Both the Fourth Amendment to the U.S. Constitution and the Washington Constitution make warrantless searches unlawful unless they meet an exception. Valid consent is an exception to the warrant requirement. When premises are shared, a person who has equal control over has the authority to consent to a search of the premises when the other person is absent. Law enforcement must, however, also obtain the consent of the other person with equal control if they are present. State v. Morse. This rule does not apply to someone who does not have common authority over the premises. A host’s consent is effective against a guest in common areas of the premises. A person with authority over the premises does not necessarily have the authority to consent to a search of everything inside the premises. A Washington criminal defendant recently challenged a search of a bag in a motel room after the room’s occupant gave consent to search.
A confidential informant informed the sheriff’s office the defendant and another man were at a motel for a drug deal. A detective detained the other man and the room’s occupant when they left the motel. The defendant was still in the room. The occupant said there were bags belonging to the defendant and the other man in the room. He gave the police written consent to search the room.
The detectives removed the defendant from the room and brought the occupant back in. The occupant acknowledged owning a bag on the bed containing drugs and paraphernalia.
The detectives found a digital scall and two baggies with heroin in a grocery bag on the floor. The occupant said the grocery bags belonged to the defendant and the other man.
The defendant was charged with possession of heroin with intent to deliver. He moved to suppress the evidence, arguing the room occupant could not give consent to search the defendant’s possessions. The state argued that the occupant could consent to a search of the room and the defendant did not have an expectation of privacy as a guest.
The trial court concluded the defendant did not have standing to challenge the search because he had no expectation of privacy as a guest. The trial court also concluded the detectives did not need his consent to search the room and that the occupant had dominion and control over the room and authority to consent to the search. The trial court denied the defendant’s motion to suppress.
The trial court tried the case on the stipulated facts and found the defendant guilty. He appealed.
The defendant argued he had automatic standing to challenge the search because he had possession of the bags before they were searched.
A defendant has automatic standing to challenge a search under the Washington Constitution when he had possession of the item at the time of the search and possession is an essential element of the crime. State v. Peck.
The appeals court concluded the defendant had automatic standing because possession was an essential element of the charged offense and the state did not argue the defendant did not have at least constructive possession of the bags.
The appeals court then had to consider whether the room occupant could consent to the search.
The defendant argued the occupant did not have the authority to consent to a search of the defendant’s bags. The state argued the room occupant had the authority to consent to a search of the room and that was sufficient.
The room occupant had the authority to consent to a search of the room. The officers did not need the consent of the defendant, who was a guest, to search the room.
A consent to search the room, however, does not necessarily cover the belongings of someone else. Case law has held that an apartment tenant cannot give consent for law enforcement to search a closed container belonging to a guest when the tenant did not have joint ownership, use, possession or control of it. State v. Rison.
The room occupant did not own, possess, or control the bags belonging to the defendant. He therefore did not have authority to consent to a search of them.
The state argued the bags’ ownership was not readily identifiable in a way indicating the occupant did not have authority to consent. The appeals court noted, however, that the occupant told law enforcement when he was detained that “there were bags in the room” that belonged to the defendant and the other man. The detectives therefore had reason to know, or at least question, whether the defendant owned the grocery bags. Case law requires officers to question when it is not clear that the person consenting to the search has authority. State v. Holmes.
The appeals court distinguished the circumstances in this case from those in State v. Cotton, in which a person with common authority over the premises consented to the seizure and removal of an item on the premises, where that item was a shotgun in plain sight. The appeals court pointed out the Cotton case did not address consent to open and search bags of a guest.
The appeals court concluded law enforcement did not have valid consent to search the defendant’s bags.
Even without consent, the search may be lawful if the defendant did not have a reasonable expectation of privacy in the item. The defendant must show an actual subjective expectation of privacy by trying to keep it private and that that the expectation is recognized as reasonable.
The defendant tried to preserve the items as private by putting them in the grocery bag.
Courts have found a reasonable expectation of privacy in containers used to store personal items, including a purse, an eyeglass case, a shaving kit, a locked briefcase, and luggage. There may be an expectation of privacy in “closed packages, bags, and containers.” California v. Acevedo.
The appeals court acknowledged the grocery bags could not be considered closed containers in the same way as a zipped or locked container might be. However, grocery bags are “traditional repositories of personal belongings” where people put not only grocery items but also other personal items. The appeals court noted the defendant could reasonably expect his bags would not be searched without his consent. He thus had a reasonable expectation of privacy in them.
The appeals court acknowledged that the result may have been different if the contraband was in plain view.
The appeals court concluded the occupant’s authority to consent to a search of the motel room did not include the defendant’s grocery bags. The defendant had a reasonable expectation of privacy in the bags. The trial court therefore erred by not suppressing the evidence found in the grocery bags. The appeals court reversed the conviction and remanded the case to the trial court.
If you are facing possession charges after someone else consented to a search of your property, an experienced Washington criminal defense attorney can help fight for your rights. Contact Blair & Kim, PLLC, at (206) 622-6562 to set up a consultation to discuss your case.