RONTEZ P. COLBERT V. COMMONWEALTH OF KENTUCKY
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AS MODIFIED: MAY 24, 2001
RENDERED: FEBRUARY 2
RONTEZ P. COLBERT
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
97-CA-0810
JEFFERSON CIRCUIT COURT NO. 96-CR-308
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE GRAVES
AFFIRMING
This case presents an issue of first impression in Kentucky: The validity of a
mother’s consent to police officers’ warrantless search of her adult son’s bedroom
located in her home, as well as of his personal effects, including a closed safe, absent
direct evidence she had common authority over the room.
Shortly after I:00 a.m. on Dec. 26, 1995, Louisville police received a call
concerning a domestic disturbance at Delores Colbert’s home, requesting help with her
19-year-old son, Appellant Rontez Colbert, who had become enraged and was
“trashing” the home they shared with Delores’ younger son. When officers arrived,
Appellant was putting on a bulletproof vest and barricading himself in the house.
Officers tried to apprehend Appellant, who attempted to evade them, tipping over
furniture as he ran. Eventually he was caught, arrested and taken outside. He asked
an officer to retrieve a specific pair of shoes and a jacket from his bedroom in the
basement before they took him to jail.
Another officer approached Delores and explained to her that Appellant had a
reputation for being violent. He was, in fact, believed to be involved in at least one
shooting earlier that year. The officer then asked for permission to search his room for
weapons.
Delores agreed, and at a suppression hearing, the officer recounted her
words as “you can search anywhere in the house you want to and do whatever you
gotta do; do whatever you want to do.” These words were never disputed because,
although Delores was expected to be a defense witness at the suppression hearing,
she made it known that she preferred not to testify and, as such, was never called.
When officers entered Appellant’s room, they discovered the walls covered with
what they identified as gang graffiti and summoned a photographer. They also
discovered several plastic containers for handguns. Continuing the search, they found
a small fireproof safe on the floor and opened it. The record does not disclose whether
the safe or the bedroom door was locked.
The safe contained six individually wrapped
bundles of marijuana, about 19 grams of crack cocaine in fifty bundles, cash, an
extended gun clip, and photographs of Appellant and others with weapons. All of this
evidence was confiscated.
Following a hearing on September 24, 1996, the Jefferson Circuit Court denied a
motion to suppress the items seized from the bedroom. On February 5, 1997,
Appellant entered a conditional plea of guilty to charges of first degree trafficking in a
controlled substance, trafficking in marijuana, resisting arrest, and second degree
assault. He received five years each on the controlled substance and second degree
assault charges and twelve months each on the marijuana and resisting arrest charges,
all to run concurrently for five years imprisonment. Pursuant to his conditional plea, he
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appealed the order denying the motion to suppress the items found in the safe. The
Court of Appeals recognized this as an issue of first impression and, relying on United
States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), held that
Appellant’s mother possessed common authority over her own household and could
consent to a search of the entire premises. The court continued that, even if she
lacked actual authority, she had apparent authority over the premises and it would have
been reasonable for the officers to believe she possessed authority to consent to a
search of Appellants room, pursuant to Illinois v. Rodriauez, 497 U.S. 177, 110 S.Ct.
2793, 111 L.Ed.2d 148 (1990).
Appellant appeals on the basis that, although no evidence was presented to
show his mother did not have a right of entry, she could not consent to the search
because the room was in his exclusive control, and, absent a warrant, the search
should be held unconstitutional and the evidence suppressed. Furthermore, he
contends that her authority over the house did not extend to his safe. Finally, he argues
that officers should not be permitted to use third-party consent to bypass the first party,
when the latter is still available to give or deny consent. After reviewing the record and
hearing oral argument, we affirm the decision of the Court of Appeals.
I. CONSENT TO SEARCH OF THE BEDROOM WAS VALID
In Payton v. New York, 445 U.S. 573, 100 SCt. 1371, 63 L.Ed.2d 639 (1980),
the United States Supreme Court recognized that there is a heightened privacy interest
in one’s own home and that the Fourth Amendment generally prohibits warrantless
entry, whether to search for objects or to make an arrest. This general prohibition may
be overcome by any of the valid exceptions to the warrant requirement, including
consent to search, whether obtained from the individual who is the target of the search,
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see Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973),
or from a third party who possesses common authority over the premises. See Matlock,
supra. The burden of proof to show an exception rests with the government. See
Gallman v. Commonwealth, Ky., 578 S.W.2d 47, 48 (1979).
Appellant argues that Kentucky law gives a more expansive reading to the
protections against search and seizure than is offered by the United States
Constitution’s Fourth Amendment. First, Appellant cites Elmore v. Commonwealth, 282
Ky. 443, 138 S.W.2d 956, 960 (1940), arguing that this Court held that “The right
[against warrantless search and seizure] thus guaranteed is a personal right and is
broad enough to cover the appellant [17-year-old youth charged with rape] as a
member of the family, residing with his father and mother, since it was his dwelling as
well as theirs.”
The Elmore line of reasoning is inapplicable. That case did not turn on the
protections afforded Elmore by the Kentucky Constitution, but rather was based on
whether his mother’s consent to search was voluntary. The 1940 case also shows a
paternalistic attitude toward women in general, and black women in particular, which
cannot be reconciled with modern thinking. The Elmore Court reserved the question of
whether it was possible for a wife to consent to the search of the home in the absence
of her husband, but suggested that allowing such to occur would be to allow the wife to
waive her husband’s constitutional rights. In Commonwealth v. Sebastian, KY., 500
S.W.2d 417, 419 (1973) this Court held that a wife may consent to a search of the
home in the absence of her husband, and that the consent was not the wife’s waiving of
the husband’s rights, but an assertion of her own rights of control over the shared
spaced.
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Appellant does not raise the issue of voluntariness of consent on appeal, and
Elmore,
supra, is, if not a case which has outlived its usefulness, at least inapplicable
here. Appellant’s mother was the homeowner and the head of the household. To
protect her person and her property, she summoned the police to remove Appellant
from her home. She also agreed to the search and gave the police unlimited authority
to search anywhere they wanted.
Appellant also cites Commonwealth v. Wasson, Ky., 842 S.W.2d 487 (1992) a
privacy case concerning a man convicted under an anti-sodomy law, to show the
expansiveness of Kentucky’s interpretation of the right to privacy. Wasson
involved
personal lifestyle choices for private consensual sexual activities, and held that the
Kentucky Constitution’s guarantees of individual liberty “offer greater protections of the
right of privacy than provided by the Federal Constitution as interpreted by the United
States Supreme Court. . . .‘I Id. at 491. This Court, however, has never extended these
greater protections to the rights in property interests against warrantless search and
seizure. What we have said, as recently as four years ago, is “[Slection 10 of the
Kentucky Constitution provides no greater protection than does the federal Fourth
Amendment.” LaFollete v. Commonwealth, KY., 915 S.W.2d 747, 748 (1996) (citing
Estep v. Commonwealth, Ky., 663 S.W.2d
213 (1983)).
