State v. Hoggatt

• Decision Date: 31 August 2001
• Docket Number: No. 25138-8-II.,25138-8-II.
• Citation: 108 Wash. App. 257,108 Wn. App. 257,30 P.3d 488
• Parties: STATE of Washington, Respondent/Cross-Appellant, v. Jack Dewayne HOGGATT, Jr., Appellant/Cross-Respondent.
• Court: Washington Court of Appeals

30 P.3d 488

108 Wn. App. 257

108 Wash. App. 257

STATE of Washington, Respondent/Cross-Appellant, v. Jack Dewayne HOGGATT, Jr., Appellant/Cross-Respondent.

No. 25138-8-II.

Court of Appeals of Washington, Division 2.

August 31, 2001.

Douglas S. Boole (Court Appointed), Longview, for Appellant.

A.O. Denny, Cowlitz County Deputy Prosecuting Attorney, Kelso, for Respondent.

OPINION PUBLISHED IN PART

MORGAN, P.J.

Jack Dewayne Hoggatt, Jr. (Hoggatt) appeals convictions for theft of a firearm (Count I) and unlawful possession of a firearm (Count II). The State cross-appeals an exceptional sentence downward on Count I. We affirm the convictions on both counts and the sentence on Count II. We reverse and remand for resentencing on Count I.

In the spring of 1999, Hoggatt was living in a house leased by his girlfriend, Cindy Clark. The house was small, and its living room and kitchen were essentially the same area. Hoggatt had previously been convicted of several felonies.

The house Hoggatt and Clark shared was two doors down from Hoggatt's father's house, and Hoggatt's father owned a .380 handgun. During the afternoon of May 26, 1999, while Hoggatt and his father were together at the father's house, Hoggatt asked his father for money. When his father refused, Hoggatt grabbed the .380 handgun and said he would give it back only if his father gave him $20. The father again refused, so Hoggatt took the gun and left. The father called the police to say his gun had been stolen.

About 4 P.M., Officer Stair went to the father's house. While he was interviewing the father about what had happened, Hoggatt called and demanded $100 for the gun. At this point, according to the trial court's unchallenged finding or conclusion, Stair had probable cause to arrest Hoggatt for theft of a firearm and for unlawful possession of a firearm in the first degree.

Stair went to Hoggatt's nearby house, but no one answered the door. As Stair was walking away, some neighbors said they had just seen Hoggatt inside the residence. Stair asked the neighbors to call him if they saw Hoggatt again.

An hour or so later, Stair returned to Hoggatt's house. Clark was now home, and she allowed Stair to search the house. When Stair did not find Hoggatt, he "told Clark that she needed to call dispatch when [Hoggatt] returned."¹ According to Stair, he "did not coerce Clark in any way[,]" and he thought "that Clark was cooperating fully with the police efforts to locate [Hoggatt]."²

As Stair was leaving Hoggatt's residence, but while he was still in the driveway, Hoggatt phoned Clark, and Clark called Stair to the phone. Hoggatt "told Stair that the gun was in a safe place, that he wouldn't turn himself in, that his father had pointed the gun at him so he took it away, and that he had wrapped the gun up and had put it in a safe place near the river."³

About 6:30 P.M., a neighbor called 911 to say that Hoggatt had returned home. Stair went back to Hoggatt's house and knocked on the front door. Clark "pulled the front door wide open and pointed to the kitchen."⁴ When Stair looked where Clark was pointing, he saw Hoggatt standing in the kitchen with his back turned, talking on the phone. As Stair stepped over the threshold, he also saw a handgun on a table within Hoggatt's reach. Stair entered the house, arrested Hoggatt, and seized the gun.

On June 1, 1999, the State charged Hoggatt with theft of a firearm in Count I and unlawful possession of a firearm in Count II. Hoggatt moved to suppress, claiming that Stair's warrantless entry had been unlawful and that all resulting evidence was inadmissible. The State responded that Stair's entry had been lawful due either to Clark's consent or exigent circumstances.

On July 27, 1999, the trial court denied the motion to suppress. It ruled that Stair's entry had been justified by Clark's consent, but not by exigent circumstances. The jury convicted on both counts, and Hoggatt filed this appeal.

The main issue on appeal is whether Stair lawfully arrested Hoggatt and seized the gun. To analyze that issue, we address two separate questions. In section I, we ask whether Stair was lawfully admitted into the living room area of the home that he and Clark shared. In section II, we ask whether Stair lawfully approached Hoggatt, arrested him, and seized the gun.

