People v. Goforth

• Citation: 222 Mich.App. 306,564 N.W.2d 526
• Decision Date: 14 March 1997
• Docket Number: Docket No. 191325
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant v. Scott Dean GOFORTH, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

Page 526

564 N.W.2d 526

222 Mich.App. 306

PEOPLE of the State of Michigan, Plaintiff-Appellant v. Scott Dean GOFORTH, Defendant-Appellee.

Docket No. 191325.

Court of Appeals of Michigan.

Submitted Feb. 14, 1997, at Lansing.

Decided March 14, 1997, at 9:25 a.m.

Released for Publication May 22, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Anica Letica, Assistant Prosecuting Attorney, for People.

Kyle E. Andeer, Farmington Hills, for defendant-appellee.

Michael Thomas, John D. O'Hair, and Timothy A. Baughman, amicus curiae for Prosecuting Attorneys Association of Michigan.

Before O'CONNELL, P.J., and MARKMAN and M.J. TALBOT ^*, JJ.

MARKMAN, Judge.

The prosecution appeals by leave granted a circuit court order affirming a district court dismissal of a charge against defendant of possession with intent to deliver marijuana, M.C.L. § 333.7401(2)(c); M.S.A. § 14.15(7401)(2)(c). We reverse and remand.

On January 6, 1993, while searching for a teenage girl who had been reported as missing, police officers went to the home where defendant lived with his parents. Defendant was aged eighteen at the time of the June 1993 preliminary examination and, according to his mother, he paid rent. Defendant's mother allowed the officers to enter the house to search for the runaway. In the course of their search, the officers entered defendant's bedroom. ¹ They found and seized a pan on the floor containing four sandwich bags of marijuana, as well as a scale. While searching another house for the girl, they saw a young man who turned out to be defendant and noticed that he was wearing a beeper. The officers obtained an arrest warrant and arrested defendant on January 22, 1993, at which time they found marijuana on defendant.

The district court dismissed the charge against defendant relating to the January 6, 1993, seizure from his bedroom on the basis that his mother lacked authority to allow the officers to search his room. The prosecution appealed to the circuit court, which affirmed the district court's ruling. The prosecution then applied for leave to appeal to this Court, which was granted. On September 30, 1994, this Court vacated the district court's order of dismissal and remanded the case to the district court with instructions to state on the record or in a written opinion its findings of fact and conclusions of law regarding whether the officers reasonably believed that defendant's mother had apparent authority to consent to a search of defendant's bedroom. The district court reviewed the preliminary examination testimony and again found that defendant's mother did not have authority to allow the search because defendant had a legitimate expectation of privacy in his bedroom. It held that the officer did not act reasonably in believing that defendant's mother had apparent authority to consent to a search of defendant's bedroom. It specifically based this holding on defendant's mother's testimony that there was a "Keep Out" sign on defendant's door, that the door was closed, ² and that defendant did not allow anyone in the room. ³ It held that, in this context, the officer should have asked defendant's mother whether she had defendant's permission to allow anyone into the room before he searched it. The prosecution again appealed to the circuit court, which affirmed the district court's order of dismissal, and again applied for leave to appeal to this Court, which was granted.

In order to satisfy the Fourth Amendment of the United States Constitution and article 1, § 11 of the Michigan Constitution, a search must be "reasonable." As a general matter, this requires that law enforcement authorities obtain a warrant. People v. Chism, 390 Mich. 104, 123, 139, 211 N.W.2d 193 (1973). However, Fourth Amendment rights may be waived, and one may always consent to a search of himself or his premises. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). A trial court is to review the "totality of circumstances" to determine the validity of consent to a search. Chism, supra; People v. Grady, 193 Mich.App. 721, 723-724, 484 N.W.2d 417 (1992). The prosecution claims that the district court erred in ruling that defendant's mother lacked apparent authority to allow the police to search defendant's bedroom. This Court reviews trial court decisions regarding the validity of consent for clear error. Chism, supra. We also review trial court decisions regarding motions to suppress evidence de novo. Ornelas v. United States, 517 U.S. ----, ---- - ----, 116 S.Ct. 1657, 1661-1663, 134 L.Ed.2d 911, 919-920 (1996); Thompson v. Keohane, 516 U.S. ----, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). ⁴

