State v. TaggartState v. Taggart
- Reporters:
- , ,
- Before:
- Schwab
The issue is whether defendant’s landlady had the authority to consent to a warrantless search of defendant’s apartment.
The search in question occurred the morning of November 5, 1970. Defendant was not present at his apartment at that time. Instead, police detectives were admitted to the apartment at their request by defendant’s landlady. The trial court suppressed the evidence seized in this search. ②
Warrantless searches “are per se unreasonable” subject to “a few specifically established and well-delineated exceptions.” Coolidge v. New Hampshire, 403 US 443, 91 S Ct 2022, 29 L Ed 2d 564, 576, 588 (1971); State v. Keith, 2 Or App 133, 465 P2d 724, Sup Ct review denied (1970). One of the recognized exceptions is that of consent searches. State v. Douglas, 260 Or 60, 488 P2d 1366 (1971), cert denied 406 US 974 (1972). A consent search, in general, is a search consented to by the person affected. Davis v. United States, 328 US 582, 66 S Ct 1256, 90 L Ed 1453 (1946). Thus, in most cases the warrantless search of leased premises with only the permission of the landlord is imconstitutional. Chapman v. United States, 365 US 610, 81 S Ct 776, 5 L Ed 2d 828 (1961); see, generally, Note, Third Party Consent to Search and Seizure, 1967 Wash ULQ 12 (1967).
To distinguish Chapman v. United States, supra, the state argues that the holding of that case applies only during the term of the tenancy, and that defendant’s tenancy had ended due to nonpayment of rent.
The facts relevant to this contention are as follows. Defendant had rented the apartment in question on June 5, 1970, under an oral month-to-month lease. Rent for each month was to be paid in advance on the fifth day of the month. As cf November 5, 1970, the date of the search, the rent payment that should have been made on October 5, had not yet been made and was overdue. Some time during October, the landlady had spoken with a woman she knew as defendant’s wife, and this woman had assured the landlady that the rent was forthcoming. The landlady was apparently content with this assurance. ③ The rent payment that should have been made October 5, 1970, was received by mail by the landlady on November 7, 1970.
Based on these facts, the state invokes portions of Oregon’s landlord-tenant law in support of its argument that the landlady had the authority to admit the police to defendant’s apartment. The state reasons that defendant’s tenancy had terminated by operation of law under
We need not decide whether this is good landlord-tenant law, ④ for, in any event, it is bad Fourth Amendment law. We recently rejected the notion that property concepts should be controlling in determining the scope of Fourth Amendment protections. State v. Stanton, 7 Or App 286, 490 P2d 1274 (1971). Instead, the proper inquiry is whether the defendant had a reasonable expectation of privacy as to the areas searched. on, suprState v. Stan ta. We hold that a tenant of leased residential premises, ⑤ whose landlord has acquiesced in the late payment of rent then due, and who does not know or have reason to know that the landlord has decided to terminate his tenancy, continues to have a reasonable expectation of privacy.
To hold otherwise would abolish the protections of the Fourth Amendment for a potentially large group of persons renting homes and apartments. For it is not unreasonable to assume that at one time or another many renters have been more than ten days late with a monthly rent payment. Whatever effect this may have on their property rights in the leased premises, OES 91.090, we cannot conclude that being late with a rent payment in itself curtails their constitutional rights.
Affirmed.
Notes
The trial court denied defendant’s motion to suppress the evidence seized during the other searches. This evidence consisted of currency taken by the robbers and other highly incriminating items.
So far as the present record discloses, the only evidence seized in this search was an envelope upon which there was a diagram of the scene of the robbery.
There was controversy in the testimony as to whether the landlady had decided to evict defendant prior to the November 5, 1970, search. The trial court found as a fact that she had not made any such decision prior to that time, and this finding is supported by substantial evidence. State v. Fisher, 5 Or App 483, 484 P2d 864 (1971).
Even if this case had to turn on property concepts, we note the forfeiture provisions of
Our holding is limited to leased residential premises, as distinguished from hotel and motel rooms where the rule might be different. See, Abel v. United States, 362 US 217, 80 S Ct 683, 4 L Ed 2d 668, rehearing denied 362 US 984 (1960); State v. Roff, 70 Wash2d 606, 424 P2d 643 (1967).