State v. Hurt

• Decision Date: 13 December 2007
• Docket Number: No. 20070081.,20070081.
• Citation: 2007 ND 192,743 N.W.2d 102
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Brian Shawn HURT, Defendant and Appellant.
• Court: North Dakota Supreme Court

743 N.W.2d 102

2007 ND 192

STATE of North Dakota, Plaintiff and Appellee, v. Brian Shawn HURT, Defendant and Appellant.

No. 20070081.

Supreme Court of North Dakota.

December 13, 2007.

Reid A. Brady (argued), Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

Jesse N. Lange (argued), Aaland Law Office, Fargo, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Brian Hurt appeals from a criminal judgment following his conditional guilty pleas for one class C felony and one class A misdemeanor count of possessing drug paraphernalia, arguing the district court erred in denying his motion to suppress evidence. Hurt argues the probation search of his apartment, under the terms of his roommate's probation conditions, violated his Fourth Amendment rights under the United States Constitution. We hold the prohibition against unreasonable searches and seizures was not violated when probation officers searched the common areas of his apartment. We affirm the criminal judgment.

I

[¶ 2] On April 21, 2006, Rosally Mortenson went to visit the apartment of her boyfriend, Brian Hurt. Just outside Hurt's secured apartment building, Mortenson met three women, who asked if Mortenson could let them inside. Mortenson let the women into the building. The women then followed Mortenson to the apartment door of Hurt and his roommate, Jessica Bickler, who was on probation. The women, who were probation officers assigned to Bickler, waited at the door while Mortenson knocked. Bickler answered the door and the probation officers entered the apartment under paragraph 16 in Bickler's probation conditions, which provided that Bickler must

[s]ubmit the Defendant's person, place of residence and vehicle, or any other property to which the Defendant has access, wherever they may be found, to search and seizure, with or without a search warrant, at any time of day or night by: 1) any parole or probation officer; or, 2) any law enforcement officer at the direction of a parole or probation officer; or, 3) any law enforcement officer with a reasonable suspicion of criminal conduct.

Because of this condition of probation, the probation officers did not ask for or receive consent to enter the apartment nor did they announce their arrival as they entered the apartment. Hurt and other individuals in the living room of the apartment did not see the probation officers come in.

[¶ 3] After entering the apartment, the officers walked through the kitchen and living room. When the officers reached the living room, they saw drug paraphernalia on the coffee table. The officers told the individuals in the living room if they were nonresidents, they could leave the apartment. Hurt admitted he was a resident and stayed. A police officer, who was called to the scene after the initial entry, placed Hurt under arrest for possession of drug paraphernalia. Hurt was searched incident to arrest, and the officer found a glass pipe with what appeared to be drug residue in the pocket of his sweatshirt.

[¶ 4] Hurt was charged with two counts of possession of drug paraphernalia. Hurt moved to suppress the evidence obtained during the probation search, arguing the evidence violated his Fourth Amendment rights because there was no warrant or warrant exception specific to him; the probation search and all evidence gathered as a result, Hurt argued, should be admissible only against his probationer roommate, Bickler. At a hearing on the motion, the district court judge denied the motion to suppress. Hurt entered conditional guilty pleas to the two counts of possession of drug paraphernalia and now appeals. On appeal, he argues the probation search of his apartment violated his Fourth Amendment rights under the United States Constitution and requests this Court overturn his convictions, permitting him to withdraw his conditional guilty pleas.

II

[¶ 5] When this Court reviews a district court's decision to grant or deny a motion to suppress, the district court's findings of fact are given deference, and conflicts in testimony are resolved in favor of affirmance. State v. Albaugh, 2007 ND 86, ¶ 8, 732 N.W.2d 712 (citing State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578). Questions of law are fully reviewable on appeal. Id. (citing Goebel, at ¶ 11). In this case, there are no disputed facts; the review involves a question of law.