Here, the district court followed People v. Flowers, 23 Mich.App. 523, 179 N.W.2d 56 (1970). Flowers involved the search of the bedroom of a seventeen-year-old male who lived with and was supported by his father. Pursuant to the defendant's father's consent, police officers searched the home and found narcotics hidden in a stereo speaker in the defendant's room. The Flowers Court found that the father's consent had been freely and knowingly given but concluded that a parent "cannot waive the search privilege" for a child. Id. at 527, 179 N.W.2d 56. It cited Stoner v. California, 376 U.S. 483, 489, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964) (hotel clerk had no authority to consent to the search a hotel guest's room), and held that the right to be free from unreasonable governmental searches is a personal right that cannot be waived by another. Id. at 526-527, 179 N.W.2d 56.

Flowers focused on whether the parent had authority to waive his child's privilege against unreasonable searches. In Schneckloth, supra at 241, 93 S.Ct. at 2055, the United States Supreme Court distinguished Fourth Amendment rights from the rights that ensure a fair criminal trial and concluded that it would be "unrealistic" to apply a waiver analysis "in the informal, unstructured context of a consent search" and that a waiver approach would be inconsistent with decisions recognizing the validity of third-party consent to a search. People v. Reed, 393 Mich. 342, 363-364, 224 N.W.2d 867 (1975), followed Schneckloth and held that a waiver analysis is inapplicable to consent searches. Accordingly, Flowers incorrectly framed the issue of parental consent to a search in terms of whether parents could waive their child's privilege against unreasonable searches. Cf. also People v. Overall, 7 Mich.App. 153, 151 N.W.2d 225 (1967).

In Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 2797-2798, 111 L.Ed.2d 148 (1990), the Court summarized the current state of the law regarding third-party consent to a search:

The Fourth Amendment generally prohibits the warrantless entry of a person's home, whether to make an arrest or to search for specific objects. The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched or from a third party who possesses common authority over the premises. [Citations omitted.]

The Rodriguez Court cited United States v. Matlock, 415 U.S. 164, 171, n. 7, 94 S.Ct. 988, 993, n. 7, 39 L.Ed.2d 242 (1974), which defined "common authority":

Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent ... rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

The Rodriguez Court then considered the issue of apparent authority. It concluded that a search without a warrant may be valid "when based upon the consent of a third party whom the police, at the time of entry, reasonably believe to possess common authority over the premises, but who in fact does not do so." Id. at 179, 189, 110 S.Ct. at 2796, 2802. It held at 188-189, 110 S.Ct. at 2801:

As with other factual determinations bearing upon search and seizure, determination of consent to enter must "be judged against an objective standard: would the facts available to the officer at the moment ... 'warrant a man of reasonable caution in the belief' " that the consenting party had authority over the premises?

In Grady, supra at 724-726, 484 N.W.2d 417, this Court followed Rodriguez and held that police officers' belief in a third party's ability to consent to a search must be reasonable under the circumstances; a good-faith belief is not the controlling criterion. In People v. Gary, 150 Mich.App. 446, 452, 387 N.W.2d 877 (1986), this Court declined to impose an obligation on the police to make a further inquiry regarding a third party's ability to validly consent to a search unless the circumstances are such as to cause a reasonable person to question the consenting party's power or control over the premises or property. These authorities frame the issue as whether the police reasonably believe that the third party consenting to a search has common authority over the premises. Accordingly, the issue here is whether the police reasonably believed that defendant's mother had common authority over the bedroom defendant occupied in her home.

We found no binding Michigan authority or any United States Supreme Court authority addressing the specific issue whether parents have sufficient common authority over a child's bedroom in their home to allow the parents to validly consent to a search thereof. However, a Sixth Circuit case addresses this issue. United States v. Austin, 81 F.3d 161 (C.A.6 1996), reported in full 1996 WL 109500, 1996 US App. LEXIS 8256, involved the...