1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40423

STATE OF IDAHO , Plaintiff-Respondent ,

v.

SANTOS TENA , Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2014 Opinion No. 29

File d: April 17, 2014
Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia County. Hon. Michael R . Crabtree , District Judge.

Order denying motion to suppress, affirmed

. Sara B. Thomas, State Appellate Public Defender; Ben Patrick McGreevy, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.

________________________________________________ GRATTON, Judge Santos Tena appeals from his judgment of conviction for possession of a controlled substance, methamphetamine, a violation of Idaho Code § 37

- 2732(c)(1) . Tena alleges the
district court erred by denying his motion to suppress. We affirm

. I.
FACTUAL AND PROCEDURAL BACKGROUND Tena, t hirty

- one years old, lived in a room in his parent s ’ basement. Two officers arrived
at the residence with warrants for Tena ’s arrest . As the officers approached the residence
, the garage door opened. Unable to see anyone inside, the o fficers entered the garage and knocked
on the door to the house. Tena’s mother answered the door and explained that Tena was asleep
in his room . When she went downstairs to retrieve him , the officers heard her and Tena arguing. By then a third officer had arrived and t he o fficers promptly went down stairs and arrested Tena

. As o ne of the officer s escorted Tena to the patrol car to transport him to jail
, Tena yelled not to2 le t the officers in to the house. The officer then secured Tena in the patrol car located to the north
of the residence

. The other two officers remained at the residence to speak with Tena’s m other. The officers spoke with her in English and one officer translated in Spanish
, as necessary. The
office rs asked if she owned the house and if she had access to i t. She affirmatively answered both questions. She also described her son as lazy , and said that he hardly ever left his room and
that she brought him meals and coll ected his laundry from the room

. The offic ers then asked for

consent and explained that consent allow ed them to search the house and Tena’s bedroom. After the officer translated the relevant part of a consent form, Tena’s mother orally gave consent and signed the form. Then
, without hesitation, s he took the officers to Tena’ s bedroom . The room ’s
door stood partially open and it had an old skeleto n key lock on it. Tena’s mother later indicated
the door was never locked. The officers searched the room and found methamphetamine.
Tena subsequently filed a motion to suppress the evidence found in his room. The
district court denied the motion, holding Tena’s mother had apparent authority to grant consent.
Tena en tered a conditional guilty plea and the court sentenced him

. Tena timely appeals.
II.
ANALYSIS Tena argues his mother lacked apparent authority to consent because he objected to allowing officers into the house

. The standard of review of a suppression motion is bifurcated. When a decision on a motion to suppress is challenged, we accept the trial court’s findings of fact that are supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. State v. Atkinson , 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a suppression hea ring, the power to assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is vested i n the
trial court. State v. Valdez

- Molina , 127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v.
Schevers , 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct. App. 1999).
The Fourth Amendment of the United States Constitution and A rticle I, S ection 17 of the Idaho Constitution protect the right of the people to be free from unreasonable searches and
seizures. Without a warrant, searches and seizures within a home are presumptively
unreasonable. Kentucky v. King , __ U.S. __, __, 131 S. Ct. 1849, 1856 (2011); State v. Hansen , 151 Idaho 342, 346, 256 P.3d 750, 754 (2011)

. A well

- established exception to the warrant3 requirement is an individual’s consent to search

. Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973); State v. Robinson , 152 Idaho 961, 965, 277 P.3d 408, 412 (Ct. App. 2012). The State
must establish that officers lawfully obtained consent

. Illinois v. Rodriguez
, 497 U.S. 177, 181 (1990) ; Hansen , 151 Idaho at 346, 256 P.3d at 754. Consent must come from someone with actual authority to consent or from someone who se authority is reasonably apparent

. Georgia v. Randolph , 547 U.S. 103, 106 (2006); Hansen , 151 Idaho at 346, 256 P.3d at 754. When a third party grants consent, “ actual authority exists if the third party shares with the defendant

