State v. Walker , 136 Wash. 2d 678 ( 1998 )

Sanders, J.

(dissenting) — The issue is whether this warrantless search of the Walker home violated the Fourth Amendment. The majority concedes it did but will not suppress the fruit of this poisoned tree.

Controlling precedent holds when authorities rely on consent to avoid the warrant requirement, “the police must obtain the consent of a cohabitant who is present and able to object in order to effect a valid warrantless search.” State v. Leach, 113 Wn.2d 735, 736, 782 P.2d 1035 (1989). But here police failed to obtain the consent of Mr. Walker, a cohabitant who was present and able to object. Accordingly the warrantless search of the Walker home was unconstitutional. In such situations the door, in effect, has multiple locks with each present cohabitant holding one key. But without keys to each lock, the door may not be constitutionally opened.

State v. Leach squarely addressed the claimed co-occupant exception to the warrant requirement. Prior to Leach we held a warrantless search of a building based on the consent of one co-occupant without the consent of absent co-occupants does not offend the constitution. See State v. Mathe, 102 Wn.2d 537, 541, 688 P.2d 859 (1984) (adopting United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974)). The reciprocal proposition is failure to obtain the consent of a present co-occupant is inadequate to avoid the warrant requirement.

In Leach police conducted a warrantless search of a building based on the consent of one co-occupant although the other co-occupant was present when the police arrived to search but he was not asked for consent: The police simply held him to one side and searched anyway.

Leach began by noting Matlock and Mathe had not definitively answered whether the police need to obtain the consent of present co-occupants in order to effect a warrantless search based on the consent of another cohabitant and then noted a split in authority on the answer. Leach quoted from the leading text to the effect that one line of authority allows the police to make the search with the consent of only one of the present co-occupants while the other line of authority holds “that the consent of both is required when both are present.” Leach, 113 Wn.2d at 740 (quoting 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.3(d) (3d ed. 1996) (hereinafter “3 LaFave, Search and Seizure”). Leach then opined that the line of authority requiring consent of both co-occupants “ ‘has somewhat greater appeal’ ” (Leach, 113 Wn.2d at 740 (quoting 3 LaFave, Search and Seizure at 252)), and adhered to the rule that “ ‘When two or more persons have equal use of a place in which both are present, the consent of one does not normally eliminate the need for the consent of the other(s) before a search is made . . . ” Leach, 113 Wn.2d at 742 (quoting Lloyd L. Weinreb, Generalities of the Fourth Amendment, 42 U. Chi. L. Rev. 47, 63 (1974)). Finally, Leach squarely answered the question presented: “We hold the police must obtain the consent of a cohabitant who is present and able to object in order to effect a valid warrantless search.” Leach, 113 Wn.2d at 736 (emphasis added).⁴

Here, the police failed to obtain the consent of Mr. Walker even though he was a cohabitant present and able to object. Under Leach the search was invalid. Period.

. The majority, however, seeks to validate this warrantless search without overruling Leach or Fourth Amendment jurisprudence. It concedes under Leach this search violated the Fourth Amendment but only as to Mr. Walker. Majority at 684. But as to Mrs. Walker, the majority admits the fruits of this unconstitutional search into evidence. This reasoning is flawed because under the Fourth Amendment a search is either constitutional or it is not constitutional. If the search is constitutional all evidence discovered is admissible while, on the other hand, “all evidence which is the product of an illegal search or seizure is suppressed.” State v. White, 97 Wn.2d 92, 101, 640 P.2d 1061 (1982) (citing Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)). The issue is the constitutionality of the search, not the status of the person who bears the consequences. Here the majority concedes the search was unconstitutional but will not suppress its poisoned fruit.

Not all jurisdictions have followed the approach taken by this court in Leach. As the majority notes in its second footnote, some courts have instead found that a search will be constitutional where consent is given by a party with “common authority” over the premises, even though a co-occupant is present but has not consented. United States v. Donlin, 982 F.2d 31 (1st Cir. 1992); United States v. Childs, 944 F.2d 491 (9th Cir. 1991); United States v. Hendrix, 595 F.2d 883 (D.C. Cir. 1979); People v. Sanders, 904 P.2d 1311 (Colo. 1995); State v. Frame, 45 Or. App. 723, 609 P.2d 830 (1980). In each of these cases, the search in question was found to be constitutional and the fruits admitted, despite the nonconsent of a co-occupant. Donlin, 982 F.2d at 33-34; Childs, 944 F.2d at 495; Hendrix, 595 F.2d at 885; Sanders, 904 P.2d at 1315; Frame, 609 P.2d at 833-34. However Leach considered relevant court opinions on this matter from other jurisdictions and expressly refused to follow the legal route taken by the court in Frame, emphatically stating:

Where 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. However, should the cohabitant be present and able to object, the police must also obtain the cohabitant’s consent. Any other rule exhalts [sic] expediency over an individual’s Fourth Amendment guaranties. Accordingly, we refuse to beat a path to the door of exceptions.

