People v. Fuerst , 302 P.3d 253 ( 2013 )

JUSTICE RICE

delivered the Opinion of the Court.

[ 1 In this suppression ease, we hold that Respondent Kim Maurice Fuerst's decision to silently remain behind a locked door inside his home did not constitute an express refusal of consent to a police search. Therefore, Fuerst's wife's free and voluntary consent to the search of the couple's home was valid as to Fuerst. We accordingly reverse the order of the trial court granting Fuerst's motion to suppress evidence obtained during the search.

I. Facts and Procedural History

12 Police arrived at the Fuerst residence on September 10, 2011, in response to a possible protection order violation. Two officers knocked on the front door of the home and received no reply. Believing someone was inside, one of the officers called Fuerst's wife on the phone and asked her to answer the door. Fuerst's wife cooperated with the request, stepped out onto the porch, and informed the police that Fuerst was indeed inside.

1 3 One of the officers then asked Fuerst's wife if the police could enter the residence. Fuerst's wife consented, led the officers inside, and indicated that Fuerst was in a bedroom with the door closed. The officers found the bedroom door locked, but managed to unlock it and go inside. Nothing in the record indicates that Fuerst expressly objected to this entry-or that Fuerst said anything-while the officers unlocked the door.

T4 The officers entered the bedroom and found Fuerst awake, sitting on the floor, and in the company of numerous firearms. Aware of Fuerst's potential protection order violation, the officers detained Fuerst and removed him from the residence. The officers later learned that Fuerst was a conviet-ed felon. The State charged Fuerst with four counts of Possession of a Weapon by a Previous Offender and three counts of Violation of Protection Order. The case was scheduled for trial.

5 Prior to trial, Fuerst filed a motion to suppress any evidence, observations, or statements obtained as a result of the officers' search of his residence on the grounds that the warrantless search violated Fuerst's rights under the Fourth Amendment of the United States Constitution and its equivalent in the Colorado Constitution.

T6 The trial court granted Fuerst's motion. It found that Fuerst was a co-occupant of the residence, was physically present when the officers entered, and "refused to permit entry into the bedroom by remaining behind a locked door." The trial court reasoned that this "refusal to permit entry into the bedroom" prevailed over Fuerst's wife's valid consent to enter and search the residence. The trial court therefore found that the officer's search of the bedroom was "unreasonable and invalid as to [Fuerst]."

T7 The People petition this Court for interlocutory review of the trial court's order pursuant to C.A.R. 4.1 and section 16-12-102(2), CRS. (2012). We now consider whether the trial court erred in concluding that Fuerst's decision to silently remain behind a locked door constituted a refusal of consent sufficient to prevail over the undis-putedly valid consent granted by Fuerst's wife.

HI. Analysis

18 Fuerst's decision to silently remain behind a locked door inside his home did not constitute an express refusal of consent to a police search. Therefore, Fuerst's wife's free and voluntary consent to the search of the residence was valid as to Fuerst.

T9 After describing the applicable standard of review, we discuss the Fourth Amendment principles that apply when police search a home with multiple tenants. Applying the law to the facts of this case, we hold that Fuerst's wife's free and voluntary consent was valid as to Fuerst because Fuerst did not expressly refuse to consent to the police search of the couple's home.

A. Standard of Review

YT10 In reviewing the trial court's suppression order, we defer to "the trial court's findings of historical fact and do not disturb those findings if they are supported by competent evidence in the record." People v. Castaneda, 249 P.3d 1119, 1122 (Colo.2011) (citing People v. McClain, 149 P.3d 787, 789 (Colo.2007)). We review the trial court's application of law, however, de novo. Id. (citing People v. Syrie, 101 P.3d 219, 222 (Colo.2004)).

B. Consent to Search a Residence with Multiple Tenants

111 The United States and Colorado Constitutions protect individuals from unreasonable searches and seizures of their homes. U.S. Const. amend. IV; Colo. Const. art. II, § 7. A warrantless search of a home by the police is presumptively unreasonable. People v. Winpigler, 8 P.3d 439, 443 (Colo.1999); see Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). "To overcome this presumption, the prosecution has the burden of establishing that the war-rantless search is ... justified under one of the narrowly defined exceptions to the warrant requirement." Winpigler, 8 P.3d at 443 (citation omitted). A search conducted pursuant to the free and voluntary consent given by a person with "common authority" over the premises constitutes one such exception. People v. Strimple, 2012 CO 1, ¶ 20, 267 P.3d 1219, 1223.

