Colbert v. Commonwealth , 43 S.W.3d 777 ( 2001 )

Opinion of the Court by

Justice GRAVES.

This case presents an issue of first impression in Kentucky: The validity of a mother’s consent to police officers’ war-rantless search of her adult son’s bedroom located in her home, as well as of his personal effects, including a closed safe, absent direct evidence she had common authority over the room.

Shortly after 1:00 a.m. on Dec. 26, 1995, Louisville police received a call concerning a domestic disturbance at Delores Colbert’s home, requesting help with her 19-year-old son, Appellant Rontez Colbert, who had become enraged and was “trashing” the home they shared with Delores’ younger son. When officers arrived, Appellant was putting on a bulletproof vest and barricading himself in the house. Officers tried to apprehend Appellant, who attempted to evade them, tipping over furniture as he ran. Eventually he was caught, arrested and taken outside. He asked an officer to retrieve a specific pair of shoes and a jacket from his bedroom in the basement before they took him to jail.

Another officer approached Delores and explained to her that Appellant had a reputation for being violent. He was, in fact, believed to be involved in at least one shooting earlier that year. The officer then asked for permission to search his room for weapons. Delores agreed, and at a suppression hearing, the officer recounted her words as “you can search anywhere in the house you want to and do whatever you gotta do; do whatever you want to do.” These words were never disputed because, although Delores was expected to be a defense witness at the suppression hearing, she made it known that she preferred not to testify and, as such, was never called.

When officers entered Appellant’s room, they discovered the walls covered with what they identified as gang graffiti and summoned a photographer. They also discovered several plastic containers for handguns. Continuing the search, they found a small fireproof safe on the floor and opened it. The record does not disclose whether the safe or the bedroom door was locked. The safe contained six individually wrapped bundles of marijuana, about 19 grams of crack cocaine in fifty bundles, cash, an extended gun clip, and photographs of Appellant and others with weapons. All of this evidence was confiscated.

Following a hearing on September 24, 1996, the Jefferson Circuit Court denied a motion to suppress the items seized from the bedroom. On February 5, 1997, Appellant entered a conditional plea of guilty to charges of first degree trafficking in a controlled substance, trafficking in marijuana, resisting arrest, and second degree assault. He received five years each on the controlled substance and second degree assault charges and twelve months each on the marijuana and resisting arrest charges, all to run concurrently for five years imprisonment. Pursuant to his conditional plea, he appealed the order denying the motion to suppress the items found in the safe. The Court of Appeals recognized this as an issue of first impression and, relying on United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 89 L.Ed.2d 242 (1974), held that Appellant’s mother possessed common authority over her own household and could consent to a search of the entire premises. The court continued that, even if she lacked actual authority, she had apparent authority over the premises and it would have been reasonable for the officers to believe she possessed authority to consent to a search of Appellant’s room, pursuant to Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).

Appellant appeals on the basis that, although no evidence was presented to show his mother did not have a right of entry, she could not consent to the search because the room was in his exclusive control, and, absent a warrant, the search should be held unconstitutional and the evidence suppressed. Furthermore, he contends that her authority over the house did not extend to his safe. Finally, he argues that officers should not be permitted to use third-party consent to bypass the first party, when the latter is still available to give or deny consent. After reviewing the record and hearing oral argument, we affirm the decision of the Court of Appeals.

I. CONSENT TO SEARCH OF THE BEDROOM WAS VALID

In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the United States Supreme Court recognized that there is a heightened privacy interest in one’s own home and that the Fourth Amendment generally prohibits warrantless entry, whether to search for objects or to make an arrest. This general prohibition may be overcome by any of the valid exceptions to the warrant requirement, including consent to search, whether obtained from the individual who is the target of the search, see Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), or from a third party who possesses common authority over the premises. See Mattock, supra. The burden of proof to show an exception rests with the government. See Gallman v. Commonwealth, Ky., 578 S.W.2d 47, 48 (1979).

