Chаrged with assault and drug and handgun offenses in the Circuit Court for Baltimore City,
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appellee, James Rowlett, filed a motion to suppress the physical evidence supporting those charges: a handgun that was found by police in his bedroom and a “crack pipe” with drug residue that was found on his person.
The State’s challenge is twofold: First, it claims that police seized the gun in question pursuant to a lawful consensual search, asserting that the owner of the house where the search occurred, appellee’s mother, had consented to the search in question and that she had both actual and apparent authority to do so. And second, it claims that the gun was in plain view when it was seized. Because we agree that the gun was seized pursuant to a lawful consensual search of appellee’s bedroom, we shall reversе the ruling of the circuit court that granted appellee’s motion to suppress. That being our ruling, we need not, and therefore shall not, reach the State’s alternative theory that the gun was in plain view when it was seized by police officers.
As for the pipe, which was found upon appellee’s person after his arrest, it should not have been suppressed, regardless of whether the search of appellee’s bedroom was proper or not. The policе had probable cause to arrest appellee for assault, before and after the search of his bedroom, and the seizure of the pipe, with its illicit residue, was incidental to that arrest.
SUPPRESSION HEARING
The only witness to testify at the suppression hearing was Officer John F. Rager 2 of the Baltimore City Police Department. He testified that on September 6, 2001, at 9:30 a.m., he and Officer Stacey Flatter were in uniform and in a patrol car when Patricia Ann Farley 3 “literally threw herself in front” of their cruiser. “[H]ysterical” and “jumping up and down,” she told the officers that a man had pointed a handgun at her and threatened to kill her.
She had met her assailant, whom she later identified as appellee, in the street at 6:30 that morning while she was “jonsing for a hit,” that is to say, “looking for a hit of ... crack cocaine.” Appellee promised to give her the drug in exchange for oral sex. Ms. Farley agreed and accompanied appellee as he walked to a two-story rowhouse, a block away. When they arrived, they went upstairs to a second floor bedroom, which was “at the top of the stairs.” While appellee smoked cocaine from a pipe, Ms. Farley performed her part of the bargain. When she was done, appellee declined to perform his. Instead, he pointed a gun at her and threatened to kill her. The record is blank as to what occurred next but presumably she fled the house and ultimately flagged down Officers Ragеr and Flatter.
Insisting that she could identify both the rowhouse and her assailant, she then led the officers around the corner to a rowhouse at 4406 Daytona Avenue. When they arrived at the Daytona Avenue address, they went up to the porch and knocked on the front door. Appellee’s sister, Nicole Rowlett, answered the door. Officer Rager asked her “if she had a brother or a father or if there were any males inside the house at the time.” When Nicole replied that her brоther was there, the officer asked if he could speak with him. Nicole agreed and opened the
While the officer was standing in the foyer, appellee approached from the living room. The officer asked him if he knew “the lady [on] the [front] porch.” Glancing at her through the front door, appellee replied that he did not and deniеd that anything had happened that morning. When he did, Ms. Farley could be heard by the officer, exclaiming from the porch, “That’s him, that’s him.” Appellee then became, according to the officer, “extremely agitated” and “angry.” The officer asked appellee to step away from the front door, and Officer Flatter led Ms. Farley from the porch to the sidewalk in front of the house.
As appellee moved away from the front door, a woman entered the house, identifying herself as Bernadine Rowlett and appellee’s mother. When the officer informed her that Ms. Farley had accused her son of threatening her with a gun, Mrs. Rowlett stated that appellee “had just got out of jail for doing eight years for a handgun charge.” 4
Officer Rager then informed Mrs. Rowlett that a gun might be in the house and asked her if he could search the front bedroom at the top of the stairs, as that was the room, according to Ms. Farley, where the incident occurred. She agreed and indicated that that room was where her son was staying when her granddaughter, who was “approximately five or six” years old, was not in the house. The room, she stated, was “primarily” her granddaughter’s, and appellee “was just staying there.” When asked whether appellee was paying any rent, she responded that he was not. After showing police her driver’s license for “identification,” Mrs. Rowlett signed a consent to search form.
The consent form gave the police permissiоn “to conduct a complete search of [her] residence.” Appellee was present when his mother signed the consent form, but apparently did not object to her execution of that document. Nor did he, at any time, ask the police to leave or voice any objection to the search of his bedroom.
He did, however, become visibly agitated and angry, prompting Officer Rager to place him in handcuffs, pat him down and call additional policе units to the scene. The officer explained: “I handcuffed him for my safety. It was only two of us and he was a large guy.” Although appellee did not say why he was upset, Officer Rager speculated: “I think he was angry at the fact we were there and that the lady was outside and had made the accusation.” When defense counsel asked, “Basically he didn’t want you on the premises did he,” the officer replied, “He never stated that, but he was angry.”