Both state and federal courts have interpreted search and seizure law to allow
third parties to consent to the search of shared common areas. See Morris v.
Commonwealth, 306 Ky. 349, 208 S.W.2d 58 (1948) (father’s consent to search as
“head of household” for incriminating evidence against son valid for evidence found in
the kitchen) and Matlock, supra, (consent of a woman who shared a bedroom with her
boyfriend in her parents‘ home valid). Furthermore, in United States v. Hall, 979 F2d
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77 (6th Cir. 1992), the Sixth Circuit Court of Appeals held that a homeowner may
consent to the search of a tenant’s room, even though he never entered it while it was
rented to the tenant. In -, the homeowner indicated that he had access to the room
Hall
at all times, and that some of his personal items were stored in an adjacent room which
was accessible through Hall’s room. If Hall’s rental agreement did not provide enough
privacy to keep his landlord from consenting to a search of his room and dresser, then
surely Appellant in this case can be afforded no more protection from the search to
which his mother consented. Appellant never paid rent for his basement bedroom, nor
did he present any evidence to indicate that he and his mother had agreed to his
exclusive control of it. Like any homeowner, in the absence of an understanding to the
contrary, the mother retained the right of entry to all areas of her house including the
room Appellant occupied.
In Wayne R. LaFave’s treatise on search and seizure, he notes that the power of
a parent to consent to a search of the home derives not so much from the idea of
common authority as it does from the status of parent. Wayne R. LaFave, Search and
Seizure, Vol. III, Chap. 8, $8.4(b), p. 765 (3d ed. 1996). LaFave notes that “courts tend
to recognize a superior right in the parents to keep the family home free of criminal
activity.” Id. at 770. For example, the Minnesota Supreme Court in State v. Kinderman,
136 N.W.2d 577 (Minn. 1965), upheld the father’s consent to the search of a 22-yearold son’s room. That court stated:
If a man’s house is still his castle in which his rights are superior to the
state, those rights should also be superior to the rights of the children who
live in his house. We cannot agree that a child, whether he be dependent
or emancipated. . . . has that same constitutional rights of privacy in the
family home which he might in a rented hotel room.
Id. at 580.
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Echoing this sentiment, the California Court of Appeals in People v. Daniels, 93 Cal.
Rptr. 628, 632 (Cal. Ct. App. 1971) held that the mere fact that a son is permitted to
use a particular room in his parents’ home does not confer upon him exclusive control.
His occupancy is subservient to that of his parents and he may be excluded at any time.
It logically follows that a parent not only has a right of entry but also the right to
authorize the entry of other persons.
State courts abound with decisions similar to that made by the Kentucky Court
of Appeals, allowing a parent to consent to the search of a child’s bedroom, most of
which derive from parental authority over the family home. See People v. Lucero, 720
P.2d 604 (Colo. Ct. App. 1985) (no evidence that mother relinquished control of room,
despite having her own reasons for never entering it); People v. Brooks, 660 N.E.2d
270 (Ill. App. Ct. 1996) (no evidence that room was locked or that son had left
instructions not to enter it); People v. Goforth, 564 N.W.2d 526 (Mich. Ct. App. 1997)
(although son was 18 years old and paid rent, nothing indicated that mother lacked
access to the room); State v. Cole, 706 S.W.2d 917 (MO. Ct. App. 1986) (A person
living with his family can expect more intrusion that an independent renter living with
nonrelatives).
The United States Supreme Court held in Matlock, supra, that the test for
whether third-party consent was permissible was “common authority over or other
sufficient relationship to the premises or effects sought to be inspected.” 415 U.S. at
171, 94 SCt. at 994. (Emphasis added). At least one court has held that an example
of a “sufficient relationship” is parental authority, particularly when the son pays no rent.
Howard v. State, 427 S.E.2d 96 (Ga. Ct. App. 1993).
Kentucky has previously
considered the issue of a search of a child’s bedroom, although under slightly different
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circumstances. In Grav v. Commonwealth, 198 Ky. 610, 249 S.W. 769 (1923), our
highest Court held that competent evidence was obtained from the search of an adult
son’s bedroom. Officers arrived at the house with a search warrant, but obtained
consent for the search from the suspect’s mother. As the search was finishing, the son
arrived home and objected to the search, but officers continued on the grounds they
had a warrant.
At trial, the warrant could not be produced, but the court nonetheless upheld the
search based on the mother’s consent:
Except for the agreement of the householder that the officers might make
the search, the point would be well-taken, but the evidence shows without
contradiction that Mrs. Gray agreed that the officers might search her
home, and it has been held by this court that, where there is such consent
for a search, the officer may make the same, even though he has no
warrant or an insufficient one.
Id. at 769.
Thus, the mother’s consent to search was a valid basis for the search of her son’s room
in her home, even over his objections.
II. MOTHER COULD CONSENT TO SEARCH OF SAFE
Because the consent search of the room was valid, we must now consider the
search of the safe. Appellant relies on a portion of Sebastian, supra, which holds that a
wife may consent to the search of the marital home, but adds, “An exception would be
where, by agreement or understanding, the wife did not have access to a particular
room or a particular container.” 500 S.W.2d at 419. This argument fails in this case on
several accounts, First, as stated above, no evidence was produced that Delores did
not have access to the safe, only that she did not use it. Appellant’s counsel stated in
oral argument that neither side introduced evidence as to the safe’s ownership, but only
noted that photos showed the safe covered in the same graffiti as the room.
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Furthermore, while Appellant is correct that no evidence was presented to show
whether the safe was locked or simply closed, his counsel stated at oral argument that
the safe was searched contemporaneously to the rest of the room. The police officer
testified at the suppression hearing that he needed no assistance to gain access to the
unsecured fireproof safe, but merely opened it.
Second, the Sebastian court emphasized that the wife had just as much right to
control the house as did the husband. As noted above, most courts would not agree
that the adult offspring living in the family home have the same rights as a spouse does.
Where a wife might have to show that there was common authority over a particular
room or container under Sebastian, supra, it does not automatically hold that a mother
would have to show common authority (i.e., shared usage) of the effects in her son’s
bedroom when she is the owner of the premises and head of the household.
Furthermore, Appellant and his mother had no “agreement or understanding” that she
would not open the safe, at least not evidenced in the record. Thus, Sebastian is
inapplicable.
The third reason that Appellant’s reliance on Sebastian is misplaced is a decision
by this Court ten years after Sebastian, in Estep, supra. Relying on the United States
Supreme Court automobile search case, United States v. Ross, 456 U.S. 708, 102
S.Ct. 2157, 72 L.Ed.2d 572 (1982) (search of any part or compartment of a vehicle
where the object searched for could be hidden allowed when officer had probable
cause to search), the Estep court held that a warrant to search a home would extend to
closets, drawers and containers in which the object of the search might be concealed.
