State v. McLees

• Decision Date: 11 January 2000
• Docket Number: No. 97-335.,97-335.
• Citation: 994 P.2d 683,2000 MT 6,298 Mont. 15
• Parties: STATE of Montana, Plaintiff and Respondent, v. Travis McLEES and Chad Aaron Julius, Defendants and Appellants.
• Court: Montana Supreme Court

994 P.2d 683

2000 MT 6

298 Mont. 15

STATE of Montana, Plaintiff and Respondent, v. Travis McLEES and Chad Aaron Julius, Defendants and Appellants.

No. 97-335.

Supreme Court of Montana.

Submitted on Briefs June 3, 1999.

Decided January 11, 2000.

Jack H. Morris, Jardine & Morris, Whitehall, Montana, For Appellant.

Joseph P. Mazurek, Montana Attorney General, Patricia J. Jordan, Assistant Montana Attorney General; Robert R. Zenker, Madison County Attorney, Virginia City, Montana, For Respondent.

Justice WILLIAM E. HUNT, Sr. delivered the Opinion of the Court.

¶ 1 Appellant Travis McLees, (Travis) appeals from the Order of the District Court of the Fifth Judicial District of the State of Montana, Madison County, denying his motion to suppress evidence and admitting evidence obtained in a search of Travis's apartment. We reverse.

¶ 2 Did the District Court err in denying Travis's motion to suppress evidence obtained when his grandfather consented to the warrantless search of Travis's apartment?

FACTUAL BACKGROUND

¶ 3 On November 25, 1995, the Madison County Sheriff's Department received reports of two burglaries and thefts. Chief Deputy Sheriff, Merlin Ehlers (Deputy Ehlers) investigated the break-ins, one at the Harrison school, the other at the studio of Michelle Walker in Harrison, Montana. Travis had been at Walker's studio the day before to deliver wooden doll bases his father had made for her. Walker indicated that while in her studio, Travis had paid an unusual amount of attention to a stereo which was now missing. At the time, Travis also had a pending charge in Gallatin County for the burglary of a Three Forks school and was known to have broken into the Harrison school when he was a student there.

¶ 4 Deputy Ehlers went to the home of Travis's mother, Jennifer Flesch (Flesch), in Pony, Montana. Flesch told Deputy Ehlers that Travis was living with his grandfather Earl McLees (Earl) in Three Forks, Montana. Deputy Ehlers had known Earl for years and had been to Earl's home before on personal business. On November 26, 1995, Deputy Ehlers went to Earl's residence at 55 Frontage Road, in Three Forks, to look for Travis.

¶ 5 Upon arriving at Earl's residence, Deputy Ehlers asked whether Travis was staying there. Earl informed Deputy Ehlers that Travis was living in the apartment which Earl owned next door at 59 Frontage Road. Earl told Deputy Ehlers that Travis had slept in the apartment the night before but had left that morning. Deputy Ehlers did not have a search warrant but asked Earl if he could look in the apartment for possible evidence of the Harrison school burglary. Earl and Deputy Ehlers went to the front door of the apartment, but found it locked. Because Earl did not have a key to the front door, he and Deputy Ehlers went around to the shop which adjoined the apartment from the rear. The two then entered the apartment through an unlocked door leading from the shop to the apartment.

¶ 6 Upon entering the apartment, Deputy Ehlers noticed some drug paraphernalia and what he believed to be items taken from the Harrison school. Ehlers then telephoned the Gallatin County Sheriff's Office to have them send out an officer from that jurisdiction. Three Forks Marshall, Keith King (Officer King) responded to the scene and entered the apartment. At that time, Officer King and Deputy Ehlers discussed whether they should have a search warrant. Officer King returned to his office in Three Forks where he called the Gallatin County Attorney's office and received the opinion that based on Officer King's description of the situation, a consent search would be sufficient. During Officer King's absence, Deputy Ehlers stayed at the apartment to secure the site.

¶ 7 Officer King returned to the apartment with a consent-to-search form, which Earl signed. Deputy Ehlers and Officer King then searched and photographed the apartment, and seized several items of evidence. A few days later, Deputy Ehlers returned without a warrant, and Earl again allowed him to enter the apartment. A warrant for Travis's arrest was issued on November 30, 1995, and Travis was arrested several months later. Reserving the right to appeal the denial of his motion to suppress, Travis pleaded guilty to two counts of burglary, two counts of theft, and one count of criminal mischief.

