State v. Carsey

• Decision Date: 24 May 1983
• Docket Number: No. CA,CA
• Citation: 664 P.2d 1085,295 Or. 32
• Parties: STATE of Oregon, Petitioner on review, v. Eugene Stanley CARSEY, Respondent on review. A22361; SC 29083.
• Court: Oregon Supreme Court

Page 1085

664 P.2d 1085

295 Or. 32

STATE of Oregon, Petitioner on review, v. Eugene Stanley CARSEY, Respondent on review.

No. CA A22361; SC 29083.

Supreme Court of Oregon.

Argued and Submitted Feb. 9, 1983.

Decided May 24, 1983.

[295 Or. 33-A] William F. Gary, Sol. Gen., Salem, argued the cause for petitioner on review. With him on the brief was Dave Frohnmayer, Atty. Gen., Salem.

Warren John West, Bend, argued the cause and filed a response to the petition for respondent on review. On the brief was Richard E. Forcum, Bend.

Before LENT, C.J., and PETERSON, CAMPBELL, ROBERTS, ^* CARSON and JONES, JJ.

PETERSON, Justice.

This is a Fourth Amendment search case ¹ in which the defendant's grandmother gave the police consent to search the defendant's room in her home. The trial court found that the defendant "had exclusive control over his room" and held that the grandmother's consent "was unauthorized because defendant had exclusive control over his bedroom and had a reasonable subjective expectation of privacy." Even so, the trial court denied the defendant's motion to suppress because the police had "a good faith objective and reasonable belief that the grandmother had authority to consent." The Court of Appeals reversed the trial court's order denying suppression. State v. Carsey, 59 Or.App. 225, 650 P.2d 987 (1982). This case squarely presents two questions: (1) whether a police search of a child's room, made pursuant to the consent of a parent, is, as a matter of law, permissible, and (2) where police conduct an otherwise illegal search of the defendant's room pursuant to consent obtained from a third person, is the search legal if the searching officers reasonably believed that the third person had sufficient authority over the premises to consent to the search?

In a trial to the court, defendant was convicted of possession of a controlled substance. ² The controlled substance, marijuana, was found during a search of the defendant's bedroom in his grandmother's house. On appeal the defendant assigned as error the trial court's denial of his motion to suppress evidence.

At the time of the challenged search the defendant, although 19 years old, was living with his grandparents. As a juvenile, he had been found to be within the jurisdiction of the juvenile court as provided in ORS 419.476(1) ³ and had been committed to the MacLaren School for Boys pursuant to ORS 419.507(1) and ORS 419.509(1). ⁴ When his commitment to the MacLaren School ended, he went to Project Picture in Portland. Project Picture is referred to as a "halfway house" in the record, but its legal status is unclear. In February, 1981, he was released on parole to his grandparents pursuant to ORS 420.045(1). ⁵ Custody over the defendant after release appears to have been in the defendant's grandparents pursuant to a release agreement and ORS 420.031(2). ⁶

The state argues that because of the grandmother's legal relationship to defendant and her responsibility for defendant's supervision and control, she had legal custody of the defendant and had the same relationship to the defendant as a parent to a minor child living at home. As did the Court of Appeals, 59 Or.App. at 231, 650 P.2d 987, we assume that the release agreement created the legal effect the state urges, and that the relationship between the grandmother and the grandson was essentially that of parent and child.

The trial court, in one of its findings, succinctly described the living arrangement between the defendant and his grandparents as follows:

" * * * The Defendant occupied a bedroom in his grandparents' home for which he paid $60 per month as rent. He did his own cleaning and washing. His grandfather never went into his room. His grandmother never went into his room except to stick her head in and tell him that a meal was ready. She characterized the arrangement as an unspoken agreement that his room was under his exclusive control."

On April 3, 1981, Officer David Burleigh of the Bend Police Department called Bradley Mulvilhill, defendant's juvenile officer, and told him that he had reason to believe that the defendant had received stolen stereo equipment. Burleigh and Mulvilhill consulted with a deputy district attorney. There was a question whether the information was sufficient to obtain a valid search warrant. Burleigh and Mulvilhill decided to seek the consent of defendant's grandmother to a search of the defendant's bedroom. Mulvilhill telephoned the defendant's grandmother and asked if they could talk to her about the defendant. The defendant's grandmother agreed and the officers went to her house. Upon arrival, Burleigh told Mrs. Carsey that they had reason to believe that the defendant had stolen stereo equipment in his room and asked to see the defendant's room. That was the extent of the discussion. ⁷ Mrs. Carsey agreed and let them into the room. The officers discovered evidence in the room which defendant moved to suppress.

At the outset, we noted that this case involves the application of the Fourth Amendment of the Constitution of the United States. It provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Under the Fourth Amendment, a search without a warrant is unreasonable per se unless the search comes within one of the "few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967). There exist not less than three recognized exceptions to the Fourth Amendment search warrant requirement:

1. Search incident to arrest;

2. Search which is permitted because the circumstances then and there existing authorize, even demand, immediate responsive action by the police. This exception includes what has been variously described as an "exigent circumstances" exception, an "emergency" exception and a "hot pursuit" exception;

3. Search pursuant to a lawful consent. ⁸

One can waive one's Fourth Amendment rights. A search pursuant to a defendant's voluntary consent is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973); Katz v. United States, 389 U.S. 347, 358 n. 22, 88 S.Ct. 507, 515 n. 22, 19 L.Ed.2d 576, 586 n. 22 (1967).

The Supreme Court has, on several occasions, upheld searches in which the police justified the search on the basis of consent obtained from one other than the defendant. In Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684, 693-94 (1969), the court held that evidence seized from the defendant's duffel bag in a search consented to by the defendant's cousin, who had actual possession and control of the bag, was admissible. Because the cousin was a "joint user" of the bag, he had authority to consent to its search. 394 U.S. at 740, 89 S.Ct. at 1425.

The "joint user" concept was refined and restated in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). In that case there was evidence that the defendant was living with a woman, Mrs. Graff, in a bedroom of her parents' home. Mrs. Graff voluntarily consented to a search of the bedroom. The search turned up incriminating evidence which the defendant moved to suppress on the ground that Mrs. Graff had no authority to consent to the search. The court held that if voluntary consent were obtained "from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected," the warrantless search would be upheld. 415 U.S. at 171, 94 S.Ct. at 993. Matlock reflects a rejection of agency analyses in deciding the issue. The opinion contains this footnote 7:

"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 does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v United States, 365 US 610, 5 L Ed 2d 828, 81 S Ct 776 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v California, 376 US 483, 11 L Ed 2d 856, 84 S Ct 889 (1964) (night hotel clerk could not validly consent to search of customer's room) 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 coinhabitants 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." 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7. (Emphasis added.) ⁹

The state's first contention is that the grandmother was a custodian, guardian or functional equivalent of a parent, and as such had the responsibility to supervise and control her ward, and that "[n]o matter how great the child's expectation of privacy * * * the parent retains the ultimate authority to enter the room or to permit others to do so for the purpose of carrying out parental authority". It argues:

" * * * The Court of Appeals' opinion in this case holds that the supervisory responsibilities of a parent or guardian can be bargained away by agreement with the ward. This is an untenable proposition. The parent-child or guardian-ward relationship is not an equal partnership, the terms of which are established by legally enforceable, arm's length agreements. * * *

"The defendant in this case was subject to the supervision and control of his grandmother. She had the inherent authority to consent to the search of his room. * * * "

The state cites In Interest of Salyer, 44 Ill.App.3d 854, 3 Ill.Dec. 648, 358...