Appellant argues that Kentucky law gives a more expansive reading to the protections against search and seizure than is offered by the United States Constitution’s Fourth Amendment. First, Appellant cites Elmore v. Commonwealth, Ky., 282 Ky. 443, 138 S.W.2d 956, 960 (1940), arguing that this Court held that “The right [against warrantless search and seizure] thus guaranteed is a personal right and is broad enough to cover the appellant [17-year-old youth charged with rape] as a member of the family, residing with his father and mother, since it was his dwelling as well as theirs.”

The Elmore line of reasoning is inapplicable. That case did not turn on the protections afforded Elmore by the Kentucky Constitution, but rather was based on whether his mother’s consent to search was voluntary. The 1940 case also shows a paternalistic attitude toward women in general, and black women in particular, which cannot be reconciled with modern thinking. The Elmore Court reserved the question of whether it was possible for a wife to consent to the search of the home in the absence of her husband, but suggested that allowing such to occur would be to allow the wife to waive her husband’s constitutional rights. In Commonwealth v. Sebastian, Ky., 500 S.W.2d 417, 419 (1973), this Court held that a wife may consent to a search of the home in the absence of her husband, and that the consent was not the wife’s waiving of the husband’s rights, but an assertion of her own rights of control over the shared spaced.

Appellant does not raise the issue of voluntariness of consent on appeal, and Elmore, supra, is, if not a case which has outlived its usefulness, at least inapplicable here. Appellant’s mother was the homeowner and the head of the household. To protect her person and her property, she summoned the police to remove Appellant from her home. She also agreed to the search and gave the police unlimited authority to search anywhere they wanted.

Appellant also cites Commonwealth v. Wasson, Ky., 842 S.W.2d 487 (1992), a privacy case concerning a man convicted under an anti-sodomy law, to show the expansiveness of Kentucky’s interpretation of the right to privacy. Wasson involved personal lifestyle choices for private consensual sexual activities, and held that the Kentucky Constitution’s guarantees of individual liberty “offer greater protections of the right of privacy than provided by the Federal Constitution as interpreted by the United States Supreme Court....” Id. at 491. This Court, however, has never extended these greater protections to the rights in property interests against war-rantless search and seizure. What we have said, as recently as four years ago, is “[S]ection 10 of the Kentucky Constitution provides no greater protection than does the federal Fourth Amendment.” LaFol-lette v. Commonwealth, Ky., 915 S.W.2d 747, 748 (1996) (citing Estep v. Commonwealth, Ky., 663 S.W.2d 213 (1983)).

Both state and federal courts have interpreted search and seizure law to allow third parties to consent to the search of shared common areas. See Morris v. Commonwealth, 306 Ky. 349, 208 S.W.2d 58 (1948) (father’s consent to search as “head of household” for incriminating evidence against son valid for evidence found in the kitchen) and Matlock, supra, (consent of a woman who shared a bedroom with her boyfriend in her parents’ home valid). Furthermore, in United States v. Hall, 979 F.2d 77 (6th Cir.1992), the Sixth Circuit Court of Appeals held that a homeowner may consent to the search of a tenant’s room, even though he never entered it while it was rented to the tenant. In Hall, the homeowner indicated that he had access to the room at all times, and that some of his personal items were stored in an adjacent room which was accessible through Hall’s room. If Hall’s rental agreement did not provide enough privacy to keep his landlord from consenting to a search of his room and dresser, then surely Appellant in this case can be afforded no more protection from the search to which his mother consented. Appellant never paid rent for his basement bedroom, nor did he present any evidence to indicate that he and his mother had agreed to his exclusive control of it. Like any homeowner, in the absence of an understanding to the contrary, the mother retained the right of entry to all areas of her house including the room Appellant occupied.

In Wayne R. LaFave’s treatise on search and seizure, he notes that the power of a parent to consent to a search of the home derives not so much from the idea of common authority as it does from the status of parent. Wayne R. LaFave, Search and Seizure, Vol. Ill, Chap. 8, § 8.4(b), p. 765 (3d ed.1996). LaFave notes that “courts tend to recognize a superior right in the parents to keep the family home free of criminal activity.” Id. at 770. For example, the Minnesota Supreme Court in State v. Kinderman, 271 Minn. 405, 136 N.W.2d 577 (1965), upheld the father’s consent to the search of a 22-year-old son’s room. That court stated:

If a man’s house is still his castle in which his rights are superior to the state, those rights should also be superi- or to the rights of the children who live in his house. We cannot agree that a child, whether he be dependent or emancipated .... has that same constitutional rights of privacy in the family home which he might in a rented hotel room.