On the subject of warrantless searches, we stated:
The scope of a warrantless search is defined by the object of the search
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and the places in which there is probable cause to believe it may be
found. A lawful search of a fixed premises generally extends to the entire
area in which objects may be found and is not otherwise limited.
Estep. supra, at 215.
Here, an officer sought permission from Appellant’s mother, who had a superior
property interest in the home to search his room for weapons. When officers entered,
they noticed a closed safe. Police were reasonable in assuming that if Appellant was
hiding weapons in his room, they could be hidden in this safe. In fact, officers found a
clip from a weapon in the safe. This search was lawful under Estep. supra. Finally,
while Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) is often
cited for the proposition that the government should protect reasonable expectations of
privacy, the United States Supreme Court in Katz also cautions that these expectations
should be those “society is willing to acknowledge as reasonable.” 389 U.S. at 361, 88
S.Ct. at 516 (Harlan, concurring). The right to have an exclusive hiding place for drugs
or weapons in one’s mother’s home, particularly in this case when Delores’ shock at its
discovery demonstrated she did not want it there, is hardly an expectation of privacy
that society would acknowledge as reasonable.
III. DESPITE SUSPECT’S PRESENCE, MOTHER’S CONSENT WAS VALID
Finally, Appellant asserts that even if his mother could have given consent to
search the room and safe in his absence, her consent would not override his objection
when he was on the premises, and that officers bypassed asking him for consent.
Because of her superior right in the home, Appellant’s mother was permitted to give
consent, despite his presence. In Matlock, supra, where the man and his girlfriend had
equal rights to the bedroom which was searched, the Supreme Court held the consent
given by the girlfriend was valid, even though Matlock had been taken into police
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custody in the front yard of the home. Similarly, other states have applied this theory to
parents and children, and have determined that, particularly in the case of minors, the
parent’s authority is controlling. See Vandenbera v. Superior Court, 87 Cal.Rptr. 876
(Cal. Ct. App. 1970). In Hembree v. State, 546 S.W.2d 235, 241 (Tenn. App. 1976),
the Tennessee Court of Appeals, when faced with a case in which an 18-year-old son
gave consent to search his parents home, also held that the parents had a superior
interest:
[T]he rights of an 18-year-old son to the use or occupation of the premises
are not necessarily equal to the rights of use or occupation of his parents.
. . . [when the parents are in the custody of the law . . . and are equally
accessible to give or withhold consent to search, the consent and
cooperation of the son does not waive the constitutional rights of the
parents.
LaFave says that bypassing the suspect is “especially proper when the police have
instead obtained the consent of a person with a superior interest in the place
searched.” Search and Seizure, supra, at 737. Such occurred in Gray. supra, where
our predecessor Court allowed evidence to be admitted because of the mother’s
consent, despite the suspect’s objections at the time of the search.
While we hold that Appellant’s mother had the authority to consent to a search of
her home and Appellant’s safe, as the parent and homeowner, the consent also would
have been valid on the principle of apparent authority. In Rodriguez, supra, the United
States Supreme Court held that a consenting party has apparent authority if “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[.]” 497 U.S. at 188, 1 IO
S.Ct. at 2801 (quoting Terry v. Ohio, 392 U.S. I, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968)). We are of the opinion that officers in this case were reasonable in relying on
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’
.
the belief that Delores Colbert, as the head of the household, had given a valid consent
to the search of that household, including Appellant’s room and its contents therein.
The judgment of the Jefferson Circuit Court is affirmed.
Lambert, C.J., Cooper, Graves, and Wintersheimer, J.J. concur. Keller, J.,
dissents in a separate opinion in which Johnstone, J., joins as to l(B) only, and Stumbo,
J., joins.
COUNSEL FOR APPELLANT
Bruce P. Hackett
Frank Wm. Heft, Jr.
200 Civic Plaza
719 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APPELLEE
A.B. Chandler III
Attorney General
Courtney J. Hightower
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
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RENDERED: FEBRUARY 22,200l
TO BE PUBLISHED
1998-SC-1070-DG
RONTEZ P. COLBERT
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
97-CA-08 10
JEFFERSON CIRCUIT COURT NO. 96-CR-308
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE KELLER
I believe that the citizens of this Commonwealth still enjoy the protections of the
Fourth Amendment to the United States Constitution’ and Section Ten of the Kentucky
Constitution. The Commonwealth’s search of Colbert’s room and the safe contained
within it clearly violated these constitutional protections. Accordingly, I must dissent.
The Kentucky and United States Constitutions prohibit unreasonable searches
where persons have a reasonable expectation of privacy.2 Although the courts of this
“‘The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.” U.S. Const. amend. IV.
2&e Katz v. United States, 389 U.S. 347, 351-352, 19 L.Ed.2d 576, 582, 88
S.Ct. 507 (1967) (“For the Fourth Amendment protects people, not places. What a
person knowingly exposes to the public, even in his own home or office, is not a subject
of Fourth Amendment protection. But what he seeks to preserve as private, even in an
area accessible to the public, may be constitutionally protected.” Id. (citations omitted));
Rakas v. Illinois, 439 U.S. 128, 143, 58 L.Ed.2d 387, 401, 99 S.Ct. 421 (1978)
(continued.. .)
nation have in recent years limited the scope of the Fourth Amendment through
increasingly narrow interpretations of defendants’ expectations of privacy,3 there can be
no serious disagreement that Colbert had a reasonable expectation of privacy in his
own bedroom and in a fireproof safe.4 The majority’s assertion that society is unwilling
to recognize Rontez Colbert’s asserted expectation of privacy in contraband ignores two
centuries of case law reversing criminal convictions involving contraband on the basis of
unreasonable searches, impermissibly attempts to justify the search on the basis of
*(...continued)
(“[Clapacity to claim the protection of the Fourth Amendment depends not upon a
property right in the invaded place but upon whether the person who claims the
protection of the Amendment has a legitimate expectation of privacy in the invaded
place.” Id. (citations omitted)).
‘See. e.qr, Oliver v. United States, 466 U.S. 170, 80 L.Ed.2d 214, 104 S.Ct. 1735
(1984) (No legitimate expectation of privacy in an open field); Hudson v. Palmer, 468
U.S. 517,82 L.Ed.2d 393, 104 S.Ct. 3194 (1984) (Prisoner has no reasonable
expectation of privacy in his cell); California v. Greenwood, 486 U.S. 35, 100 L.Ed.2d
30, 108 S.Ct. 1625 (1988) (No expectation of privacy in opaque plastic garbage bags
left outside the curtilage of a home).
4See. e.a., United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978):
Common experience. . . surely teaches all of us that the
law’s “enclosed spaces” mankind’s valises, suitcases,
footlockers, strong boxes, etc. are frequently the objects of
his highest privacy expectations, and that the expectations
may well be at their most intense when such objects are
deposited temporarily or kept semi-permanently in public
places or in places under the general control of another.