‘ common authority over or other sufficient relationship to the premises or effects sought to be inspected.’” State v. Aschin ger , 149 Idaho 53, 56, 232 P.3d 831, 834 (Ct. App. 2009) ( quoting
United States v. Matlock , 415 U.S. 164, 171 (1974)). The United States Supreme Court has explained that common authority rests on: mutual use of the property by persons generally having joi nt 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 , 415 U.S. at 171 n.7. Accordingly, co

- inhabitants assume the risk that one of them may
consent to a search of common areas and items. Robinson , 152 Idaho at 965, 277 P.3d at 412 (citing State v. Johnson , 110 Idaho 516, 523, 716 P.2d 1288, 1295 (1986)). However, that actual authority extends only so far as common areas and items in the common areas over which the inhabitants share authority. Robinson , 152 Idaho at 965, 277 P.3d at 412

. On the other hand,

a pparent authority exists when , under the totality of circumstances
, t he officer reasonably
believes that the third party possesses actual authority to consent. Id. at 965

- 66, 277 P.3d at 412

- 13 (citing Randolph , 547 U.S. at 109). Apparent authority analysis is limited to the information
known to officers prior to a search of the premises. Robinson , 152 Idaho at 966, 277 P.3d at 413. The district court concluded that regardless of whether Tena’s mother had actual authority to consent, she had apparent authority to consent. The court relied on the following
information known to the officers when they conducted the search: the residenc e belonged to Tena’s parents; Tena’s mother had access to the house; nothing suggested Tena locked his bedroom door, had a key to the door, or had a means to exclude his parents from the room;
Tena’s mother accessed the room to do Tena’s l aundry and bring him meals; and officers were

unaware that Tena may have paid rent to stay at the residence

. One of the officers also testified4 that Tena’s mother said she entered to clean the room. In its analysis , the district court did not
discuss that Tena yelled to his mother not to let the officer s in the house . One of the officers testified during the motion to suppress hearing that Tena “ started yelling not to let [the officers]
in the house as he was taken out to the car.” Tena contends t hat apparent authority did not exist because of his objection. I n arguing the officers had apparent authority to search, the State relies on the district court’s reasoning. The State also asserts that Tena’s yelling is not determinative because he only yelled to keep the offi cers out of the house and not his bedroom. In support of his argument that officers unreasonably relied on his mother ’s apparent authority to consent , Tena offers State v. Benson , 133 Idaho 152, 983 P.2d 225 (Ct. App. 1999).
In Benson , officers respond ed to a residence based on reports that someone was manufacturing methamphetamine. The homeowner answered the door and explained that her daughter lived in the detached garage next to the house . Officers contacted the daughter and her boyfriend at the

ga rage, and both made it clear they did not want the officers on the property. The boyfriend was
arrested for a baggie of marijuana hanging out of his shirt pocket, and the daughter was separated
from her mother because she continued to scream at her mom no t to talk with the officers . The daughter yelled that the officers did not have a warrant and not to give them permission to
search. Having taken the mother aside, the officer asked her if the garage area was hers, if she had access to it, and if she had any possessions inside. The mother affirmatively responded to each question, and the officer then asked fo r consent to search the garage

. The subsequent
search revealed evidence of methamphetamine manufacturing. We held that the mother lacked apparent authority to grant consent to search the garage. 1
Id. at 160, 983 P.2d at 233. In examining the reasonableness of an officer’s belief tha t a third party has authority to consent , we explained that a court should examine : (1) the nature of the joint access to the premises; (2) the presence of nonconsenting parties; and (3) whether the nonconsenting party actively opposes entry and search. Id. at 158, 983 P.2d at 231 ( quoting United States v. Impink , 728 F.2d 1228, 1233 (9th Cir. 1984) ). We held that the officers did not have an objective ly reasonable belief of authority because the daughter lived with her boyfriend

1 We also held that the mother lacked actual authority to grant consent to search the garage. State v. Benson , 133 Idaho 152, 156, 983 P.2d 225, 229 (Ct. App. 1999)

