Colbert v. Com., 1998-SC-1070-DG.

• Decision Date: 22 February 2001
• Docket Number: No. 1998-SC-1070-DG.,1998-SC-1070-DG.
• Parties: Rontez P. COLBERT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 777

43 S.W.3d 777

Rontez P. COLBERT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 1998-SC-1070-DG.

Supreme Court of Kentucky.

February 22, 2001.

As Modified on Denial Rehearing May 24, 2001.

Bruce P. Hackett, Frank Wm. Heft, Jr., Louisville, for appellant.

A.B. Chandler III, Attorney General, Courtney J. Hightower, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for appellee.

Opinion of the Court by Justice GRAVES.

This case presents an issue of first impression in Kentucky: The validity of a mother's consent to police officers' warrantless search of her adult son's bedroom located in her home, as well as of his personal effects, including a closed safe, absent direct evidence she had common authority over the room.

Shortly after 1:00 a.m. on Dec. 26, 1995, Louisville police received a call concerning a domestic disturbance at Delores Colbert's home, requesting help with her 19-year-old son, Appellant Rontez Colbert, who had become enraged and was "trashing" the home they shared with Delores' younger son. When officers arrived, Appellant was putting on a bulletproof vest and barricading himself in the house. Officers tried to apprehend Appellant, who attempted to evade them, tipping over furniture as he ran. Eventually he was caught, arrested and taken outside. He asked an officer to retrieve a specific pair of shoes and a jacket from his bedroom in the basement before they took him to jail.

Another officer approached Delores and explained to her that Appellant had a reputation for being violent. He was, in fact, believed to be involved in at least one shooting earlier that year. The officer then asked for permission to search his room for weapons. Delores agreed, and at a suppression hearing, the officer recounted her words as "you can search anywhere in the house you want to and do whatever you gotta do; do whatever you want to do." These words were never disputed because, although Delores was expected to be a defense witness at the suppression hearing, she made it known that she preferred not to testify and, as such, was never called.

When officers entered Appellant's room, they discovered the walls covered with what they identified as gang graffiti and summoned a photographer. They also discovered several plastic containers for handguns. Continuing the search, they found a small fireproof safe on the floor and opened it. The record does not disclose whether the safe or the bedroom door was locked. The safe contained six individually wrapped bundles of marijuana, about 19 grams of crack cocaine in fifty bundles, cash, an extended gun clip, and photographs of Appellant and others with weapons. All of this evidence was confiscated.

Following a hearing on September 24, 1996, the Jefferson Circuit Court denied a motion to suppress the items seized from the bedroom. On February 5, 1997, Appellant entered a conditional plea of guilty to charges of first degree trafficking in a controlled substance, trafficking in marijuana, resisting arrest, and second degree assault. He received five years each on the controlled substance and second degree assault charges and twelve months each on the marijuana and resisting arrest charges, all to run concurrently for five years imprisonment. Pursuant to his conditional plea, he appealed the order denying the motion to suppress the items found in the safe. The Court of Appeals recognized this as an issue of first impression and, relying on United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), held that Appellant's mother possessed common authority over her own household and could consent to a search of the entire premises. The court continued that, even if she lacked actual authority, she had apparent authority over the premises and it would have been reasonable for the officers to believe she possessed authority to consent to a search of Appellant's room, pursuant to Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).

Appellant appeals on the basis that, although no evidence was presented to show his mother did not have a right of entry, she could not consent to the search because the room was in his exclusive control, and, absent a warrant, the search should be held unconstitutional and the evidence suppressed. Furthermore, he contends that her authority over the house did not extend to his safe. Finally, he argues that officers should not be permitted to use third-party consent to bypass the first party, when the latter is still available to give or deny consent. After reviewing the record and hearing oral argument, we affirm the decision of the Court of Appeals.

