People v. Morehead
| Decision Date | 24 September 2015 |
| Docket Number | Court of Appeals No. 12CA0715 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Mikel MOREHEAD, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
Cynthia H. Coffman, Attorney General, Ethan E. Zweig, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
Douglas K. Wilson, Colorado State Public Defender, Meghan M. Morris, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.
Opinion by JUDGE TERRY
¶ 1 Defendant, Mikel Morehead, appeals the judgment of conviction entered on a jury verdict finding him guilty of possessing methamphetamine, possession of methamphetamine with intent to distribute, and seven gambling charges. Much of the inculpatory evidence at trial resulted from a warrantless search of defendant's house. The search was consented to by N.H., defendant's long-time girlfriend, whom he had recently "kicked out" of the house. Upon review of these facts, which present several novel questions in the law of third-party consent, we conclude that N.H. had neither actual nor apparent authority to consent to the search. Therefore, we reverse and remand for a new trial.
¶ 2 Defendant lived with N.H. for eight years in the downstairs residence of a subdivided house that his mother owned, but for which he paid the mortgage. After defendant kicked N.H. out, she began staying with a friend. Three days after she was kicked out, N.H. was in the process of moving some of her possessions out of the house when she got into an altercation with defendant. The altercation resulted in defendant's arrest on a domestic violence charge, and N.H. then told the police that she wanted to discuss defendant's other criminal activities, which she described as operating gambling machines and dealing methamphetamine. N.H. gave consent for the police to search defendant's residence. Without a warrant, the police searched a portion of defendant's residence, and that search revealed the presence of illegal gambling machines and padlocked doors.
¶ 3 Immediately after the warrantless search, the police began the process to obtain a warrant to search the residence. A second search was conducted pursuant to a warrant, and that search revealed incriminating evidence that defendant was involved in dealing methamphetamine and illegal gambling. Because the trial court found that N.H. had both actual and apparent authority to consent to the search of the house, it denied defendant's motion to suppress all of the evidence, and, after a jury trial, defendant was convicted of all charges.
¶ 4 Defendant first contends that the trial court erred in determining that N.H. had authority to consent to the warrantless search of his house. We agree.
¶ 5 In reviewing a trial court's ruling on a suppression motion, we defer to the court's findings of fact, but analyze de novo the application of legal standards to those facts. People v. Kazmierski, 25 P.3d 1207, 1210 (Colo.2001).
¶ 6 "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const. amend. IV. Our nation has long recognized that the home—the center of private life—is entitled to special protection. Georgia v. Randolph, 547 U.S. 103, 115, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). Accordingly, the Fourth Amendment generally prohibits the warrantless entry into a person's home. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).
¶ 7 One exception to the warrant requirement is a search conducted pursuant to validly given consent. Id. ; Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Valid consent must be voluntary, but is not limited to consent by the defendant; it may be obtained from a "third party who possessed common authority over [the premises] or other sufficient relationship to the premises." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).
¶ 8 "Common authority" rests 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." Id. at 171 n.7, 94 S.Ct. 988. "The burden of establishing that common authority rests upon the State." Rodriguez, 497 U.S. at 181, 110 S.Ct. 2793.
¶ 9 Even if a third party does not have actual authority to consent to a search, the search is still constitutional if the police have a reasonable good-faith belief that the consenting party has common authority over, or other sufficient relationship to, the premises or effects sought to be inspected. Id. at 188–89, 110 S.Ct. 2793 ; People v. McKinstrey, 852 P.2d 467, 472–73 (Colo.1993). This is often described as the doctrine of "apparent authority." See People v. Hopkins, 870 P.2d 478, 480–81 (Colo.1994). Determination of apparent authority "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?" Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793 (quoting Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ).
¶ 10 Apparent authority is not established solely on the basis that the third party believes she is authorized to consent, McKinstrey, 852 P.2d at 472, and officers may not necessarily accept a person's invitation to enter, Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793. "Under Rodriguez, police officers also should make reasonable inquiries when they find themselves in ambiguous circumstances regarding the authority of the third party to consent to the search." McKinstrey, 852 P.2d at 473 ; see Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793 ().
¶ 11 In Rodriguez, the Supreme Court held that the defendant's girlfriend, who had moved out of their previously shared residence a month before the search, "obviously" did not have common authority to consent to a search. Id. at 181–82, 110 S.Ct. 2793. In reaching that conclusion, the Court considered these additional facts relevant:
She took her and her children's clothing with her, though leaving behind some furniture and household effects. During the period after July 1 she sometimes spent the night at Rodriguez's apartment, but never invited her friends there, and never went there herself when he was not home. Her name was not on the lease nor did she contribute to the rent. She had a key to the apartment, which she said at trial she had taken without Rodriguez's knowledge (though she testified at the preliminary hearing that Rodriguez had given her the key).
¶ 12 The facts here are substantially similar to those in Rodriguez . Just as Rodriguez's girlfriend was not married to Rodriguez, N.H. was not married to defendant. N.H., like Rodriguez's girlfriend, had recently moved out but still had personal property in the residence. Neither N.H. nor Rodriguez's girlfriend had an ownership or then-current possessory interest in the residence. Rodriguez's girlfriend was not a party to the lease and did not contribute to the rent. Here, the only evidence regarding ownership showed that defendant's mother owned the house and defendant paid the mortgage and utility bills. (Though the trial court found that "[d]efendant and his mother are legal owners of the house," we find no support for such co-ownership in the record.) Both Rodriguez's girlfriend and N.H. had keys to the residence, though, in Rodriguez, the girlfriend testified at trial that she had taken the keys without Rodriguez's knowledge (despite previous testimony to the contrary).
¶ 13 We are unpersuaded that the distinctions drawn by the People require a result different from that reached by the Rodriguez Court. The People highlight that N.H. "had access" to the home when defendant was not at home and was able to invite a friend to help her move, while the girlfriend in Rodriguez "never invited her friends [to the residence], and never went [to the residence] herself when [Rodriguez] was not home." Id. at 181, 110 S.Ct. 2793. But defendant knew that N.H. was "access[ing]" the house that day to move her possessions out, he was in and out of the house himself that day, and he knew that N.H.'s friend was there.
¶ 14 More to the point, the trial court's findings do not show that N.H. had access for "most purposes." See Matlock, 415 U.S. at 171 n.7, 94 S.Ct. 988. To the contrary, the record indicates that her access was for the limited purpose of moving her possessions out. The People have made no showing that N.H. had then-current access for any other common purpose of a co-inhabitant, such as socializing or sleeping, and the record indicates the contrary: N.H. had been staying at a friend's house since being kicked out. See Petersen v. People, 939 P.2d 824, 828–29 (Colo.1997) (). Thus, like the girlfriend in Rodriguez, N.H. did not enjoy "mutual use and joint access or control" of the residence "for most purposes." Matlock, 415 U.S. at 171 n.7, 94 S.Ct. 988.
¶ 15 The People's other attempts to distinguish Rodriguez are no more persuasive. The People point to a lack of evidence that defendant ever attempted to dispossess N.H. of keys, and contrast this with the testimony in Rodriguez that the girlfriend had taken keys to the...
To continue reading
Request your trial