Opinion
No. 113 / 03-1442
October 6, 2004
Appeal from the Iowa District Court for Marshall County, Kim M. Riley, District Associate Judge.
Discretionary review of district court's suppression of evidence seized during warrantless search. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Jennifer Miller, County Attorney, and James S. Scheetz, Assistant County Attorney, for appellant.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellee.
We granted an application by the State for discretionary review of a decision by a district court granting a motion to suppress evidence acquired from the search of a home. On our review, we find the search was done with consent. We reverse the decision of the district court and remand for further proceedings.
I. Background Facts and Proceedings
Darlinda Warnell lived with her boyfriend, Robin O'Clair, in a house owned by O'Clair. O'Clair, who suffered from renal failure, had given his brother, Troy LaDassor, a general power of attorney. In the written instrument, O'Clair gave his brother
full power and authority to manage and conduct all of my affairs, with full power and authority to exercise or perform any act, power, duty, right or obligation I now have or may hereafter acquire the legal right, power and capacity to exercise or perform.
He also gave LaDassor the power "[t]o sell, convey, lease, manage, care for, preserve, protect, improve . . . remodel, rebuild and in every way deal in and with any of my property or property rights, now or hereafter owned by me."
On May 5, 2003, O'Clair was involuntarily committed to the Cherokee Mental Health Institute. Later that day, LaDassor went to O'Clair's house to secure it and survey the property. He found Warnell in the house and observed drug paraphernalia. Warnell and LaDassor engaged in a brief physical altercation as LaDassor attempted to remove Warnell from the house. Both individuals called the sheriff, and deputies were dispatched. LaDassor informed Deputy Steve Hoffman he had seen paraphernalia in the house. He wanted Deputy Hoffman to search the house and remove Warnell. LaDassor told Deputy Hoffman O'Clair had been committed. He also showed him the written power of attorney. LaDassor executed a written consent authorizing the deputies to search the home. Deputy Hoffman then approached the house and knocked on the door. Warnell opened the door and the following exchange took place between Warnell and Deputy Hoffman, who was wearing a microphone that recorded the conversation:
WARNELL: Hi. What's going on now?
DEPUTY: Well, first of all, uh Troy has signed a consent to search the common areas of the property.
WARNELL: Search?
DEPUTY: And uh,
WARNELL: Go for it.
DEPUTY: Who all lives here?
WARNELL: Me and Robin.
DEPUTY: Nobody else?
WARNELL: His son comes and stays over once in awhile. . . . Do a search. That's fine with me. They're just trying to start all kinds of bullshit. So you're more than welcome to search. Go for it.
Deputy Hoffman then entered the house. Warnell described the layout of the house to him and asked, "Um, where do you want to start?" She then proceeded to show him through the house, turning on lights and opening doors for him.
During this walk-through of the house, Deputy Hoffman discovered a marijuana-smoking device (a "bong") in plain view in the bedroom. At this point, he and Warnell engaged in the following conversation:
WARNELL: [Inaudible] smoke pot.
DEPUTY: Okay.
WARNELL: And it's broke.
DEPUTY: So what else is in here?
WARNELL: That's about it. . . .
DEPUTY: Do you have any other [inaudible]?
WARNELL: I have a pipe.
DEPUTY: Where's it at?
WARNELL: [Inaudible] but I don't have anything to go in it. I wish I did right now.
DEPUTY: Go ahead and give me the straw too.
WARNELL: I haven't done that for . . . we haven't been doing that shit for a long time.
During this conversation, Warnell led Deputy Hoffman to her purse and emptied out its contents, revealing a pipe and a small amount of marijuana.
Warnell was charged with possession of marijuana. She filed a motion to suppress the marijuana. At the hearing on the motion, Warnell testified she acquiesced to the search after Deputy Hoffman indicated LaDassor had signed a consent because she believed a search was inevitable regardless of what she would have said or done. The district court granted the motion. The district court found: (1) LaDassor did not have authority to consent to the search because he did not have mutual use or joint access of O'Clair's house for most purposes; and (2) Warnell did not voluntarily consent to the search, but rather merely acquiesced when Deputy Hoffman presented LaDassor's signed consent. We granted the State's application for discretionary review and stayed further proceedings in the district court.
II. Standard of Review
We review a ruling on a motion to suppress de novo. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). "Under this review, we `make an independent evaluation of the totality of the circumstances as shown by the entire record.'" Id. (quoting State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993)). "While `[w]e are not bound by the district court's determinations, . . . we may give deference to its credibility findings.'" State v. Lovig, 675 N.W.2d 557, 562 (Iowa 2004) (quoting State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001)).
