State v. Walker

Alexander, J.

The only issue before us is whether the trial court wrongly denied Ellen Walker’s (Ellen) motion to suppress evidence obtained in a search of her home to which she voluntarily consented. The Court of Appeals held that the trial court erred in not granting her motion for the reason that Ellen’s spouse, who was also present at their home at the time of the search, did not also consent to the search. We disagree with that conclusion and hold that the failure of the police to obtain the consent of Ellen’s husband did not vitiate the search as to Ellen. We, therefore, reverse the Court of Appeals and affirm Ellen’s conviction.

Ellen’s 12-year-old nephew was caught at Hoquiam Middle School with a bag of marijuana. Following a telephone call by school authorities to the Hoquiam Police Department, a police officer was dispatched to the school. The investigating officer, Steve Hierholzer, was told by Ellen’s nephew that he lived with Ellen and her husband, that he had obtained the marijuana from their home and that “there was more there at the residence.” Verbatim Report of Proceedings at 9. After the boy was arrested and taken to the Hoquiam Police Department, Ellen was called at her place of work and asked to come to the police station. Upon her arrival, Hierholzer and another officer informed her that they thought they had probable cause to obtain a search warrant authorizing a search of her home. They explained that an alternative for Ellen was to consent to a limited search of her home. Ellen then signed a permission to search form that was presented to her by the officers. It provided as follows:

PERMISSION TO SEARCH

I, Ellen J. Walker 7-1-62, have been informed by Detective Blodgett and Officer Hierholzer who made proper identification as (an) authorized law enforcement officer(s) of the Hoquiam Police Department of my CONSTITUTIONAL RIGHT not to have a search made of the premises and property owned by me and/or under my care, custody and control, without a search warrant.

Knowing of my lawful right to refuse to consent to such a search, I willingly give my permission to the above named officer(s) to conduct a complete search of the premises and property, including all buildings and vehicles, both inside and outside of the property located at [property address].

The above said officer(s) further have my permission to take from my premises and property, any letters, papers, materials or any other property or things which they desire as evidence for criminal prosecution in the case or cases under investigation.

This written permission to search without a search warrant is given by me to the above officer(s) voluntarily without any threats or promises of any kind, at 2:30 p.m. on this 1 day of February 1995, at HQPD ....

/s/ Ellen Walker

Pl.’s Ex. 1.

The police officers then drove Ellen to her home. Shortly after they arrived at her house but prior to entering it, Ellen’s husband, Gus Walker (Gus), arrived at the premises. Without speaking to Gus, Ellen led Officer Hierholzer to a bedroom she shared with Gus. She then retrieved a bag of marijuana from a closet and handed it to him. Hierholzer then searched the closet himself and found another bag of marijuana.

While the search was being conducted, another officer, Detective Blodgett, informed Gus that Ellen had given them permission to search the home. Although Gus was not asked to consent to a search of the house, he did not voice any objection to the officer’s activities. Gus later gave his oral consent to a search of the garage, but no evidence was seized there.

The State charged Ellen and Gus Walker separately with possession of marijuana in excess of 40 grams. RCW 69.50.401. Shortly after the charges were filed, the cases were consolidated for purposes of trial. The defendants then filed a joint motion to suppress the marijuana obtained in the search of their bedroom. Following a hearing on their motion, the trial court entered findings of fact and concluded, therefrom, that although Ellen had voluntarily consented to the search of the house, Gus had not. Consequently, it granted Gus’s suppression motion and dismissed the charge against him. It denied Ellen’s motion. At a bench trial, Ellen was found guilty of the charge.

The State appealed the trial court’s order granting Gus’s motion. Ellen appealed the order denying her motion. The Court of Appeals affirmed suppression of the evidence in the case against Gus, but reversed the trial court’s order denying Ellen’s motion to suppress and remanded with directions to dismiss the charge against her. State v. Walker, 86 Wn. App. 857, 941 P.2d 1 (1997), review granted, 134 Wn.2d 1006, 954 P.2d 278 (1998). The State sought review of the latter decision contending that the Court of Appeals erred in concluding that the written consent to search that was signed by Ellen and given to the Hoquiam police officers was vitiated by the failure of the police to seek and obtain the consent of her husband who was present at the home at the time it was searched. We granted review.

