People v. Stock

1 Opinions of the Colorado Supreme Court are available to the
2 public and can be accessed through the Judicial Branch’s homepage at
3 http://www.courts.state.co.us. Opinions are also posted on the
4 Colorado Bar Association’s homepage at http://www.cobar.org.
5
6 ADVANCE SHEET HEADNOTE
7 July 3, 2017
8
9 2017 CO 80
0
1 No. 14SC870, People v. Stock—Fourth Amendment—Exceptions to Warrant
2 Requirement—Consent Searches—Third-Party Consent.
3
4 The supreme court reviews the court of appeals’ opinion reversing Stock’s

5 convictions and remanding for a new trial. The court of appeals concluded that the trial

6 court erred in denying Stock’s motion to suppress statements she made to a police

7 officer inside the hotel room where Stock lived. The police officer had entered the hotel

8 room after Stock’s father—who did not live in the hotel room—opened the door in

9 response to the officer’s knock. The court of appeals concluded that suppression was

0 required because Stock’s father lacked authority to consent to the officer’s entry.

1 The supreme court concludes that the trial court properly denied the motion to

2 suppress because, on the facts of this case, the officer’s limited entry into Stock’s hotel

3 room, in her immediate presence and without her objection, did not violate Stock’s

4 Fourth Amendment right to be free from unreasonable searches. The supreme court

5 therefore reverses the judgment of the court of appeals and remands the case for further

6 proceedings consistent with this opinion.
1
2

3 The Supreme Court of the State of Colorado
4 2 East 14th Avenue • Denver, Colorado 80203

5 2017 CO 80

6 Supreme Court Case No. 14SC870
7 Certiorari to the Colorado Court of Appeals
8 Court of Appeals Case No. 11CA1271

9 Petitioner:
0 The People of the State of Colorado,
1 v.
2 Respondent:
3 Susan Leigh Stock.

4 Judgment Reversed
5 en banc
6 July 3, 2017
7
8 Attorneys for Petitioner:
9 Cynthia H. Coffman, Attorney General
0 Carmen Moraleda, Assistant Attorney General
1 Denver, Colorado
2
3 Attorneys for Respondent:
4 Douglas K. Wilson, Public Defender
5 Kielly Dunn, Deputy Public Defender
6 Denver, Colorado
7
8
9
0
1
2
3
4
5
6 JUSTICE MÁRQUEZ delivered the Opinion of the Court.
7 JUSTICE GABRIEL dissents.
¶1 In 2011, a jury convicted Susan Stock of third degree burglary and theft for

stealing money from vending machines at the hotel where she worked. The court of

appeals reversed Stock’s convictions, concluding that the trial court erroneously denied

Stock’s motion to suppress statements she made to a police officer who had entered the

hotel room where she lived. Stock’s father, who was Stock’s invited guest in the room,

had opened the door on Stock’s behalf in response to the officer’s knock, and moved

aside to allow the officer to step a few feet inside the hotel-room door. The officer then

requested and obtained Stock’s express permission to come further into the room to

speak with her. The court of appeals reasoned that the police officer’s entry into the

hotel room was unlawful because Stock’s father lacked authority to consent to the

officer’s entry into the hotel room. In reviewing the court of appeals’ decision, we are

therefore asked to decide whether the officer’s entry into Stock’s hotel room violated

her Fourth Amendment right to be free from unreasonable searches. Importantly, this

case does not require us to decide whether Stock’s father had authority to consent to a

full-blown search of the room; rather, the narrow question before us is whether Stock’s

father could consent to the officer’s limited entry a few feet inside the door.

¶2 On the facts of this case, we conclude that Stock conferred authority on her father

to consent to the officer’s limited entry. The trial court therefore properly denied

Stock’s motion to suppress, and her statements to the officer were admissible at trial.

Accordingly, we reverse the judgment of the court of appeals and remand the case for

further proceedings consistent with this opinion.

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 I. Facts and Procedural History

¶3 The following facts are drawn from witness testimony and the trial court’s

findings of fact at Stock’s suppression hearing on January 14, 2011.

