State v. Rison

• Decision Date: 22 May 2003
• Docket Number: No. 20983-1-III.,20983-1-III.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Aaron Edwards RISON, Appellant.

69 P.3d 362

116 Wash.App. 955

STATE of Washington, Respondent, v. Aaron Edwards RISON, Appellant.

No. 20983-1-III.

Court of Appeals of Washington, Division 3, Panel One.

May 22, 2003.

John Snyder, Steven P. Martonick, Snyder Law Offices, Pullman, WA, for Appellant.

Denis P. Tracy, Prosecuting Attorney, Colfax, WA, for Respondent.

SWEENEY, J.

An apartment tenant has authority to consent to a search of his apartment. State v. Mathe, 102 Wash.2d 537, 540-41, 688 P.2d 859 (1984). He has no authority, however, to consent to search another's property. See, e.g., State v. Holmes, 108 Wash.App. 511, 518-19, 31 P.3d 716 (2001). Here, the tenant consented to a police search of his apartment. While doing so, the police also searched a guest's eyeglass case. The guest, Aaron Rison, did not authorize that search. We therefore reverse the trial judge's order denying Mr. Rison's motion to suppress the drugs found in the glasses case, and remand.

FACTS

Officer Matthew Burkett investigated a noise complaint at Boulder Creek Apartments. He went to a second apartment where he also heard noise. Mr. Rison answered the door. Officer Burkett smelled marijuana. Mr. Rison was a guest in the apartment. Officer Burkett read the tenant, Thomas Farrell, complete "Ferrier warnings."¹ Mr. Farrell gave Officer Burkett permission to search the apartment. Officer Burkett called for backup. Four to seven people occupied the apartment, including Mr. Farrell and Mr. Rison. Police required all of the occupants to leave. They found an eyeglass case belonging to Mr. Rison which contained what was ultimately determined to be psilocin/psilocybin (mushrooms). The eyeglass case is not described in any detail—except it was black and it was closed. Clerk's Papers (CP) at 26, 35.

Mr. Rison approached Officer Mike Sontgerath (one of the backup officers) outside of the apartment while the search was underway inside. He told Officer Sontgerath that there were illegal mushrooms in a black case in the apartment and that they were his. Officer Sontgerath told Officer Burkett of Mr. Rison's comments about the mushrooms, but only after the search. Officer Burkett gave Mr. Rison his Miranda² warnings. Mr. Rison then admitted that the mushrooms were his.

The State charged Mr. Rison with possession of psilocin/psilocybin ("mushrooms"). Mr. Rison moved to suppress the mushrooms. The court concluded that Mr. Rison's consent was not required for a valid search of his eyeglass case because Mr. Farrell, the tenant, gave a valid (and unconditional) consent to search the apartment. And it is this ruling which generates the issue before us.

The court denied a motion for reconsideration concluding that Mr. Farrell's consent to search was unlimited. And as a weekend guest, Mr. Rison had no right to challenge or limit that consent.

The court then convicted him as charged in a bench trial on stipulated facts.

DISCUSSION

The legal question here is straightforward. Does a tenant's consent to search his apartment authorize police to search a closed container found in the apartment owned by a guest rather than the tenant? We conclude that the consent of the tenant does not extend to the closed container of a guest.

STANDARD OF REVIEW

The trial court's conclusion here that the tenant's general consent to search the apartment extends to the closed container of the guest raises a question of law which we review de novo. State v. Freigang, 115 Wash.App. 496, 501, 61 P.3d 343 (2002).

EXPECTATION OF PRIVACY

First, Mr. Rison had a legitimate expectation of privacy as a guest in Mr. Farrell's home. See Minnesota v. Carter, 525 U.S. 83, 89, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (holding that an overnight guest has a legitimate expectation of privacy in the host's home that society is prepared to recognize as reasonable); State v. Magneson, 107 Wash.App. 221, 225, 26 P.3d 986, review denied, 145 Wash.2d 1013, 37 P.3d 291 (2001). "A container which can support a reasonable expectation of privacy may not be searched, even on probable cause, without a warrant." United States v. Jacobsen, 466 U.S. 109, 120 n. 17, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (citing United States v. Ross, 456 U.S. 798, 809-12, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). Whether an expectation of privacy gives rise to Fourth Amendment protection presents two questions:

First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that "he [sought] to preserve [something] as private." ... Second, we inquire whether the individual's expectation of privacy is "one that society is prepared to recognize as reasonable."

Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)).

