Summary
explaining that Delaware's consent exception is generally narrow and doesn't recognize a good faith exception to its Constitutional search warrant requirement (citing Dorsey v. State, 761 A.2d 807, 819-20 (Del. 2000))
Summary of this case from State v. HolmesOpinion
ID No. 0307010804.
Suppression Hearing Held: October 17, 2003. Submitted: November 7, 2003.
Decided: January 20, 2004.
Upon Defendant's Motion to Supress Evidence — GRANTED
Prothonotary (Criminal Division).
Cynthia Kelsey, Esquire, Department of Justice, Deputy Attorney General.
Eugene J. Maurer, Jr., Esquire, Attorney for Defendant.
OPINION and ORDER
This decides Defendant's motion to suppress drug contraband found in his bedroom. A police officer seized the evidence after Defendant's ex-girlfriend invited the officer along to retrieve personal belongings she left in the bedroom two weeks earlier, when she and Defendant broke up. Even though the ex-girlfriend actually lacked it, she appeared to have authority to consent to the search. Sometimes, mere apparent authority to consent satisfies federal notions of reasonableness. Therefore, under federal Fourth Amendment analysis the evidence would be admissible. The question presented here is whether the search also meets Delaware's Constitutional standards: is a search valid if, instead of relying on consent from someone with authority, the police rely on consent from someone who merely appears to have authority?
As discussed below, in most cases Delaware's Constitution and the United States Constitution are in lockstep. It is settled, however, that in contrast to federal law, Delaware does not recognize a good faith exception to its Constitution's search warrant requirement. Thus, the court must now decide whether Delaware's consent exception to the warrant requirement also differs from the federal consent exception. Applying the rationale used to reject the good faith exception in Delaware, the court concludes that Delaware's consent exception also is narrow. That means, as a matter of Delaware law, the search of Defendant's bedroom was unlawful and the evidence seized there is inadmissible.
Cf. State v. Fortt, 1999 WL 1228676, at *1 (Del.Super.) (State and federal Constitutions not mirror images); Sanders v. State, 585 A.2d 117, 145 (Del. 1990) (Delaware and United States Constitutions do not always mean exactly the same thing).
See Dorsey v. State, 761 A.2d 807 (Del. 2000).
I.
Although the State and Defendant were unable to stipulate to them, the parties see the facts almost identically. On July 8, 2003, Defendant and his mother, Bernadette Matusky, were arrested and charged with felonies against Defendant's ex-girlfriend, Shauna Holbrook. That case's details are not important here. What matters is that when he was arrested, Defendant lived in Matusky's home, occupying a bedroom on the second floor. The room was Defendant's private area, although he had shared it with Holbrook for two years.
Approximately two weeks before the events leading to his arrest, Holbrook stopped living with Defendant. When she vacated Defendant's bedroom, Holbrook left behind clothing and personal effects. Holbrook continued to receive mail at the Matusky residence. But until she returned with the police on the day after Defendant's arrest, Holbrook had not reentered the bedroom.
On July 9, 2003, while Defendant and Matusky were held in default of bail, Matusky's boyfriend, Franklin Devonshire, was acting as Matusky's house sitter. Holbrook returned to Matusky's house that day to collect her things. A New Castle County police officer accompanied Holbrook. With Defendant and his mother behind bars, it is unclear why Holbrook needed police escort. Anyway, the officer knew that Holbrook had broken up with Defendant, that Defendant was in custody, and that Holbrook was no longer living in Matusky's house.
Upon Holbrook's and her escort's arrival, Franklin's sister, Kelly Devonshire, answered the door. Kelly was there while Franklin was posting bail for Defendant and Matusky. Kelly warmly hugged Holbrook when the two saw each other. Kelly then told Holbrook that she had just done laundry and some of Holbrook's clean clothes were in the basement. The officer told Kelly they were there so Holbrook could pick up her belongings and that they would have to enter. The parties disagree about whether Kelly allowed them in. It is undisputed, however, that Kelly did not protest. Holbrook and the officer went immediately to the second floor bedroom. Once inside the room, the officer saw drugs and drug paraphernalia in plain view. That observation, coupled with information then provided by Holbrook, led the officer to more contraband The officer's discoveries, of course, precipitated the charges at issue here.
The State tacitly concedes, as it must, that although the police officer did not set out to conduct a search, his entering Defendant's bedroom and making observations there amounted to a search. And the search immediately led to the contraband's seizure. Defendant contends that the search and seizure were illegal because neither Holbrook nor Kelly was authorized to allow anyone, especially Holbrook's police escort, to enter his bedroom. The State counters that as the current house sitter, Kelly was able to allow visitors into the house, and Holbrook, through her common authority, was authorized to consent to the officer's entering the bedroom.