¶4 Susan Stock worked as a front-desk clerk at a Best Western hotel in Winter Park,

Colorado. Stock lived in a room at the hotel. In May 2010, the hotel manager

discovered that she was missing a key to one of the hotel vending machines and that

money had been emptied from the machine. Suspicious that an employee had taken the

money, the manager reported the theft to a detective with the Fraser–Winter Park Police

Department. The detective visited the hotel and made appointments to interview four

hotel employees, one of whom was Stock. On May 18, the detective interviewed Stock

in the hotel’s front lobby. During that interview, Stock denied taking the key and

money.

¶5 Two days later, on May 20, Stock reversed course and confessed to the hotel’s

owner that she had stolen money from the hotel’s vending machines. The hotel

manager called the police department, reported that one of the employees had

confessed, and asked for an officer to respond. A uniformed police officer went to the

hotel and spoke to the owner. The hotel owner related to the officer that Stock had

confessed and was presently in her hotel room. The hotel owner provided the officer

with directions and the room number.

¶6 The officer went to Stock’s hotel room and knocked on the door. Stock’s father,

whom the officer knew was not a resident of the hotel room, answered the door. The

father opened the door and stepped back into the hotel room, allowing the officer to

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step inwards. The officer understood the father’s action to be an invitation to enter the

room. Stock’s hotel room was a typical single-room unit with a small entryway, a

bathroom on the right side, a bed, and some furniture. The officer took a couple of

steps past the hotel-room door and introduced himself. Stock’s father asked the officer

whether he should remain in the room. The officer asked the father to leave, and the

father stepped outside into the hallway. As the father was leaving, the officer saw

Stock, who had been on the bed crying when her father opened the door.

¶7 The officer asked Stock if he could speak with her, and Stock responded, “Yes.”

Stock then cleared off a seat in her room for the officer and offered it to him. The officer

took the seat and had a thirty-minute conversation with Stock, during which she

admitted to taking money from the hotel’s vending machines. Stock also produced the

vending-machine key and gave it to the officer.

¶8 The People charged Stock with third degree burglary in violation of section

18-4-204(1), C.R.S. (2016), and theft of cash with a value of $1,000 or more, but less than

$20,000, in violation of section 18-4-401(2)(c), C.R.S. (2009). Stock moved to suppress

her statements to the officer and the evidence obtained as a result of the officer’s entry,

arguing that the officer’s entry into the room was illegal and that the officer’s

questioning constituted a custodial interrogation necessitating Miranda warnings. The

court held a hearing on the motion, and the parties presented testimony from Stock, her

father, the officer, and the detective who had initially interviewed Stock on May 18.

Stock testified at the hearing that she did “not really” want the officer to enter her room.

However, the trial court found that aspects of Stock’s testimony were contradictory, and

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that Stock’s credibility was impaired by her prior felony conviction and her self-interest

in having the suppression motion granted.

¶9 The court issued a bench ruling denying the motion to suppress, but later

expressed concern as to whether it had correctly concluded that the officer’s entry into

the hotel room was lawful. The court therefore invited the parties to submit written

briefing on the issue. The court then issued a written order reaffirming its earlier ruling

denying the motion to suppress. The court’s written order relied principally on People

v. White, 64 P.3d 864, 872 (Colo. App. 2002), in which the court of appeals concluded

that a family friend visiting the defendant’s father as an overnight houseguest had

authority to consent to a police entry into an area of the father’s house where a visitor

normally would be received. In this case, the trial court reasoned that the officer’s entry

into Stock’s hotel room was analogous to the lawful police entry in White because

Stock’s father was a close relative, not a casual visitor, and because he had merely

allowed the officer to step into the entry area to the hotel room where guests normally

would be received. The trial court therefore concluded that Stock’s father had authority

to let the officer into the entry area of the hotel room. The trial court also reasoned that

Stock’s father “opened the door for his daughter because she was on the bed crying”

when the officer knocked. Finally, the court found from the evidence at the motions

hearing that Stock and her father were waiting for law enforcement; the court noted

that neither of them acted surprised or asked the officer why he had come to Stock’s

room. Accordingly, the trial court again concluded that the officer’s entry into the hotel

room was lawful and denied the motion to suppress.

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¶10 Stock’s three-day jury trial took place in March 2011. The officer testified about

Stock’s confession in her hotel room on May 20. Stock testified in her own defense. She

admitted taking money from the vending machines but claimed that she intended to

return the money once she received a commission that she expected for ski-rental

customer referrals. The jury convicted Stock of both counts.

