‘,

No. 91-335 IN THE SUPREME COURT OF THE STATE OF MONTANA 2000 MT 6 STAIE OF MONTANA,

APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Madison, The Honorable Frank M. Davis, Judgepresiding.

COIINSEL OF RECORD:

For Appellant: Jack H. Morris, Jardine & Morris, Whitehall, Montana For Respondent: Joseph P. Mazurek, Montana Attorney General, Patricia J. Jordan, Assistant Montana Attorney General; Robert R. Zenker, Madison County Attorney, Virginia City, Montana

Filet1: Submitted on Briefs: June 3, 1999 Decided: January 11,200OJustice William E. Hunt, Sr. delivered the Opinion of the Court.



### 81 Appellant Travis McLees, (Travis) appeals from the Order of the District Court of the Fifth Judicial District of the State of Montana, Madison County, denying his motion to suppress evidence and admitting evidenceobtained in a searchof Travis’s apartment. We

reverse.

72 Did the District Court err in denyingTravis’s motion to suppress evidenceobtained when his grandfather consented to the warrantless searchof Travis’s apartment? FACTUAL BACKGROUND ll3 On November 25, 1995,the Madison County Sheriffs Department received reports of two burglaries and thefts. Chief Deputy Sheriff, Merlin Ehlers (Deputy Ehlers) investigated the break-ins, one at the Harrison school, the other at the studio of Michelle Walker in Harrison, Montana. Travis hadbeenat Walker’s studio the day before to deliver wooden doll baseshis father had madefor her. Walker indicated that while in her studio, Travis hadpaid an unusualamount of attention to a stereowhich was now missing. At the time, Travis alsohad a pending chargein Gallatin County for the burglary of a Three Forks school and was known to havebroken into the Harrison schoolwhen he was a studentthere. 74 Deputy Ehlerswent to the homeofTravis’s mother, Jennifer Flesch(Flesch), in Pony, Montana. Fleschtold Deputy Ehlersthat Travis was living with his grandfather Earl McLees (Earl) in Three Forks, Montana. Deputy Ehlers had known Earl for years and had beento

2Earl’s home before on personal business. On November 26, 1995, Deputy Ehlers went to

Earl’s residenceat 55 Frontage Road, in Three Forks, to look for Travis. ll5 Upon arriving at Earl’s residence,Deputy Ehlers askedwhether Travis was staying there. Earl informed Deputy Ehlers that Travis was living in the apartment which Earl owned next door at 59 Frontage Road. Earl told Deputy Ehlers that Travis had slept in the apartment the night before but had left that morning. Deputy Ehlers did not have a search warrant but askedEarl if he could look in the apartmentfor possible evidenceof the Harrison school burglary. Earl and Deputy Ehlerswent to the front door of the apartment, but found it locked. BecauseEarl did not have a key to the front door, he and Deputy Ehlers went around to the shop which adjoined the apartment from the rear. The two then entered the apartmentthrough an unlocked door leading from the shopto the apartment. 76 Upon entering the apartment, Deputy Ehlers noticed some drug paraphernaliaand what he believed to be items taken from the Harrison school. Ehlers then telephonedthe Gallatin County Sheriffs Office to have them send out an officer from that jurisdiction, Three Forks Marshall, Keith King (Officer King) respondedto the sceneand entered the apartment. At that time, Officer King and Deputy Ehlersdiscussed whether they shouldhave

a searchwarrant. Officer King returned to his office in Three Forks where he called the Gallatin County Attorney’s office and received the opinion that based on Officer King’s description of the situation, a consent searchwould be sufficient. During Officer King’s absence, Deputy Ehlers stayedat the apartmentto securethe site.

