State v. Porting

Caplinger, J.: Defendants Sandra Porting and Kim D. Angel appeal the trial court’s denial of their motions to suppress. They contend the trial court erred in finding that a recently released parolee had authority to consent to a search of the residence in which the evidence was found. We affirm, finding the State established by a preponderance of the evidence that (1) the parolee had common authority or sufficient relationship to the property to give valid consent to search the residence; and (2) the searching officers had reasonable grounds to believe the parolee had apparent authority to consent to the search. The facts were stipulated to by the parties. On December 27, 2002, Eugene Hanson was released from the custody of the Kansas Department of Corrections at the Hutchinson Correctional Facility after serving approximately 18 months in prison. Prior to his imprisonment, Hanson had lived with his mother for several years at a residence located at 1130 West 20th Avenue in Hutchinson. Hanson’s former girlfriend, defendant Porting, also resided at the 20th Avenue residence, and she and her children continued to reside there while Hanson was imprisoned. Hanson’s preapproved release plan required Hanson to reside at the 20th Avenue residence upon his release. Prior to his release, Hanson requested that his parole officer, Edward Mora, accompany him to the residence. Hanson did not want to jeopardize his parole status and was concerned because of rumored drug use by Porting. Mora requested that Hutchinson police officers accompany Mora and Hanson to the residence to assist with clearing the residence for parole. When they arrived, Hanson entered die home and Mora followed. The two police officers remained outside. Hanson gave Mora consent to search the residence. — 213 — Hanson led officers to the northeast bedroom of the house, which Hanson had occupied with Porting prior to Hanson’s incarceration and would occupy again upon his return. There, they encountered Porting and two men in the bedroom. One of the two men was defendant Kim Angel, an absconder from parole. Angel had personal belongings at the residence, had spent the prior night with Porting, and had been at the residence all day. . Porting and Angel filed motions to suppress the evidence against them, arguing Hanson was not a resident as he had spent the last 18 months incarcerated and, therefore, did not have the authority to consent to the search. Following a hearing, the trial court denied the motions. Porting and Angel were convicted separately, pursuant to bench trials on stipulated facts. The defendants preserved their objections to the admission of the physical evidence that resulted from the search of die house. Authority to Consent to Search In these consolidated appeals, the defendants contend the trial court erred in finding Hanson had authority to consent to a search of the residence. When, as here, the facts material to a trial court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which this court has unlimited review. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003). The State bears the burden of proving the lawfulness of the conduct in question by a preponderance of the evidence. State v. Kriegh, 23 Kan. App. 2d 935, 937, 937 P.2d 453 (1997). Before considering the parties’ arguments, we initially note that the parties stipulated that defendant Angel was an overnight guest. Angel thus had standing to object to the search. See Minnesota v. Olson, 495 U.S. 91, 109 L. Ed. 2d. 85, 110 S. Ct. 1684 (1990) (overnight guests have expectation of privacy in home). The defendants initially argue that although Hanson was a past and prospective resident of the 20th Avenue residence, he was not a resident at the time of the search. Thus, they conclude be lacked — 214 — access to or control of the property and could not have agreed to the search. The trial court found Hanson had authority to consent because he was both physically present at the residence and intended to remain permanently. Although the trial court did not cite legal authority or support for its ruling, it appears the court analyzed the issue as one of residency of the defendant. See K.S.A. 2004 Supp. 77-201, Twenty-third, (establishment of permanent residence requires physical presence in location and intent to remain there). While we agree with the trial court’s determination that Hanson was a resident of the 20th Avenue address, we affirm the trial court’s ruling for a different reason. We find the State proved by a preponderance of the evidence that Hanson’s consent to the search was a valid third-party consent. In United States v. Matlock, 415 U.S. 164, 171, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974), the Supreme Court held that when the prosecution seeks to justify a warrantless search by proof of voluntaiy consent, it is not limited to proof that consent was given by the defendant. Rather, the State may show that permission to search was obtained from a third party who possessed common authority over the premises, or other sufficient relationship to the premises or effects sought to be inspected. See State v. Savage, 27 Kan. App. 2d 1022, 1026, 10 P.3d 765, rev. denied 270 Kan. 903 (2000). Matlock was applied by this court in State v. Ratley, 16 Kan. App. 2d 589, 594, 827 P.2d 78 (1992). Although not entirely analogous, Ratley’s holding is instructive. There, the defendant’s wife left the parties’ marital home for a “safe house” after being physically abused by her husband. Planning to return to recover personal belongings, she met with law enforcement and signed a written consent to search the marital residence. During the subsequent search, agents seized marijuana and marijuana plants. The trial court granted the defendant’s motion to suppress, finding the wife had abandoned the marital home by no longer occupying the premises jointly with her husband. This court reversed, finding the issue was not whether the wife and husband jointly occupied the premises but whether the wife — 215 — had mutual authority or other sufficient relationship to the premises at the time she gave the consent to search. 