After signing the consent form, Mrs. Rowlett escorted Offiсer Rager upstairs. She entered the bedroom at the top of the stairs while Officer Rager remained in the hall. Once inside, “she moved [a shoe] box” that was blocking the path into the room. As she did, “the box fell over, and the gun fell out of the box.” Observing what had occurred, Officer Rager entered the room, took possession of the gun, and searched the bed and mattress, but found nothing incriminating. After retrieving the gun, Officer Rager went downstairs and informed appellee that he was under arrest. Another officer then searched appellee. That officer found on appellee’s person a “crack pipe, a handmade smoking device[,] with white residue” on it.
Although the court found that, because Mrs. Rowlett was “the owner of the property” and “the property [was] not leased to [her] son,” she had “a right to go in and take the police in and consent” to a search of appellee’s bedroom. Her consent did not “trump,” it concluded, appellee’s “opposition to the presence of the police on the premises.” The court therefore held that the search for and seizure of the handgun was improper and suppressed “the gun [and] evidence of the gun.” And, because, in the words of the court, appellee was arrested and searched “based on the finding of the gun,” it also suppressed the “crack pipe” with its drug residue on it.
STANDARD OF REVIEW
In reviewing either the granting or the denial of a motion to suppress, wе accept the findings of fact made by the circuit court, unless they are clearly erroneous.
See Riddick v. State,
DISCUSSION
The State contends that the circuit court erred in granting appellee’s motion to suppress. It claims that the seizure of the gun was lawful because appellee’s mother had actual authority to consent to the search of her son’s room and did. And, even if she did not have such authority, the police reasonably relied upon her apparent authority to authorize such a search. The State maintains, therefore, that the gun found in appellee’s room and the pipe found on his person should not have been suppressed.
The Handgun
The Fourth Amendment prohibits unreasonable seаrches and seizures.
See Florida v. Jimeno,
Common authority to consent to a search is not derived “from the mere property interest a third party has in the property” searched; rather, such authority rests “on mutual use of the property by persons generally having joint access or
In the absence of such authority, the consent of a third party may still be sufficient to validate a warrantless search if that party has “ ‘apparent authority.’”
Rodriguez,
In that case, we considered whether a father had common or apparent authority to consent to the search of his adult son’s bedroom in his house.
Miller,
Receiving a tip that someone was selling drugs out of that basement, two police officers went to the Miller home to investigate.
Id.
Upon their arrival, the officers were met at the front door by Mr. Miller and invited inside.
Id.
An officer explained the purpose of the visit and read the consent to search form to Mr. Miller and his daughter.
Id.
Although Mr. Miller gave verbal permission, stating that he disapproved of drugs in his home, he declined to sign the consent to search form.
Id.
Unclear though it was as to whether Christopher was present when the form was read, he was present during the search of his room.
Id.
at 652,
The officers proceeded to the basement and entered Christopher’s room.
Id.
at 647,
As to whether Mr. Miller had the right to consent to the search of his son’s bedrоom, we opined “that a parent as an owner, absent evidence to the contrary, has control over and possession of his or her home,” including rooms of other family member occupants.
Id.
at 654-55,
The same authority to consent to a search existed in the Miller home. Christopher paid no rent for his room and had no “understanding or agreement” with “his father with respect to [his] expectation of privacy.”
Id.
at 656,
The circumstances surrounding the search of appellee’s room are, in all material respects, similar to Miller. When police arrived at the Rowlett home, appellee’s sister, Nicole, answered the door and invited Officer Rager inside. When the officer asked whether there were any males presеnt in the home at that time, Nicole informed the officer that her brother, appellee, was there. A few moments later appellee’s mother, Mrs. Rowlett, entered the home. She identified herself as appellee’s mother and informed the police that appellee had just been released from jail and was staying in her house. She stated that he was using her granddaughter’s room when her five year old granddaughter was not. He was not, she informed police, paying rent for the use of the room. She also showed the officer her driver’s license as proof of identification.
When Officer Rager informed her that a gun might be in her home and asked permission to search the bedroom “at the top of the stairs,” where appellee was staying, Mrs. Rowlett executed a written consent form, allowing the police to search her entire home. Appellee was within a few feet of his mother when she consented to the search. And, although he became visibly agitated and angry, he did not challenge his mother’s right to consent or voice any objection to the impending search of his room. The police had no way of telling whether he was angry over being identified by Ms. Farley as her assailant, or being placed in handcuffs, or police entering the room he shared.
