Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Gregory M. Culet, District Judge.
The opinion of the court was delivered by: Lansing, Chief Judge
Order denying motion to suppress evidence in Docket No. 35519, reversed, and judgment of conviction, vacated. Judgment of conviction in Docket No. 35521, affirmed.
Richard H. Hansen, Sr. conditionally pleaded guilty to possession of marijuana with intent to deliver, reserving the right to appeal from the district court‟s denial of his motion to suppress evidence found in a search of his residence pursuant to a warrant. We reverse the denial of the motion, vacate the conviction, and remand.*fn1
As a result of evidence found in his bedroom during execution of a search warrant, Hansen was charged with a number of drug-related offenses. He filed a motion to suppress evidence found in his home, contending that the law enforcement officers illegally entered and searched his home before obtaining the warrant and that absent evidence discovered during that search, the search warrant would not have issued. The following facts are drawn from testimony presented at the suppression hearing.
A man named Allen Kirsch was placed on probation in June of 2007. As a term of his probation he consented to searches of his automobile, real property, and any other property by any law enforcement officer or probation officer. Kirsch informed his probation officer that he resided at an address on Highway 44 in Middleton. Kirsch did not appear for his initial meeting with his probation officer, however, and thereafter absconded from probation. In September 2007, two probation officers and two Canyon County Sheriff‟s Detectives were conducting home visits of probationers and parolees and went to the Highway 44 address looking for Kirsch. They knew that the home was owned by defendant Hansen from previous encounters with him because Hansen had previously been a probationer himself. On the officers‟ arrival, Kirsch was standing outside in front of the residence. When Kirsch saw the officers approaching, he began running, but he was soon found hiding beneath a shed some distance behind the house.
Upon apprehending Kirsch, the officers asked where he was residing, to which he responded "down at the house," and the officers took Kirsch back to the house. Kirsch then said that he was living in a motor home parked approximately fifty yards behind the house but that he used the bathroom facilities in the house. The officers confirmed that the motor home had no bathroom facilities. Because they remained interested in searching the house, the probation officers called their district manager to inquire how to proceed. The manager said that because of Kirsch‟s consent to searches as a term of his probation, the officers could search the common areas of the house to which Kirsch had admitted having access, which consisted primarily of the path from the backdoor of the residence to the bathroom and the bathroom itself.*fn2
Before entering, the officers knocked and announced their presence, and a man, Gary Bailey, came to the door. Bailey‟s hair and body were wet and he was wearing only a pair of jeans, leading the officers to believe that he had just showered. The officers asked him whether Kirsch lived in the house. Bailey said no, but that Kirsch used the bathroom in the house. The officers then entered to conduct a search.
A detective found a loaded syringe, a spoon and cotton in the bathroom that were deemed indicative of methamphetamine use.*fn3 The officers then sought and obtained a warrant to search the entire house for drug evidence and for evidence establishing who lived in the house. In executing the warrant, the officers found evidence in Hansen‟s bedroom upon which he was charged with possession of methamphetamine with the intent to deliver, possession of marijuana with the intent to deliver, and possession of drug paraphernalia.
Hansen filed a motion to suppress the evidence found in his home on the theory that the initial, warrantless search was unlawful and that the search warrant was issued based upon evidence illegally derived from the first entry. The district court denied the motion. The court held that the consent to searches in Kirsch‟s probation agreement authorized the initial entry and search because the evidence showed a "sufficient nexus" between Kirsch and the house. Because it upheld this initial search, the district court concluded that the issuance of the search warrant was supported by probable cause and that the drug evidence in Hansen‟s bedroom therefore was not subject to suppression.
Hansen thereafter conditionally pleaded guilty to possession of marijuana with the intent to deliver, reserving the right to appeal the denial of his motion, and the remaining charges were dismissed. This appeal followed.