### 17 Officer King returned to the apartmentwith a consent-to-searchform, which Earl

signed. Deputy Ehlers andOfficer King then searched andphotographed

the apartment,and seized several items of evidence. A few days later, Deputy Ehlers returned without a warrant, and Earl again allowed him to enter the apartment. A warrant for Travis’s arrest

was issuedon November 30, 1995,and Travis was arrestedseveralmonths later. Reserving the right to appealthe denial of his motion to suppress, Travis pleadedguilty to two counts of burglary, two counts of theft, and one count of criminal mischief. ll8 Did the District Court err in denying Travis’s motion to suppress evidenceobtained when his grandfather consentedto the warrantless searchof Travis’s apartment? 19 The standardof review of a district court's denial of a motion to suppressis whether the court’s findings of fact are clearly erroneousandwhether those findings were correctly applied as a matter of law. Stnte v. &gal (1997), 281 Mont. 250, 257, 934 P.2d 176, 180 (ovewuled inpart by Statev. KunefA 1998MT 287, 291 Mont. 474, 970 P.2d 556). 7llO “[Wlatrantless searches conductedinside a home areper se unreasonable, ‘subject only to a few specifically establishedand well-delineated exceptions.“’ State v. Hubbe (1997), 286 Mont. 200,212,951 P.2d971,978 (citing Katz v. United States(1967), 389 U.S. 347,357, 88 SCt. 507, 514, 19 L.Ed. 2d 576, 585). “One suchexception iswhen the search is conductedpursuantto a consentthat is freely andvoluntarily given.” Hubbel, 286 Mont. at 212, 951 P.2d at 978 (citing Sclzneclzlotlz v. Bustanzonte

(1973), 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854, 860). “[Wlhen the prosecution seeks to justify a

4warrantlesssearch by proof of avoluntary consent,it is not limited to proof that consentwas given by the defendant,but may show that permission to searchwas obtained from a third party who possessed

common authority over or other sufficient relationship to the premises

or effects soughtto be inspected.” State v. Sourenson (1979), 180Mont. 269,275, 590 P.2d 136, 140 (citing UnitedStates v. A4atlock(1974), 415 U.S. 164, 171,94 S.Ct. 988,993,39 L.Ed.2d. 249-50). The Statehasthe burden of showing that the consent wasvoluntary. Stnte

v. Kim (1989), 239 Mont. 189, 196,779 P.2d 512, 517. 711 The District Court found that Earl had “common authority to consentto a searchof the premises. [and] gavethat consent voluntarily. .” Travis argues that Earl did not have sufficient joint control over the apartmentat 59 FrontageRoad to consentto the search. We agree. As Travis points out, Earl’s residenceat 55 Frontage Road and the apartment at 59 Frontage Road arephysically separate buildings. Earl lived in his home but did not reside in, and did not have a key to, Travis’s apartment. The record reflects that Earl would sometimes enter the apartment to watch television with his son, Scott McLees (Scott), or perhapsto wake Travis for work. Earl testified that he would knock and amrouncehimself before entering the apartment. 712 In order to let Deputy Ehlers into the apartment, Earl had to take him around to the back of the building, into the attachedworkshop and through an unlocked back door to the apartment. Travis hadbeenliving in the apartmentwith Scott, his father, for approximately six months and Scott had given him permissionto staytherewhile he was gone; this was an

5agreement Earl was not involved in. Scott paid no rent to Earl and there was no rental

agreement. Scott usually residedin the apartmentbut was out of the stateat the time andhad left the back door to the workshop unlocked because no one could ‘rinda key to it. 713 The Stateargues

that Earl’s consent

was valid because

no landlord-tenantrelationship existed between Earl and Travis; Travis’s living arrangementwas with Scott, not Earl, and therefore Earl never relinquishedauthority or control of the apartmentto him. It claims that Travis was a temporary guest in Earl’s apartment, that he paid no rent or utilities, and that he lived out of a duffel bag. The Statealso maintains that a specialrelationship between a defendantand the owner of an apartmenttogetherwith no formal landlord-tenantagreement

are “important benchmarks” underthesecircumstances. We note that the casescited by the State for this proposition are not controlling, and they are distinguishable from the caseat bar. None of the cited casesconcern one family member renting a separateresidenceto another, but rather reflect instances where one family member haspermitted another to stay in their home asa guest. In all but onecase cited by the State,(Adamsv. State (Okla. Crim. Ct. App. 1982), 645 P.2d 1028)(defendant staying in sister’s garageapartment), the owner of the home and the defendant lived together in the sameresidence. In People v. Lucero (Colo. Ct. App. 1985), 720 P.2d 604, alsocited by the State,the court relied on the fact that there was no landlord-tenant relationship and no rent paid, referring to the defendant as a “tenant at sufferance.” LLK~YO at 606. However, asthe United States Supreme Court pointed out in Matlock,[clommon authority is, of course, not to be implied from the mere property

