State v. Porting, No. 91,631.

• Decision Date: 24 March 2006
• Docket Number: No. 91,667.,No. 91,631.
• Citation: 130 P.3d 1173
• Parties: STATE of Kansas, Appellee, v. Sandra PORTING, Appellant. State of Kansas, Appellee, v. Kim D. Angel, Appellant.
• Court: Kansas Supreme Court

Page 1173

130 P.3d 1173

STATE of Kansas, Appellee, v. Sandra PORTING, Appellant.

State of Kansas, Appellee, v. Kim D. Angel, Appellant.

No. 91,631.

No. 91,667.

Supreme Court of Kansas.

March 24, 2006.

Syllabus by the Court

1. On a motion to suppress evidence, the State bears the burden of proving to the district court the lawfulness of the search and seizure by a preponderance of the evidence.

2. On appeal of a trial court's ruling on a motion to suppress, where the material facts are not in dispute, the ultimate determination of suppression is a question of law over which this court has unlimited review.

3. The Fourth Amendment of the United States Constitution and § 15 of the Kansas Constitution Bill of Rights generally prohibit the warrantless entry of a person's home. The prohibition does not apply, however, to 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.

4. The authority which justifies the third-party consent does not rest upon the law of property, 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 or her own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

5. Under the apparent authority rule, a consent to search is valid when the facts available to the officer would warrant a person of reasonable caution to believe that the consenting party had authority over the premises to be searched. The apparent authority rule will save a warrantless search only where officers made a mistake of fact, not where they made a mistake of law. In other words, the rule applies to situations in which an officer would have had valid consent to search if the facts were as the officer reasonably believed them to be.

Sam S. Kepfield, of Hutchinson, argued the cause and was on the briefs for appellant Sandra Porting.

Randall L. Hodgkinson, appellate defender, argued the cause, and Sandra Carr, assistant appellate defender, was on the briefs for appellant Kim D. Angel.

Keith E. Schroeder, district attorney, argued the cause, and Thomas R. Stanton, assistant district attorney, and Phill Kline, attorney general, were with him on the briefs for appellee.

The opinion was delivered by LUCKERT, J.:

When Eugene Hanson was released from prison, he asked his parole officer to search the residence where he used to live and planned to return to clear the residence for parole. During that search, the defendants in this case were arrested for drug-related charges. They filed motions to suppress the evidence, arguing Hanson did not have actual or apparent authority to consent to the search. The trial court denied the motions to suppress and found the defendants guilty as charged. The Court of Appeals affirmed in a split decision, and this court granted the defendants' petitions for review.

FACTS

The parties stipulated to the following facts for purposes of a bench trial. On December 27, 2003, Eugene Hanson was released from the custody of the Department of Corrections after serving approximately 18 months in prison. Prior to his imprisonment, Hanson had lived with his mother for several years at a residence located at 1130 West 20th Avenue in Hutchinson. Hanson's former girlfriend, defendant Porting, also lived at the 20th Avenue residence and continued to live there while Hanson was in prison.

As a condition of his postrelease supervision, Hanson was required to reside with his mother at the 20th Avenue residence. Upon his release, but before going to the residence, Hanson asked his supervising officer, Todd Koob, to sweep the house for drugs because he knew Porting had been rumored to be using drugs at the house. Officer Ed Mora, a corrections officer with the parole services division, agreed to accompany Hanson to the house, and Hanson gave Officer Mora permission to search the house.

Hanson and Officer Mora entered the house while Koob and a Hutchinson police officer remained outside. Officer Mora did not request any additional consent to enter the house from Hanson's mother. Once inside, Hanson went to the northeast bedroom and opened the door. Officer Mora could see two white males and one white female in the room. One of the men was defendant Angel, a parole absconder, and the female was defendant Porting. Officer Mora saw Angel throw something on the floor. After asking Porting and the other man to leave the room, Officer Mora discovered a black bag containing suspected methamphetamine and drug paraphernalia in the chair where Angel had been sitting.