The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed...." United States v. United States Dist. Court for Eastern Dist. of Michigan, Southern Division, 407 U.S. 297, 313 (1972). See also Payton v. New York, 445 U.S. 573, 589-90 (1980). "Establishing that a search is reasonable ordinarily requires that the government demonstrate probable cause to a neutral magistrate and obtain a particularized warrant authorizing the search." State v. Purdum, 147 Idaho 206, 208, 207 P.3d 182, 184 (2009) (quoting United States v. Weikert, 504 F.3d 1, 6 (1st Cir. 2007)). There are, however, limited exceptions to the warrant requirement for intrusions that are reasonable under the circumstances, such as searches conducted with consent voluntarily given by a person who has the authority to do so. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); Stewart, 145 Idaho at 644, 181 P.3d at 1252; Dominguez, 137 Idaho at 683, 52 P.3d at 327. If the consent was given by someone other than the defendant, the State bears the burden of establishing either that the person had actual authority to consent to the search or that there was apparent authority, i.e., that the officers reasonably believed that the consenting person had actual authority. Illinois v. Rodriguez, 497 U.S. 177, 177-78 (1990); United States v. Matlock, 415 U.S. 164 (1974); State v. Fancher, 145 Idaho 832, 836-39, 186 P.3d 688, 692-95 (Ct. App. 2008). Idaho precedent holds that a probationer‟s consent to searches given as a condition of probation provides justification for warrantless searches of the probationer‟s residence. Purdum, 147 Idaho at 208-09, 207 P.3d at 184-85; State v. Gawron, 112 Idaho 841, 843, 736 P.2d 1295, 1297 (1987); State v. Buhler, 137 Idaho 685, 687, 52 P.3d 329, 331 (Ct. App. 2002).
A. Actual Authority to Consent to Search
Actual authority to consent to a search will be found if the consenting person "possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected," as where the defendant and the consenting person are co-habitants. Matlock, 415 U.S. at 171. See also State v. Reynolds, 146 Idaho 466, 473, 197 P.3d 327, 334 (Ct. App. 2008); Buhler, 137 Idaho at 687, 52 P.2d at 331. Such authority derives from, "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." Matlock, 415 U.S. at 171 n.7; see also Georgia v. Randolph, 547 U.S. 103, 110 (2006); Rodriguez, 497 U.S. at 181.
Here, the State contends that the initial entry of Hansen‟s house was permissible because it was done pursuant to Kirsch‟s consent given as a term of his probation. Hansen argues, however, that the State did not present facts from which it can reasonably be concluded that Kirsch possessed common authority over the house along with the residents, i.e., joint access or control for most purposes, or that the officers reasonably believed that Kirsch had such authority before they entered the home and searched.
The district court held that the warrantless search of the home was justified by Kirsch‟s consent because the State‟s evidence showed a "sufficient nexus" between Kirsch and the home. The court based this conclusion on evidence that Kirsch had listed the house‟s address on probation forms, was observed outside the residence when the officers arrived, when questioned initially said that he lived "down at the house" but later said that he "lived" in the Winnebago behind the house, and admitted using the home‟s bathroom facilities. The district court erred in this analysis, for the existence of some type of nexus between a consenting person and the place searched is not the correct standard. As noted above, the proper inquiry is whether the State established that Kirsch possessed "joint access or control for most purposes." Matlock, 415 U.S. at 171 n.7. The nature of the consenting individual‟s use or access must be such that it is reasonable for inhabitants to recognize that the individual "has the right to permit inspection in his own right." Id.