¶11 On appeal, Stock again argued that her statements should have been suppressed

because the officer’s entry into her hotel room was unlawful. In an unpublished

decision, a panel of the court of appeals agreed. People v. Stock, No. 11CA1271, slip op.

at 7–9 (Colo. App. Sept. 11, 2014) (not published pursuant to C.A.R. 35(f)). The court of

appeals concluded that the trial court had erred in relying on White because, in its view,

White “does not stand for the legal proposition that any visitor who is more than a

casual visitor has the authority to allow law enforcement officers into another person’s

home without that person’s consent.” Id. at 7. Instead, the court of appeals concluded

that the father lacked authority to consent to the officer’s entry because the father did

not live in the hotel room. Id. at 7–8. And because the officer knew the father did not

reside there, the court of appeals further concluded that the officer could not have

formed a reasonable (albeit mistaken) belief that the father possessed common authority

over the room. Id. at 8. The court of appeals therefore reversed Stock’s judgment of

conviction and remanded the case for a new trial. Id. at 14.

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¶12 We granted the People’s petition for writ of certiorari to review the court of

appeals’ ruling.1

II. Analysis

A. Standard of Review

¶13 Review of a trial court’s suppression order presents a mixed question of law and

fact. People v. Simpson, 2017 CO 25, ¶ 12, 392 P.3d 1207, 1210. In reviewing a trial

court’s suppression ruling, we defer to the trial court’s findings of historical fact that are

supported by competent evidence in the record, but we assess the legal effect of those

historical facts de novo. Id. We may affirm a trial court’s suppression ruling on any

grounds supported by the record. Moody v. People, 159 P.3d 611, 615 (Colo. 2007)

(“[A]ppellate courts have the discretion to affirm decisions, particularly denial of

suppression motions, on any basis for which there is a record sufficient to permit

conclusions of law, even though they may be on grounds other than those relied upon

by the trial court.”).

B. Fourth Amendment Principles

¶14 The Fourth Amendment to the United States Constitution prohibits unreasonable

searches and seizures. U.S. Const. amend. IV. A parallel provision of the Colorado

Constitution likewise protects against unreasonable searches and seizures and is

1 We granted certiorari to review the following issue:
Whether a police officer’s entry into the defendant’s hotel room
constituted an unreasonable entry that violated the Fourth Amendment,
where the officer was invited by the defendant’s father and the defendant
herself consented to the entry.

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generally coextensive with the Fourth Amendment. Colo. Const. art. II, § 7; Simpson,

¶ 16, 392 P.3d at 1211.

¶15 The Fourth Amendment does not proscribe all government searches; rather, it

proscribes only those that are unreasonable. Florida v. Jimeno, 500 U.S. 248, 250 (1991).

A warrantless entry into a person’s home is presumptively unreasonable unless it falls

within a recognized exception to the Fourth Amendment’s warrant requirement. See

People v. Taube, 864 P.2d 123, 129 (Colo. 1993).

¶16 One such recognized exception is the voluntary consent of a person authorized

to grant such consent. United States v. Matlock, 415 U.S. 164, 170–71 (1974). The

Supreme Court has long approved of consensual searches “because it is no doubt

reasonable for the police to conduct a search once they have been permitted to do so.”

Jimeno, 500 U.S. at 250–51. Where a third party (rather than the subject of the search)

communicates consent, the search is invalid unless the third party has the authority to

consent to the particular search at issue. Stoner v. California, 376 U.S. 483, 487–90

(1964). A third party’s authority to consent to a search of a premises typically stems

from the third party’s “common authority” over the premises, arising from “mutual use

of the property by persons generally having joint access or control for most purposes.” 2

2 Additionally, a defendant’s right to be free from unconstitutional searches is not
violated when an officer reasonably, but mistakenly, concludes that a third party
possesses the requisite “common authority” to consent. Illinois v. Rodriguez, 497 U.S.
177, 181, 187–89 (1990); Petersen v. People, 939 P.2d 824, 830 (Colo. 1997). In these
circumstances, the consent given is invalid, but there is nevertheless no Fourth
Amendment violation because the government’s search based on the appearance of the
requisite authority is not unreasonable. Rodriguez, 497 U.S. at 183–84.