See People v. Harfmann, 555 P.2d 187, 189 (Colo.Ct.App. 1976) (citations omitted) ("a visual observation which infringes upon a person's reasonable expectation of privacy constitutes a search").
II. A. Third Party, Actual and Apparent Authority to Consent to a Search
Both the United States and Delaware Constitutions protect people from "unreasonable searches and seizures." "Searches and seizures are per se unreasonable, in the absence of exigent circumstances, unless authorized by a warrant supported by probable cause." One well-recognized exception to the warrant requirement is for searches conducted pursuant to valid consent. Moreover, a qualified third party can also consent to a search. Generally, actual third party authority to consent is established by possession and equal or greater control, vis-a-vis the owner, of the area searched. Specifically, one who possesses common authority over property may validly consent as against an absent, non-consenting person with whom the authority is shared. Whether a third party possesses authority over searched premises has been called a fact question.
U.S. CONST. amend. IV; Del. Const. art. I, § 6.
Scott v. State, 672 A.2d 550, 552 (Del. 1996) (citing Hanna v. State, 591 A.2d 158, 162 (Del. 1991)).
DEL. CODE ANN. tit. 11 Del. C. § 2301 (2001); Scott, 672 A.2d at 552 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 221-22 (1973)).
Scott, 672 A.2d at 552 (citations omitted).
United States v. Matlock, 415 U.S. 164, 170 (1974).
DeShields v. State, 534 A.2d 630, 643 (Del. 1987) (citing People v. Seidel, 449 N.E.2d 1384, 1386 (Ill.App.Ct. 1983)).
Common authority, as explained in United States v. Matlock, rests on:
[m]utual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
Matlock's definition of common authority is anchored in the Fourth Amendment's bedrock concern about protecting citizens' reasonable expectations of privacy. The idea is that by sharing authority over a place, co-inhabitants have diminished expectations of privacy in it. And the lower their expectations of privacy are, the less the Fourth Amendment protects them.
Matlock, 415 U.S. at 172, n. 7.
Matlock, 415 U.S. at 172, n. 7.
See Katz v. United States, 389 U.S. 347, 353 (1967) ( Fourth Amendment protects people and not areas, and Amendment's scope not determined by presence or absence of physical intrusion into given enclosure).
After Matlock, it remained to be seen whether, absent actual authority, a co-inhabitant's apparent authority might be enough to meet the federal Constitution's consent exception. Finally, in 1990, Illinois v. Rodriguez addressed apparent versus actual authority as the basis for third party consent.
497 U.S. 177 (1990).
In Rodriguez, the defendant's former girlfriend lacked common authority over the property and therefore she could not consent to a search. Ed Rodriguez, Gail Fischer and Fischer's two, children had lived together in Rodriguez's apartment for eight months. Fischer was not on the lease nor did she pay rent. But Rodriguez had given her a key and she had kept her belongings there. She moved out almost a month before the search, but left behind furniture and household items. During that month, the two spent nights together at the residence and Fischer kept her key. The police came to the apartment after Rodriguez beat up Fischer and her mother called them on Fischer's behalf. Fischer accompanied the officers to the apartment, which she referred to as "ours." She then used her key to unlock the door. Although the officers entered to arrest Rodriguez, not to conduct a search, they immediately saw and seized drugs and drug paraphernalia in plain view. Rodriguez holds that Fischer's consent was invalid because she did not have common authority over the apartment. Nonetheless, the majority in Rodriguez further holds that the search still could be valid. That is because the police were acting on Fischer's apparent authority to allow the police into Defendant's apartment. And under the circumstances, their reliance on her apparent authority might be reasonable. Therefore, even if the police in Rodriguez were mistaken about Fischer's authority, the ensuing search could pass constitutional muster. Rodriguez focuses more on whether the police behaved reasonably under the circumstances confronting them, less on the legal quality of Fischer's authority, and not at all on Rodriguez's expectation of privacy.
Id. at 182.
Id. at 181.
Id. at 179.
Matlock, 497 U.S. at 180.
As for third party consent based on actual authority, Delaware and federal cases are in sync. The theoretical underpinning for the third party consent exception to the state and federal Constitutions is the same. A person who shares common authority over otherwise private space assumes the risk that the other person will allow in unwanted people. That is clear. No Delaware court, however, has considered whether Rodriguez applies under Delaware's Constitution. So, the validity of third party consent based only on apparent authority has been an open question in Delaware.
See Scott, 672 A.2d at 552.
B. Kelly's Limited Authority to Consent
As a threshold issue, the court is easily satisfied that Kelly actually had authority to allow visitors into the house, generally. Kelly was lawfully in control of Matusky's house. There is nothing in the record suggesting that she was not allowed to decide who could enter it. Moreover, there is nothing in the record suggesting that if the house's owner, Matusky, had been home she would not have allowed Holbrook through the front door.
