State v. Parrish, A09A2173.

• Decision Date: 16 March 2010
• Docket Number: No. A09A2173.,A09A2173.
• Citation: 691 S.E.2d 888
• Parties: The STATE v. PARRISH.
• Court: Georgia Court of Appeals

691 S.E.2d 888

The STATE v. PARRISH.

No. A09A2173.

Court of Appeals of Georgia.

March 16, 2010.

Joseph K. Mulholland, Dist. Atty., William J. Hunter, Asst. Dist. Atty., for appellant.

Hoyle McLendon, III, for appellee.

BERNES, Judge.

The state appeals from the trial court's order granting William Parrish, Jr.'s motion to suppress contraband evidence seized from his locked gun cabinet during the warrantless search of his residence. The state contends that the search was legal because Parrish's wife gave consent. Because the evidence established that Parrish's wife lacked authority to consent to the locked gun cabinet where the contraband evidence was found, we affirm the trial court's decision.

In reviewing a trial court's grant of a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment of the trial court, and will accept the trial court's decisions regarding questions of fact and credibility unless clearly erroneous. We review de novo the trial court's application of the law to undisputed facts.

(Citations omitted.) State v. McCarthy, 288 Ga.App. 426, 654 S.E.2d 239 (2007).

The officer who conducted the warrantless search was the only witness to testify at the motion to suppress hearing, and the relevant facts established by his testimony are not in dispute. The officer testified that on the evening of October 24, 2008, he was conducting an investigation of an unrelated matter and went to Parrish's residence in hopes of interviewing him. When the officer arrived at the residence, he learned that Parrish was not at home. The officer spoke to Parrish's wife, who told him that Parrish had gone out of town to find work. While the officer and Parrish's wife were talking, Parrish called the residence and spoke to the officer. Parrish told the officer that he was out of town, but was coming back home and would meet with the officer upon his arrival. The officer did not request Parrish's consent to search the residence during the course of their conversation. Instead, the officer requested and obtained consent to search from Parrish's wife.

Parrish's wife told the officer that Parrish had a locked gun cabinet where he stored firearms. Although the gun cabinet was located in the master bedroom that she shared with Parrish, Parrish's wife told the officer that Parrish was the only person who had access to the locked gun cabinet; he was the only person who had a key. According to the officer, Parrish's wife did not give any indication that she had ever gone into the cabinet. The officer nevertheless gained entry into the gun cabinet with assistance from Parrish's wife, who helped him "jimmy" or break the lock. When the officer opened the gun cabinet, he found a .22 caliber rifle, an empty holster, and .380 caliber ammunition.

William Parrish, Jr., was indicted for possession of a firearm by a convicted felon, as proscribed by OCGA § 16-11-131(b).¹ He filed a motion to suppress the firearm evidence, contending that the warrantless search was illegal since his wife lacked authority to consent to a search of his locked gun cabinet.² The trial court granted the motion. We agree.

It is well settled that "the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared." United States v. Matlock, 415 U.S. 164, 170(II), 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). See also Presnell v. State, 274 Ga. 246, 252(8), 551 S.E.2d 723 (2001); Walsh v. State, 236 Ga.App. 558, 560-561(2), 512 S.E.2d 408 (1999).

Common authority rests 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.

(Citation and punctuation omitted.) Tidwell v. State, 285 Ga. 103, 105-106(1), 674 S.E.2d 272 (2009), citing Matlock, 415 U.S. at 171(II), n. 7, 94 S.Ct. 988. A warrantless search based upon the consent of a third party will be deemed valid when, at the time of entry, police reasonably believe that the third party possesses common authority over the area to be searched. See Illinois v. Rodriguez, 497 U.S. 177, 183-189(III)(B), 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).

In this case, it is undisputed that Parrish's wife lived at the residence and had common authority to consent to a search of the residence's common areas. See Rucker v. State, 250 Ga. 371, 375(11), 297 S.E.2d 481 (1982); Brooks v. State, 231 Ga.App. 561, 562-563(2), 500 S.E.2d 11 (1998). But the evidence does not support a finding that her authority extended to Parrish's locked gun cabinet. Parrish's wife had informed the officer that the gun cabinet belonged to Parrish. Parrish had locked the gun cabinet to prevent access, and he was the only one who had a key. Moreover, there was no evidence that Parrish's wife ever had accessed or used the gun cabinet. By locking the gun cabinet and maintaining possession of the only key, Parrish manifested his intent to maintain exclusive control over the gun cabinet and his expectation of privacy in it.³ Because the evidence known to the officer established that Parrish's wife did not have joint access or control over the gun cabinet, her consent to its search was invalid. See State v. Stewart, 203 Ga.App. 829, 418 S.E.2d 110 (1992) (agents could not reasonably believe that person giving consent possessed any authority over the premises when he informed the agents that he had no key or other means of access and the agents had to cut the padlock to gain entry). See also Tidwell, 285 Ga. at 104-106(1), 674 S.E.2d 272 (consent to search premises did not justify search of defendant's private locker); McCarthy, 288 Ga.App. at 428-429(2), 654 S.E.2d 239 (consent to search...