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Matlock, 415 U.S. at 171 n.7; People v. Strimple, 2012 CO 1, ¶ 21 n.7, 267 P.3d 1219, 1224

n.7. However, both the Supreme Court and this court have also recognized a third

party’s authority to consent to a search where the subject of the search has conferred

authority to consent to the third party. See Stoner, 376 U.S. at 487–89 (discussing

whether police had a basis to believe that the defendant had authorized a hotel night

clerk to permit police to search the defendant’s room); Petersen v. People, 939 P.2d 824,

829 (Colo. 1997) (discussing “authority conferred to an agent by express or implied

delegation”).

¶17 In the context of any third-party consent—as in all Fourth Amendment

inquiries—the touchstone for determining the constitutionality of the search is

reasonableness, Jimeno, 500 U.S. at 250, and “[w]hat is reasonable depends upon all of

the circumstances surrounding the search or seizure and the nature of the search or

seizure itself,” United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). Of

“great significance” in assessing the Fourth Amendment reasonableness of a search

based on third-party consent are our culture’s “widely shared social expectations,

which are naturally enough influenced by the law of property, but not controlled by its

rules.” Georgia v. Randolph, 547 U.S. 103, 111 (2006); see also Rakas v. Illinois, 439 U.S.

128, 143 n.12 (1978) (subject’s reasonable expectation of privacy depends in part on

“understandings that are recognized and permitted by society”); Minnesota v. Olson,

495 U.S. 91, 99–100 (1990) (same).

¶18 Regardless of social expectations, however, the consent given must be voluntary,

as “determined from the totality of all the circumstances.” Schneckloth v. Bustamonte,

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412 U.S. 218, 227 (1973). Consent to a search need not be express, but may be implied

from the context and circumstances. See Birchfield v. North Dakota, 136 S. Ct. 2160,

2185 (2016) (“[C]onsent to a search need not be express but may be fairly inferred from

context . . . .” (citing Florida v. Jardines, 133 S. Ct. 1409, 1415–16 (2013), and Marshall v.

Barlow’s, Inc., 436 U.S. 307, 313 (1978))); People v. Hyde, 2017 CO 24, ¶ 21, 393 P.3d 962,

967. In addition, the scope of consent given is limited to “that of ‘objective’

reasonableness”—that is, what “the typical reasonable person [would] have understood

by the exchange [with] the officer” about the nature and extent of the search that was

authorized. Jimeno, 500 U.S. at 251.

C. Application

¶19 Given the Fourth Amendment’s defining emphasis on reasonableness and the

“great significance” given to “widely shared social expectations,” Randolph, 547 U.S. at

111, we conclude that the officer’s limited entry into Stock’s hotel room, in her

immediate presence and without her objection, did not violate Stock’s Fourth

Amendment right to be free from unreasonable searches. As previously noted, we need

not decide whether Stock’s father had authority to consent to a search of the entire

room; instead, the narrow question before us is whether Stock’s father could consent to

the officer’s limited entry a few steps inside the door.

¶20 On the facts of this case, we conclude that Stock conferred on her father the

authority to consent to the officer’s limited entry. The third party who allowed the

officer to enter the room was an adult family member and Stock’s invited guest. He

answered the hotel-room door and stepped aside to allow the officer to step inside, and

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did so in Stock’s immediate presence and with her knowledge. Stock did not object in

any way to her father’s actions; to the contrary, the events immediately after the

officer’s entry confirm that Stock had in fact conferred to her father the authority to

consent to the officer’s limited entry.

¶21 First, after the officer stepped into the room, the father asked whether he should

stay, indicating both that the officer’s arrival was expected, and that the father had

permitted the officer to enter for the purpose of speaking with Stock, who was present

in the room just a few feet away. Next, Stock expressly agreed to talk with the officer

and proceeded to clear a seat for him in the room. These actions are inconsistent with

Stock’s present contention that she did not consent to the officer’s entry; to the contrary,

they further confirm that she had, in fact, given her father authority to permit the officer

to enter the hotel room to speak with her. Although Stock testified at the suppression

hearing that she did “not really” want the officer to enter the room and speak to her, the

trial court did not credit that testimony, instead finding that aspects of Stock’s

testimony were contradictory and that her credibility was affected by her prior felony

conviction and her self-interest in having the suppression motion granted.

¶22 Further, the trial court’s conclusion that the father’s gestures constituted an

expression of consent to enter is supported by substantial evidence. The trial court

found that the father “welcomed [the officer] into the room by opening the door fully

for him and stepping back.” On this issue, the officer testified that the father stepped

back from the door, and the trial court specifically found that the officer’s account of the

entry was credible.

