Welfare of D.A.G., Matter of, C0-91-530

Citation484 N.W.2d 787
Decision Date15 May 1992
Docket NumberNo. C0-91-530,C0-91-530
PartiesIn the Matter of the Welfare of D.A.G.
CourtSupreme Court of Minnesota (US)

Syllabus by the Court

1. A present joint occupant's constitutional right to be free from the warrantless search of a premises prevails over an absent

joint occupant's right to consent to that search.

2. The facts of this case do not meet the exigent-circumstances test for searching a premises without a warrant.

Hubert H. Humphrey, III, Atty. Gen., Robert A. Stanich, Sp. Asst. Atty. Gen., St. Paul, and Ann L. Carrott, Douglas County Atty., Allen Senstad, Asst. County Atty., Alexandria, for appellant.

Peter Mellom, Gaffaney & Velde Law Firm, Ltd., Alexandria, for respondent.

Heard, considered and decided by the court en banc.

YETKA, Justice.

The state appeals from a court of appeals' decision affirming a trial court order which suppressed evidence on the basis of an unreasonable, warrantless search and seizure, 474 N.W.2d 419. We affirm the decisions of the courts below.

At about 3:45 p.m. on August 30, 1990, Deputy Brian Nielson of the Douglas County Sheriff's Department contacted Officer Larry Dailey of the Alexandria Police Department regarding information about a large quantity of marijuana at 1002 Hawthorne in Alexandria. Nielson received the information from Thomas Charles Howard, who had appeared at the sheriff's department on his own initiative. Officer Dailey agreed to go to the Alexandria Police Department to interview Howard about the drugs.

During the interview with Officers Dailey and Nielson, Howard told the officers that he had recently moved into 1002 Hawthorne with D.A.G. and another individual. Howard stated that, in the early morning hours of August 30, 1990, Michael Ray Erickson came to the house and asked Howard's friend, Cory Keller, if he could use Keller's vehicle to pick up a package located at a rest area near Alexandria. Keller lent his car to Dat Quang, who drove Erickson to the rest area. After Erickson and Quang left, D.A.G. informed Howard that Erickson was going to pick up approximately 2 pounds of marijuana. Howard stated that Erickson was a "known drug dealer."

Erickson and Quang returned to 1002 Hawthorne at about 4:00 a.m. on August 30. Howard stated that Erickson had a large amount of marijuana when he returned to the house. Howard knew it was marijuana because, as a former user, he recognized the drug by sight and smell.

Howard expressed to Erickson and D.A.G. his extreme displeasure that Erickson had brought the drugs into the house. Howard then left the residence. When Howard returned to the house later in the morning, he found Erickson still present. By this time, however, Erickson had apportioned the marijuana in clear plastic baggies and stuffed them into his "black leather, motorcycle type jacket."

Based on Howard's status as a cotenant and the foregoing information, 1 the officers "decided to obtain permission to search" the residence at 1002 Hawthorne. Howard signed a standard "Permission to Search" form at 4:54 p.m. on August 30. Three Alexandria police officers and two Douglas County deputy sheriffs conducted the "raid" shortly after Howard signed the consent form. Howard did not accompany the officers on the raid.

The officers did not obtain a search warrant because they believed Howard's consent authorized a warrantless search of the residence. Officer Dailey testified that he believed he had probable cause to search the house for drugs based on the information Howard had given him. The officers did not knock and announce their purpose and authority when they entered the residence; rather, they "walked in" with their guns drawn. Finally, although D.A.G. was present when the officers entered the house, they did not ask D.A.G. for permission to search the house.

During the search of the residence, the officers found a black leather jacket like the one Howard had described to them. In it, the officers found several baggies of marijuana. Michael Ray Erickson identified the jacket and its contents as his. The police also found some marijuana in a canister in the kitchen. In total, the police found approximately 1/2 pound of marijuana.

Finally, the officers recovered an illegal sawed-off 20-gauge shotgun, the evidence at issue in this case. The shotgun was in plain view in the living room of the residence. In a statement to the police after the raid, D.A.G. admitted that he owned the gun and knew its length was unlawful. On September 21, 1990, D.A.G. was charged, by way of delinquency petition, with violating Minn.Stat. Sec. 609.67, subd. 2 (possession of a short-barreled shotgun) and Minn.Stat. Sec. 260.015, subd. 5(a) (delinquency).