Indeed, to the sojourner in our midst. . . the suitcase or
trunk may well constitute practically the sole repository of
such expectations of privacy as are had.
Id.
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what the officers found,’ and overlooks the fact that courts apply the exclusionary rule
in order to deter future unreasonable searches.
We have held that warrantless searches are per se unreasonable unless the
Commonwealth proves an exception to the warrant requirement.6 Here, the
Commonwealth asserts that it reasonably conducted a search of Colbert’s room and
fireproof safe after Colbert’s mother, Delores, consented to the searches.
The Commonwealth may conduct a warrantless search pursuant to the voluntary
consent of someone other than the defendant (“a third party”) only when it can prove
that: (1) the defendant has expressly authorized the third party to consent to the search;
(2) the third party has actual authority to consent to the search as demonstrated by
persuasive evidence of both shared use and joint access to or control over the
5& Wonq Sun v. United States, 371 U.S. 471,484, 9 L.Ed.2d 441, 453, 83
S.Ct. 407 (1963) (“That result would have the same essential vice as a proposition we
have consistently rejected - that a search unlawful at its inception may be validated by
what it turns up.” Id.).
6See Gallman v. Commonwealth, KY., 578 S.W.2d 47, 48 (1979) (“All searches
without a valid search warrant are unreasonable unless shown to be within one of the
exceptions to the rule that a search must rest upon a valid warrant. The burden is on
the prosecution to show the search comes within an exception.” u (emphasis added)).
While I would hope that such an elementary principle would not require substantial
attention, it appears to me that the majority has overlooked this principle. Although the
United States Supreme Court has, consistently and for over fifty years, placed the
burden of demonstrating the reasonableness of a warrantless search upon the
government, see e.g., McDonald v. United States, 335 U.S. 451, 93 L.Ed. 153, 69 S.Ct.
191, (1948); United States v. Jeffers, 342 U.S. 48, 96 L.Ed. 59, 72 S.Ct. 93 (1951);
Bumber v. North Carolina, 391 U.S. 543,20 L.Ed.2d 797, 88 S.Ct. 1788 (1968);
Coolidae v. New Hampshire, 403 U.S. 442, 29 L.Ed.2d 564, 91 S.Ct. 2022 (1971)
today’s majority appears, on three separate occasions, to reverse this burden by
criticizing Colbert for failing to prove his mother’s lack of authority. See Majority
O p i n i o n , S.W.3d - at - (2001) (“Appellant never paid rent for his basement
bedroom, nor did he present any evidence to indicate that he and his mother had
agreed to his exclusive control of it.” Id.); Id. at -, (“[N]o evidence was produced that
Delores did not have access to the safe . . . .‘I Id.); Id. at -, (“Appellant and his
mother had no ‘agreement or understanding’ that she would not open the safe, at least
not evidenced in the record.” Id.).
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searched area;7 or (3) the officers who conducted the search reasonably believed, on
the basis of the factual information available to them at the time of the search, that the
person from whom they obtained consent had the actual authority to grant consent to
the search.8 Because “express authorization” cases are largely hypotheticaL searches
conducted pursuant to a third party’s consent are usually reasonable only when the
Commonwealth can demonstrate the third party’s actual or reasonably apparent
authority to consent.
In this case, the trial court held an evidentiary hearing on Colbert’s suppression
motion. The entirety of the “proof’ on the reasonableness of the search consisted of
the testimony of two police officers. One officer, not present during the search itself,
testified only for the purpose of explaining how the arrest citation he prepared in
connection with this case erroneously indicated that the search occurred “incident to
arrest.” The other, Officer Wainscott, testified only that Delores Colbert lived in the
home and had, in fact, given her permission for the officers to search Rontez Colbert’s
room and belongings:
Also, knowing the person I was dealing with, I requested of
Mrs. Colbert if we could look for weapons in, uh, her son’s
bedroom, which was in the basement, and she told me at
that time that I could search anywhere in the house that I
wanted to. She said “do what you’ve gotta do, do whatever
you want to do.” I told her that would be unnecessary. I
didn’t have to search the whole house, I’d just like to search
‘a United States v. Matlock, 415 U.S. 164, 39 L.Ed.2d 242, 9 4 S.Ct. 988
(1974).
*a Illinois v. Rodriauez, 497 U.S. 177, 1 1 1 L.Ed.2d
(1990).
148, 110 S.Ct. 2793
9a Block v. United States, supra note 4 at 540 & n.5 (“In theory, though rarely
if ever in fact, third person authority could be derived from an actual agency
relationship.” Id.).
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for specifically guns, handguns in his room. She’s like “fine,
go ahead,” so at that point we did and the search was
conducted.
The nature of this testimony, which merely established that Delores Colbert did give her
permission for the search, begs the question with respect to the relevant inquiry--whether she could actually authorize the search.” The Commonwealth did not call
Delores Colbert as a witness at the evidentiary hearing, and, in fact, introduced no
evidence to prove that: (1) Delores Colbert even possessed a property interest in the
house containing the basement room searched pursuant to her authorization; (2)
Delores Colbert had any use of, access or connection to either the basement room or
the fireproof safe; or (3) that any investigating officer made any inquiry of Delores
Colbert which would allow the officers to make a determination of her ability to consent
to a search of her son’s room. To the contrary, Officer Wainscott’s testimony that
Delores Colbert appeared “shocked” and “in disbelief’ when he showed her the items
seized from her son’s room raises the inference that her access to the basement room
was, at best, limited.
Nonetheless, the trial court denied Colbert’s motion after divining that Delores
Colbett owned the home and had the right to consent to any search of it:
“See. e.a., United States v. Welch, 4 F.3d 761, 764 (gth Cir. 1993):
The dispositive issue in this case is not what areas of the
car McGee may have intended his consent to encompass,
whether or not he intended to authorize a search of any of
the car’s contents, or even what constitutes an objectively
reasonable interpretation of his statements to the officers.
Rather the issue is whether McGee had the authority, either
actual or apparent, to give effective consent to the search of
his companion’s purse.
Id. (italics in original).
-5-
[I]t was testified that Defendant’s mother, Ms. Colbert gave
her consent to search the room. The officers then searched
the room and a safe was found, and the Officers discovered
cocaine in the safe. . . .
While the Defendant has an interest in expecting privacy
of his room, it is undisputed that his mother as owner of the
home had control of the entire household and as such can
give permission to have it searched.
As I find the Commonwealth’s proof regarding the reasonableness of the search wholly
inadequate, I take issue with the factual findings and legal conclusions reached by the
trial court.