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¶23 From the officer’s side of the interaction, the opening door revealed an adult

whom the officer knew was a close relative of Stock’s. And although the officer knew

the father was not staying in that room, the prevailing social expectation is that visitors

can rely on invitations to enter given by adult guests of a dwelling because one

generally does not answer a door if one has not been authorized by the resident to

either admit or turn away visitors. See, e.g., People v. Ledesma, 140 P.3d 657, 705 (Cal.

2006) (“[T]he police may assume, without further inquiry, that a person who answers

the door in response to their knock has the authority to let them enter.”). That is, there

is a common social expectation that houseguests will confer with residents before

admitting a visitor. Cf. Olson, 495 U.S. at 99 (“[F]ew houseguests will invite others to

visit them while they are guests without consulting their hosts . . . .”). Additionally,

that the person who answered the door was known to be a close relative of Stock’s

further suggests that the two would be in communication, giving Stock the opportunity

to express her wishes regarding the admission or refusal of guests.

¶24 The officer also knew that Stock was physically present in the room because the

hotel owner had told the officer he could find Stock in her room. And because Stock’s

hotel room was a typical single-room unit, Stock presumably would have been aware of

the officer’s knock, giving her the opportunity to turn away the police officer, had she

so wished. Given our “widely shared social expectations,” the immediate physical

presence of the resident who is the subject of a search is a particularly significant fact

because that individual has a clear opportunity to refuse consent. Fernandez v.

California, 134 S. Ct. 1126, 1133–35 (2014); Randolph, 547 U.S. at 113–20; see also

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Strimple, ¶¶ 31–39, 267 P.3d at 1225–26. Indeed, under such circumstances, the

“inhabitant’s express refusal of consent to a police search is dispositive as to him,

regardless of the consent of a fellow occupant”: the police may not thereafter conduct a

consent search in the inhabitant’s presence. Randolph, 547 U.S. at 122–23.

¶25 Importantly, the nature and scope of the consent given in this case were also

limited. See Florida v. Jardines, 133 S. Ct. 1409, 1416 (2013) (“The scope of a license—

express or implied—is limited not only to a particular area but also to a specific

purpose.”). Although the Fourth Amendment “draw[s] a firm line at the entrance to the

house,” Payton v. New York, 445 U.S. 573, 590 (1980), the subject of a consent search is

free to modify that firm line by “delimit[ting] as he chooses the scope of the search to

which he consents,” Jimeno, 500 U.S. at 252; see also People v. Arapu, 2012 CO 42, ¶ 16,

283 P.3d 680, 684 (“[C]onsent . . . may include express or implied limitations.”).

¶26 Here, the father allowed the officer merely to step past the entryway for the

limited purpose of speaking to the father and Stock, and not for the purpose of

searching the room for evidence. Had the father suggested that the officer could rifle

through Stock’s belongings, it would not have been reasonable for the officer to infer

that the father had authority to consent to such a search without further inquiry. See

People v. McKinstrey, 852 P.2d 467, 473 (Colo. 1993) (“[P]olice officers . . . should make

reasonable inquiries when they find themselves in ambiguous circumstances regarding

the authority of the third party to consent to the search.”); cf. Randolph, 547 U.S. at 112

(“‘[A] child of eight might well be considered to have the power to consent to the police

crossing the threshold into [the entryway]’ . . . but no one would reasonably expect such

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a child to be in a position to authorize anyone to rummage through his parents’

bedroom.” (quoting 4 Wayne LaFave, Search and Seizure § 8.4(c) (4th ed. 2004))).

¶27 In sum, considering the totality of these circumstances, we reach the same

conclusion as the trial court: that the father consented to the officer’s limited entry into

Stock’s hotel room on her behalf, with Stock’s authorization.

¶28 Stock argues that instead of entering into the hotel room upon the father’s

gesture of invitation, the officer should have waited outside the threshold to obtain

consent directly from Stock herself. However, the Supreme Court has cautioned against

treating third-party consent cases as inquiries into alternative measures the police might

have taken. Randolph, 547 U.S. at 122 (reasoning that inviting other cotenants to refuse

consent would transform “every [third-party] consent case [into] a test about the

adequacy of the police’s efforts to consult with a potential objector”); cf. Illinois v.