Warrantless searches are per se unreasonable unless they fall within an established and well-delineated exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Jacobsen v. City of Seattle, 98 Wn.2d 668, 672, 658 P.2d 653 (1983). One of the exceptions to the warrant requirement is consent to a search. State v. Leach, 113 Wn.2d 735, 738, 782 P.2d 1035 (1989). The burden, however, is on the State to show that a consent to search was voluntarily given. State v. Shoemaker, 85 Wn.2d 207, 210, 533 P.2d 123 (1975). The State must meet three requirements in order to show that a warrantless but consensual search was valid: (1) the consent must be voluntary; (2) the person granting consent must have authority to consent; and (3) the search must not exceed the scope of the consent. State v. Nedergard, 51 Wn. App. 304, 308, 753 P.2d 526, review denied, 111 Wn.2d 1007 (1988); see also Robert F. Utter, Survey of Washington Search and Seizure Law, 9 U. Puget Sound L. Rev. 1, 112 (1985).

The second factor, whether the person granting consent had authority to do so, is the only issue that is in contention here.¹ Clearly, as a cohabitant with common authority over the premises, Ellen had authority to consent to the search and that consent was valid as against an absent, nonconsenting person with whom that authority was shared. United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). The more pertinent question and the one before us is whether her authority to consent to a search evaporated when her cohabitant, Gus, arrived at the premises just before the search was conducted.

The State contended in its petition for review and in argument to this court that the Court of Appeals incorrectly concluded that a consent to search given by an inhabitant of a dwelling is vitiated by the failure of the police to obtain the consent of any cohabitant who was present at the time the consent was obtained. In concluding that the failure of the Hoquiam police to obtain Gus’s consent to the search essentially vetoed Ellen’s otherwise voluntary consent, the Court of Appeals purported to rely on our decision in Leach. In Leach, the police obtained consent to search from the defendant’s girl friend who had equal control over the business premises where the search was conducted. The record showed that when the officers arrived at the place to be searched (a travel agency), the defendant, Leach, was present. The officers arrested and handcuffed Leach and placed him in a chair while they conducted the search of the premises. When Leach was charged, he moved to suppress the evidence seized in the search, arguing that he had not consented to the search. The trial court denied his motion. On review, the Court of Appeals concluded that the search was invalid, absent Leach’s consent to it, and it remanded for an evidentiary hearing to determine if he had consented. This court affirmed the Court of Appeals in Leach, concluding that while a person with equal control of a premise may consent to a search in the absence of the defendant, “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.

We can understand how this quote from Leach, when viewed out of context (i.e., that the evidence obtained in the search was entered into evidence against the nonconsenting cohabitant), might give some solace to Ellen. It does not, however, avail her here because Leach does not stand for the proposition advanced by Ellen. Rather, the case supports the proposition that “[wjhere 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.” Leach, 113 Wn.2d at 744 (emphasis added). It follows from that opinion that because Ellen and Gus were cohabitants and both present during the search, Ellen’s consent to the search was invalid as to Gus. Indeed the Court of Appeals so ruled in the State’s appeal from the trial court’s order granting Gus’s suppression motion and the State did not seek review of that decision here.

The dissent asserts that this court squarely answered the question at issue here when we stated in Leach that the police must obtain the consent of a cohabitant who is present in order to effect a valid warrantless search. Dissent at 688. The dissent contends that this means that since the Hoquiam Police failed to obtain Gus’s consent to the search, it was invalid as to Ellen. Dissent at 688. This conclusion misconstrues our holding in Leach. We did not, as the dissent suggests, state there that a search is invalid as to the person who gave consent, if that person’s cohabitant did not consent to the search or merely kept silent.² It does not follow, therefore, that the officers’ failure to ask Gus to consent to the search makes Ellen’s consent invalid as to her.