I. THE COMMONWEALTH FAILED TO PROVE
DELORES COLBERT HAD THE LEGAL AUTHORITY TO
CONSENT TO THE SEARCH
OF HER SON’S BEDROOM AND SAFE
A. THE BEDROOM
In United States v. Matlock,” the United States Supreme Court stated that
searches conducted upon the consent of a third party were reasonable when that third
party has a sufficient connection to the property searched:
[Rlecent authority here clearly indicates that the consent of
one who possesses common authority over premises or
effects is valid as against the absent, nonconsenting person
with whom that authority is shared. . . . [Wjhen the
prosecution seeks to justify a warrantless search by proof of
voluntary consent, it is not limited to proof that consent was
given by the defendant, but may show that permission to
search was obtained from a third party who possessed
common authority over or other sufficient relationship to the
premises or effects sought to be inspected.‘*
“Supra note 7.
‘*1d. at 415 U.S. 164, 170-171, 39 L.Ed.2d 242, 249-250. See also Id n.7:
--A
Common authority is, of course, not to be implied from the
mere property interest a third party has in the property. The
(continued.. .)
-6-
In attempting to create objective standards by which to evaluate evidence of a
third party’s connection with the property searched, the Circuit Courts of Appeal have
wrestled with the language of Matlock.13
Today’s majority seizes upon the “or other
sufficient relationship” language in Matlock to support its conclusion that the existence
of a parent-child relationship between the third party and defendant creates a rebuttable
presumption that the parent has the legal authority to consent to a search of any
property within the parent’s residence. The majority’s holding thus allows the
authority which justifies the third-party consent does not rest
upon the law of property, with its attendant historical and
legal refinements, but rests rather on mutual 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.
Id. (citations omitted).
13a generallv United States v. Rith, 164 F.3d 1323, 1328-1331 (1999) cert.
denied 528 U.S. 827, 145 L.Ed.2d 66, 120 S.Ct. 78 (1999). See also United States v.
Block, supra note 4 at 539-40 (“[IIt may be based simply upon the fact that the third
person shares with the absent target of the search a common authority over, general
access to, or mutual use of the place or object to be inspected under circumstances
that make it reasonable to believe that the third person has the right to permit the
inspection in his own right and that the absent target has assumed the risk that the third
person might grant this permission to others.” Id.); United States v. Moore, 917 F.2d
215, 223 (6th Cir. 1990), cert. denied 499 U.S. 963, 113 L.Ed.2d 654, 111 S.Ct. 1590
(1991) (applying the language of Matlock itself); United States v. Whitfield, 939 F.2d
1071, 1074 (D.C. Cir. 1991) (requiring proof of both mutual use and joint access before
a third party has authority to consent to a search); United States v. Davis, 967 F.2d 84,
87 (2nd Cir. 1992) (“[A] third-party consent to a search will validate the search if two
prongs are present: first, the third party had access to the area searched, and second,
either: (a) common authority over the area; or (b) a substantial interest in the area; or
(c) permission to gain access.” Id.); United States v. Rith, supra at 1329 (“[A] third party
has authority to consent to a search of property if that third party has either (1) mutual
use of the property by virtue of joint access, or (2) control for most purposes over it.”
Id.) (emphasis added).
-7-
Commonwealth to avoid the “fact-intensive inquiry”14 necessary to prove that the parent
exercised mutual use of the property by virtue of joint access. This mirrors the view of
the United States Court of Appeals for the Tenth Circuit:
[Clontrol for most purposes of property is a normative
inquiry dependent upon whether the relationship between
the defendant and the third party is the type which creates a
presumption of control for most purposes over the property
by the third party. If a relationship creates such a
presumption of control and is unrebutted, the third party has
authority to consent to a search of the property.
Relationships which give rise to a presumption of control
include parent-child relationships. . . . In contrast, a simple
co-tenant relationship does not create a presumption of
control and actual access would have to be shown. The
difference between a . . . parent-child relationship and a cotenant relationship is that a . . . parent-child relationship
raises a presumption about the parties reasonable
expectations of privacy in relation to each other in spaces
typically perceived as private in a co-tenant relationship.
Two caveats are important. First, in determining whether a
particular relationship raises a presumption of control for
most purposes, . . . authority to search is premised on a
“practical understanding” of the way parties have access to
and share the searched property. Second, while . . . parentchild relationships give rise to a presumption of control for
most purposes over the property, that presumption may be
rebutted by facts showing an agreement or understanding
between the defendant and the third party that the latter
must have permission to enter the defendant’s room.”
The majority’s holding allows the Commonwealth to prove the reasonableness of a
warrantless search by demonstrating only: (1) that a parent-child relationship existed
between the third party giving consent and the defendant, and (2) that the parent held a
14United States v. Rith, supra note 13 at 1330.
151d. at 1330-I 331 (citations omitted).
-8-
I
.
property interest in the home.16 The “presumption” created today by this Court fills in all
the factual gaps.
I see no valid reason for this Court to allow the Commonwealth to justify a
warrantless search on the basis of speculative presumptions rather than evidentiary
proof. In accordance with the protections of the Fourth Amendment, the courts of this
nation have required governments to prove the reasonableness of their warrantless
searches in order to prevent the exceptions from swallowing the general rule:
The real issue is whether the evidence offered by the
Government, taken at full value, meets the required
standard. We hold that it does not; that there has not been
a sufficient showing of true consent. . . . Standards of this
sort must be maintained and enforced by the trial and
appellate courts. If they are not, the guarantees of the Bill of
Rights can quickly disappear through tacit nullification.”
The majority’s holding relieves the Commonwealth of the need to actually prove valid
consent, and instead allows a rebuttable presumption premised on this Court’s
16Given the paucity of evidence introduced by the Commonwealth at the
evidentiary hearing in this case, I have my doubts whether the Commonwealth satisfied
even this minimal burden. None of the alleged “facts” concerning Delores Colbert’s
interests in and connections to this property, including the trial courts characterization
of Delores Colbert as “owner of the home,” are supported by substantial evidence.
17Judd v. United States, 190 F.2d 649, 652 (D.C. Cir. 1951). See also Coolidae
v. New Hambshire, 403 U.S. 443,454, 2 9 L.Ed.2d 564, 575-6, 9 1 S.Ct. 2022 (1971):
It may be that it is the obnoxious thing in its mildest and
least repulsive form; but illegitimate and unconstitutional
practices get their first footing in that way, namely, by silent
approaches and slight deviations from legal modes of
procedure. . . . It is the duty of courts to be watchful for the
constitutional rights of the citizen, and against any stealthy
encroachments thereon.
Id. (quoting Boyd v. United States, 116 U.S. 616, 635, 2 9 L.Ed. 746, 752, 6 S.Ct. 524
(1886)).
-9-
assumptions concerning private space within families.” No one has ever supported
these assumptions with evidence, but this Court appears comfortable defining the
reasonableness of searches and seizures on the basis of its own generalizations. This
presumption unquestionably transfers the burden of proof away from the
Commonwealth by forcing the defendant to produce evidence to the contrary.
The majority’s holding also ignores the plain language of Matlock when it
elevates in importance the relationship between the third party and defendant above
the connection between the third party and the property to be searched.lg
Indeed,
‘*The United States Court of Appeals for the D.C. Circuit disputes the basis for
such a presumption with respect to adult children living under their parents’ roofs:
Officers may of course proceed on the basis of the “factual
and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.
