State v. Morse

• Decision Date: 01 December 2005
• Docket Number: No. 75915-4.,75915-4.
• Citation: 156 Wn.2d 1,123 P.3d 832
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Robert James MORSE, Petitioner.

123 P.3d 832

156 Wn.2d 1

STATE of Washington, Respondent, v. Robert James MORSE, Petitioner.

No. 75915-4.

Supreme Court of Washington.

Argued June 9, 2005.

Decided December 1, 2005.

COPYRIGHT MATERIAL OMITTED

Susan F. Wilk, Washington Appellate Project, Seattle, for Petitioner/Appellant.

Seth Aaron Fine, Thomas Marshal Curtis, Snohomish County Prosecutor's Office, Everett, for Appellee/Respondent.

En Banc.

CHAMBERS, J.

¶ 1 Under article I, section 7 of the Washington Constitution, warrantless searches are per se unreasonable. Exceptions to the warrant requirement are jealously and carefully drawn. Properly obtained, consent to a warrantless search is one of those carefully drawn exceptions. Although Robert James Morse was at home, police gained entry into his apartment by obtaining the consent of a houseguest who, with her husband, had been at Morse's apartment for only five days. The police did not have a search warrant, were looking for another person, and did not obtain Morse's permission to search his apartment until after they found contraband in his bedroom. The State argues (1) that the houseguest had actual and apparent authority to consent and (2) that the police had no duty to obtain Morse's consent until they came upon him and then only if he objected to the search. We disagree. One who has equal or lesser control over a premises does not have authority to consent for those who are present and have equal or greater control. "Presence" is used in accordance with its ordinary meaning. Persons are not absent merely because the police do not know they are present, nor are they absent until police have come upon them during a warrantless search. "Authority" to consent is a matter of status or control and a question of law. The subjective beliefs and understandings of law enforcement officers are irrelevant to the question of "authority." Law enforcement officers, who seek to conduct a warrantless search based upon the exception of consent, are well advised to ask for the woman and/or man of the house before seeking consent to search a home. If the man or woman of the house is not present, a brief inquiry could determine the identity of the person present and their authority to give consent; this would give police officers the information needed to properly proceed and to assure protection of constitutional rights. The search of Morse's apartment was unlawful and we reverse.

FACTS

¶ 2 On January 29, 2002, two City of Everett police officers contacted the property manager for the Deer Creek Apartments. The officers had information that Sarah Wall, who was wanted on multiple outstanding felony warrants, was staying in the apartment complex. The manager told the officers that while Wall may have stayed there in the past, she did not believe that Wall was there anymore because bounty hunters had unsuccessfully searched for her in apartment C-108 a few days earlier. She also told officers that she did not recognize Wall from a picture that they showed her. The manager told the officers that Morse was the only tenant on the lease for apartment C-108 and that she was not aware of anyone else living in that apartment.

¶ 3 The officers then went to Morse's apartment and knocked on the door. A woman, Pam Dangel, answered the door and told the officers that Wall was neither in the apartment, nor had she been there in over a week. While standing at the door, the officers did not ask Dangel if she lived at the apartment, nor did they inquire as to the nature of her relationship to Morse. Police asked only whether they could enter to search for Wall. According to the police, Dangel agreed to let them enter to look for Wall.¹

¶ 4 After police entered, they learned that Dangel and her husband had been staying at Morse's apartment for only a few days. Dangel and her husband planned to stay for one additional night while their apartment was being painted. As one of the officers talked to Dangel, the other proceeded directly to the master bedroom. From outside the bedroom he saw Morse, who was sitting on his bed. The officer identified himself, indicated that he was looking for Wall, and entered the room. As he entered the bedroom, the officer looked toward a closet where he saw a scale, packaging material and a large bag with bluish powder sitting on a desk. Morse claimed that what appeared to be drug paraphernalia was his, but that what appeared to be drugs were not. Morse was then arrested and only after his arrest was his consent to search the rest of his bedroom sought and obtained.

