759154MAJ

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Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 75915-4
Title of Case: State of Washington v. Robert John Morse
File Date: 12/01/2005
Oral Argument Date: 06/09/2005


SOURCE OF APPEAL
----------------
Appeal from Superior Court,
County
Honorable Gerald L Knight


JUSTICES
--------
Authored by Tom Chambers
Concurring: James Johnson
Barbara A. Madsen
Bobbe J Bridge
Charles W. Johnson
Gerry L Alexander
Richard B. Sanders
Susan Owens
Mary Fairhurst


COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Susan F Wilk
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

Counsel for Respondent(s)
Thomas Marshal Curtis
Snohomish County Pros Ofc
3000 Rockefeller Ave # 504
Everett, WA 98201-4060

Seth Aaron Fine
Attorney at Law
Snohomish Co Pros Ofc
3000 Rockefeller Ave
Everett, WA 98201-4060


STATE OF WASHINGTON, )
)
Respondent, ) No. 75915-4
)
v. ) En Banc
)
ROBERT JAMES MORSE, ) )
Petitioner. ) Filed December 1, 2005
)

CHAMBERS, J. -- Under article I, section 7 of the Washington Constitution,
warrantless searches are per se unreasonable. Exceptions to the warrant
requirement are jealously and carefully drawn. Properly obtained, consent
to a warrantless search is one of those carefully drawn exceptions.
Although Robert James Morse was at home, police gained entry into his
apartment by obtaining the consent of a houseguest who, with her husband,
had been at Morse's apartment for only five days. The police did not have
a search warrant, were looking for another person, and did not obtain
Morse's permission to search his apartment until after they found
contraband in his bedroom. The State argues (1) that the houseguest had
actual and apparent authority to consent and (2) that the police had no
duty to obtain Morse's consent until they came upon him and then only if he
objected to the search. We disagree. One who has equal or lesser control
over a premises does not have authority to consent for those who are
present and have equal or greater control. 'Presence' is used in
accordance with its ordinary meaning. Persons are not absent merely
because the police do not know they are present, nor are they absent until
police have come upon them during a warrantless search. 'Authority' to
consent is a matter of status or control and a question of law. The
subjective beliefs and understandings of law enforcement officers are
irrelevant to the question of 'authority.' Law enforcement officers, who
seek to conduct a warrantless search based upon the exception of consent,
are well advised to ask for the woman and/or man of the house before
seeking consent to search a home. If the man or woman of the house is not
present, a brief inquiry could determine the identity of the person present
and their authority to give consent; this would give police officers the
information needed to properly proceed and to assure protection of
constitutional rights. The search of Morse's apartment was unlawful and
we reverse.
FACTS
On January 29, 2002, two City of Everett police officers contacted the
property manager for the Deer Creek Apartments. The officers had
information that Sarah Wall, who was wanted on multiple outstanding felony
warrants, was staying in the apartment complex. The manager told the
officers that while Wall may have stayed there in the past, she did not
believe that Wall was there anymore because bounty hunters had
unsuccessfully searched for her in apartment C-108 a few days earlier. She
also told officers that she did not recognize Wall from a picture that they
showed her. The manager told the officers that Morse was the only tenant
on the lease for apartment C-108 and that she was not aware of anyone else
living in that apartment.
The officers then went to Morse's apartment and knocked on the door. A
woman, Pam Dangel, answered the door and told the officers that Wall was
neither in the apartment, nor had she been there in over a week. While
standing at the door, the officers did not ask Dangel if she lived at the
apartment, nor did they inquire as to the nature of her relationship to
Morse. Police asked only whether they could enter to search for Wall.
According to the police, Dangel agreed to let them enter to look for Wall.1
After police entered, they learned that Dangel and her husband had been
staying at Morse's apartment for only a few days. Dangel and her husband
planned to stay for one additional night while their apartment was being
painted. As one of the officers talked to Dangel, the other proceeded
directly to the master bedroom. From outside the bedroom he saw Morse, who
was sitting on his bed. The officer identified himself, indicated that he
was looking for Wall, and entered the room. As he entered the bedroom, the
officer looked toward a closet where he saw a scale, packaging material and
a large bag with bluish powder sitting on a desk. Morse claimed that what
appeared to be drug paraphernalia was his, but that what appeared to be
drugs were not. Morse was then arrested and only after his arrest was his
consent to search the rest of his bedroom sought and obtained.
Morse was convicted of possession of methamphetamine. On appeal, Morse
argued that the warrantless search of his bedroom violated article 1,
section 7 of the state constitution. He argued that Dangel lacked
authority to consent to the search. He also argued that because he was
present and able to object to the search, the police erred by failing to
get his permission prior to entering and searching his bedroom. In an
unpublished opinion, the Court of Appeals rejected both arguments, finding
that Dangel had both actual and apparent authority to consent to the
search, and that because Morse did not explicitly object to the search, the
police did not have to secure his consent before entering his bedroom. We
granted review. State v. Morse, 153 Wn.2d 1023, 110 P.3d 213 (2005).
ANALYSIS
Common Authority