III. Discussion
Because the search at issue was conducted without a warrant, it is presumptively unreasonable, and the State bears the burden of proving it was within one of the exceptions to the warrant requirement of the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution. Lovig, 675 N.W.2d at 563 (citing State v. Predka, 555 N.W.2d 202, 206 (Iowa 1996); State v. Legg, 633 N.W.2d 763, 767 (Iowa 2001)). The State argues the search of O'Clair's house was valid because it was within the consent exception to the warrant requirement. See id. (listing consent, plain view, exigent circumstances with probable cause, and search incident to arrest as recognized exceptions to the warrant requirement). "The burden is on the State to establish voluntariness by a preponderance of the evidence." State v. Stanford, 474 N.W.2d 573, 575 (Iowa 1991) (citing State v. Garcia, 461 N.W.2d 460, 462 (Iowa 1990)). The State makes two alternative consent arguments: (1) LaDassor validly consented, having authority to do so as O'Clair's attorney-in-fact, or (2) Warnell consented to the search of O'Clair's house, having authority to do so as a resident. See State v. Bakker, 262 N.W.2d 538, 546 (Iowa 1978) ("Permission to search may be given by a third party who possesses common authority over or other sufficient relationship to the premises. Common authority stems from mutual use of property by persons generally having joint access or control for most purposes." (Citations omitted)).
We begin by considering whether Warnell consented to the search. Warnell contends she did not consent, but rather merely acquiesced in the search, believing it was inevitable after Deputy Hoffman told her LaDassor consented. The district court agreed with Warnell, relying on Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968), and stating that Deputy Hoffman "misrepresented his authority to conduct the search."
We have held that the State's burden to prove consent was voluntarily given "`cannot be discharged by showing no more than acquiescence to a claim of lawful authority.'" State v. Hatter, 342 N.W.2d 851, 854 (Iowa 1983) (quoting Bumper, 391 U.S. at 548-49, 88 S. Ct. at 1792, 20 L. Ed. 2d at 802) (emphasis added); accord State v. Ahren, 227 N.W.2d 164, 166 (Iowa 1975); see also State v. Horton, 625 N.W.2d 362, 364 (Iowa 2001) (holding the defendant did not voluntarily consent by emptying her pockets in response to an officer's request for her to do so (citing Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 2059, 36 L. Ed. 2d 854, 875 (1973)). Acquiescence is defined as "[a] person's tacit or passive acceptance; implied consent to an act." Black's Law Dictionary 25 (8th ed. 2004) (emphasis added). "The result is that binding legal effect is given to silence and in action." Id. (emphasis added). Yet, in this case Warnell did much more than acquiesce to a claim of authority. Under all the circumstances, we find Warnell voluntarily consented to the search.
First, the record failed to reveal any "claim of lawful authority" to which Warnell could acquiesce. The only statement made by Deputy Hoffman before Warnell interrupted him to adamantly express her consent to search the house was a brief explanation that LaDassor had "signed a consent to search the common areas of the property." Deputy Hoffman did not tell her that meant he had authority to search or that he intended to act on the consent and would conduct a search. Although Warnell may have subjectively felt the search was inevitable, we cannot say Deputy Hoffman's words, objectively and reasonably understood, constituted a claim of lawful authority. Cf. Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 2801, 111 L. Ed. 2d 148, 161 (1990) ("As with other factual determinations bearing upon search and seizure, determination of consent to enter must `be judged against an objective standard: would the facts available to the officer at the moment . . . "warrant a man of reasonable caution in the belief"' that the consenting party had authority over the premises?" (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968)); Schneckloth, 412 U.S. at 227, 93 S. Ct. at 2048, 36 L. Ed. 2d at 863 ("While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.").
Second, the evidence reveals Warnell freely expressed her unqualified consent to search by interrupting Deputy Hoffman before he could fully explain his presence at the house and telling him to conduct a search. Additionally, we observe that Deputy Hoffman merely indicated the written consent to search applied to "the common areas" of the house. Notwithstanding, Warnell freely opened her purse and allowed him to examine the contents. She also showed him around the interior of the house without limitation. This conduct reveals Warnell's voluntary consent and is consistent with her initial declaration of consent given at the door. Under all the circumstances, we conclude the consent given by Warnell was voluntary. See State v. Reinier, 628 N.W.2d 460, 465 (Iowa 2001) (listing factors to consider including "knowledge by the defendant of the right to refuse consent," "whether police asserted any claim of authority to search prior to obtaining consent," "show of force or other types of coercive activity by police," "use of deception by police," and "existence of illegal police action just prior to the time the consent is given" (citations omitted)).
IV. Conclusion
We conclude the State satisfied its burden of proving by a preponderance of the evidence that Warnell voluntarily consented to the search of O'Clair's house. Thus, we reverse the district court's ruling suppressing the evidence seized and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
This opinion shall not be published.