112 It follows that in home search cases involving more than one tenant, "the voluntary consent of any joint occupant of a residence to search the premises ... is valid against the co-occupant, permitting evidence discovered in the search to be used against [the co-occupant] at a criminal trial." United States v. Matlock, 415 U.S. 164, 169, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). If one co-tenant is not at home during the search, "the consent of one who possesses common authority over [the] premises ... is valid as against the absent, nonconsenting person with whom that authority is shared." Id. at 170, 94 S.Ct. 988.

113 In contrast, " 'a physically present inhabitant's express refusal of consent' prevails, regardless of the consent of the fellow occupant, and a search in spite of the objection is unreasonable under the Fourth Amendment." Strimple, 2012 CO 1, ¶ 25, 267 P.3d at 1224 (citing Georgia v. Randolph, 547 U.S. 103, 122-23, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006)) (emphasis added). If, however, a potentially objecting co-tenant is "nearby but not invited to take part in the threshold colloquy" regarding consent to search the premises, the potentially objecting co-tenant "loses out" and the present co-tenant's affirmative consent to the search controls. Randolph, 547 U.S. at 121, 126 S.Ct. 1515. Holding otherwise would "needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field" and would cause every co-tenant consent case "to turn into a test about the adequacy of the police's efforts to consult with a potential objector." Id. at 122, 126 S.Ct. 1515. We now assess the instant case within this legal framework.

C. Application

$14 Fuerst's wife's free and voluntary consent to the police search of the residence was valid as to Fuerst because he did not expressly refuse to consent. The parties do not dispute, and the trial court found as a matter of fact, that the officers conducted the search pursuant to the free and voluntary consent given by a person with common authority over the premises, Fuerst's wife. See Strimple, 2012 CO 1, ¶ 20, 267 P.3d at 1223. Because Fuerst and his wife were co-tenants, Fuerst's wife's voluntary consent to search the premises was valid as to Fuerst so long as Fuerst did not expressly refuse to consent. See Matlock, 415 U.S. at 169-70, 94 S.Ct. 988; Strimple, 2012 CO 1, ¶ 25, 267 P.3d at 1224 (citing Randolph, 547 U.S. at 122-23, 126 S.Ct. 1515).

115 Although Fuerst was in the home during the search and might have had incentive to object to the officers' actions, Fuerst did not expressly refuse to consent. See Strimple, 2012 CO 1, ¶¶ 25-26, 267 P.3d at 1224. We reject the trial court's conclusion of law that Fuerst's silence behind the locked bedroom door constituted an express refusal of consent for several reasons. First, although Fuerst's wife indicated that Fuerst was inside the locked bedroom, the officers did not actually know whether Fuerst was behind that door at the time of the search. Fuerst, for example, might have jumped out the window when he heard police enter the house, or his wife might have been covering for him while he hid in another room. Second, had the officers correctly believed that Fuerst was inside the bedroom, Fuerst's silence could have resulted from him being asleep or unconscious; it did not necessarily indicate an express refusal to consent to the search.

[16 By remaining silent behind a locked bedroom door, Fuerst was more like an absent co-tenant who, even if nearby when his co-tenant consents to a police search, "loses out" on his opportunity to refuse consent. See Randolph, 547 U.S. at 121, 126 S.Ct. 1515; see also Matlock, 415 U.S. at 170, 94 S.Ct. 988. Just as the United States Supreme Court reasoned in Randolph, interpreting Fuerst's silence in the locked bedroom-in hindsight-as an express refusal of consent would "needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field" and would cause every co-tenant consent case "to turn into a test about the adequacy of the police's efforts to consult with a potential objector." Randolph, 547 U.S. at 122, 126 S.Ct. 1515; see Strimple, 2012 CO 1, ¶ 40, 267 P.3d at 1226 (holding that police officers were under no obligation to contact an absent co-tenant and obtain his consent to search the home after obtaining the absent co-tenant's wife's consent). We decline to adopt such an unnecessary rule. Accordingly, we hold that Fuerst did not expressly refuse to consent to the police search and, therefore, his wife's consent to the search was valid as to Fuerst.

III. Conclusion

I 17 Fuerst's wife's free and voluntary consent to search the residence was valid as to her co-tenant, Fuerst. Fuerst's silence behind the locked bedroom door did not constitute an express refusal of consent. We therefore reverse the trial court's order suppressing the evidence police obtained during the search of the Fuerst residence on September 10, 2011, and remand for further proceedings consistent with this opinion.

1 18 JUSTICE HOBBS concurs in the judgment only, and JUSTICE EID and JUSTICE COATS join in the concurrence in the judgment only.