This was a closed container. Mr. Rison kept it with him in the same room. The contents of the case then were not accessible to the general public. And Mr. Rison's expectation of privacy was not diminished simply because other guests might have had access. State v. Jones, 68 Wash.App. 843, 851, 845 P.2d 1358 (1993). Mr. Rison would expect—reasonably, we believe—that others would not open the container, without his consent, particularly if he were present. This is especially true for the typical eyeglass case, i.e., one shaped to hold eyeglasses.

Second, "[p]urses, briefcases, and luggage constitute traditional repositories of personal belongings protected under the Fourth Amendment." State v. Kealey, 80 Wash.App. 162, 170, 907 P.2d 319 (1995) (citing Arkansas v. Sanders, 442 U.S. 753, 762, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979)).³ A closed eyeglass case is similar. The case serves "as a repository for personal, private effects" when one wishes to carry them. Sanders, 442 U.S. at 762 n. 9, 99 S.Ct. 2586, 61 L.Ed.2d 235. The eyeglass case here is, then, associated with an expectation of privacy and is protected by the Fourth Amendment. See State v. Boland, 115 Wash.2d 571, 800 P.2d 1112 (1990) (warrantless search and seizure of the contents of defendant's closed receptacle outside his home was an unreasonable intrusion into his private affairs).

And Mr. Rison did nothing to defeat his expectation of privacy. He had possession of the case within the room and did not relinquish control over it. Instead, police removed him from the apartment.

Both the Fourth Amendment and article I, section 7 of the Washington State Constitution prohibit unreasonable searches and seizures. State v. Davis, 86 Wash.App. 414, 420, 937 P.2d 1110 (1997). The protections against unreasonable searches and seizures are personal. State v. Vy Thang, 145 Wash.2d 630, 638, 41 P.3d 1159 (2002). Mr. Rison has established the personal right of privacy necessary to challenge this search. See id.

AUTHORITY TO CONSENT

Actual Authority. Next, a warrantless search is valid if a person with authority consents to it. State v. Mathe, 102 Wash.2d 537, 541, 688 P.2d 859 (1984). And actual authority requires a sufficient relationship to or "mutual use of the property by persons generally having joint access or control for most purposes." United States v. Matlock, 415 U.S. 164, 171 & n. 7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Mr. Farrell did not jointly own, use, possess, or control Mr. Rison's eyeglass case. Mr. Farrell did not then have actual authority to consent to a search of Mr. Rison's eyeglass case.

Apparent Authority. The next question is whether a consent search can be grounded in Mr. Farrell's apparent authority to permit one. See Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).

The Fourth Amendment is satisfied by consent given by one who appears to have authority. State v. Holmes, 108 Wash.App. 511, 518-19, 31 P.3d 716 (2001) (citing Rodriguez, 497 U.S. at 186, 110 S.Ct. 2793, 111 L.Ed.2d 148). That is as long as the police have a reasonable belief in the authority of the person giving consent. Id. at 519, 110 S.Ct. 2793, 111 L.Ed.2d 148 (citing Rodriguez, 497 U.S. at 186, 110 S.Ct. 2793, 111 L.Ed.2d 148).

The standard for whether officers reasonably believe in the authority of a third party to consent is objective. Id. The relevant inquiry is whether "`the facts available to the officer at the moment'" would justify the belief in a person of reasonable caution that the consenting party had authority. Id. (quoting Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793, 111 L.Ed.2d 148).

Here, four to seven people were in the room when the officer came to the door. He ordered them to leave. He did not instruct them to remove their personal property. Nor did he ask for their consent to search their personal property. Under these circumstances, the tenant's consent did not then include a closed container belonging to a guest. First, it was likely that the case belonged to someone besides Mr. Farrell. Second, Mr. Farrell did not have joint control over the closed container—an eyeglass case.

Moreover, apparent authority requires that police make reasonable inquiries when they find themselves in ambiguous circumstances. Holmes, 108 Wash.App. at 519, 31 P.3d 716 (citing WAYNE R. LAFAVE, SEARCH AND SEIZURE § 8.3(g), at 747 (3d ed.1996)).

Police here did not ask about ownership before opening the case. The officer easily could have and should have requested and obtained the defendant's consent "when confronted with [the defendant's] presence." State v. Leach, 113 Wash.2d 735, 744, 782 P.2d 1035 (1989).

The State asserts that Mr. Rison waived his Fourth Amendment rights because he did not attempt to limit the scope of Mr. Farrell's consent or otherwise object to the search of his belongings. But consent may not reasonably be implied by one's silence or failure to object when the officer did not expressly or impliedly ask him for consent to search. United States v. Jaras, 86 F.3d 383, 390 (5th Cir.1996); see also State v. Browning, 67 Wash.App. 93, 98, 834 P.2d 84 (1992)...