We begin our inquiry into the validity of the search with the proposition that, under the fourth and fourteenth amendments to the United States Constitution and article I, section 10 of the Minnesota Constitution, any search of a private dwelling conducted without a warrant issued upon probable cause is " 'per se unreasonable ... subject only to a few specifically established and well delineated exceptions.' " State v. Hanley, 363 N.W.2d 735, 738 (Minn.1985), reh'g denied (Minn., Mar. 30, 1985) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)); see also O'Connor v. Johnson, 287 N.W.2d 400, 405 (Minn.1979) (discussing greater protections of article I, section 10 of the Minnesota Constitution). A suspect's own consent to the search of his or her premises is one well-established exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973). It is also well established that a third party having common authority over premises or effects may consent to a search even though the person with whom that authority is shared is absent and does not consent. United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974); see also State v. Buschkopf, 373 N.W.2d 756, 766-67 (Minn.1985).

The court of appeals correctly concluded that this case does not involve the question of whether Howard had authority to consent. Without question, as a cotenant with "common authority" 2 over the premises, Howard had actual authority to consent to a search of the common areas of the apartment. See Buschkopf, 373 N.W.2d at 767; Hanley, 363 N.W.2d at 738-39. Likewise, this case does not present the question of what should happen when police are confronted with the consent of one present joint occupant and the objection of another present joint occupant. Rather, we agree that this case involves the competing rights of an absent, consenting cotenant and those of a present, objecting cotenant.

Both the trial court and the court of appeals relied on Justice Traynor's analysis in Tompkins v. Superior Court, 59 Cal.2d 65, 27 Cal.Rptr. 889, 892, 378 P.2d 113, 116 (1963) to support their holdings:

[O]ne joint occupant who is away from the premises may not authorize police officers to enter and search the premises over the objection of another joint occupant who is present at the time, at least where * * * no prior warning is given, no emergency exists, and the officer fails even to disclose his purpose to the occupant who is present or to inform him that he has the consent of the absent occupant to enter.

Id.; accord Silva v. State, 344 So.2d 559 (Fla.1977) (following Tompkins rationale); Dorsey v. State, 2 Md.App. 40, 232 A.2d 900 (1967) (same); State v. Leach, 113 Wash.2d 735, 782 P.2d 1035 (1989) (same). But see People v. Cosme, 48 N.Y.2d 286 422 N.Y.S.2d 652, 397 N.E.2d 1319 (1979) (consent of absent cotenant effective against objecting present cotenant); State v. Frame, 45 Or.App. 723, 609 P.2d 830 (1980), cert. denied, 450 U.S. 968, 101 S.Ct. 1486, 67 L.Ed.2d 617 (1981) (same).

The Tompkins case, however, does not stand solely for the proposition that a present joint occupant's right to refuse consent is superior to or otherwise overrides an absent joint occupant's right to consent to a search; rather,

[t]he most critical fact [in Tompkins ] is not that the present tenant objected, but rather that the consent was by an absent tenant and that the officer never made this known to the other occupant. * * * The basis of Tompkins, then, is that one joint occupant cannot give a consent which will have the effect of permitting an intrusion upon that part of another occupant's privacy which entitles him to be free of unannounced intrusion and its attendant dangers.

3 W. LaFave, Search and Seizure, Sec. 8.3(d) at 250-51 (2d ed. 1987) (footnotes omitted). Under this analysis, the inquiry in the instant case must focus on whether, in the absence of exigent circumstances, the police must knock and announce their authority and purpose prior to entry when conducting a search pursuant to an absent third party's consent. See id. at 250. However, we do not reach the issue of whether the police were required to knock and announce their authority and purpose in this case because we think the search cannot be upheld on either consent or exigent-circumstances grounds.

The reasons often given to support searches conducted pursuant to a third party's consent when the defendant is absent or unavailable (and the third party is present) are that (1) the third party is waiving his own rights and not those of the defendant, and (2) the defendant has assumed the risk that the third person will waive his constitutional rights. See Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7; Wefing & Miles, Consent Searches and the Fourth Amendment: Voluntariness and Third Party Problems, 5 Seton Hall L.Rev. 211, 279 (1974).

The "waiver" and "assumption of risk" rationales, however, are not compelling in a case such as this where the person against whom the search is directed is present and the consenting joint occupant is not. First, an absent third party's consent should not be used to "waive" another individual's...

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