They may assume that a husband and wife mutually use the
living areas in their residence . . . so that either may consent
to a search. When a minor child’s room is involved, agents
might reasonably assume that the child’s mother, in the
performance of her parental duties, would not only be able
to enter her child’s bedroom, but also would regularly do so.
But we are aware of no basis for such an assumption when
the child is, as here, 29 years old. The agents in this case
had no way of knowing whether parents usually do not
permit their adult sons and daughters to have exclusive use
of the rooms they occupy and they made no effort to find out
whether Mrs. Whitfield had this or some other arrangement
with her son.
United States v. Whitfield, supra note 13 at 1074-75 (citations omitted). s
S
e
e
a
l
o
United States v. Duran, 957 F.2d 499, 505 (7th Cir. 1992) (expressing opinion that an
adult child living at home has “as a general rule . . . privacy expectations greater than
those inherent in a marriage, making it more difficult to demonstrate common authority.”
Id.).
19a United States v. McAloine, 919 F.2d 1461, 1464 (1990) (“[Tlhe relevant
analysis in third-party consent cases focuses on the relationship between the consenter
and the property searched, not the relationship between the consenter and the
defendant. While the character of the relationship between the consenter and the
(continued...)
-lO-
unlike today’s majority, many of the opinions from other jurisdictions cited by the
majority found a parent’s consent valid not because of some nebulous concept of
“inherent parental authority,” but because the parent-child relationship, along with other
evidence, demonstrated the parent’s actual connection to the property searched..20
“(...continued)
defendant may bear on the nexus between the consenter and the property, it is not
dispositive of the issue of effective consent.” Id.); Id. at n.2 (“[IIt is the consenter’s
relationship to the property, not the tenor of her relationship with the defendant, that is
determinative of whether she can permit a search in her own right.” Id.).
2oa People v. Daniels, 93 Cal. Rptr. 628, 631 (Cal. Ct. App. 1971):
Pertinent and distinguishing circumstances at bench
include the fact that the person consenting to the search
was the mother of the defendant who owned exclusively the
entire premises, including the bedroom in which he slept.
Consent to search was volunteered by the mother rather
than requested by the officers. . . .
The evidence supports the inference, implicit in the order
denying defendant’s motion to suppress, defendant did not
have exclusive possession or control over the bedroom
which he was permitted to use; and his mother, by virtue of
her ownership and the circumstances in the case, had the
right to enter and search the bedroom at will. The trial judge
who ruled upon the motion to suppress . . . expressed the
conclusion defendant’s occupancy of the bedroom was not
exclusive but was subject to the right of the mother to
consent to its search.
Id.; People v. Lucero, 720 P.2d 604, 606 (Colo. Ct. App. 1985):
It is undisputed that defendant’s mother voluntarily
consented to the search. Although she testified that for her
own reasons she never went into the area which defendant
occupied, the trial court found on supporting evidence that:
(1) she was the owner of the house; (2) defendant was a
tenant at sufferance; (3) she controlled the possessory
interest of those occupying the house; and (4) the rules
concerning what areas of the house were to be used by
whom and who would enter what areas of the house were
made by her and no one else.
Based on these findings, the trial court concluded correctly
(continued...)
-ll-
Even this Court’s leading third-party consent case, Commonwealth v. Sebastian,”
which addressed a spouse’s authority to consent to a search of the home she owned
with her defendant husband, emphasized that “[i]n the present case the evidence was
that the wife had as much right to the control of the house as did the husband.“” Other
persuasive authority cited by the majority turns upon archaic notions of property
ownership which are inconsistent with the post-Katz paradigmatic shift in the way courts
20(. . .continued)
that defendant’s mother shared joint control over the area
with defendant.
ld.; Peoole v. Goforth, 564 N.W.2d 526, 531 (Mich. Ct. App. 1997) (“[Dlefendant’s
mother’s preliminary hearing examination testimony demonstrated that she did, in fact,
have access to and control over defendant’s room.” Id.); Howard v. State, 427 S.W.2d
96 (Ga. Ct. App. 1993):
Howard’s mother leased the premises, which is the
substantial equivalent of. . . co-ownership, and, . . . there
was no landlord-tenant relationship between Howard and his
mother, in that Howard paid neither rent nor household
expenses. Accordingly, we hold that Howard’s mother had a
sufficient relationship to the residence to consent to a
warrantless search of Howard’s bedroom.
Id.
2’Ky., 500 S.W.2d 417,419 (1973).
221& The Sebastian Court also cited with approval federal authority which held
that, “‘It is not a question of agency, or a wife should not be held to have authority to
waive her husband’s constitutional rights. This is a question of the wife’s own rights to
authorize entry into the premises where she lives. . . .I’ Id. (citing United States v.
Thompson, 421 F.2d 373 (5th Cir. 1970)).
-12-
examine expectations of privacy23 or relegates the view of today’s majority to one
judge’s separate concurring opinion.24
Today’s majority salvages this criminal conviction by creating a “shortcut” around
(a.k.a “short-circuiting”) the Commonwealth’s burden to prove the reasonableness of its
warrantless search by demonstrating valid third party consent.
In order to do so, the
majority removes any meaningful limitation on third-party consent searches in the
parent-child context and impermissibly shifts the burden of proof upon the defendant.25
23$& Katz v. United States, supra note 2 at 389 U.S. 347, 353, 19 L.Ed.2d 576,
583 (“But ‘[t]he premise that property interests control the right of the Government to
search and seize has been discredited.“’ Id. (citing Warden v. Havden, 387 U.S. 294,
304, 18 L.Ed.2d 782, 790, 87 S.Ct. 1642 (1967)). See also Warden v. Hayden, supra
(“We have recognized that the principal object of the Fourth Amendment is the
protection of privacy rather than property, and have increasingly disregarded fictional
and procedural barriers rested on property concepts.” Id.).
24&e People v. Goforth, 564 N.W.2d 526, 532 (1997) (O’Connell, J. concurring).
25The United States Court of Appeals for the Seventh Circuit analyzed the Fourth
Amendment opportunity costs of a similar bright-line rule in United States v. Duran,
supra note 18 at 505:
[Consider] a per se rule that common spousal authority
extends to every square inch of property upon which a
couple’s residence is built - in other words . . . we presume
in every case without further inquiry that every square inch is
jointly occupied . . . .
But erecting a per se rule in this context might detach the
third-party consent rule from its moorings. Common
authority rests upon mutual use and joint access and
control. Privacy interests, and the relinquishment thereof,
also play prominently, not only from a logical standpoint (one
who grants joint access to another, by definition, surrenders
a degree of privacy), but also because we are dealing with
the fourth amendment and governmental intrusions into the
home. The theory of third-party consent, it appears, is that
when A shares control over a given premises with B, or
grants B fairly liberal access, A surrenders some of his
privacy interests in that he necessarily assumes the risk that
B will permit inspection of the premises “in his own right.” In
(continued.. .)