We conclude that the State fell short of establishing that Kirsch had actual authority to consent to a search of the home or its bathroom. The evidence does not show that he resided there. Although Kirsch initially told officers that he lived "down at the house," he soon modified that to explain that he lived in a motor home parked behind the house and used the bathroom facilities in the house because the motor home was not connected to water. Although the officers were not required to believe this second explanation of Kirsch‟s living arrangements, it is significant that when the officers called Bailey to the door and asked whether Kirsch lived in the house, Bailey confirmed Kirsch‟s description of the arrangement*fn4 --that Kirsch lived in the motor home but used the bathroom, including the shower, in the house.*fn5 That Kirsch gave his probation officer the street address of the house as Kirsch‟s residence address is entirely consistent with his later explanation that he lived in the motor home behind the house. There would appear to be no other address that he could have given. The State presented no evidence concerning most of the ordinary factors that would tend to show residence in or other actual authority over the house, such as evidence that Kirsch‟s name was on a lease for the home, that he paid rent for it, that he had a key to the premises, that he slept there, that he had the authority to admit or exclude visitors, or that he could enter the home whenever he pleased. Moreover, although the officers twice entered the home looking for, among other things, Kirsch‟s belongings, papers or personal effects that would tend to establish that he resided there, no evidence was presented that any such items were found.*fn6 No officer testified that he or she actually believed that Kirsch resided in the house; rather, they contacted the probation officers‟ district manager to ask for guidance. The officers evidently accepted Kirsch‟s statement that he lived in the motor home behind the house because they entered and searched it without a warrant.
The State argues that because Kirsch was allowed access on at least some limited basis to the bathroom in the house, he had authority to consent to the officers‟ entry into the bathroom, where drug evidence was found. We disagree. Generally, mere ability or permission to access a residence for limited purposes does not confer the authority to consent to a search. Our Supreme Court has noted that "[a] landlord does not have apparent authority merely because the landlord has legitimate access to the premises for limited purposes." State v. Brauch, 133 Idaho 215, 221, 984 P.2d 703, 709 (1999). In State v. McGovern, 252 N.W.2d 365 (Wis. 1977), it was held that a person who answered the door to a residence when the police knocked but actually lived in a tent in the side yard lacked actual authority to consent. Likewise, in Petersen v. People, 939 P.2d 824 (Colo. 1997), a caretaker who stayed at the property from time to time was held not to have actual authority to allow a search. And the Tenth Circuit Court of Appeals held in United States v. Cos, 498 F.3d 1115, 1127 (10th Cir. 2007), that the girlfriend who was an occasional overnight guest of the home‟s resident did not have actual authority to permit a search. See also United States v. Chaidez, 919 F.2d 1193, 1201 (7th Cir. 1990) (no apparent authority where woman told the police that she did not live in the house and was there only to do the laundry); United States v. Warner, 843 F.2d 401, 403 (9th Cir. 1988) (landlord with permission to enter in defendant‟s absence to make repairs); United States v. Harris, 534 F.2d 95, 96 (7th Cir. 1976) (person with permission to use the apartment but no key); People v. Walter, 890 P.2d 240, 242-43 (Colo. Ct. App. 1994) (babysitter); People v. Wagner, 304 N.W.2d 517 (Mich. Ct. App. 1981) (overnight guest); State v. Manns, 370 N.W.2d 157 (Neb. 1985) (friend); United States v. Corral, 339 F. Supp. 2d 781, 791-92 (W.D. Tex. 2004) (housekeeper). The State‟s showing that Kirsch had permission to use bathroom facilities in Hansen‟s house does not establish that he had "joint access or control for most purposes." The evidence does not even show whether Kirsch had a key and could enter whenever he wished or could enter only when a resident was at home. There was no evidence that the residents had expressly or impliedly authorized Kirsch to admit others into the house. Kirsch‟s mere permission to use the bathroom in the home did not, in our view, confer "the right to permit inspection" of the bathroom such that inhabitants of the home had assumed that risk. See Matlock, 415 U.S. at 171 n.7. Therefore, the State did not establish that Kirsch had actual authority to consent to a search of any area of Hansen‟s home.
B. Apparent Authority to Consent to Search
Although the State does not assert on appeal that apparent authority existed, and the district court made no finding in this regard, we will consider it because it is the duty of this Court to determine the actual lawfulness of the warrantless search, not merely the merits of the justification proffered by the ...