¶ 5 Morse was convicted of possession of methamphetamine. On appeal, Morse argued that the warrantless search of his bedroom violated article 1, section 7 of the state constitution. He argued that Dangel lacked authority to consent to the search. He also argued that because he was present and able to object to the search, the police erred by failing to get his permission prior to entering and searching his bedroom. In an unpublished opinion, the Court of Appeals rejected both arguments, finding that Dangel had both actual and apparent authority to consent to the search, and that because Morse did not explicitly object to the search, the police did not have to secure his consent before entering his bedroom. We granted review. State v. Morse, 153 Wash.2d 1023, 110 P.3d 213 (2005).

ANALYSIS

COMMON AUTHORITY

¶ 6 Under article I, section 7 of the Washington Constitution, warrantless searches are per se unreasonable. State v. Hendrickson, 129 Wash.2d 61, 70, 917 P.2d 563 (1996). Article I, section 7 provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Under this provision, the warrant requirement is especially important as it is the warrant which provides the requisite "authority of law." State v. Ladson, 138 Wash.2d 343, 350, 979 P.2d 833 (1999). Exceptions to the warrant requirement are to be "`jealously and carefully drawn.'" State v. Reichenbach, 153 Wash.2d 126, 131, 101 P.3d 80 (2004) (quoting Hendrickson, 129 Wash.2d at 72, 917 P.2d 563). The burden of proof is on the State to show that a warrantless search or seizure falls within one of the exceptions to the warrant requirement. State v. Acrey, 148 Wash.2d 738, 746, 64 P.3d 594 (2003) (quoting State v. Kinzy, 141 Wash.2d 373, 382, 5 P.3d 668 (2000)).

¶ 7 In search and seizure cases involving cohabitants, this court has adopted the common authority rule. State v. Thompson, 151 Wash.2d 793, 92 P.3d 228 (2004); State v. Walker, 136 Wash.2d 678, 965 P.2d 1079 (1998); State v. Leach, 113 Wash.2d 735, 782 P.2d 1035 (1989). Because a person's expectation of privacy is necessarily reduced when authority to control a space is shared with others, Leach, 113 Wash.2d at 739, 782 P.2d 1035, such persons necessarily assume some risk that others with authority to do so will allow outsiders into shared areas. We have said that the authority does not rest upon the law of property, with its attendant legal refinements, but rests rather on mutual use of the property. Id. We have, thus, justified the common authority rule based upon the theories of "reasonable expectations of privacy" and "assumption of risk." State v. Christian, 95 Wash.2d 655, 659-60, 628 P.2d 806 (1981); Leach, 113 Wash.2d at 739, 782 P.2d 1035. In the context of a search, consent is a form of waiver. Ordinarily, only the person who possesses a constitutional right may waive that right. Cf. Walker, 136 Wash.2d 678, 965 P.2d 1079 (wife's consent not effective as waiver of husband's constitutional right to be free from invasion of privacy). Common authority under article I, section 7 is grounded upon the theory that when a person, by his actions, shows that he has willingly relinquished some of his privacy, he may also have impliedly agreed to allow another person to waive his constitutional right to privacy.

¶ 8 The United States Supreme Court, interpreting the Fourth Amendment to the federal constitution also applies the doctrine of common authority in searches involving cohabitants. Because of differences in the text of the Fourth Amendment and article I, section 7 discussed below, the United States Supreme Court adopted the apparent authority doctrine. This doctrine is grounded upon the reasonableness of the search rather than on reasonable expectations of privacy and the appropriate scope of consent. See Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).

AUTHORITY TO CONSENT

¶ 9 The narrow issue in this case is whether a temporary guest has authority to authorize a search of the private areas of her host's home while the host is present. More broadly, this case involves the differing analytical frameworks used in applying two different constitutional provisions: the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution.²

THE FOURTH AMENDMENT

¶ 10 The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures." U.S. CONST. amend. IV. The Fourth Amendment does not prohibit "reasonable" warrantless searches and seizures. The analysis under the Fourth Amendment focuses on whether the police have acted reasonably under the circumstances. The following is illustrative of the analytical approach taken under the Fourth Amendment:

The upshot was that the officers in good faith believed Miller was Hill and arrested him. They were quite wrong as it turned out, and subjective good-faith belief would not in itself justify either the arrest or the subsequent search. But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers' mistake was understandable and the arrest a reasonable response to the situation facing them at the time.

Hill v. California, 401 U.S. 797, 803-04, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971).

¶ 11 In Rodriguez, Justice Scalia, writing for the...