Under article I, section 7 of the Washington Constitution, warrantless
searches are per se unreasonable. State v. Hendrickson, 129 Wn.2d 61, 70,
917 P.2d 563 (1996). Article I, section 7 provides that '{n}o person shall
be disturbed in his private affairs, or his home invaded, without authority
of law.' Under this provision, the warrant requirement is especially
important as it is the warrant which provides the requisite 'authority of
law.' State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999).
Exceptions to the warrant requirement are to be ''jealously and carefully
drawn.'' State v. Reichenbach, 153 Wn.2d 126, 131, 101 P.3d 80 (2004)
(quoting Hendrickson, 129 Wn.2d at 72). The burden of proof is on the
State to show that a warrantless search or seizure falls within one of the
exceptions to the warrant requirement. State v. Acrey, 148 Wn.2d 738, 746,
64 P.3d 594 (2003) (quoting State v. Kinzy, 141 Wn.2d 373, 382, 5 P.3d 668
(2000)).
In search and seizure cases involving cohabitants, this court has adopted
the common authority rule. State v. Thompson, 151 Wn.2d 793, 92 P.3d 228
(2004); State v. Walker, 136 Wn.2d 678, 965 P.2d 1079 (1998); State v.
Leach, 113 Wn.2d 735, 582 P.2d 1035 (1989). Because a person's expectation
of privacy is necessarily reduced when authority to control a space is
shared with others, Leach, 113 Wn.2d at 739, such persons necessarily
assume some risk that others with authority to do so will allow outsiders
into shared areas. We have said that the authority does not rest upon the
law of property, with its attendant legal refinements, but rests rather on
mutual use of the property. Id. We have, thus, justified the common
authority rule based upon the theories of 'reasonable expectations of
privacy' and 'assumption of risk.' State v. Christian, 95 Wn.2d 655, 659-
60, 628 P.2d 806 (1981); Leach, 113 Wn.2d at 739. In the context of a
search, consent is a form of waiver. Ordinarily, only the person who
possesses a constitutional right may waive that right. Cf. Walker, 136
Wn.2d 678 (wife's consent not effective as waiver of husband's
constitutional right to be free from invasion of privacy). Common
authority under article I, section 7 is grounded upon the theory that when
a person, by his actions, shows that he has willingly relinquished some of
his privacy, he may also have impliedly agreed to allow another person to
waive his constitutional right to privacy.
The United States Supreme Court, interpreting the Fourth Amendment to the
federal constitution also applies the doctrine of common authority in
searches involving cohabitants. Because of differences in the text of the
Fourth Amendment and article I, section 7 discussed below, the United
States Supreme Court adopted the apparent authority doctrine. This
doctrine is grounded upon the reasonableness of the search rather than on
reasonable expectations of privacy and the appropriate scope of consent.
See Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 2793, 111 L. Ed. 2d 148
(1990).
Authority to Consent
The narrow issue in this case is whether a temporary guest has authority to
authorize a search of the private areas of her host's home while the host
is present. More broadly, this case involves the differing analytical
frameworks used in applying two different constitutional provisions: the
Fourth Amendment to the United States Constitution and article I, section 7
of the Washington Constitution.2
The Fourth Amendment
The Fourth Amendment to the United States Constitution prohibits
'unreasonable searches and seizures.' U.S. Const. amend. IV. The Fourth
Amendment does not prohibit 'reasonable' warrantless searches and seizures.
The analysis under the Fourth Amendment focuses on whether the police have
acted reasonably under the circumstances. The following is illustrative of
the analytical approach taken under the Fourth Amendment:
The upshot was that the officers in good faith believed Miller was Hill and
arrested him. They were quite wrong as it turned out, and subjective good-
faith belief would not in itself justify either the arrest or the
subsequent search. But sufficient probability, not certainty, is the
touchstone of reasonableness under the Fourth Amendment and on the record
before us the officers' mistake was understandable and the arrest a
reasonable response to the situation facing them at the time.