We believe, in short, that the Court of Appeals incorrectly extended our holding in Leach when it concluded that a cohabitant who is present at the time a search is conducted may revoke the other cohabitant’s voluntary waiver of his or her Fourth Amendment rights. Such a holding, as we have noted, misinterprets Leach and flies in the face of settled law that Fourth Amendment rights are personal rights that cannot be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). We agree, in that regard, with the view expressed by the Court of Appeals in State v. Jones, 68 Wn. App. 843, 847, 845 P.2d 1358, review denied, 122 Wn.2d 1018, 863 P.2d 1352 (1993), that “one cannot invoke the Fourth Amendment rights of others.”

Although we recognize that the Court of Appeals expressed concern that by failing to ask for Gus’s permission to search, the police officers denied Ellen an opportunity to revoke her consent based on his response, we believe that view is somewhat patronizing toward Ellen. We should not presume, as did the Court of Appeals, that Ellen would defer to Gus’s lack of consent, particularly in light of this record which reveals that Ellen voluntarily signed a consent to search form that fully informed her of her right not to consent to the search. It also discloses that Ellen knew that Gus was at their home when the search was conducted. She did not, however, endeavor to speak to him before taking the police officers to the closet where the controlled substance was found. While we hesitate to draw any conclusions about what Ellen was thinking at that time, it is logical to presume that she felt capable of making up her own mind about whether or not to consent to the search. Although Ellen clearly had rights of privacy under the Fourth Amendment that deserved to be respected, her decision to give up those rights should also be respected.

Ellen’s counsel engaged in a Gunwall³ analysis in the brief he presented to the Court of Appeals in support of his argument that Ellen was entitled to heightened protection under article I, section 7 of our state constitution. This argument overlooks our decision in State v. Mathe, 102 Wn.2d 537, 688 P.2d 859 (1984), in which we specifically adopted the federal test for consent that is set forth in Matlock. In any case, article I, section 7 provides only that one’s private affairs not be disturbed and that a person’s home not be invaded without authority of law. Although the Hoquiam police officers were not armed with a search warrant, they had Ellen’s freely-given permission to search her home and she cannot be heard to complain, now, that the search was unlawful as to her or that her privacy was disturbed.

CONCLUSION

In our judgment, the Court of Appeals extended our holding in Leach to an extent we did not intend. While our decision in Leach supports the notion that one’s otherwise voluntary consent to a search is not valid as against a cohabitant of the premises who is present when the search is conducted, it does not support the view that this consent is not valid as against the consenting person.

The Court of Appeals is reversed and Ellen Walker’s conviction is affirmed.

Durham, C.J., and Dolliver, Smith, Guy, Madsen, and Talmadge, JJ., concur.

1 Ellen contended at the Court of Appeals that she did not knowingly and voluntarily consent to the search. She also assigned error to certain of the trial court’s findings of fact. Although the Court of Appeals held that Ellen consented to the search, it did not address her challenge to the trial court’s findings. She did not, however, seek review of the Court of Appeals’ decision, nor did she present a brief in response to the State’s petition for review. We, therefore, have limited our decision to the issue raised in the State’s petition.

2 The dissent alleges that “[m]ost 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).” Dissent at 690. This assertion is arguable. See United States v. Donlin, 982 F.2d 31, 33 (1st Cir. 1992) (“Valid consent may be given by a defendant or a third party with ‘common authority’ over the premises. Third party consent remains valid even when the defendant specifically objects to it.”) (citation omitted); United States v. Childs, 944 F.2d 491, 495 (9th Cir. 1991) (holding “the valid consent of a person with common authority will justify the search of a residence even if the co-occupant is physically present”) (emphasis added); United States v. Hendrix, 595 F.2d 883, 885 (D.C. Cir. 1979) (upholding the validity of a warrantless search where the defendant was present and did not consent, but his wife did consent, because the rule developed in Mat-lock did not depend on the defendant’s absence); People v. Sanders, 904 P.2d 1311, 1313 (Colo. 1995) (“The valid consent of a person with ‘common authority’ will justify a warrantless search of a residence despite the physical presence of a nonconsenting co-occupant.”); State v. Frame, 45 Or. App. 723, 609 P.2d 830, 833 (1980) (holding that the consent to search given by the defendant’s wife and cohabitant was an effective consent because it was consistent with the rationale set forth in United States v. Matlock); 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.3(d), at 730-32 (3d ed. 1996) (highlighting the disagreement in this area).

3 State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986).