Id. at 580.

Echoing this sentiment, the California Court of Appeals in People v. Daniels, 16 Cal.App.3d 36, 93 Cal.Rptr. 628, 632 (1971) held that the mere fact that a son is permitted to use a particular room in his parents’ home does not confer upon him exclusive control. His occupancy is subservient to that of his parents and he may be excluded at any time. It logically follows that a parent not only has a right of entry but also the right to authorize the entry of other persons.

State courts abound with decisions similar to that made by the Kentucky Court of Appeals, allowing a parent to consent to the search of a child’s bedroom, most of which derive from parental authority over the family home. See People v. Lucero, 720 P.2d 604 (Colo.Ct.App.1985) (no evidence that mother relinquished control of room, despite having her own reasons for never entering it); People v. Brooks, 277 Ill.App.3d 392, 214 Ill.Dec. 79, 660 N.E.2d 270 (1996) (no evidence that room was locked or that son had left instructions not to enter it); People v. Goforth, 222 Mich. App. 306, 564 N.W.2d 526 (1997) (although son was 18 years old and paid rent, nothing indicated that mother lacked access to the room); State v. Cole, 706 S.W.2d 917 (Mo.Ct.App.1986) (A person living -with his family can expect more intrusion that an independent renter living with nonrela-tives).

The United States Supreme Court held in Matlock, supra, that the test for whether third-party consent was permissible was “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” 415 U.S. at 171, 94 S.Ct. at 994. (Emphasis added). At least one court has held that an example of a “sufficient relationship” is parental authority, particularly when the son pays no rent. Howard v. State, 207 Ga.App. 125, 427 S.E.2d 96 (1993). Kentucky has previously considered the issue of a search of a child’s bedroom, although under slightly different circumstances. In Gray v. Commonwealth, 198 Ky. 610, 249 S.W. 769 (1923), our highest Court held that competent evidence was obtained from the search of an adult son’s bedroom. Officers arrived at the house with a search warrant, but obtained consent for the search from the suspect’s mother. As the search was finishing, the son arrived home and objected to the search, but officers continued on the grounds they had a warrant.

At trial, the warrant could not be produced, but the court nonetheless upheld the search based on the mother’s consent:

Except for the agreement of the householder that the officers might make the search, the point would be well-taken, but the evidence shows without contradiction that Mrs. Gray agreed that the officers might search her home, and it has been held by this court that, where there is such consent for a search, the officer may make the same, even though he has no warrant or an insufficient one.

Id. at 769.

Thus, the mother’s consent to search was a valid basis for the search of her son’s room in her home, even over his objections.

II. MOTHER COULD CONSENT TO SEARCH OF SAFE

Because the consent search of the room was valid, we must now consider the search of the safe. Appellant relies on a portion of Sebastian, supra, which holds that a wife may consent to the search of the marital home, but adds, “An exception would be where, by agreement or understanding, the wife did not have access to a particular room or a particular container.” 500 S.W.2d at 419. This argument fails in this case on several accounts. First, as stated above, no evidence was produced that Delores did not have access to the safe, only that she did not use it. Appellant’s counsel stated in oral argument that neither side introduced evidence as to the safe’s ownership, but only noted that photos showed the safe covered in the same graffiti as the room. Furthermore, while Appellant is correct that no evidence was presented to show whether the safe was locked or simply closed, his counsel stated at oral argument that the safe was searched contemporaneously to the rest of the room. The police officer testified at the suppression hearing that he needed no assistance to gain access to the unsecured fireproof safe, but merely opened it.

Second, the Sebastian court emphasized that the wife had just as much right to control the house as did the husband. As noted above, most courts would not agree that the adult offspring living in the family home have the same rights as a spouse does. Where a wife might have to show that there was common authority over a particular room or container under Sebastian, supra, it does not automatically hold that a mother would have to show common authority (i.e., shared usage) of the effects in her son’s bedroom when she is the owner of the premises and head of the household. Furthermore, Appellant and his mother had no “agreement or understanding” that she would not open the safe, at least not evidenced in the record. Thus, Sebastian is inapplicable.