Hill v. California, 401 U.S. 797, 803-04, 91 S.Ct. 1106, 28 L. Ed. 2d 484
(1971).
In Rodriguez, Justice Scalia, writing for the Court, observed that 'what is
at issue when a claim of apparent consent is raised is not whether the
right to be free of searches has been waived, but whether the right to be
free of unreasonable searches has been violated.' Rodriguez, 497 U.S. at
187. Thus, since there may be circumstances where a police officer's
reasonable good faith belief that a person authorizing a search has the
authority to do so, such a good faith belief may mean the search itself is
reasonable under the Fourth Amendment.
Article I, Section 7
Unlike in the Fourth Amendment, the word 'reasonable' does not appear in
any form in the text of article I, section 7 of the Washington
Constitution. We have also long declined to create 'good faith' exceptions
to the exclusionary rule in cases in which warrantless searches were based
on a reasonable belief by law enforcement officers that they were acting in
conformity with one of the recognized exceptions to the warrant
requirement. State v. White, 97 Wn.2d 92, 110, 640 P.2d 1061 (1982) ('the
language of our state constitutional provision . . . shall not be
diminished by . . . a selectively applied exclusionary remedy.'). We have
also repeatedly held that article I, section 7 provides greater protection
of individual privacy than the Fourth Amendment. E.g., State v. Jackson,
150 Wn.2d 251, 259, 76 P.3d 217 (2003); State v. Jones, 146 Wn.2d 328, 332,
45 P.3d 1062 (2002); State v. Vrieling, 144 Wn.2d 489, 495, 28 P.3d 762
(2001); see also Charles W. Johnson, Survey of Washington Search and
Seizure Law: 2005 Update, 28 Seattle U. L. Rev. 467, 587 (2005).
Under article I, section 7, whether a person can consent to the search of a
premises is based upon that person's independent authority to so consent
and the reasonable expectation of his co-occupant about that authority.
First, the consenting party must be able to permit the search in his own
right. Second, it must be reasonable to find that the defendant has
assumed the risk that a co-occupant might permit a search. State v. Mathe,
102 Wn.2d 537, 543-44, 688 P.2d 859 (1984). 'In essence, an individual
sharing authority over an otherwise private enclave inherently has a
lessened expectation that his affairs will remain only within his purview,
as the other cohabitants may permit entry in their own right.' Leach, 113
Wn.2d at 739. In short, while under the Fourth Amendment the focus is on
whether the police acted reasonably under the circumstances, under article
I, section 7 we focus on expectations of the people being searched and the
scope of the consenting party's authority.
In Leach, we analyzed common authority in terms of 'control' over the
premises. Leach, 113 Wn.2d at 739. The right of control may be based upon
consent by one with an equal or superior interest in the premises or upon
some independent authority. The touchstone of the inquiry is that the
person with common authority must have free access to the shared area and
authority to invite others into the shared area. That access must be
significant enough that it can be concluded that the nonconsenting co-
occupant assumed the risk that the consenting co-occupant would invite
others into the shared area. When a guest is more than a casual visitor
and has ''run of the house,'' her lesser interest in the property is
sufficient to render consent to search effective only as to the areas of
the home 'where a visitor would normally be received.' 4 Wayne R. LaFave,
Search and Seizure sec. 8.5(e), at 235 (4th ed. 2004). Cf. State v.
Hoggatt, 108 Wn. App. 257, 30 P.3d 488 (2001) (defendant assumed the risk
that cohabitant would allow entry to others into common areas of the
apartment, such as the living room, but not into private areas such as the
bedroom). Likewise, the scope of consent given must not exceed the scope
of the consenting person's authority. A person may have free access to
some areas of the premises but not all areas. For example, the possessor
of a home may share control and access to areas such as the kitchen, the
dining room, the living room, and the bathroom but not other, private areas
such as the possessor's bedroom, office, basement, or attic. The existence
and scope of common authority is a legal question which must be determined
by the court based upon the facts of each case.
This court has never used the words 'apparent authority' in the context of
a cohabitant's authority to consent to a search. However, the Court of
Appeals based its opinion below, in part, on an earlier case of that court
interpreting the Fourth Amendment. See State v. Holmes, 108 Wn. App. 511,
519, 31 P.3d 716 (2001). In Holmes, the court stated that a person has
apparent authority to consent to search if he or she 'appears to have
authority, so long as police have a reasonable belief in the authority of
the person giving consent.' Id. (emphasis added). Finding that the
officers' subjective belief about the consenting party's authority was
unreasonable, the Holmes court determined that even if the doctrine of
apparent authority existed under the Washington Constitution, a question
the court explicitly declined to answer, Holmes, 108 Wn. App. at 518 n.20,
that subjective belief did not validate the objectively unreasonable
warrantless search. We pick up where the Holmes court left off by holding
that, standing alone, a police officer's subjective belief made in good
faith about the scope of a consenting party's authority to consent cannot
be used to validate a warrantless search under article I, section 7.
In this case, the court below erroneously applied the doctrine of 'apparent
authority' to article I, section 7. This may have been done because in
Mathe, we adopted the 'common authority' test used under the Fourth
Amendment, see United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988,
39 L. Ed. 2d 242 (1974), as the proper guide for determining questions of
consent under article I, section 7. Mathe, 102 Wn.2d at 543. Matlock,
however, did not involve the doctrine of apparent authority, but rather