Kelly did not, however, have Defendant's permission to allow anyone into his bedroom. Nor did she have common authority over the room. That is so even if Kelly had limited permission to enter the room for incidental purposes, such as dropping off Defendant's clean laundry. By the same token, Kelly did not have apparent authority to consent to a search of Defendant's room. She appeared to be no more than what she was, a temporary house sitter.
C. Holbrook's Authority, Actual and Apparent
The first important question, therefore, is whether Holbrook, by virtue of having lived in the bedroom and having left personal belongings there, still maintained enough dominion over the bedroom to bring a visitor into it. Or, in other words, did Holbrook have actual authority to consent to a search of Defendant's bedroom? If she did not, the court must consider the second important question: did Holbrook have apparent authority?
Factually, Rodriguez is strikingly similar to this case. Its facts are functionally indistinguishable from the facts here. Defendant and Holbrook lived together for nearly twenty-four months. Holbrook left the residence two weeks before the search, leaving personal items behind. The police did not enter Defendant's room in order to search it. In the minor ways the cases' facts vary, the State's overall position here is weaker. For example, Defendant and Holbrook did not spend nights together in the bedroom after they split up, nor did Holbrook keep a key. Moreover, the ex-girlfriend in Rodriguez held herself out to the police as having clear authority over the apartment. Here, the police new about the ongoing strife between Holbrook and Defendant. Therefore, Holbrook's authority to consent, both actual and apparent, was quite similar to but slightly less than the ex-girlfriend's in Rodriguez.
For the reasons presented in Rodriguez, it follows that Holbrook could not consent in her own right to what turned out to be the search of Defendant's bedroom. When Defendant and Holbrook were sharing the bedroom, even if it was "his," she had as much right to invite visitors to it, including the police, as Defendant had to bar their entry. And Defendant had no other reasonable expectation about that. But once Holbrook moved out of the bedroom, she no longer had a say over who could come and go. That is true even if she left some belongings there. Like Kelly, Holbrook did not have actual authority to consent.
As mentioned, if neither Kelly nor Holbrook had actual authority to consent to the bedroom's search, which they did not have, the factual analysis turns to Holbrook's apparent authority. The search in Rodriguez potentially passed muster because Rodriguez holds that even though Fischer lacked actual authority to consent, the police could rely on her apparent authority, if that reliance was reasonable.
Despite this case's slightly less favorable facts, the court is satisfied that Holbrook was like Fischer in Rodriguez. Holbrook, therefore, had apparent authority to consent. The police knew she had lived in the bedroom and her belongings remained there. When Holbrook arrived at Matusky's house the person who was there, Kelly, greeted Holbrook warmly. If Kelly did not affirmatively allow the police to enter, she did not protest. Further, the police seemingly had no reason to suspect Defendant had contraband in his bedroom. The police could have assumed that had he been there, Defendant would not have protested Holbrook's entering his room, under escort, to take her belongings. Meanwhile, the police could have believed that Defendant should have expected that Holbrook would eventually return for her things. On balance, although it is a closer question in this case, the court finds that the State has met its burden of showing that even if she did not have actual authority, Holbrook had apparent authority to enter Defendant's bedroom.
Scott, 672 A.2d at 552 (State must prove by preponderance of the evidence that consent to search valid); Ledda v. State, 564 A.2d 1125, 1128 (Del. 1989) (citing Matlock, 415 U.S. at 171) (State's burden to prove valid consent is by preponderance of the evidence).
D. The Search's Reasonableness and Defendant's Expectation of Privacy
Implicit in the finding that Holbrook had apparent authority is the corollary finding that the police officer acted reasonably when he relied on Holbrook's apparent authority and consent. This was a common domestic situation for the police. At the time, Holbrook wanted her belongings. It made sense for Holbrook to come for them when Defendant and his mother, who allegedly were plotting against Holbrook, were out of the way. Meanwhile, taking the facts as presented, the police were not interested in conducting a search and had no probable cause for one. The police seemingly were merely trying to do what the police are supposed to do, prevent trouble. So, if in hindsight other ways to handle the situation come to mind, the court nevertheless finds that the police acted reasonably here.
Finally, as to the facts, the court finds that Defendant had a reasonable expectation of privacy in his bedroom when the police searched it. Defendant should have suspected that Holbrook would come for her things eventually. It is highly unlikely, however, that he thought she would arrive when he was not there, much less that she would be allowed into the room without him. And, of course, if he had expected the police to drop in he would not have left contraband in the open.