interest a third party has in the property. The authority which justifies the third-party consentdoesnot rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons

generallyhaving

joint access

or control for most purposes, so that it is reasonable

to recognizethat any of the co-inhabitantshasthe right to permit the inspectionin his own right andthat the others have assumed the risk that one of their number might permit the common areato be searched. Matlock, 415 U.S. at 171, 94 S.Ct. at 993, 39 L.Ed.2d at 250 n.7. 1714 In Matlock, the issue before the Supreme

Court was whether the third party who had consented

to the search

of the bedroomwhere Matlock was stayinghad a relationship to the

room sufficient to make her consentvalid againstMatlock. The Court found that the third party’s consentto search the bedroomwas sufficient where; 1)the room bore every evidence that it was also occupied by a woman; 2) she indicated that she and Matlock slept in the bedroom regularly, including that morning; 3) shetold police that she and Matlock shared

a dresser in the room; and4) shetold police that the women’s clothing in the room was hers. SeeMatlock, 415 U.S. at 161-172, 94 S.Ct. at 990-93,39 L.Ed.2d at 247-50. 115 We begin our analysisof whether Earl had authority to consentto the searchof the apartment, by noting that Travis claims Earl was coerced into giving his consent. After a review of the record, however, we agreewith the District Court that although Earl was possibly intimidated andlet Deputy Ehlersinto the apartment “on a friendly basis,” there is

no evidenceto suggest

his consent

was coerced. As a result, we must analyzeonly whether Earl’s consent to the searchwas valid at the time he permitted Deputy Ehlers to enter the apartment.716 In determining that Earl had “common authority to consent to a search of the

premises,” the District Court relied on the fact that Travis did not pay rent or utilities, did not havea rental agreement

with Earl, did not furnish the apartmentwith his own property, and kept his belongingsin duffel bagswhile his father’s personalbelongingswere in the dresser drawers. Basedon thesefacts, the District Court found that “it is reasonable to concludethat Travis assumed

the risk that his grandfathercould andwould asserthis own control over the premisesat any time Earl exercisedhis authority as owner, grandfather, and host to enter the apartment at will regularly for a number of reasons - all known to Travis .” l/17 We conclude that the evidence in the record is insufticient to show that Earl had

common authority over the apartment. Although Earl was the owner of the apartment, and

no rental agreement

existedbetweenTravis and Earl, thesefactors do not create“mutual use of the property,” or “joint accessand control for most purposes,” which would create

common authority. Earltestified that he neverwent to the apartmentif Scottwas not around. He saidhe did not have free access andwould knock before he went in. Earl was obviously not a cohabitant ofthe apartment,did not sharein its use, and could not consentto a search

on that basis. Scott was the regular inhabitant of the apartment, and while he may have had joint authority and control to consent to the search,Earl did not. We concludethat it was not reasonablefor the District Court to find that Travis “assumedthe risk that Earl could and would assertcontrol over the premisesat any time.” The Statefailed to meet its burden ofestablishing that Earl had common authority over Travis’s apartment. Unless Earl had other “sufficient relationship” to the apartment, his consentwas invalid. 118 Earl testified that he, at times, gainedaccess to the apartment in order to visit with Scott or to watch a ball game. The fact that Earl owned the apartment is not dispositive where Travis, who was living in the apartment, had a reasonableexpectation of privacy. Assuming Earl had authority to access the apartment for such purposes, it was limited to those activities. SeeSol-renson,180 Mont. at 276,590 P.2d 141 (Authority of neighbor to enter defendant’shome to water plants in defendant’s absence was not authority to consent to a searchof the home). Earl, therefore, did not possess a “sufficient relationship” with the apartment which would give him authority to consentto a search. Therefore, the District Court erroneouslyconcludedthat basedon thesefacts, Earl had common authority over the apartment sufficient to consentto the search. 119 The State contends that even if Earl did not have authority to give consent, representationsmade by Earl to the officers at the time of the searchsupport a finding that the officers believed Earl had authority to consent,even if he did not. They maintain that underthe doctrine of “apparent authority,” a searchis valid if consentis given by a person who police reasonably,but mistakenly, believe has joint authority over the premises. This issuewas first addressed