whether a wife who was a cohabitant with her husband had actual authority
over the marital residence. Because our constitution focuses on the rights
of the individual, rather than on the reasonableness of the government
action, the apparent authority doctrine, as articulated in Rodriguez and
applied in the Fourth Amendment context is not appropriate to any analysis
under article I, section 7.3
Common Authority Where a Cohabitant is Present
The State argues that Dangle had common authority to consent to a search of
the premises and that when they came upon Morse, the police officers had no
duty to obtain his consent. The State argues that it was Morse's
affirmative duty to explicitly object to the search. It is essentially the
State's position that Morse was not present in his own apartment until
police found him. While such a suggestion may make sense from the
perspective of the Fourth Amendment's 'reasonableness' requirement, simply
inquiring into whether a police officer's subjective beliefs are reasonable
is not sufficient under article I, section 7.
We have been quite explicit that under our constitution, the burden is on
the police to obtain consent from a person whose property they seek to
search. In obtaining that consent, police are required to tell the person
from whom they are seeking consent that they may refuse to consent, revoke
consent, or limit the scope of consent. State v. Ferrier, 136 Wn.2d 103,
116, 960 P.2d 927 (1998). We have never held that a cohabitant with
common authority can give consent that is binding upon another cohabitant
with equal or greater control over the premises when the nonconsenting
cohabitant is actually present on the premises. We have never held that a
person is not present in her home unless and until the police come upon
her. We decline to do so now.
In Leach, we held that where the police have obtained consent to search
from an individual possessing, at best, equal control over the premises,
'that consent remains valid against a cohabitant, who also possesses equal
control, only while the cohabitant is absent.' Leach 113 Wn.2d at 744. In
Walker, Mrs. Ellen Walker consented to a search of her home. Before the
search began, however, Mr. Gus Walker, Mrs. Walker's husband, arrived. The
police failed to obtain Mr. Walker's consent to search and he did not
affirmatively object to the search. Contraband was found in the couple's
bedroom. Only Mrs. Walker was convicted and she argued, relying on Leach,
that without her husband's consent, the search was invalid as against her.
While we rejected her argument, we concluded the following about Leach:
'It follows from {Leach} that because Ellen and Gus were cohabitants and
both present during the search, Ellen's consent to the search was invalid
as to Gus.' Walker, 136 Wn.2d at 684.
In the case before us, Morse was the sole signatory on the lease and the
sole tenant in the apartment searched. As guests in Morse's apartment for
five days, Dangel and her husband had limited control and, therefore,
limited authority over that portion of the apartment they shared with
Morse. The record, however, is unclear as to the precise scope of their
authority. There is certainly insufficient evidence in the record to
support a conclusion that the Dangels shared control over Morse's bedroom.
Moreover, since Morse was at all times present in his apartment,4 the State
must prove that Dangel had greater authority over the areas of the premises
searched in order to consent to a search that would bind Morse. We hold
that the State has failed to meet its burden and that Dangel's consent to
search was ineffective as to Morse. Since there is insufficient evidence
to support the conviction without the fruits of the unlawful search we
reverse Morse's conviction.
CONCLUSION
The Washington Constitution guarantees to its citizens that they will
neither be disturbed in their private affairs, nor have their homes
invaded, without authority of law. Const. art. I, sec. 7. Warrantless
searches are per se unreasonable. Hendrickson, 129 Wn.2d at 70. While
consent is a recognized exception to the warrant requirement, all such
exceptions are narrowly drawn. Reichenbach, 153 Wn.2d at 131. Common
authority to consent to a search is based upon authority to control the
premises. A cohabitant who has common authority to use and control the
premises has authority to consent to a search that is within the scope of
that authority. Authority to control is determined by the shared use of
the premises, the reasonable expectations of privacy, and the degree to
which a cohabitant has assumed the risk that others will consent to a
search. The scope of the authority of a cohabitant to consent extends only
to areas shared by the cohabitants. When a cohabitant who has equal or
greater authority to control the premises is present, his consent must be
obtained and the consent of another of equal or lesser authority is
ineffective against the nonconsenting cohabitant. 'Presence' is used
according to its ordinary meaning. A person is not absent just because the
police fail to inquire, are unaware, or are mistaken about the person's
presence within the premises. If the police choose to conduct a search
without a search warrant based upon the consent of someone they believe to
be authorized to so consent, the burden of proof on issues of consent and
the presence or absence of other cohabitants is on the police.5 Acrey, 148
Wn.2d at 746.
Robert Morse was present in his home when police arrived at his door
without a search warrant and looking for someone else. Despite his actual
presence, police failed to get Morse's consent to search his apartment.
Instead, they relied upon the consent of a houseguest who lacked the
authority to consent to a search of Morse's home that would bind Morse
under the Washington Constitution. Because the search of Morse's apartment
did not satisfy the requirements of article I, section 7 of the Washington
Constitution, nor did police obtain valid waiver of those requirements by
an effective consent, the search of Morse's home was unlawful, and the
fruits of that search should have been suppressed. We therefore reverse
the courts below and reverse the conviction.