As the turn of events demonstrates, Defendant's thinking was not clear. In fact, Defendant's leaving contraband in plain sight was beyond foolish. No one says criminals are bright. Even so, the court is satisfied that as an ordinary citizen, after Holbrook left him, Defendant's expectation of privacy in his bedroom was reasonable. The twin findings that the police behaved reasonably and Defendant had a reasonable expectation of privacy form the constitutional conundrum at this case's heart.
III.
That Holbrook only had apparent authority and the police acted reasonably raises the ultimate legal question: is mere apparent authority enough to validate a police search under the consent exceptions to the federal and State Constitutions? Under the federal Constitution the answer is, "Yes."
As Rodriguez puts it:
It is apparent that in order to satisfy the "reasonableness" requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government — whether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer conducting a search or seizure under one of the exceptions to the warrant requirement — is not that they always be correct, but that they always be reasonable.
Rodriguez ends by instructing the lower court "to determine whether the officers reasonably believed that Fischer had the authority to consent." Clearly then, if the officers' beliefs about Fischer's authority were reasonable the search was Constitutionally acceptable, even without a warrant or consent. It follows that because it was conducted pursuant to a police officer's reasonable belief that it was consensual, which belief was based on the consenting person's apparent authority, the search here is valid under the federal Constitution.
Rodriguez, 497 U.S. at 185.
Rodriguez, 497 U.S. at 185.
Id. at 189.
As mentioned at the outset, Delaware's Supreme Court usually views the state Constitution the same as the United States Supreme Court views the federal one. Dorsey v. State, however, implies that this is a case were Delaware's Constitution is more restrictive than the Fourth Amendment.
See, e.g., Dorsey, 761 A.2d at 815 (despite usual similarity in interpretations of Delaware and federal Constitutions, state Supreme Courts free to interpret differently than United States Supreme Court).
761 A.2d 807 (Del. 2000).
In Dorsey, although the police obtained a search warrant in good faith, its supporting affidavit lacked probable cause. Of course, not being based on probable cause, the search warrant was invalid. Dorsey views what happened there, a search without probable cause and a valid warrant, as a constitutional violation. That invalidated the search, regardless of whether the police acted in good faith. In the clash between the right to be free from a warrantless search and reasonable police conduct, Dorsey comes down in favor of the search warrant requirement.
Dorsey recognizes that United States v. Leon announced an exception to the federal exclusionary rule "for good faith reliance by the police on a search warrant which is later held to be invalid for lack of probable cause." And by implication, Dorsey acknowledges that under Leon's good faith exception to the federal exclusionary rule, the search in Dorsey was acceptable to the federal Constitution. Nevertheless, after comparing the state and federal Constitutions and their exclusionary rules, Dorsey holds: "[w]ithout a constitutional remedy, a Delaware `constitutional right' is an oxymoron. . . ." Therefore, rejecting Leon's reasoning, Dorsey applies Delaware's exclusionary rule to the fruits of the search there. The possibility that the police might have acted reasonably, even without a warrant, is beside the point.
468 U.S. 897 (1984).
Dorsey, 761 A.2d at 819 (citing Leon, 468 U.S. at 913).
Dorsey, 761 A.2d at 821.
Dorsey's reasoning logically controls the outcome here. It did not matter in Dorsey that an appropriate judicial officer had given the police a search warrant, which they reasonably believed was valid. The fact that the warrant turned out to be invalid established a Constitutional violation triggering Delaware's exclusionary rule. Here, the police had consent from someone who appeared to have authority and the police reasonably believed they had valid consent. But like the police in Dorsey, the police here were mistaken about the authority under which they acted. Just as the police had a defective warrant in Dorsey, the police had defective consent here. If a search conducted under an invalid warrant is invalid, then a fortiori a search conducted under the consent exception to the warrant requirement cannot be valid unless valid consent is actually present.
Rodriguez and Leon, taken together, hold that searching a citizen's home without a warrant and without consent is not a constitutional violation if, even without a warrant or consent, the police act under the reasonable belief that they either have a warrant or consent. If the police have a reasonable, good faith belief that they have either a warrant or consent, but are mistaken, they still are acting reasonably.
Just as Dorsey rejects its federal counterpart, Leon, this case must reject Rodriguez. Although Rodriguez does not mention Leon and the cases reason differently, they are bookends. Leon provides a way around the warrant requirement, while Rodriguez provides a way around the consent exception to the warrant requirement. This case is important. But after Dorsey it is only the other shoe falling.
In summary, although the federal Constitution can tolerate a search pursuant to an invalid warrant ( Leon) or invalid consent ( Rodriguez), the Delaware Constitution cannot. What the police did here was just as unacceptable to the Delaware Constitution as was what happened in Dorsey. The fact that the police reasonably believed what they were doing was correct is unavailing under Delaware law.
IV.
For the foregoing reasons, Defendant's Motion to Suppress is GRANTED.