. The daughter babysat children in lieu of rent, locked the garage when she and her boyfriend were away, and only the daughter and boyfriend had keys to the lock.5 in a detached garage, th e mother accessed the garage with the limited purpose of storage, and
both individuals staying in the garage strenuously objected to the officers ’ presence and entry.
Benson , 133 Idaho at 159

- 60, 983 P.2d at 232

- 33. This C ourt emphasized that officers with such
limited information are required to make a further inquiry in or der to rely on the third party’s
consent when faced with an actively objecting party. Id. at 158

- 60, 983 P.2d at 231

- 33. A duty to further inquire may exist if the officers lack an objectively reasonable basis to believe authority exists. However, Benson is distinguishable in a number of respect s. First, Tena was not present
and actively objecting. Officers a rrested Tena and placed him in the patrol c ar to be transported to jail. Second, the circumstances of the joint access are markedly different. Tena’s mother told
officers she had access to his room to bring meals, do laundry, and clean the room

. Unlike Tena’s mother, the mother in Benson merely accessed the garage for the limited purpose of storage

. Finally, the mother in Benson consented to the search of a detached garage ; w hereas here, the mother gave officers consent to search a room within the mother’s own house. Thus,
the first factor does not support requiring a further inquiry. The remaining factors to be considered are Tena’s presence and objection to the officers’ entry. In Georgia v. Randolph , 547 U.S. 103 (2006), the United States Supreme Court examined
the reasonableness of officers relying on the consent of a wife over the refusal of the present and objecting husband. Officers responded to the residence on a domestic dispute call. The wife informed the officers that her estranged husband used cocaine and that the house contained evidence of drug use. The officers asked for consent. The husband unequivocally refused, but the wife readily consented. The subsequent search revealed incriminating evidence. The Court held “that a warrantless search of a shared dwelling f or evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Randolph , 547 U.S. at 120 (emphasis added). Because the husband was present and objecting, the officers unreasonably
relied on the wife’s consent.
In Fernandez v. California , __ U.S. __, 134 S. Ct. 1126 (2014), 2 the United States Supreme Court clarified the breadth of a co

- tenant’s ability to frustrate another tenant’ s consent.

2 The district court and the parties did not have the benefit of Fernandez

.6 In that case, officers responded to the area to investigate a possible gang

- related robbery. When officers arrived, they encountered a man who said that the “guy” was in the apartment. The
officers then observed someone run into the same buil ding the man had pointed out. The officers heard screaming and fighting coming from the building. Once backup arrived, they knocked and a woman answered the door who appeared upset and had visibly fresh injuries. An officer asked the woman to step outsi de to allow them to conduct a protective sweep of the residence. Fernandez, wearing only boxer shorts, stepped into view and told the officers they did not have the right to enter and that he knew his rights. Officers removed Fernandez from the residence and placed him under arrest. The robbery victim identified Fernandez as the initial assailant and officers then transported Fernandez to the police station. Approximately one hour later, one of
the officers returned to the residence and obtained consent to search from the woman . The search resulted in the discovery of gang paraphernalia, evidence of the robbery, a knife, ammunition, and a sawed

- off shotgun. The Court reviewed the denial of Fernandez’s motion to suppress and noted that Randolph’s excep tion requires the objecting co

- tenant’s presence. Fernandez , __ U.S. at __, 134
S. Ct. at 1133. The Court stated that it “went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present. ” Id. Th e Court then addressed Fernandez’s two arguments that Randolph should apply in his situation despite his absence. Fernandez first argued that Randolph should still apply because his absence was a result of the police having removed him. The Court rejecte d this argument and clarified language in Randolph 3 that suggested an officer’s untoward motive could make a co

- tenant’s removal invalid. The Court explained that the relevant analysis is whether the officer ’s action was objectively reasonable. Id. at __ , 134 S. Ct. at 1134 (quoting King , __ U.S. at __, 131 S. Ct. at 1859). The Court then held “ that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason. ” Fernandez , __ U.S