16 Kan. App. 2d at 591. Citing Matlock, the Ratley court noted: “Recent United States Supreme Court cases appear to be decided [based] on whether the third party had common authority to consent, not on whether the third party jointly occupied the premises.” 16 Kan. App. 2d at 591. Because the defendant’s wife had fled to a “safe house,” the court found she did not voluntarily surrender her control or access to the residence. Additionally, the court noted there was no evidence the husband had done anything to restrict or control access to the residence. The Ratley court thus concluded the defendant’s wife had the authority to consent to a search of the residence. 16 Kan. App. 2d at 594. Unlike Ratley, Hanson’s absence from the residence for a period of time was due to his own actions rather than the violent actions of a spouse. Nevertheless, as in Ratley, there was no evidence that Hanson voluntarily and permanently surrendered control or access to the premises. Nor was there any evidence that anyone had changed the locks or attempted to restrict Hanson’s access to the premises in any way. Arguably, we are presented here with even more compelling evidence upon which to find authority to search than that relied upon by the court in Ratley. The defendant’s wife in Ratley did not intend to return permanently to the marital residence but rather returned only to obtain her belongings. Hanson, on the other hand, indisputably intended not only to return to the home, but to reside permanently at the residence. In fact, he was required to reside there as a condition of his release. Moreover, Hanson had lived at the residence for several years prior to his incarceration, and his parole plan had been approved based upon his residing at the same location upon his release. Finally, upon his release, Hanson immediately returned to the residence. Under these circumstances, we conclude the State established by a preponderance of the evidence that Hanson had common authority or sufficient relationship to the property to give a valid consent to a search of the residence. — 216 — Apparent Authority to Consent to Search The trial court’s holding can also be affirmed under the apparent authority rule, “ which makes valid a consent to search when tire facts available to an officer would warrant a person of reasonable caution to believe the consenting party had authority over the premises to be searched.’ [Citation omitted.].” 27 Kan. App. 2d at 1026. In Illinois v. Rodriguez, 497 U.S. 177, 188-89, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990), the Supreme Court determined that a consent to search is valid when the facts available to an officer would warrant a person of reasonable caution to believe tire consenting party had authority over the premises to be searched. In Ratley, 16 Kan. App. 2d at 595, our court applied Rodriguez, finding that since the officers knew the parties were married and there was no evidence that the husband had moved to revoke the wife’s authority or the wife had given up her authority, the officers could reasonably rely on the wife’s apparent authority. Several factors in this case support a finding that Hanson had apparent authority to consent to the search. He resided at the 20th Avenue residence with his mother and Porting for several years prior to his incarceration. His preapproved parole plan required that he reside at that address following his release, and he immediately returned to the residence upon his release. Moreover, there was no evidence whatsoever to suggest that Hanson was not welcome or permitted to return to the residence after his release. Given these factual circumstances, we conclude the State proved by a preponderance of the evidence that Hanson’s parole officer could reasonably rely on Hanson’s apparent authority over the premises to be searched. Search of the Bedroom Defendants argue that even if Hanson did have the authority to consent to the search of the house, he did not have the authority to consent to a search of Porting’s private bedroom. They argue the door was closed at the time the officer entered the house and was opened by Hanson, who was acting as the State’s agent. Because the room contained Porting’s personal, private belongings, — 217 — the defendants argue Porting had an expectation of privacy in the room. They point out that courts have repeatedly recognized that parolees do not have the authority to consent to search of another’s private areas in a residence. United States v. Cantley, 130 F.3d 1371, 1376-77, (10th Cir. 1997); State v. West, 185 Wis. 2d 68, 94, 517 N.W.2d 482 (1984); State v. Johnson, 748 P.2d 1069, 1073-74 (Utah 1987), abrogated on other grounds by State v. Doporto 935 P.2d 484 (Utah 1997). We are not persuaded. There is no indication Hanson was acting as an agent of the State, given that Hanson requested the search. Further, the record indicates Porting did not have exclusive control over the bedroom. Porting and Angel were found in Hanson’s mother’s home in the room Porting shared with Hanson prior to his incarceration and the room Hanson intended to occupy upon his return. Finally, Porting argues that Mora, Hanson’s parole officer, acted as a “stalking horse” for law enforcement officers, allowing them to evade the usual warrant requirements such as probable cause. We find this assertion equally unpersuasive. There is no indication that Mora collaborated with Hutchinson police to circumvent probable cause. Instead, Mora requested the police accompany Hanson and Mora to the residence. The police did not initiate any action and stood by outside during the search. We thus find the district court did not err in denying the defendants’ motions to suppress. Affirmed.