State v. Walker
| Decision Date | 26 October 1998 |
| Docket Number | No. 65832-3,65832-3 |
| Citation | 965 P.2d 1079,136 Wn.2d 678 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Petitioner, v. Ellen J. WALKER, Respondent. |
Jack L. Burtch, Aberdeen, for Respondent.
The only issue before us is whether the trial court wrongly denied Ellen Walker's (Ellen) motion to suppress evidence obtained in a search of her home to which she voluntarily consented. The Court of Appeals held that the trial court erred in not granting her motion for the reason that Ellen's spouse, who was also present at their home at the time of the search, did not also consent to the search. We disagree with that conclusion and hold that the failure of the police to obtain the consent of Ellen's husband did not vitiate the search as to Ellen. We, therefore, reverse the Court of Appeals and affirm Ellen's conviction.
Ellen's 12-year-old nephew was caught at Hoquiam Middle School with a bag of marijuana. Following a telephone call by school authorities to the Hoquiam Police Department, a police officer was dispatched to the school. The investigating officer, Steve Hierholzer, was told by Ellen's nephew that he lived with Ellen and her husband, that he had obtained the marijuana from their home and that "there was more there at the residence." Verbatim
Report of Proceedings at 9. After the boy was arrested and taken to the Hoquiam Police Department, Ellen was called at her place of work and asked to come to the police station. Upon her arrival, Hierholzer and another officer informed her that they thought they had probable cause to obtain a search warrant authorizing a search of her home. They explained that an alternative for Ellen was to consent to a limited search of her home. Ellen then signed a permission to search form that was presented[965 P.2d 1081] to her by the officers. It provided as follows:
PERMISSION TO SEARCH
I, Ellen J. Walker 7-1-62, have been informed by Detective Blodgett and Officer Hierholzer who made proper identification as (an) authorized law enforcement officer(s) of the Hoquiam Police Department of my CONSTITUTIONAL RIGHT not to have a search made of the premises and property owned by me and/or under my care, custody and control, without a search warrant.
Knowing of my lawful right to refuse to consent to such a search, I willingly give my permission to the above named officer(s) to conduct a complete search of the premises and property, including all buildings and vehicles, both inside and outside of the property located at [property address].
The above said officer(s) further have my permission to take from my premises and property, any letters, papers, materials or any other property or things which they desire as evidence for criminal prosecution in the case or cases under investigation.
This written permission to search without a search warrant is given by me to the above officer(s) voluntarily without any threats or promises of any kind, at 2:30 p.m. on this 1 day of February 1995, at HQPD....
/s/ Ellen Walker
Pl.'s Ex. 1.
The police officers then drove Ellen to her home. Shortly after they arrived at her house but prior to entering it While the search was being conducted, another officer, Detective Blodgett, informed Gus that Ellen had given them permission to search the home. Although Gus was not asked to consent to a search of the house, he did not voice any objection to the officer's activities. Gus later gave his oral consent to a search of the garage, but no evidence was seized there.
Ellen's husband, Gus Walker (Gus), arrived at the premises. Without speaking to Gus, Ellen led Officer Hierholzer to a bedroom she shared with Gus. She then retrieved a bag of marijuana from a closet and handed it to him. Hierholzer then searched the closet himself and found another bag of marijuana.
The State charged Ellen and Gus Walker separately with possession of marijuana in excess of 40 grams. RCW 69.50.401. Shortly after the charges were filed, the cases were consolidated for purposes of trial. The defendants then filed a joint motion to suppress the marijuana obtained in the search of their bedroom. Following a hearing on their motion, the trial court entered findings of fact and concluded, therefrom, that although Ellen had voluntarily consented to the search of the house, Gus had not. Consequently, it granted Gus's suppression motion and dismissed the charge against him. It denied Ellen's motion. At a bench trial, Ellen was found guilty of the charge.