[¶ 6] The Fourth Amendment to the United States Constitution, enforceable against the States by the Fourteenth Amendment, State v. Ressler, 2005 ND 140, ¶ 10, 701 N.W.2d 915 (citation omitted), protects "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Generally, in order for law enforcement to enter and search a person's home while complying with the constitutional constraints of the Fourth Amendment, the search must be accompanied by a warrant. See Illinois v. Rodriguez, 497 U.S. 177, 184-86, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); see also Albaugh, at ¶ 10. If, however, the entry and search fall within a recognized exception to the warrant rule, the search may be constitutionally permissible. See Rodriguez, 497 U.S. at 184-86, 110 S.Ct. 2793 (holding a co-occupant's consent was a valid exception to the warrant requirement as to his fellow occupants, even when the fellow occupant was not physically present and thus could not object to the search); see also Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (holding no warrant necessary when defendant consents to search).

[¶ 7] The exception to the warrant requirement applicable to this case occurs when a search is conducted in "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, at 181, 110 S.Ct. 2793 (internal citations omitted). The United States Supreme Court has recognized the validity of searches in which a co-occupant, who shares common authority over the property, consents to a search of the home when the defendant was absent from the premises. Georgia v. Randolph, 547 U.S. 103, 109, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (citing United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (holding a co-occupant's consent to search common areas of a home in the absence of the other occupant was constitutional, and evidence gathered during the search could be used against the absent, nonconsenting occupant)). The United States Supreme Court has also recognized the validity of searches in which the fellow occupant, vested with common authority, gives consent, and the defendant is present, but unaware consent had been given and unaware law enforcement was entering the home to conduct a search. See Rodriguez, 497 U.S. at 180, 186, 189, 110 S.Ct. 2793 (search and seizure held constitutional when police reasonably, but erroneously, believed a woman was a co-occupant with her boyfriend, the defendant, and the woman allowed police to enter the house to search while her boyfriend was asleep in the home). With regard to the rationale underlying the reasonableness of the common-area, co-occupant-consent exception to the warrant requirement, the United States Supreme Court explained:

The authority which justified the third-party consent does not rest upon the law of property, with its attendant historical and legal refinement, 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.

Randolph, at 110, 126 S.Ct. 1515 (quoting Matlock, 415 U.S. at 171, n. 7, 94 S.Ct. 988).

[¶ 8] Hurt contends the United States Supreme Court's recent decision in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), applies to the instant case. Hurt urges this Court to interpret Randolph's holding to require law enforcement to seek and receive consent of, or at least offer an opportunity to refuse consent to, all occupants in a home before conducting a search. If such opportunity to assert Fourth Amendment rights is not provided, Hurt argues, the evidence should not be admissible against the nonconsenting co-occupants. Hurt argues the Randolph decision requires law enforcement to receive something more than the consent of only one co-occupant, when other co-occupants are not physically present at the door, before the police may validly enter the home to search for and ultimately use evidence found against all occupants. Hurt misreads Randolph and the underlying cases that define its narrow holding.

[¶ 9] In Randolph, a wife called police, alleging she and her spouse, Scott Randolph, had engaged in a domestic dispute, her husband had taken their son after the dispute, and her husband was a cocaine user. 547 U.S. at 107, 126 S.Ct. 1515. Shortly after the police arrived in response to the wife's complaint, Randolph returned to the home. Id. When the officers spoke with Randolph, he denied the allegations made by his wife and made similar accusations about her in turn. Id. The police again spoke with the wife, who renewed her complaints and stated there was evidence of Randolph's drug use inside their home. Id. One of the officers asked Randolph for consent to search his home. Id. Randolph "unequivocally refused" to give permission to search. Id. The officer then turned to the wife and requested her consent. Id. The wife agreed to the search. Id. The officers searched the home, found evidence of Randolph's drug use, and ultimately he was indicted for possession of cocaine. Id. Randolph moved to suppress the evidence gathered during the search; the trial court denied the motion,...