. at __, 134 S. Ct. at 1134. Thus, the removal of a defendant from the premises is proper so long

3 “So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection . . . .” Georgia v. Randolph , 547 U.S. 103, 121 (2006).7 as officers do not effectuate the removal “by means of an actual or threatened violation of the
Fourth Amendment.” See King , __ U.S. at __, 131 S. Ct. at 18 62 (officer

- created exigencies are
lawful unless officer ’ s act was objectively unreasonable in creating the exigency). Fernandez’s second argument was that his objection, made at the premises, remained effective until he withdrew it. The Court again rejec ted Fernandez’s argument. A continuing objection would not comport “with the ‘ wi dely shared social expectations’ or ‘customary social usage’ upon which the Randolph holding was based.” Fernandez
,

__ U.S. at __, 134 S. Ct. at 1135 (quoting Randolph , 547 U.S. at 111, 121 ). Once the objecting party is absent, the
uncomfortable situation that existed from the co

- tenant’s objection is likely to cease with the co

tenant’s absence. Fernandez
,

__ U.S. at __, 134 S. Ct. at 1135

. The rule allowing a stand ing objection would also create numerous practical problems. The Court was concerned with the difficulty of determining the proper duration of a continuing objection, the existence of common authority over the premises after the passage of time, the proce dure necessary to invoke the continued objection, and who would be bound by the objection. Id. at __, 134 S. Ct. at 1135

- 36.

“ I f Randolph is taken at its word

-- that it applies only when the objector is standing in the door saying ‘stay out’ when officers propose to make a consent search

-- all of these problems disappear. ” Id. at __, 134 S. Ct. at 1136. The Court then briefly addressed the presence requirement itself: In response to these arguments, petitioner argues that Randolph’s requirement of physical presence is not without its own ambiguity. And we acknowledge that if, as we conclude, Randolph requires presence on the premises to be searched, there may be cases in which the outer bound ary of the premises is disputed. The Court confronted a similar problem last Term in Bailey v. United States , [__ U.S. __, 133 S. Ct. 1031] (2013), but despite arguments similar to those now offered by petitioner, the Court adopted a rule that applies only when the affected individual is near the premises being searche d. Having held that a premises rule is workable in that context, we see no ground for reaching a different conclusion here.

Fernandez
,

__ U.S. at __, 134 S. Ct. at 1136

. The Court does not seem to adopt Bailey’s “near the premises” rule, but the approac h taken in Bailey provides guidance on how courts are to view an occupant’s presence in the context of Randolph

. In Bailey v. United States , __ U.S. __, 133 S. Ct. 1031 (2013), the United States Supreme Court defined the geographic parameters of officers’ authority to detain individuals while executing a search warrant. Id. at __, 133 S. Ct. at 1042 (holding officers could not rely on8 authority under Michigan v. Summers , 452 U.S. 692 , 705 (1981) because they were beyond immediate vicinity of premises to b e searched); s ee Michigan v. Summers , 452 U.S. 692 , 705 (1981) (holding “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is
conducte d” (footnotes omitted)). 4 The Court reviewed the justifications in Summers 5 and
concluded: A spatial constraint defined by the immediate vicinity of the premises to be searched is therefore required for detentions incident to the execution of a search warrant. The police action permitted here

-- the search of a residence

-- has a spatial dimension, and so a spatial or geographical boundary can be used to determine the area within which both the search and detention incident to that search may occur. Limiting the rule in Summers to the area in which an occupant poses a real threat to the safe and ef ficient execution of a search warrant ensures that the scope of the detention incident to a search is confined to its underlying justification. Once an occupant is beyond the immediate vicinity of the premises to be searched, the search

- related law enforc ement interests are diminished and the intrusiveness of the detention is more severe.
Bailey , __ U.S. at __, 133 S. Ct. at 1042. However, this spatial limitation deals with the underlying policy concerns of executing a warrant

. Therefore, in dealing wit h what constitutes physical presence for an objecting co

- tenant, we must examine the underlying justifications for
the rule in Randolph . As noted above, Randolph is based on the wi dely

- shared social expectations or customary social usage that exists when a visitor is confronted with a present and objecting resident. Explaining why consent by one occupant could not override an objection by a physically present occupant, the Randolph Court stated: [I]t is fair to say that a caller standing at the door of s hared premises would have no confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, “stay out.”