by the United StatesSupreme Court in Illinois v. Rodriguez (1990), 497 U.S. 177, 110 S.Ct. 2793, 111L.Ed.2d 148.g20 In Rodriguez, Gail Fischer told police that Rodriguez had assaultedher in a certain

apartment in Chicago, Illinois. Shereferred to this apartment as “our apartment” and said that she had clothes and furniture there. Shethen traveled to the apartment with police, unlocked the door with her key, andgavethe officers permissionto enter. The police didn’t havean arrestwarrant for Rodriguez, or a searchwarrant for the apartment. Upon entering the apartment, the officers observed drugs and drug paraphernaliaand found Rodriguez asleepin the bedroom. There, they discoveredmore drugs, arrested Rodriguez, and seized the drugs and paraphernalia. After being charged with possession

of a controlled substance Rodriguez moved to suppressall evidence seized at the time of his arrest, claiming that Fischer had vacated the apartment several weeks earlier and therefore had no authority to consentto the entry. Rodriguez,497 U.S. at 180, 110S.Ct. at 2796-97, 111L.Ed.2d at 155- 56. 72 1 Finding that Fischerhad no “joint access or control for most purposes,” the Supreme Court explainedwhat it calledthe “general rule” with respectto what is necessary to satisfy the “reasonableness”requirement of the Fourth Amendment: [i]t 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 conductinga search and seizureunder one of the exceptionsto the warrant requirement--is not that they always be correct, but that they always be reasonable. [B] ecause many situationswhich confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for somemistakeson their part. But the mistakesmust

10be those of reasonable men, acting on facts leading sensibly to their

conclusions of probability (citation omitted). Rodriguez, 497 U.S. at 185-86, 110S.Ct. at 2800, 111 L.Ed.2d at 159-60 122 The majority then statedthat it saw “no reasonto depart from this general rule with respect to facts bearing upon the authority to consentto a search,” and set forth a test for determining the constitutional validity of a warrantless search pursuant to the consent exception to the warrant requirement: determination of consent to enter must “be judged against an objective standard:would the facts availableto the officer at the moment. ‘warrant a man of reasonable caution in the belief” that the consenting party had authority over the premises? If not, then the warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the searchis valid. Rodriguez, at 188-89, 110 S.Ct. at 2801, 111L.Ed.2d at 161 (citation omitted). 723 Although this Court has previously examined the issue of third-party consent, the doctrine of apparent authority as it applies to third-party consent searches has never been substantively addressed in Montana. Travis argues that the warrantless search of the apartment absent Earl’s actual authority to consent violated his rights under the Fourth Amendment of the U.S. Constitution as well as under Article II. Sections 10 and 11 of the Montana Constitution. “BecauseMontana’s unique constitutional schemeaffords citizens broader protection of their right to privacy than doesthe Fourth Amendment to the United StatesConstitution, we usually neednot consider the Fourth Amendment issue.” Hubbel, 286 Mont. at 211, 951 P.2d at 977. However, because Article II, Section 11of the Montana