Officer Mora then asked Porting whether she had anything on her. Porting indicated she had methamphetamine in her shirt pockets. Officer Mora retrieved suspected methamphetamine and drug paraphernalia from Porting's pockets. The substances recovered from the black bag and from Porting's pockets tested positive for methamphetamine.

Both defendants filed motions to suppress the evidence obtained during the search on the grounds that Hanson did not have authority to consent to the search. At the suppression hearing, Officer Mora testified that Hanson's approved parole plan required that he live at the 20th Avenue address. Officer Mora had been told "Mr. Hanson had some concerns that there was possibly some drug usage going on at the home and that there was people there living at the residence that he did not want living there any more and was afraid that when he went to the home that there may be some problems." If Officer Mora had discovered anything at the house making it inappropriate for Hanson to live there, either Mora or Hanson's parole officer could have required that he live elsewhere. During the suppression hearing, the parties also stipulated that Angel was an overnight guest in the home; thus, he had standing to contest the search.

Evidence introduced at the preliminary hearing provides a few more relevant facts. At the preliminary hearing, Officer Mora testified that when he and Hanson entered the home, Hanson's mother was inside but Mora did not ask her for permission to come inside. Officer Mora said that Hanson simply walked into the home as if it were okay to do so. It was Officer Mora's understanding that the northeast bedroom was Hanson's bedroom. After he had handcuffed Angel and retrieved the drugs from Porting, Officer Mora talked to Hanson's mother about why he was there. Hanson's mother indicated she had no problem with Officer Mora's being there to look around and make sure there was nothing that would get her or her son into trouble.

The trial court denied the defendants' motions to suppress, ruling that Hanson had authority to consent to the search because he was a resident of the house based on his physical presence and intent to remain there permanently. In separate bench trials, Porting and Angel were each convicted of possession of methamphetamine and misdemeanor possession of drug paraphernalia. Their direct appeals were consolidated.

COURT OF APPEALS' DECISION

On appeal, the defendants argued that although Hanson was a past and prospective resident of the home, he was not a resident at the time of the search and therefore lacked authority to consent to the search. A majority of the Court of Appeals panel concluded that the State proved by a preponderance of the evidence that Hanson had common authority or sufficient relationship to the residence to give a valid third-party consent to the search. State v. Porting, 34 Kan.App.2d 211, 214-15, 116 P.3d 728 (2005). The majority found that, in addition to proving actual authority, the State also proved by a preponderance of the evidence that the searching officer could reasonably rely on Hanson's apparent authority to consent to the search. 34 Kan.App.2d at 216, 116 P.3d 728. The majority rejected the defendants' alternative argument that even if Hanson had the authority to consent to a search of the house, he did not have authority to consent to a search of Porting's private bedroom. 34 Kan.App.2d at 217, 116 P.3d 728.

Judge Greene dissented, arguing that the majority had "unduly extended the `common authority' and `apparent authority' rules to validate a third-party consent to search a residence by someone who had no more than a hope or intention of resuming residence at that location after an 18-month absence." 34 Kan.App.2d at 217, 116 P.3d 728. Judge Greene would have reversed. 34 Kan.App.2d at 223, 116 P.3d 728.

This court granted both defendants' petitions for review.

ANALYSIS

On a motion to suppress evidence, the State bears the burden of proving to the district court the lawfulness of the search and seizure by a preponderance of the evidence. State v. Garcia, 250 Kan. 310, 318, 827 P.2d 727 (1992). On appeal of a trial court's ruling on the motion to suppress, where the material facts are not in dispute, such as in this case where the parties stipulated to the facts, the ultimate determination of suppression is a question of law over which this court has unlimited review. State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004).

Common Authority

The Fourth Amendment of the United States Constitution and § 15 of the Kansas Constitution Bill of Rights generally prohibit the warrantless entry of a person's home. Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); State v. Mendez, 275 Kan. 412, 420-21, 66 P.3d 811 (2003). "The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched [citation omitted] or from a third party who possesses common authority over the premises." Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Mendez, 275 Kan. at 420-21, ...