I. CONSENT TO SEARCH OF THE BEDROOM WAS VALID

In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the United States Supreme Court recognized that there is a heightened privacy interest in one's own home and that the Fourth Amendment generally prohibits warrantless entry, whether to search for objects or to make an arrest. This general prohibition may be overcome by any of the valid exceptions to the warrant requirement, including consent to search, whether obtained from the individual who is the target of the search, see Schneckloth v. Enstamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), or from a third party who possesses common authority over the premises. See Matlock, supra. The burden of proof to show an exception rests with the government. See Gallman v. Commonwealth, Ky., 578 S.W.2d 47, 48 (1979).

Appellant argues that Kentucky law gives a more expansive reading to the protections against search and seizure than is offered by the United States Constitution's Fourth Amendment. First, Appellant cites Elmore v. Commonwealth, Ky., 282 Ky. 443, 138 S.W.2d 956, 960 (1940), arguing that this Court held that "The right [against warrantless search and seizure] thus guaranteed is a personal right and is broad enough to cover the appellant [17-year-old youth charged with rape] as a member of the family, residing with his father and mother, since it was his dwelling as well as theirs."

The Elmore line of reasoning is inapplicable. That case did not turn on the protections afforded Elmore by the Kentucky Constitution, but rather was based on whether his mother's consent to search was voluntary. The 1940 case also shows a paternalistic attitude toward women in general, and black women in particular, which cannot be reconciled with modern thinking. The Elmore Court reserved the question of whether it was possible for a wife to consent to the search of the home in the absence of her husband, but suggested that allowing such to occur would be to allow the wife to waive her husband's constitutional rights. In Commonwealth v. Sebastian, Ky., 500 S.W.2d 417, 419 (1973), this Court held that a wife may consent to a search of the home in the absence of her husband, and that the consent was not the wife's waiving of the husband's rights, but an assertion of her own rights of control over the shared spaced.

Appellant does not raise the issue of voluntariness of consent on appeal, and Elmore, supra, is, if not a case which has outlived its usefulness, at least inapplicable here. Appellant's mother was the homeowner and the head of the household. To protect her person and her property, she summoned the police to remove Appellant from her home. She also agreed to the search and gave the police unlimited authority to search anywhere they wanted.

Appellant also cites Commonwealth v. Wasson, Ky., 842 S.W.2d 487 (1992), a privacy case concerning a man convicted under an anti-sodomy law, to show the expansiveness of Kentucky's interpretation of the right to privacy. Wasson involved personal lifestyle choices for private consensual sexual activities, and held that the Kentucky Constitution's guarantees of individual liberty "offer greater protections of the right of privacy than provided by the Federal Constitution as interpreted by the United States Supreme Court...." Id. at 491. This Court, however, has never extended these greater protections to the rights in property interests against warrantless search and seizure. What we have said, as recently as four years ago, is "[S]ection 10 of the Kentucky Constitution provides no greater protection than does the federal Fourth Amendment." LaFollette v. Commonwealth, Ky., 915 S.W.2d 747, 748 (1996) (citing E step v. Commonwealth, Ky., 663 S.W.2d 213 (1983)).

Both state and federal courts have interpreted search and seizure law to allow third parties to consent to the search of shared common areas. See Morris v. Commonwealth, 306 Ky. 349, 208 S.W.2d 58 (1948) (father's consent to search as "head of household" for incriminating evidence against son valid for evidence found in the kitchen) and Matlock, supra, (consent of a woman who shared a bedroom with her boyfriend in her parents' home valid). Furthermore, in United States v. Hall, 979 F.2d 77 (6th Cir.1992), the Sixth Circuit Court of Appeals held that a homeowner may consent to the search of a tenant's room, even though he never entered it while it was rented to the tenant. In Hall, the homeowner indicated that he had access to the room at all times, and that some of his personal items were stored in an adjacent room which was accessible through Hall's room. If Hall's rental agreement did not provide enough privacy to keep his landlord from consenting to a search of his room and dresser, then surely Appellant in this case can be afforded no more protection from the search to which his mother consented. Appellant never paid rent for his basement bedroom, nor did he present any evidence to indicate that he and his mother had agreed to his exclusive control of it. Like any homeowner, in the absence of an understanding to the contrary, the mother retained the right of entry to all areas of her house including the room Appellant occupied.

In Wayne R. LaFave's treatise on search and...