¶ 8 Did the District Court err in denying Travis's motion to suppress evidence obtained when his grandfather consented to the warrantless search of Travis's apartment?

¶ 9 The standard of review of a district court's denial of a motion to suppress is whether the court's findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Siegal (1997), 281 Mont. 250, 257, 934 P.2d 176, 180 (overruled in part by State v. Kuneff, 1998 MT 287, 291 Mont. 474, 970 P.2d 556).

¶ 10 "[W]arrantless searches conducted inside a home are per se unreasonable, `subject only to a few specifically established and well-delineated exceptions.'" State v. Hubbel (1997), 286 Mont. 200, 212, 951 P.2d 971, 978 (citing Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585). "One such exception is when the search is conducted pursuant to a consent that is freely and voluntarily given." Hubbel, 286 Mont. at 212,951 P.2d at 978(citing Schneckloth v. Bustamonte (1973), 412 U.S. 218, 222, 93 S.Ct.2041, 2045, 36 L.Ed.2d 854, 860). "[W]hen the prosecution seeks to justify a warrantless search by proof of a 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." State v. Sorenson (1979), 180 Mont. 269, 275, 590 P.2d 136, 140 (citing United States v. Matlock (1974), 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 249-50). The State has the burden of showing that the consent was voluntary. State v. Kim (1989), 239 Mont. 189, 196, 779 P.2d 512, 517.

¶ 11 The District Court found that Earl had "common authority to consent to a search of the premises ... [and] gave that consent voluntarily ...." Travis argues that Earl did not have sufficient joint control over the apartment at 59 Frontage Road to consent to the search. We agree. As Travis points out, Earl's residence at 55 Frontage Road and the apartment at 59 Frontage Road are physically separate buildings. Earl lived in his home but did not reside in, and did not have a key to, Travis's apartment. The record reflects that Earl would sometimes enter the apartment to watch television with his son, Scott McLees (Scott), or perhaps to wake Travis for work. Earl testified that he would knock and announce himself before entering the apartment.

¶ 12 In order to let Deputy Ehlers into the apartment, Earl had to take him around to the back of the building, into the attached workshop and through an unlocked back door to the apartment. Travis had been living in the apartment with Scott, his father, for approximately six months and Scott had given him permission to stay there while he was gone; this was an agreement Earl was not involved in. Scott paid no rent to Earl and there was no rental agreement. Scott usually resided in the apartment but was out of the state at the time and had left the backdoor to the workshop unlocked because no one could find a key to it.

¶ 13 The State argues that Earl's consent was valid because no landlord-tenant relationship existed between Earl and Travis; Travis's living arrangement was with Scott, not Earl, and therefore Earl never relinquished authority or control of the apartment to him. It claims that Travis was a temporary guest in Earl's apartment, that he paid no rent or utilities, and that he lived out of a duffel bag. The State also maintains that a special relationship between a defendant and the owner of an apartment together with no formal landlord-tenant agreement are "important benchmarks" under these circumstances. We note that the cases cited by the State for this proposition are not controlling, and they are distinguishable from the case at bar. None of the cited cases concern one family member renting a separate residence to another, but rather reflect instances where one family member has permitted another to stay in their home as a guest. In all but one case cited by the State, (Adams v. State (Okla.Crim.Ct.App.1982), 645 P.2d 1028) (defendant staying in sister's garage apartment), the owner of the home and the defendant lived together in the same residence. In People v. Lucero (Colo.Ct.App.1985), 720 P.2d 604, also cited by the State, the court relied on the fact that there was no landlord-tenant relationship and no rent paid, referring to the defendant as a "tenant at sufferance." Lucero at 606. However, as the United States Supreme Court pointed out in Matlock,

[c]ommon 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, ... 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, 94 S.Ct. at 993, 39 L.Ed.2d at 250 n. 7.

¶ 14 In Matlock, the issue before the Supreme Court was whether the third party who had consented to the search of the bedroom where Matlock was staying had a relationship to the room sufficient to make her consent valid against Matlock. The Court found that the third party's consent to search the bedroom was sufficient where; 1) the room bore...