11Constitution mirrors the Fourth Amendment to the United StatesConstitution, we analyze

most search

andseizurequestions

arisingunderArticle II, Section 11usingtraditional Fourth Amendment principles. Siegd, 281 Mont. at 264, 934 P.2d at 184, 124 Article II, Sections 10 and 11 of the Montana Constitution provide: Section 10. Right of privacy. The right of individual privacy is essentialto the well-being of a free society andshall not be infringed without the showing of a compelling state interest. Art. II, Sec. 10, Mont.Const. Section 11. Searches and seizures. The people shall be secure in their persons, papers,homes and effects from unreasonable searches and seizures. No warrant to search

any place,or seize

any personor thing shall issue without describing the place to be searchedor the person to be seized, or without probable cause,supportedby oath or affirmation reducedto writing. Art. II, Sec. 11, Mont.Const. 125 To determine whether there has been an unlawful search pursuant to Montana’s Constitution, we look to two factors: (1) whether the person has an actual expectation of privacy that society is willing to recognize asobjectively reasonable;and (2) the nature of the state’s intrusion. Hubbel, 286 Mont. at 208, 951 P.2d at 975-76. “At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by warrant, and that expectation is plainly one that society is prepared to recognize asjustifiable.” State V. Sclzeetz, 186 Mont. 41,48-49, 950 P.2d 722,726. “The fundamental purposeof the Fourth Amendment’s prohibition againstunreasonable searches andseizures

isto protect the privacy

12andsecurity of individuals and safeguard the sanctity of the home againstarbitrary invasions by governmentalofficials.” Dorwart v. Caruwny, 1998MT 191,1]21,290 Mont. 196,121, 966 P.2d 1121,121. 726 The State does not claim that exigent circumstances existed which would have prevented Ehlers from obtaining a searchwarrant prior to the entry and searchof Travis’s apartment. Courts have indicated the rationale behind the warrant requirement; [t]he presence

of a search

warrant serves

a high function. Absent some grave emergency,the Fourth Amendment hasinterposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safehaven for illegal activities. It was doneso that an objective mind might weigh the needto invade that privacy in order to enforce the law. The right of privacy was deemedtoo precious to entrust to the discretion of those whosejob is the detection of crime and the arrest of criminals. Sorrenson, 180 Mont at 274, 590 P.2d at 140. The primary purposeof the exclusionaryrule is to “deter future unlawful police conduct” by making evidence which the State obtains through a searchandseizurein violation of the Fourth Amendment, inadmissable in criminal proceedings. State v. Pipkin, 1998MT 143,l 12,289 Mont. 240,T 12,961 P.2d 733,l 12. The result is that in the absence of one of the recognized exceptions to the warrant requirement, a searchmadewithout a warrant is unlawful and any evidencewhich results from the searchshould be suppressed. Pipkin, 7 12. 127 In adopting the apparent authority rule in Rodriguez, the Supreme Court explained what the exclusionary rule provides underthe Fourth Amendment; [w]hat Rodriguez is assured by the trial right of the exclusionary rule, where it applies,is that no evidenceseized in violation of the Fourth Amendment will

13be introduced at his trial unlesshe consents. What he is assured by the Fourth Amendment itself, however, is not that no governmentsearch of his housewill occur unless he consents; but that no such search will occur that is “unreasonable.. .” Ro&iguez, 497 U.S. at 183-84, 110 S.Ct. at 2799, 111 L.Ed. 2d at 158. There are various elements,of course, that can make a searchof a person’s house“reasonable”- one of which is the consent of the personor his cotenant Here, we alsohavenot held that the Fourth Amendment requires factual accuracy. Rodriguez, 497 U.S. at 185, 110S.Ct. at 2799, 111 L.Ed. 2d at 159 The Constitution is no more violated when officers enter without a warrant because they reasonably(though erroneously) believe that the personwho has consented

to their entry is a resident of the premises, than it is violated when they enter without a warrant becausethey reasonably (though erroneously) believe they are in pursuit of aviolent felon who is about to escape. Rodriguez,497U.S.at 186, llOS.Ct.at2800, 111 L.Ed.2dat 160. 128 In Montana, however, we analyzesuch a situation in light of our citizens’ enhanced right to privacy. “[Elxcept in certain carefully defined classes of cases, a searchof property without proper consent is ‘u727ws072nble unless it has been authorized by a valid search warrant.” Do7wa7~~, 121 (emphasis added). Unlike its federalcounterpart,Article II, Section 10protects againstinvasionsof privacy. Hawai’i, whose constitution also specifically grants the right of privacy to its citizens has declined to follow Rodriguez, based on that constitutional provision. In decliningto adoptthe doctrine of apparent authority, the Hawai’i SupremeCourt stated; [alllowing warrantless searches of an individual’s home without the consent of someone