Mrs. Rowlett then escorted Officer Rager upstairs. She entered the room first, while the officer remained in the hallway There was no evidence that the bedroom door was closed or had a lock that would have prevented Mrs. Rowlett from entering it. As Mrs. Rowlett entered the room, she moved a shoe box that blocked the doorway. The box opened and a gun fell out. Seeing the gun, Officer Rager entered the room to take possession of it and to search for additional evidence.
Nothing suggested to the officer that appellee’s use of the property “varied from that of an ordinary family member” or that Mrs. Rowlett’s authority as his mother and apparently head of the household did not extend to the room her granddaughter and appellee shared.
Miller,
Appellee contends, however, that Miller does not apply to the instant case because, unlike the defendant in Miller, he demonstrated an “obvious opposition” to the search, making Mrs. Rowlett’s consent insufficient. Appellee is incorrect.
That appellee was present and, in the words of the circuit court, demonstrated “opposition to the presence of the police on the premises” does not invalidate his mother’s consent. Although appellee’s agitation and anger after having been identified by Ms. Farley and handcuffed by the police cannot be considered consent to search, it also cannot be considered, under the circumstances, an objection to it. Appellee was present as Officer Rager advised his mother of the reason for the police visit and asked her consent to search his bedroom. Mrs. Rowlett agreed, signing a written consent to search form. Neither at that timе nor thereafter did appellee challenge her right to consent, ask the police to leave, or otherwise voice an intelligible objection to the search of his room.
Moreover, the police had every reason to assume that, if appellee objected to his mother’s consent to search or the search itself—and not just to the prospect of returning to jail having been identified by Ms. Farley as her assailant—he would have expressed an objection to the search at that time. He did not. Thus, appellee’s anger and agitation cannot be construed as an objection to the search.
See generally People v. Redmond,
Also, even if appellee’s behavior could be reasonably construed as an objection to the search, it did not vitiate his mother’s consent to that search. Consent to search given by a third party having common authority over the premises is sufficient to authorize a search even when the defendant is present and objects.
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Accordingly, even if we interpret appellee’s general opposition to police presence at his mother’s home as an objection to the search of his room, that objection does not override his mother’s consent.
See Sumlin,
The “Crack Pipe” and Drug Residue
The Stаte argues, as it did at the suppression hearing, that none of the evidence, including the “crack pipe” that was found on appellee’s person, should have been suppressed because the seizure of the gun was lawful. The circuit court disagreed. It found that appellee was arrested and searched incident thereto “based on the finding of the gun” and, because of that, it suppressed the “crack pipe” and the residue. We conclude, however, that еven if the search of appellee’s room was unlawful, the pipe, with its drug residue, would still be admissible because it was lawfully seized pursuant to appellee’s arrest.
Generally, “a police officer with probable cause to believe that a suspect has or is committing a crime may arrest the suspect without a warrant” without violating the Fourth Amendment.
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Conboy v. State,
That the police delayed arresting appellee until after they had searched his room did not affect their right to arrеst him for the assault, regardless of whether that search proved fruitful or even lawful. The search of appellee’s person that followed was incidental to that arrest. Accordingly, we hold that the “crack pipe” and the residue on it, which was found on appellee’s person, was lawful and that evidence should not have been suppressed.
CIRCUIT COURT’S RULING ON APPELLEE’S MOTION TO SUPPRESS REVERSED. CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR TRIAL. COSTS TO BE PAID BY APPELLEE.
Notes
. Appellee was charged with first degree assault, second degree assault, possession of a regulated firearm аs a convicted violent offender, possession of a controlled dangerous substance ("CDS”), one count possession of CDS paraphernalia, and use of a handgun in the commission of a felony or crime of violence in the Circuit Court for Baltimore City.
. At the suppression hearing, Rager identified himself as Detective John F. Rager of the Baltimore City Police Department’s Organized Crime Division, Plain Clothes Narcotics Section. He, however, testified that, at the time the offenses and search occurred, he was a uniform police officer with the department.
. Officer Rager testified that the victim's name was Patricia Ann Farley The indictment, however, listed the victim's name as Patricia Ann Holt.
. According to defense counsel, appellee had been previously convicted of manslaughter.
. Many other federal and state courts have also held that the police may conduct a search based on third party consent, where the consenting party has common authority, even though the defendant is present for the search and objects to it.
See Koch v. Town of Brattleboro, Vermont,
. “Probable cause exists where 'the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed."
Brinegar v. United States,