The State appealed the trial court's order granting Gus's motion. Ellen appealed the order denying her motion. The Court of Appeals affirmed suppression of the evidence in the case against Gus, but reversed the trial court's order denying Ellen's motion to suppress and remanded with directions to dismiss the charge against her. State v. Walker, 86 Wash.App. 857, 941 P.2d 1 (1997), review granted, 134 Wash.2d 1006, 954 P.2d 277 (1998). The State sought review of the latter decision contending that the Court of Appeals erred in concluding that the written consent to search that was signed by Ellen and given to the Hoquiam police officers was vitiated by the failure of the police to seek and obtain the consent of her husband who was present at the home at the time it was searched. We granted review.
Warrantless searches are per se unreasonable unless they fall within an established and well-delineated exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Jacobsen v. City of Seattle, 98 Wash.2d 668, 672, 658 P.2d 653 (1983). One of the exceptions to the warrant requirement is consent to a search. State v. Leach, 113 Wash.2d 735, 738, 782 P.2d 1035 (1989). The burden, however, is on the State to show that a consent to search was voluntarily given. State v. Shoemaker, 85 Wash.2d 207, 210, 533 P.2d 123 (1975). The State must meet three requirements in order to show that a warrantless but consensual search was valid: (1) the consent must be voluntary; (2) the person granting consent must have authority to consent; and (3) the search must not exceed the scope of the consent. State v. Nedergard, 51 Wash.App. 304, 308, 753 P.2d 526, review denied, 111 Wash.2d 1007 (1988); see also Robert F. Utter, Survey of Washington Search and Seizure Law, 9 U. PUGET SOUND L.REV. 1, 112 (1985).
The second factor, whether the person granting consent had authority to do so, is the only issue that is in contention here. 1 Clearly, as a cohabitant with common authority over the premises, Ellen had authority to consent to the search and that consent was valid as against an absent, nonconsenting person with whom that authority was shared. United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The more pertinent question and the one before us is whether her authority to consent to a search evaporated when her cohabitant, Gus, arrived at the premises just before the search was conducted.
The State contended in its petition for review and in We can understand how this quote from Leach, when viewed out of context (i.e., that the evidence obtained in the search was entered into evidence against the nonconsenting cohabitant), might give some solace to Ellen. It does not, however, avail her here because Leach does not stand for the proposition advanced by Ellen. Rather, the case supports the proposition that "[w]here the police have obtained consent to search from an individual possessing, at best, equal control over the premises, that consent remains valid against a cohabitant, who also possesses equal control, only while the cohabitant is absent." Leach The dissent asserts that this court squarely answered the question at issue here when we stated in Leach that the police must obtain the consent of a cohabitant who is present in order to effect a valid warrantless search. Dissenting op. at 1085. The dissent contends that this means that since the Hoquiam Police failed to obtain Gus's consent to the search, it was invalid as to Ellen. Dissenting op. at 1085. This conclusion misconstrues our holding in Leach. We did not, as the dissent suggests, state there that a search is invalid as to the person who gave consent, if that person's cohabitant did not consent to the search or merely kept silent. 2 It does not follow, therefore, that the officers' failure to ask Gus to consent to the search makes Ellen's consent invalid as to her.
argument to this court that the Court of Appeals incorrectly concluded that a consent to search given by an inhabitant of a dwelling is vitiated by the failure of the police to obtain the consent of any cohabitant who was present at the time the consent was obtained. In concluding that the failure of the Hoquiam police to obtain Gus's consent to the search essentially vetoed Ellen's otherwise voluntary consent, the Court of Appeals purported to rely on our decision in Leach. In Leach, the police obtained consent to search from the defendant's girlfriend who had equal control over the business premises where the search was conducted. The record showed that when the officers arrived at the place to be searched (a travel agency), the defendant, Leach, was present. The officers arrested and handcuffed Leach and placed him in a chair while they conducted the search of the premises. When Leach was charged, he moved to suppress the evidence seized in the search, arguing that he had not consented to the search. The trial court denied his motion. On review, the Court of Appeals concluded that the search was invalid, absent Leach's consent to it, and it remanded for an evidentiary hearing to determine if he had consented. This court affirmed the Court of Appeals in Leach, concluding that while a person with equal
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