authorizedto give it, absentany exigent circumstances, would fly

14in the face of this protection. Indeed, an invasion of privacy is no lessof an

“invasion” if the governmental officials are “reasonable” in their mistaken belief that the third party possesses the authority to consent. This is because, regardless

of whetherthe police actedin good faith, the individual’s “privacy” is still invadedwhen the police searchhis or her personalbelongings without permission. State v. Lopez (Haw. 1995), 896 P.2d 889, 902. 729 In Lopez,police were calledto investigatea robbery at the houseof Daniel and Kelly Hauanio. See Lopez, 896 P.2d at 893-95. Detective Guilleimo, who was assigned to continue the investigation, later telephoned Kelly’s mother and told her he wanted to interview Kelly and Daniel and go into the Hauanios’ houseto continue the investigation. Kelly’s mother told Detective Guillermo that the Hauanioswere staying at a hotel in Hilo, Hawai’i. 730 Without the Hauanios’ permission, Kelly’s mother volunteered to take Guillermo to the househerself. Shemet him there andthey entered through a closed door which was not able to be locked. While there Guillermo confiscated a cellophanecontainer filled with cocainewhich he found on the floor of the masterbedroom. Basedon this information alone, the police obtained a warrant to searchthe Hauanios’ home. While executing the warrant, police found evidence linking the Hauanios to a large cocaine delivery already under investigation. The circuit court grantedthe Hauaniosmotion to suppress the evidenceseized by the police, concluding that the statehadnot established that Kelly grantedher mother the authority to consent to Guillermo’s entry. Becausethe entry was without consent, the evidencehe recoveredfrom the Hauaniohouse was suppressed.

Lopez, 896 P.2d at 896. On

15appeal, the prosecution concededthat Kelly’s mother did not have “actual authority” to

consentto Detective Guillemro’s entranceinto the house, but argued that shehad “apparent authority.” Lopez, 896 P.2d at 899. 131 The Supreme Court of Hawai’i declined to adopt the federal concept of apparent authority from Rodriguez stating; [o]ur willingnessto afford greaterprotection of individual privacy rights than is provided on the federal level arisesfrom “our view [that] the right to be free of ‘unreasonable’

searches and seizuresunder article I, section 5 [which later becamearticle I, section71of the Hawai’i Constitution is enforceable by a rule of reason which requires that governmental intrusions into the personnl pvivncy of citizens of this State be no greater in intensity than absolutely necessmy. .” At this point, we simply cannot say that it is “necessary” to allow third parties to consent to searchesof an individual’s personal and private belongings when they are devoid of any authority to do so. Our constitution guarantees

more to the citizens of the State of Hawai’i. Lopez, 896 P.2d at 901-902 (emphasisin original). 732 Article I, section7 of Hawai’i’s Constitution specifically protects against “invasions of privacy.” Lopez, 896 P.2d at 897. We agree with the Hawai’i court’srefusalto extend the doctrine of apparent authority basedon this right to privacy. In light of Montana citizens’ similar increased

right to privacy under Article II, Sections 10 and 11, we now hold that for third-party consent

to bevalid asagainst

the defendant,

the consenting

party must have actual authority to do so. Because Deputy Ehlers’ search

of Travis’s apartmentwas not consented to by an individual possessing actualauthority, the search violatedArticle II, Sections 10and 11of the Montana Constitution. The evidenceseizedin that searchshould be suppressed.

16733 The State argued in the District Court that if Earl’s consent was invalid then the

evidence should be admitted under the “independent source” and “inevitable discovery” rules. The District Court did not rule on theseissues. 734 We reverse the judgment of the District Court as to the evidence obtained in the warrantlesssearch

of Travis’s apartmentandremandto the District Court for a detennination of whether the evidenceis admissibleunderthe independentsource or inevitable discovery rules. 735 Reversedand remanded. 

# 7

u /&L&-i&-,

Justice We Concur:January 11,200O

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ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA BY: 06: Deputy u