-13-
I simply cannot agree with this conclusion, and I would hold that the Commonwealth
failed to prove that Delores Colbert had a sufficient connection with her son’s bedroom
in order to consent to a search therein.
B. THE FIREPROOF SAFE
Even if I suspend my disbelief long enough to accept, ad arguendo, the
majority’s conclusion with respect to Delores Colbert’s authority to consent to a search
of her son’s room, I can find no support for the majority’s assertion that this authority
automatically extends to the fireproof safe. In fact, all federal authority on point is
directly to the contrary:
While authority to consent to search of a general area
must obviously extend to most objects in plain view within
the area, it cannot be thought automatically to extend to the
interiors of every discrete enclosed space capable of search
within the area. The decided cases indicate precisely the
contrary: that each such enclosed space stands on its own
bottom for this purpose. . . .
25( . . .continued)
this light, the per se rule is defective because it presumes
that spouses, in forging a marital bond, remove any and all
boundaries between them - in other words, that spouses
surrender all privacy or other individual interests with respect
to one another. Some might argue that this represents the
ideal in marriage, and perhaps they are right. But although
marriage may be the most intimate of all human relations,
this ideal does not reflect reality, either in practice or in the
eyes of the law (e.g., prenuptial agreements, community
property exemptions for property obtained prior to marriage).
Not all spouses share everything with their mates, which is a
way of saying that spouses do not surrender every quantum
of privacy or individuality with respect to one another.
Id. (citations omitted).
-14-
I
.
This is as it must be for the protection of one of the
primary objects of people’s ordinary expectations of
privacy.26
The majority opinion acknowledges none of this jurisprudence,27
concludes that this Court’s holding in Sebastian28
and instead
does not limit the authority of a head
of the household to consent to searches anywhere within the home and that the
defendant must introduce evidence proving the third-party’s lack of access to a closed
container in order to remove it from the scope of a general consent. The majority also
holds that the officer’s search of the fireproof safe was valid pursuant to Estep v.
26United States v. Block, supra note s4oat U n i t -e d S t- a t e s v . W e l c h , 4
See al
541.
F.3d 761, 764 (gth Cir. 1993) (consent by third party to search of his automobile did not
authorize search of defendant’s purse); United States v. Salinas-Cano, 959 F.2d 861,
863-864 (lOth Cir. 1992) (consent by third party to search of her apartment did not
extend to defendant’s closed suitcase); United States v. Rodriauez, 888 F.2d 519, 52324 (7th Cir. 1989) (wife’s general consent to search of defendant janitor’s closet did not
extend to briefcase and closed containers within); United States v. Wilson, 536 F.2d
883, 884-885 (gth Cir. 1976) (“Although McKee could effectively consent to the agents’
search of her apartment, she had neither actual nor apparent authority to consent to the
suitcase searches. . . .She had neither the ‘common authority’ over nor the ‘mutual use’
of suitcases that could give constitutional validity to her consent.” Id.).
271 find this somewhat surprising in light of the fact that the majority cites to
Peoole v. Daniels, supra note 20 as support for its conclusion that authority to consent
may be presumed from a parent-child relationship. The court in Daniels recognized
that a general consent to search does not extend to closed containers:
The consent to search covered not only the bedroom as
such but also the furniture therein, i.e., the dresser, dresser
drawers and bed. On the other hand, the consent did not
authorize a search of the defendant’s suitcase over which
the mother had no actual control, and the evidence does not
support a conclusion the officers in good faith, although
mistakenly, reasonably believed she had such control. A
search of the suitcase extended the scope of the consent
and was unlawful. . . .
Id. at 622 (citations omitted).
28Supra note 21.
-15
Commonwealth*’ because the officers were searching for handguns and the safe could
have concealed a handgun.
I must note that the word “consent” does not appear even once in the Estep
opinion. Today’s majority stretches its credibility when it finds unsupported dicta from a
case involving a probable cause search of an automobile3’ dispositive as to a question
of first impression for this Court concerning the scope of a general consent to search by
a third party. As the question presented necessitates interpretation of constitutional
law, I believe we should give some weight to views of the United States Supreme Court:
“A privacy interest in a home itself need not be
coextensive with a privacy interest in the contents or
movements of everything situated inside the home. . . . A
homeowner’s consent to a search of the home may not be
29Ky., 663 S.W.2d 213 (1984).
3oSee. Id. at 215:
[w3e hold that where probable cause justifies the search of
a lawfully stopped vehicle, it also justifies the search of every
part of the vehicle and its compartments and contents that
may conceal the object of the search.
...
The reasonable expectation of privacy is a particular
relevant factor in determining the validity of any warrantless
search. In regard to automobiles, the expectation of privacy
is limited because of the nature of the unit. . . .
’ ‘Police who have a legitimate reason to stop an automobile
and who have probable cause to believe that the objects of
the search are concealed somewhere within the vehicle may
conduct a warrantless search of the vehicle and all the
compartments and containers thereof. . . .
This decision is in harmony with Section 10 of the
Kentucky Constitution which protects the people from
unreasonable searches because probable cause is still a
prerequisite to an automobile search.
Id.
-16-
effective consent to a search of a closed object inside the
home. . . .
“When a guest in a private home has a private container to
which the homeowner has no right of access. . . the
homeowner. . . lacks the power to give effective consenf to
fhe search offhe closed confainer.” United States v. Karo,
468 U.S. 705, 725-26, 82 L.Ed.2d 530, 104 S.Ct. 3296
(1984) (O’Connor, J., concurring) (citations omitted)
(emphasis added); . . . Consent to search a container is
effective only when given by one with ‘common authority
over or other sufficient relationship to the premises or effects
sought to be inspected. . . . Common authority . . . rests . . .
on mutual use of the property by persons generally having
joint access or control for most purposes.“’ Karo, 468 U.S.
at 725 (quoting United States v. Matlock, 415 U.S. 164, 171,
39 L.Ed. 2d 242, 94 SCt. 988 & n.7 (1974)) (emphasis
added).31
The majority’s conclusion ignores both logic and the weight of authority:
Suppose Rodriguez had checked his briefcase with United
Airlines for a flight. United could have consented to a
search of its baggage handling facilities, in which
passengers anyway lack privacy interests; no one thinks
United could consent to a search of all luggage in its
possession. So too with checkrooms at restaurants, parcels
in transit with express companies, and other containers in
public places. Many a closed container is accessible;
opening it requires justification, and courts have had
considerable difficulty coming up with stable rules to govern
searches of things found in cars. There has been no
comparable difficulty with containers found in closets or
storage rooms, and the United States has not cited a single
case approving a search of a closed container in
consequence of a general consent to enter the room in
which it was found.32
I find the majority’s attempt to transfer the burden of proof regarding the scope of the
third-party consent no more persuasive in its second articulation, and, without repeating
them, I reiterate my previously expressed objections.