The third reason that Appellant’s reb-anee on Sebastian is misplaced is a decision by this Court ten years after Sebastian, in Estep, supra. Relying on the United States Supreme Court automobile search case, United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (search of any part or compartment of a vehicle where the object searched for could be hidden allowed when officer had probable cause to search), the Estep court held that a warrant to search a home would extend to closets, drawers and containers in which the object of the search might be concealed. On the subject of warrantless searches, we stated:

The scope of a warrantless search is defined by the object of the search and the places in which there is probable cause to believe it may be found. A lawful search of a fixed premises generally extends to the entire area in which objects may be found and is not otherwise limited.

Estep, supra, at 215.

Here, an officer sought permission from Appellant’s mother, who had a superior property interest in the home to search his room for weapons. When officers entered, they noticed a closed safe. Police were reasonable in assuming that if Appellant was hiding weapons in his room, they could be hidden in this safe. In fact, officers found a clip from a weapon in the safe. This search was lawful under Estep, supra. Finally, while Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), is often cited for the proposition that the government should protect reasonable expectations of privacy, the United States Supreme Court in Katz also cautions that these expectations should be those “society is willing to acknowledge as reasonable.” 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, concurring). The right to have an exclusive hiding place for drugs or weapons in one’s mother’s home, particularly in this case when Delores’ shock at its discovery demonstrated she did not want it there, is hardly an expectation of privacy that society would acknowledge as reasonable.

III. DESPITE SUSPECT’S PRESENCE, MOTHER’S CONSENT WAS VALID

Finally, Appellant asserts that even if his mother could have given consent to search the room and safe in his absence, her consent would not override his objection when he was on the premises, and that officers bypassed asking him for consent. Because of her superior right in the home, Appellant’s mother was permitted to give consent, despite his presence. In Matlock, supra, where the man and his girlfriend had equal rights to the bedroom which was searched, the Supreme Court held the consent given by the girlfriend was valid, even though Matlock had been taken into police custody in the front yard of the home. Similarly, other states have applied this theory to parents and children, and have determined that, particularly in the case of minors, the parent’s authority is controlling. See Vandenberg v. Superior Court, 8 Cal.App.3d 1048, 87 CaLRptr. 876 (1970). In Hembree v. State, 546 S.W.2d 235, 241 (Tenn.App.1976), the Tennessee Court of Appeals, when faced with a case in which an 18-year-old son gave consent to search his parents home, also held that the parents had a superior interest:

[T]he rights of an 18-year-old son to the use or occupation of the premises are not necessarily equal to the rights of use or occupation of his parents.... [Wjhen the parents are in the custody of the law ... and are equally accessible to give or withhold consent to search, the consent and cooperation of the son does not waive the constitutional rights of the parents.

LaFave says that bypassing the suspect is “especially proper when the police have instead obtained the consent of a person with a superior interest in the place searched.” Search and Seizure, supra, at 737. Such occurred in Gray, supra, where Court our predecessor allowed evidence to be admitted because of the mother’s consent, despite the suspect’s objections at the time of the search.

While we hold that Appellant’s mother had the authority to consent to a search of her home and Appellant’s safe, as the parent and homeowner, the consent also would have been valid on the principle of apparent authority. In Rodriguez, supra, the United States Supreme Court held that a consenting party has apparent authority if “the facts available to the officer at the moment ... “warrant a man of reasonable caution in the belief that the consenting party had authority over the premises!.]” 497 U.S. at 188, 110 S.Ct. at 2801 (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). We are of the opinion that officers in this case were reasonable in relying on the belief that Delores Colbert, as the head of the household, had given a valid consent to the search of that household, including Appellant’s room and its contents therein.

The judgment of the Jefferson Circuit Court is affirmed.

LAMBERT, C.J., COOPER, GRAVES, and WINTERSHEIMER, J.J. concur. KELLER, J., dissents in a separate opinion in which JOHNSTONE, J., joins as to 1(B) only, and STUMBO, J., joins.