v. Peluso

 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2021 CO 16Supreme Court Case No. 20SA316
Interlocutory Appeal from the District Court
El Paso County District Court Case No. 19CR1819
Honorable Marcus Henson, Judge
________________________________________________________________________
Plaintiff-Appellant:
The People of the State of Colorado,
v.
Defendant-Appellee:
Aaron Peluso.
________________________________________________________________________
Order Reversed
en banc
March 8, 2021
________________________________________________________________________
Attorneys for Plaintiff-Appellant:
Daniel H. May, District Attorney, Fourth Judicial District
David Illingworth, Deputy District Attorney
Doyle Baker, Senior Deputy District Attorney
Colorado Springs, Colorado
Attorney for Defendant-Appellee:
Earl W. Cook, Jr.
Colorado Springs, Colorado
JUSTICE HART delivered the Opinion of the Court.
¶1 In this interlocutory appeal, we review the trial court’s order suppressing
evidence of drugs discovered during a warrantless search of Aaron Peluso’s
residence. Because the officers acted on a reasonable belief that Peluso’s girlfriend
had authority to consent to the search, we conclude that the trial court erred in
suppressing the evidence. We therefore reverse the trial court’s suppression order
and remand for further proceedings.
I. Facts and Procedural History
¶2 On March 23, 2019, several parole officers approached a home that they
believed was the residence of Susan Damico. Damico was a parolee whose parole
agreement allowed officers to search “her person, residence, and/or vehicle”
without a warrant as a condition of parole. About a month before the search,
Damico informed her parole officer, Brook Hathaway, that she would be moving
from the apartment she lived in at that time. On March 9, 2019, Damico updated
C-WISE, a call center and database used to monitor and communicate with
parolees, to indicate that her new residence was Peluso’s home.
¶3 When the officers arrived at the home, they found Damico in the front yard
getting into her car. The officers identified themselves, informed Damico that they
were conducting a parole visit, obtained a house key from her, and asked whether
there was anyone inside the home. Damico told the officers that Peluso was inside
in bed. While the other officers entered the home, Hathaway remained outside
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with Damico for several minutes. Damico did not say at any point during her
interactions with the officers that the home they were searching was not her legal
residence.
¶4 The officers who first entered the home found Peluso in bed and informed
him of the purpose of their visit. After Peluso got dressed and out of bed, officers
searched the room and found methamphetamine, THC, glass pipes, rolling papers,
and a digital scale. Officers arrested Peluso and then searched his wallet, which
contained additional methamphetamine. During the drive to the El Paso County
Jail, Peluso told officers that he had been using methamphetamine.
¶5 Peluso was subsequently charged with possession of a controlled substance
and possession of drug paraphernalia. He filed a motion to suppress both the
evidence recovered from his home and the statements he made after his arrest,
arguing that the warrantless search of his home violated his Fourth Amendment
rights.
¶6 At the suppression hearing, Hathaway explained that he believed Damico
was a co-habitant of Peluso’s home and that officers therefore had authority to
search the home pursuant to Damico’s parole agreement for three reasons. First,
he had met Peluso with Damico and knew they were romantically involved.
Second, Damico had told him that she was moving and had updated her address
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on C-WISE. Finally, Damico gave no indication at the time of the search that she
was not living at the home.
¶7 Damico testified at the hearing that she did not formally move into Peluso’s
residence until the end of April—several weeks after the search. She
acknowledged, however, that she stayed with Peluso from time to time (including
the day of the search), had a key to the residence, and kept some of her belongings
there.
¶8 The trial court issued an oral ruling granting the motion to suppress,
concluding that Damico did not actually live at Peluso’s home at the time of the
search and that Hathaway could have done more to verify her address, rather than
accepting her update in C-WISE as dispositive. The court further found that there
was insufficient evidence to determine whether Peluso might have objected to the
search once the officers entered his home. The People moved for reconsideration,
arguing that the court incorrectly analyzed Damico’s actual, not apparent,
authority to consent to the search. The trial court denied the People’s motion, and
the People filed this interlocutory appeal pursuant to C.A.R. 4.1.
II. Analysis
¶9 In their interlocutory appeal, the People ask that we reverse the trial court’s
suppression of the drugs, paraphernalia, and incriminating statements. They
argue that the officers reasonably believed that Peluso’s home was Damico’s new
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residence, and therefore she had apparent authority to allow the search. Further,
they note that there is no evidence that Peluso objected to the search and that, in
any event, once the search had lawfully commenced, his objection could not
render it unlawful. We agree and reverse the trial court’s suppression order.
A. Standard of Review
¶10 Review of a trial court’s suppression order presents “a mixed question of
law and fact.” People v. Allen, 2019 CO 88, ¶ 13, 450 P.3d 724, 728 (quoting People v.
Threlkel, 2019 CO 18, ¶ 15, 438 P.3d 722, 727). We defer to the trial court’s findings
of fact “if they are supported by competent evidence in the record.” Id. However,
we review the trial court’s legal conclusions de novo. Id.B. Law
¶11 The Fourth Amendment prohibits unreasonable searches and seizures. U.S.
Const. amend. IV. Although a warrant is generally required to search a home,
“certain categories of permissible warrantless searches have long been
recognized.” Fernandez v. California, 571 U.S. 292, 298 (2014).
¶12 One such category is the search of a parolee. Samson v. California, 547 U.S.