I.

Generally, an officer without a warrant may not enter a home to make an arrest.⁵ Two exceptions are consent and exigent circumstances.⁶ The trial court found a lack of exigent circumstances, but that Clark gave valid consent. The State does not contest the finding that there were no exigent circumstances.⁷ Hoggatt does contest the finding that Clark gave valid consent. Accordingly, we analyze Clark's consent.

Hoggatt advances two arguments on consent. First, he contends that Clark did not consent voluntarily to Stair's entry into the home. Second, he contends that even if Clark consented voluntarily, she could not consent on his behalf; he had to personally consent where he was in plain sight a few feet away. We take each argument in turn.

A.

Consent must be given voluntarily.⁸ Whether Clark consented voluntarily on the occasion in issue here constitutes a factual inquiry.⁹ We review the trial court's findings for substantial evidence.¹⁰ The precise question is whether a rational trier of fact taking the evidence in light most favorable to the State could find consent by clear and convincing evidence.¹¹

When Clark testified at the suppression hearing, she suggested that Stair and other officers had coerced her into allowing Stair to enter the home. When Stair testified at the suppression hearing, he said that he had not coerced Clark, and that Clark had manifested consent by opening the door and gesturing toward Hoggatt. The trier of fact had the right to credit Clark's or Stair's version, and it did not err by crediting Stair's.

B.

The more difficult problem is whether Clark's voluntary consent bound Hoggatt, who was a few feet away in the kitchen but visible from the front door. Translated into general terms, the problem is whether one cohabitant of a residence may consent to an officer's entering the common living area of the residence, without the consent of a second cohabitant who is present nearby. We examine federal law first and state law second.

1.

The leading federal case is United States v. Matlock.¹² The defendant, his girlfriend, and her parents jointly occupied a house leased by her parents. The defendant and his girlfriend lived in the east bedroom. Believing that the defendant had committed a bank robbery, the police went to the house without a warrant. They encountered the defendant in the front yard and arrested him. Instead of asking for his consent to search the east bedroom, they went to the front door of the house, contacted the girlfriend, and asked for her consent to search the east bedroom. She gave consent, and the officers found relevant evidence in the east bedroom. The trial court granted the defendant's motion to suppress, but the United States Supreme Court reversed. Citing Frazier v. Cupp,¹³Coolidge v. New Hampshire,¹⁴ and Schneckloth v. Bustamonte,¹⁵ the Supreme Court held that "when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected."¹⁶ This was true, the Court explained, because when two or more cohabitants have joint access or control for most purposes, "it is reasonable to recognize that any of [them] 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."¹⁷

Based on Matlock, it is clear that Clark's consent bound Hoggatt for purposes of the Fourth Amendment. Clark had common authority to admit a visitor into the common living area of the house she shared with Hoggatt, it is reasonable and customary in our society that one cohabitant do that even when another cohabitant is nearby, and thus Hoggatt "assumed the risk" that Clark might do that on the occasion in issue here.

2.

State law emanates primarily from three cases. In State v. Mathe,¹⁸ the defendant and his girlfriend lived in a house owned by a man named Hartz. They rented a bedroom for their "exclusive use[,]"¹⁹ and Hartz "neither used nor had possessions in that room."²⁰ Believing that the defendant had committed a robbery, the police went to the house without a warrant and spoke to Hartz at the front door. After Hartz manifested consent to their entry, they walked through the house and into the defendant's bedroom, where they found both the defendant and relevant evidence. The trial court denied the defendant's motion to suppress, but the Washington Supreme Court reversed. Expressly adopting Matlock's "common authority standard ... as the proper guide to determine test questions of consent issues under CONST. art. 1, § 7 [,]"²¹ the Supreme Court noted that Matlock's common authority rule has two prongs:

First, a consenting party must be able to permit the search in his own right. Second, it must be reasonable to find that the defendant has assumed the risk that a co-occupant might permit a search.[²²]

The court explained in a footnote:

These two prongs are closely intertwined. If a person has joint control over an area, it may be proper to presume that the defendant reasonably assumes the risk that the joint control may be authorized to allow a search. Thus, when joint control is found, assumption of the risk usually follows.

The reverse, however, is not true. Without the right to control or exercise joint possession of a given area, no assumption of the risk analysis can validate the search.[²³]

The court concluded that Hartz lacked any...