Leach, 113 Wn.2d at 744 (emphasis added). While this court in Leach steadfastly refused to embark upon a journey which would impair constitutional rights, the majority in the instant case teeters in that direction by obscuring the difference between the cases it cites in footnote two and this court’s decision in Leach. Although the majority acknowledges that the search in the present case was found to be unconstitutional (correctly following Leach), the majority nevertheless finds the fruit of the search to be admissible against Mrs. Walker (citing cases at footnote two for support). The fallacy of this position is that it confuses and commingles two conflicting strands of case law which follow opposing judicial routes. As noted above, in every case cited by the majority in footnote two, the fruits of a search were deemed admissible only after the search was found to be constitutional, i.e., distinctions as to admissibility of the fruits of a particular search against the consenting occupant and the nonconsenting occupant were never drawn. There is no authority for the majority’s proposition that the fruits of an unconstitutional search should be admitted into evidence. Indeed such a proposition violates one of the founding principles of the Fourth Amendment. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) (holding that evidence resulting from an unconstitutional search or seizure must be suppressed).

Most commentators also agree failure to obtain the consent of present cohabitants renders the search itself illegal (and not legal as to some and illegal as to others). See, e.g., Laura L. Silva, State Constitutional Criminal Adjudication in Washington Since State v. Gunwall: “Articulable, Reasonable and Reasoned” Approach?, 60 Alb. L. Rev. 1871, 1883 n.74 (1997) {Leach “held that the police must obtain the consent of a cohabitant who is present and able to object in order to effect a valid warrantless search.”); Robert E. McBeth, Search and Seizure Notebook 427 (1991) (“When one of two persons sharing control over certain premises consents to a search of the premises and the other person, having equal or superior control over the premises is present and able to object, police officers may not make a warrantless search of the premises without the consent of such other person.”) (citing State v. Leach, 113 Wn.2d 735); Gregory S. Fisher, Search and Seizure, Third-Party Consent: Rethinking Police Conduct and the Fourth Amendment, 66 Wash. L. Rev. 189, 197 (1991) (“The [Leach] court held that Armstrong’s consent could not validate the search because Leach was present when the police entered.”) (citing Leach, 113 Wn.2d at 744).

Leach is on point and dispositive.

We might also bear in mind the dictates of Leach do not present an undue burden for law enforcement. Absent consent from all co-occupants, a warrant provides the necessary lawful authority.

Other Concerns

Here, the police conducted a warrantless search of a home without justifying their failure to resort to a neutral magistrate for a warrant. In general we require law enforcement to turn to a neutral magistrate

“so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals .... And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home.”

Chimel v. California, 395 U.S. 752, 761, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) (quoting McDonald v. United States, 335 U.S. 451, 455-56, 69 S. Ct. 191, 93 L. Ed. 153 (1948)). We allow authorities to bypass the neutral magistrate and conduct a warrantless search only “ ‘where the societal costs of obtaining a warrant, such as danger to law officers of the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate.’ ” State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996) (quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980)) (internal citations omitted). If the warrant rule is to retain its vitality and meaning we must require authorities to obtain a warrant or justify their failure to do so. See Chimel, 395 U.S. at 761 (“ ‘We cannot be true to that constitutional [warrant] requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.’ ”) (quoting McDonald, 335 U.S. at 456). Cf. Leach, 113 Wn.2d at 744 (“ ‘Where the police have ample opportunity to obtain a warrant, we do not look kindly on their failure to do so.’ ”) (quoting United States v. Impink, 728 F.2d 1228, 1231 (9th Cir. 1984)).⁵

Here the State has not offered any justification for failure to obtain a valid search warrant. There were no exigencies. The search of the Walker home occurred at midday on a weekday. The magistrate was available. There were no concerns of officer safety nor fears of disappearing evidence. During the suppression hearing the State’s attorney asked Detective Blodgett, “Why didn’t you just get a search warrant in this instance?”, to which Detective Blodgett candidly responded, “Primarily because it’s time-consuming to get a search warrant.” Direct examination of Detective Blodgett, Verbatim Report of Proceedings at 41 (May 12, 1995).

Saving a few minutes is not a valid reason to bypass the warrant requirement. If it is, there is no longer a warrant requirement in Washington because obtaining a warrant always requires some effort. In Leach we held the line and explained “we refuse to beat a path to the door of exceptions.” Leach, 113 Wn.2d at 744. But today the majority opens the door to warrantless invasions of our privacy. The majority sets a dangerous precedent while disregarding existing precedent which protects our liberty. I dissent.

Johnson, J., concurs with Sanders, J.

4 We require the police to get the consent of each present occupant because present occupants possess the highest degree of privacy from state intrusion. This is so because in the case of a present occupant there is a confluence of both privacy of presence (i.e., they are present) and privacy of place (i.e., they are in legal possession of the premises). See Lloyd L. Weinreb, Generalities of the Fourth Amendment, 42 U. Chi. L. Rev. 47, 63 (1974).

5 See also Gregory S. Fisher, Search and Seizure, Third-Party Consent: Rethinking Police Conduct and the Fourth Amendment, 66 Wash. L. Rev. 189, 207 (1991) ("Leach was correctly decided because the police needlessly circumvented the warrant clause. The government has no justifiable purpose for relying on third parties’ consent when a warrant can be secured.”); Lloyd L. Weinreb, Generalities of the Fourth Amendment, supra, at 57 (“When a search pursuant to a warrant would be constitutional, a warrant can almost always be obtained. The wise course for the police is not to rely on the consent of a private person unless they must. When the police do rely on consent, either (1) they could not have obtained a warrant because a constitutional requirement like probable cause was not met; or (2) they could have obtained a warrant but did not; or (3) the constitutional requirements were met, but the police could not obtain a warrant for other reasons, such as the unavailability of a magistrate. In the first two situations, the courts should place a heavy burden of proving consent on the police.”).