843, 846 (2006); People v. McCullough, 6 P.3d 774, 779 (Colo. 2000). “Conditional
release on parole operates as an extension of a person’s confinement intended to
facilitate reintegration with society, as opposed to an unconditional release
accompanied by full restoration of the person’s civil rights.” In re Miranda,
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2012 CO 69, ¶ 13, 289 P.3d 957, 961. As such, Colorado law allows for the
unannounced, warrantless search of a parolee’s “person, residence, or vehicle.”
§ 17-2-201(5)(f)(I)(D), C.R.S. (2020).
¶13 Consent searches are also constitutionally permissible without a warrant.
Fernandez, 571 U.S. at 298. Where a residence is jointly occupied by more than one
person, the consent of one occupant with common authority over the premises is
sufficient to permit a warrantless search. United States v. Matlock, 415 U.S. 164, 171
(1974). Cohabitants are considered to have common authority where there is
“mutual use of the property by persons generally having joint access or control for
most purposes.” Id. at 171 n.7.
¶14 A warrantless search is also valid based upon the consent of a third party
whom officers, at the time of the entry, reasonably believe to possess common
authority over the premises, even if the person in fact does not. Illinois v. Rodriguez,
497 U.S. 177, 179, 186 (1990). “An apparent authority analysis begins by conceding
that the consent obtained by police is legally invalid because the consenting third
party lacks sufficient authority over the property to consent to a search.”
Petersen v. People, 939 P.2d 824, 830 (Colo. 1997). Searches under this doctrine are
nonetheless valid where officers acting in good faith make reasonable mistakes of
fact. Id. at 830–31. The test for reasonableness is an objective one: “the facts
available to the officer at the moment” must be such that a person “‘of reasonable
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caution’ . . . [would believe] that the consenting party had authority over the
premises[.]” Rodriguez, 497 U.S. at 188 (quoting Terry v. Ohio, 392 U.S. 1, 21–22
(1968)). If officers reasonably believe that a third party has common authority over
a residence, that third party’s apparent authority suffices to validate a warrantless
search. Williams v. People, 2019 CO 108, ¶ 21, 455 P.3d 347, 351 (citing Rodriguez,
497 U.S. at 183–84, 189).
¶15 Although consent by one resident of a jointly occupied premises is generally
sufficient to justify a warrantless search, a narrow exception exists where a
physically present inhabitant expressly refuses consent to the police search—that
express refusal is “dispositive as to him, regardless of the consent of a fellow
occupant.” Georgia v. Randolph, 547 U.S. 103, 122–23 (2006). However, this
exception applies only if the objecting occupant is both physically present and
objects at the time the consenting occupant authorizes the search. Williams, ¶ 35,
455 P.3d at 354 (citing Fernandez, 571 U.S. at 306).
C. Application
¶16 The parties do not dispute that Damico’s parole agreement gave her parole
officer permission to search her residence. Nor do they dispute that Damico was
not actually living at Peluso’s home at the time of the search. The central disputed
question is whether the parole officers reasonably believed that Damico was living
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in the home such that they could conduct a search pursuant to the terms of her
parole agreement.
¶17 The trial court concluded that there was insufficient evidence that parole
officers reasonably believed Damico had authority to consent to a search of
Peluso’s residence. We disagree. The undisputed facts available to parole officers
at the moment they arrived at Peluso’s residence warranted their belief that
Damico possessed common authority over the premises, such that her apparent
authority sufficed to validate the warrantless search.
¶18 On March 23, 2019, when officers encountered Damico in front of Peluso’s
residence, they knew the following undisputed facts:
• Damico was a parolee subject to warrantless searches of her residence;
• Damico and Peluso were in a romantic relationship;
• during a search of her apartment on February 19, 2019, Damico informed
her parole officer of an impending move;
• on March 9, 2019, Damico updated her address to Peluso’s address on
C-WISE;
• Damico was in possession of a key to the residence; and
• Damico neither objected to the search nor clarified that she did not yet
live with Peluso.
On these facts, the officers reasonably believed that Damico resided with Peluso
at the time of the search. This reasonable belief was further confirmed when, in
response to an officer’s question about whether there were others inside the house,
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Damico responded that Peluso was in bed, indicating her use of and access to the
property.
¶19 The trial court’s suppression order also rested on what the court described
as a lack of evidence as to whether Peluso might have objected to the search. But
the trial court’s focus on Peluso’s hypothetical objection was inappropriate for two
reasons. First, Peluso has not argued, either at the hearing or here, that he objected
to the search. Rather, Peluso argues that he was not given the opportunity to
object. But once the officers reasonably believed they were searching Damico’s
residence pursuant to the terms of her parole agreement, there was no reason to
give Peluso an opportunity to object. Second, even if Peluso had objected to the
search at the time officers entered his bedroom, it would have been too late to
vitiate Damico’s previously given consent. See Williams, ¶ 3, 455 P.3d at 348.
Because Peluso was asleep in his bedroom and concedes that the search had
already commenced when officers first made contact with him, he “los[t] out” on
the opportunity to make an effective objection. Randolph, 547 U.S. at 121; see also
Williams, ¶ 42, 455 P.3d at 355.
III. Conclusion
¶20 Because parole officers reasonably believed Damico had authority to
consent to a search of Peluso’s residence, her apparent authority was sufficient to
validate the warrantless search, and Peluso’s motion to suppress should have been
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denied. Accordingly, we reverse the trial court’s suppression order and remand
for further proceedings consistent with this opinion.
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