People v. McKinstrey

• Citation: 852 P.2d 467
• Decision Date: 07 June 1993
• Docket Number: No. 92SA374,92SA374
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Steven McKINSTREY, Defendant-Appellee.
• Court: Supreme Court of Colorado

Page 467

852 P.2d 467

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Steven McKINSTREY, Defendant-Appellee.

No. 92SA374.

Supreme Court of Colorado En Banc.

June 7, 1993.

Paul R. McLimans, Dist. Atty., Cynthia J. Kowert, Deputy Dist. Atty., Hot Sulphur Springs, for plaintiff-appellant.

Dixon and Snow, P.C., Steven Janiszewski, Denver, for defendant-appellee.

Justice ERICKSON delivered the Opinion of the Court.

This is an interlocutory appeal from an order of the Grand County District Court suppressing evidence seized during a warrantless search of a cabin located in Grand County, Colorado. The prosecution asserts that the district court erred in granting Steven Charles McKinstrey's motion to suppress the evidence seized in the warrantless search. Because the record before us suggests that the district court did not consider Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), in determining whether the warrantless search violated the Fourth Amendment to the United States Constitution, we affirm the suppression order in part, reverse in part, and remand to the district court for further proceedings consistent with this opinion.

I

On May 4, 1992, Officer Mark Husmann of the Grand County Sheriff's Department noticed a car parked at an unoccupied cabin in Grand County. Because Officer Husmann had previously investigated a break-in at the cabin, he stopped to determine whether a burglary was being committed. ¹ A man came out of the cabin and approached Officer Husmann. He identified himself as "Steven McKinstery" and said that Gayland Sanchez had given him permission to use the cabin. ² When Officer Husmann asked the man for identification, he said that he had no driver's license or any other identification on him, but gave a birth date of June 24, 1958. The man claimed that a friend had driven him to the cabin but had left to walk to Grand Lake.

Officer Husmann then contacted Frank Drumm, who lived in a nearby cabin. Drumm told Officer Husmann that the man arrived in a car at the cabin alone and unloaded what appeared to be computer equipment. Officer Husmann subsequently ran an outstanding warrants check on "Steven McKinstery." The check revealed active warrants in Boulder County for a "Steven McKinstrey" with the same date of birth and a physical description that matched the man Officer Husmann had just spoken with at the cabin.

Officer Husmann, accompanied by another officer who had arrived as backup, proceeded to the cabin to arrest the man. After calling out McKinstrey's name and receiving no response, the officers entered the cabin through the open front door to conduct a cursory search for him. The officers were in the cabin for approximately one minute but did not see anyone. The officers immediately left the cabin to discuss whether the individual that Officer Husmann had spoken with at the cabin was the same person identified in the warrants, whether the individual or evidence of a crime might be located in the cabin, and whether they needed to phone Sanchez to obtain permission to search the cabin.

Drumm, who had followed the officers to the cabin, volunteered that he had a key to the cabin and was a partial owner of the cabin. ³ In response to an inquiry from Officer Husmann, Drumm also agreed to grant permission to search the cabin. The officers went back into the cabin and subsequently seized cocaine, marijuana, drug paraphernalia, and a stolen bicycle. McKinstrey was later arrested and charged with two counts of unlawful possession of a controlled substance, one count of unlawful possession of marijuana, and one count of theft by receiving.

McKinstrey filed a motion to suppress the evidence, claiming that the search and the subsequent seizure of the narcotics violated the Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution. In its response to McKinstrey's motion, the prosecution asserted, inter alia, that the warrantless search was a constitutionally valid third-party consent search because Drumm possessed common authority over the cabin.

Following a pretrial suppression hearing on September 11, 1992, the district court granted McKinstrey's motion to suppress, finding that Drumm did not have authority to consent to the search of the cabin and that the other exceptions to the constitutional requirements for a search warrant did not exist. The district court did not specify whether its ruling was based on the federal constitution, the state constitution, or both.

The prosecution filed an interlocutory appeal pursuant to C.A.R. 4.1, contending that the district court erred in concluding that the search based on Drumm's consent was unconstitutional. In the absence of a clear statement that a suppression ruling is grounded on state as opposed to federal constitutional law, we will presume that a court relied on federal law in reaching its decision. People v. Inman, 765 P.2d 577, 578 (Colo.1988); see also People v. Romero, 767 P.2d 1225, 1226-27 (Colo.1989); People v. Gann, 724 P.2d 1318, 1320 (Colo.1986); cf. Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476-77, 77 L.Ed.2d 1201 (1983). Thus, the sole issue in this interlocutory appeal is whether Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), requires reversal of the suppression order under the Fourth Amendment. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

II

In Rodriguez, the United States Supreme Court addressed the constitutional validity of a warrantless search based on the consent of a third party. In Rodriguez, Gail Fischer told the police that Edward Rodriguez had severely beaten her in an apartment located in Chicago, Illinois. Several times, Fischer referred to the apartment as "our apartment" and told the officers that she had clothes and furniture there. She agreed to go to the apartment with the police to arrest Rodriguez. Upon arrival at the apartment, Fischer let the officers in with her key and gave them permission to enter. The police arrested Rodriguez in the apartment and seized drugs and drug paraphernalia.

The Supreme Court initially found that Fischer did not possess common authority to validly consent to a search of the apartment. Id. at 181-82, 110 S.Ct. at 2797-98. The Supreme Court then proceeded to address the prosecution's argument that the search nevertheless was valid because the police reasonably believed that Fischer had the authority to consent. Id. at 183-89, 110 S.Ct. at 2798-2802.

In this interlocutory appeal, the prosecution contends that Drumm possessed sufficient common authority over the cabin to validly consent to the search. The prosecution also asserts that the prohibition against warrantless searches does not apply to searches 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. ⁴ As in Rodriguez, we address each argument separately.

III

The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution establish the right to be free from unreasonable searches and seizures. People v. McKinstry, 843 P.2d 18, 20 (Colo.1993); see U.S. Const. amend. IV; Colo. Const. art. II, § 7. These constitutional provisions generally prohibit a warrantless entry of a person's home, whether to make an arrest or to search for specific objects. Rodriguez, 497 U.S. at 181, 110 S.Ct. at 2797-98; People v. Thiret, 685 P.2d 193, 200-01 (Colo.1984); People v. Savage, 630 P.2d 1070, 1073 (Colo.1981); see also Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

The prohibition against warrantless searches 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. Rodriguez, 497 U.S. at 181, 110 S.Ct. at 2797-98; United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974); Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973); People v. Drake, 785 P.2d 1257, 1265 (Colo.1990); People v. Berow, 688 P.2d 1123, 1127 (Colo.1984); Thiret, 685 P.2d at 201; Savage, 630 P.2d at 1073.

In Matlock, the United States Supreme Court stated:

Common authority is of course, not to be implied from the mere property interest that a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but 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.

Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7 (citations omitted); Savage, 630 P.2d at 1073 (quoting Matlock ). The prosecution has the burden of establishing common authority. Rodriguez, 497 U.S. at 181, 110 S.Ct. at 2797-98.

Based on the record before us, we agree with the district court that the prosecution has not established that Drumm had "joint access or control for most purposes" of the cabin searched by the officers and therefore affirm the suppression order in part. However, the determination that Drumm did not possess common authority over the cabin does not resolve the question of whether the warrantless search of the cabin based on the consent of a third party was unconstitutional.

IV

A

After finding that Fischer did not possess common authority to validly consent to a search of the apartment in Rodriguez, the Supreme Court addressed the...