31United States v. Salinas-Cano, supra note 31 at 863 (italics in original).
32United States v. Rodriguez, supra note 26 at 523-524 (citations omitted).
I
-17-
As the Commonwealth introduced no evidence establishing any connection
whatsoever between Delores Colbert and the fireproof safe found in her son’s room, I
feel comfortable with my conclusion that the Commonwealth failed to prove the validity
of Delores Colbert’s consent to search the safe.
II. THE COMMONWEALTH FAILED TO PROVE THAT THE OFFICERS
REASONABLY BELIEVED DELORES COLBERT HAD THE AUTHORITY
TO CONSENT TO THE SEARCHES
Although the written order denying Colbert’s motion to suppress the evidence
relied exclusively upon the trial court’s conclusion that Delores Colbert had the legal
authority to consent to a search of her son’s room, both the Court of Appeals and
today’s majority gratuitously suggest that the searches were reasonable under the
“apparent authority” safe harbor identified by the United States Supreme Court in
Illinois v. Rodriauez:
v]hat we hold today does not suggest that law
enforcement officers may always accept a person’s invitation
to enter premises. Even when the invitation is accompanied
by an explicit assertion that the person lives there, the
surrounding circumstances could conceivably be such that a
reasonable person would doubt its truth and not act upon it
without further inquiry. 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 belief” that the consenting
party had authority over the premises? If not, then
warrantless entry without further inquiry is unlawful unless
authority actually exists. But if so, the search is valid.33
In other words, a search may still be reasonable under the “apparent authority” doctrine
even when the Commonwealth’s officers reasonably, but erroneously, conclude on the
33111inois
v. Rodriauez, supra note 8 at 497 U.S. 177, 188-189, 1 1 1 L.Ed.2d 148,
161.
-18-
basis of the factual information available to them that a third party may give consent to
the search. Apparent authority offers no salvation, however, when officers conduct a
search upon correct factual information, but “a misapprehension of the applicable rule
of law.“34
Obviously, the majority concludes that the Commonwealth satisfied its burden of
proof with respect to the reasonableness of the search because the officers reasonably
believed that Delores Colbert had the legal authority to consent to the searches. Given
a flawed legal premise---that parent homeowners have plenary power over everything in
the residence---the majority could reach no other conclusion. Under the majority’s logic,
the officers could reasonably conclude Delores Colbert was authorized to consent to
the searches upon ascertaining only two facts: (1) She was the defendant’s mother; and
(2) it was her house.
Because I believe Matlock requires the Commonwealth to prove an actual nexus
between the property to be searched and the third party who gives consent which
requires more than an appeal to parental authority, I believe that “apparent authority”
exists only when officers obtain information which allows them to make an informed
decision. As the officers in this case made no attempt to determine whether Delores
Colbert had joint access to and mutual use of her son’s basement bedroom and the
fireproof safe contained therein, I hesitate to classify this search as reasonable on the
basis of the officers’ perceptions. The United States Court of Appeals for the D.C.
Circuit articulated my exact sentiments:
As a factual matter, the agents could not reasonably have
believed Mrs. Whitfield had authority to consent to their
34United States v. Brown, 961 F.2d 1039, 1041 (2nd Cir. 1992).
-19-
search. The agents simply did not have enough information
to make that judgment. . . . We will assume the agents’
questioning of Mrs. Whitfield, sparse as it was, provided a
sufficient basis for their believing she “generally” had “joint
access” to her son’s room. The room was not locked, at
least when the agents were there, and Mrs. Whitfield lived in
the house. If “access” carries its common meaning, Mrs.
Whitfield had it, as did the defendant - both could enter his
bedroom.
. . . But whether she had “mutual use” of the room or the
closet containing the defendant’s clothing could not be
determined from anything the agents asked. The bedroom
itself was not a “common area” and the agents had no
grounds for believing otherwise. The agents never asked
Mrs. Whitfield whether she cleaned her son’s room, visited
with him there, stored any of her possessions in the room,
watched television there, or made use of the room at any
time for any purpose. The suppression hearing shed no
light on the actual circumstances. . . .
. ‘It is the government’s burden to establish that a third party
had authority to consent to a search. The burden cannot be
met if agents, faced with an ambiguous situation,
nevertheless proceed without making further inquiry. If the
agents do not learn enough, if the circumstances make it
unclear whether the property about to be searched is subject
to “mutual use” by the person giving consent, “then
warrantless entry is unlawful without further inquiryI.]”
The government has not carried its burden in this case.
The agents’ superficial and cursory questioning of Mrs.
Whitfield did not disclose sufficient information to support
reasonable belief that she had the authority to permit the
search. The agents could not infer such authority merely
from her ownership of the house. “Common authority is, of
course, not to be implied from the mere property interest a
third party has in the property. The agents could not . . .
draw such an inference from the parent-child relationship or
from the fact that the room was unlocked, which established
only joint access, not mutual use as Matlock requires. The
remaining piece of information -that defendant had led his
mother to think he had no money for rent - did not supply
the missing element of mutual use. A landlord-tenant type
of arrangement between a parent and an older child might
indicate that the child has been given greater autonomy in
the house, that his room is his private enclave, a place no
one else may enter without his permission. But “rent” or,
perhaps more accurately, contributions towards household
-2o-
expenses, cannot be decisive. An adult offspring who pays
nothing to his parents might nevertheless enjoy exclusive
use of a room within the home, while one who does make
payments may have a quite different arrangement. As we
have said, under Mat/o& and Rodriguez agents faced [with]
such situations must make further inquiries before engaging
in warrantless searches. If the information gleaned from
those inquiries is insufficient to establish apparent authority,
the Fourth Amendment demands that the agents procure a
warrant. The agents did not do so here, and the search
violated the Fourth Amendment.35
I would reverse the Court of Appeals and remand the case to the trial court.
Johnstone, J., joins this dissent as to l(B) only, and Stumbo, J., joins this
dissent.
35United States v. Whitfield, supra note 13 at 1074-75 (citations omitted). See
&Q State v. Kieffer, 577 N.W.2d 352, 548-552 (Wis. 1998).
-21-
I
. - ‘.
1998-SC-1070-DG
RONTEZ P. COLBERT
APPELLANT
ON REVIEW FROM COURT OF APPEALS
97-CA-8 10
JEFFERSON CIRCUIT COURT NO. 96-CR-308
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER DENYING PETITION FOR REHEARING
AND
MODIFYING OPINION
Appellant Rontez P. Colbert’s petition for rehearing of this Court’s opinion
rendered on February 22, 2001 is hereby denied.
On the Court’s own motion, the opinion is hereby modified by the substitution of
new pages 1, 4, 5, 6, 8, 11 and 12, attached hereto, in lieu of pages 1, 4, 5, 6, 8, 11
and 12 of the opinion as originally rendered. Said modification does not affect the
holding of the opinion, or the dissenting opinion.
All concur.
ENTERED: May 24, 2001.
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