WE CONCUR:

1 Dangel disputed this fact. She claimed that she attempted to prevent the
police from entering but that they forced their way in. The trial court
found the police officers' testimony that Dangel told them to 'come on in'
more credible. Clerk's Papers at 47.
2 The State filed a motion to strike portions of Morse's supplemental
brief. That motion is denied.
3 We note that 'apparent authority' as used to analyze common authority
under the Fourth Amendment, is quite different than 'apparent authority' as
used in agency law. Under principles of agency, an agent can bind a
principal when he or she has either actual or apparent authority to do so.
King v. Riveland, 125 Wn.2d 500, 507, 886 P.2d 160 (1994). Actual
authority is based on the principal's objective manifestation to the agent,
and apparent authority stems from the principal's objective manifestation
to a third party. A party asserting apparent authority must prove that he
or she actually believed that the agent had authority to bind the principal
and that his or her belief is objectively reasonable. Id
The United States Supreme Court's analysis under the Fourth Amendment seems
to focus only on the second prong of apparent authority--that a party
asserting apparent authority has a reasonable objective belief that the
agent has authority. While we are reluctant to inject the words 'apparent
authority' into our article I, section 7 jurisprudence, we note that the
application of the first prong of apparent authority according to agency
principles may be useful in analyzing a cohabitant's authority under
article I, section 7. For example, it might be appropriate to ask whether
the principal, by his conduct, objectively manifested to third parties (the
police) that that person had common authority over the premises. Evidence
of such objective manifestations might include, for example, permitting a
person to live at the premises, giving the person a key to the premises,
permitting the person to share in the expenses of the premises, or
permitting the person to invite guests into the premises.
4 'Present' is defined as 'being in one place and not elsewhere: being with
reach, sight, or call or within contemplated limits.' Webster's Third New
International Dictionary at 1793 (1993). Since the door to Morse's bedroom
was 'less than ten feet' from the front door of the apartment, RP at 10,
Morse was certainly within 'reach' or 'call' of the officers while they
stood at his front door.
5 We recognize that issues of 'common authority' and 'presence' will not
always be simple and straightforward. It may be difficult to determine,
for example: (1) whether a child has 'common authority' over her parent's
home sufficient to authorize that child to consent to a warrantless search,
(2) whether a farmer operating a tractor on his back forty is 'present'
when the police arrive at the front door of his farmhouse, or (3) whether
an employee at a factory has authority to consent for an employer who is on
the factory's campus, but in a another building at the time. However, such
difficulties may be avoided by the police by obtaining either a search
warrant or the consent of the person whose property is to be searched.
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