990) (an officer’s reasonable belief in the apparent authority of a third party to consent to a search validates an entry whether or not the authority in fact existed).
Rodriguez, 497 U.S. 177, 189, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990) (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)); State v. Ryland, 120 Wn.2d 325, 840 P.2d 197 (1992) (remand required to determine whether police reasonably believed that house guest had authority to consent to officer’s entry into house to effect warrantless arrest).
Wayne R. Lafave, Search and Seizure § 8.3(g), at 747 (3d ed. 1996).
Rodriguez, 497 U.S. at 188.
RP (Mar. 1, 2000) at 12.
See State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352, 360 (1998) (where defendant had no key to room and police knew he always knocked before entering, it was not reasonable to believe that he had authority to consent to search).
Rodriguez, 497 U.S. at 180. Because the trial court had not considered the question, the court remanded for a determination as to whether the officers’ belief in the girl friend’s authority was reasonable. Rodriguez, 497 U.S. at 189.
888 F.2d 519, 522-23 (7th Cir. 1989).
See United States v. Yarbrough, 852 F.2d 1522, 1534 (9th Cir. 1988) (party