4 “The ru le in Summers extends farther than some earlier exceptions because it does not require law enforcement to have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers.” Bailey v. United States
, _ _ U.S. __, __, 133 S. Ct. 1031, 1037

- 38 (2013) (citing Muehler v. Mena , 544 U.S. 93 (2005)).

5 “[M] inimizing the risk of harm to the officers ,” that “the orderly completion of the search may be facilitated,” and “ the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found.” Bailey , __ U.S. at __, 133 S. Ct. at 1038

- 40 (quoting Michigan v. Summers , 452 U.S. 692 , 702

- 03 (1981) ).9 Without some very good reason, no sensible person would go inside under those conditions. I t seems obvious that the calculus of this hypothetical caller would likely be quite different if the objecting tenant was not standing at the door. When the objecting occupant is standing at the threshold saying “stay out,” a friend or visitor invited to enter by another occupant can expect at best an uncomfortable scene and at worst violence if he or she tries to brush past the objector. But when the objector is not on the scene ( and especially when it is known that the objector will not return during th e course of the visit ), the friend or visitor is much more likely to accept the invitation to enter.

Fernandez
, __ U.S. at __, 134 S. Ct. at 1135 (emphasis added) (footnote and citation omitted). Based on Tena’s location off the premises and the circumstances of his removal, it is clear that officers obtained consent when Tena was no longer present. 6 When officers removed Tena from the house, he yelled back to keep the officers out of the house. The officers then secured him in the patrol car parked off the premises. Not only was Tena not at the front door, but he was no longer on the premises at all. There was also no chance
that Tena would re turn while officers spoke with his mother. The officers handcuffed and placed Tena in the rear of the patrol car with the express purpose to transport him to jail. Any social

pressure that may have existed from Tena’s objection had been removed because T ena was no longer in a place to express his objection and he was on his way to jail. The officers also acted objectively reasonabl y by removing Tena from the premises. The officers acted under the authority of two arrest warrants. Once they lawfully rem oved Tena from the premises, the officers were free to talk with and rely on his mother’s consent to search her house

. 7

6 Though this is not a close case, the United States Supreme Court provided guidance in such cases under the Summers context: In closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premise s, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors. Bailey , __ U.S. at __, 133 S. Ct. at 1042.

7 The Court concluded Fernandez by discussing the rights of the non

- objecting tenant: Putting the exception the Court ado pted in Randolph to one side, the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search. Any other rule would trample on the rights of the occupant who is willing to consent. Such an occupant may want the police to10 III.
CONCLUSION
Officers acted under the lawful consent of Tena’s mother when searching his room. Therefore, the district court’s order denying Tena’s motion to suppress is affirmed. Chief Judge GUTIERREZ and Judge LANSING CONCUR.

search in order to dispel “suspicion raised by sharing quarters with a criminal.” [ Randolph , 547 U.S. at 116; see also Schneckloth v. Bustamonte , 412 U.S. 218, 243 (1973) ] (evidence obtained pursuant to a consent search “may insure that a wholly innocent person is not wrongly charged with a criminal offense”). And an occupant may want the police to conduct a thorough search so that any dangerous contraband can be fo und and removed. In this case, for example, the search resulted in the discovery and removal of a sawed

- off shotgun to which [the woman’s] 4

- year

- old son had access. Denying someone in [the woman’s] position the right to allow the police to enter her home would also show disrespect for her independence. Having beaten [the woman], petitioner would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power. Fernandez v. Cali fornia
, __ U.S. __,
__, 134 S. Ct. 1126 , 1137 (2014).