Lafayette, 462 U.S. 640, 647 (1983) (“The reasonableness of any particular governmental

activity does not necessarily or invariably turn on the existence of alternative ‘less

intrusive’ means.”). Similarly here, we need not consider counterfactual scenarios

about what the officer might have done, given our conclusion that, on the particular

facts of this case, Stock’s father had authority to consent to the officer’s limited entry in

her immediate presence.

¶29 Finally, because we conclude that the officer’s entry was justified on other

grounds, we need not reach the People’s argument that the entry was justified under

the court of appeals’ decision in People v. White, 64 P.3d 864 (Colo. App. 2002). In that

case, the court of appeals concluded that a family friend visiting the defendant’s father

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as an overnight houseguest had authority to consent to a police entry into the area of

the father’s house where a visitor would normally be received. Id. at 871–72. As we

have explained above, the validity of a search depends not on whether a unique third-

party consent rule applies to a home’s receiving area; rather, the validity of a search

depends on the particular circumstances and nature of the search and consent given.

III. Conclusion

¶30 On the facts of this case, we conclude that Stock conferred on her father the

authority to consent to the officer’s limited entry into her hotel room, in her immediate

presence. The trial court therefore properly denied Stock’s motion to suppress, and her

statements to the officer were admissible at trial. Accordingly, we reverse the judgment

of the court of appeals and remand the case for further proceedings consistent with this

opinion.

JUSTICE GABRIEL dissents.

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JUSTICE GABRIEL, dissenting.

¶31 The Fourth Amendment to the United States Constitution provides:

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.

¶32 In light of this plain language, it has long been settled that “the Fourth

Amendment has drawn a firm line at the entrance to the house.” Payton v. New York,

445 U.S. 573, 590 (1980).

¶33 Today, the majority substantially erases this firm line by upholding a police

officer’s warrantless entry into respondent Susan Leigh Stock’s home despite the

absence of any evidence that she had consented to the officer’s initial entry. To reach

this conclusion, the majority surmises consent based on a series of inferences and

assumptions that supposedly show that Stock had given her father the authority to

consent to the officer’s “limited entry” into the home. Maj. op. ¶ 27.

¶34 Because (1) I perceive no evidence in the record to support a conclusion that

Stock authorized her father to let the officer into her home and (2) I believe that the

majority’s conclusion is contrary to longstanding Fourth Amendment jurisprudence, I

respectfully dissent.

I. Factual Background

¶35 In the course of its analysis, the majority relies on a significant number of

inferences and assumptions. For example, the majority states:

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  “[A]fter the officer stepped into the room, the father asked whether he should
stay, indicating . . . that the officer’s arrival was expected.” Id. at ¶ 21.

 “Stock expressly agreed to talk with the officer and proceeded to clear a seat for
him in the room. These actions are inconsistent with Stock’s present contention
that she did not consent to the officer’s entry; to the contrary, they further
confirm that she had, in fact, given her father authority to permit the officer to
enter the hotel room to speak with her.” Id.

 “[A]lthough the officer knew the father was not staying in that room, the
prevailing social expectation is that visitors can rely on invitations to enter given
by adult guests of a dwelling because one generally does not answer a door if
one has not been authorized by the resident to either admit or turn away
visitors.” Id. at ¶ 23.

 “[B]ecause Stock’s hotel room was a typical single-room unit, Stock presumably
would have been aware of the officer’s knock, giving her the opportunity to turn
away the police officer, had she so wished.” Id. at ¶ 24.

¶36 None of these inferences and assumptions, however, finds support in the record.

Instead, the above-quoted statements appear to reflect the majority’s own findings as to

what Stock and her father might have known, done, or presumed, given the majority’s

assumed social expectations.

¶37 Respectfully, I do not see this as our proper role. To the contrary, as the majority

correctly states, we must defer to the trial court’s findings of historical fact that are

supported by competent evidence in the record, but we assess the legal effect of those

historical facts de novo. Id. at ¶ 13 (citing People v. Simpson, 2017 CO 25, ¶ 12, 392 P.3d

1207, 1210).

¶38 In my view, the pertinent facts of record, which are largely undisputed, are as

follows:

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¶39 Stock lived and worked at a hotel in Winter Park, Colorado. After confessing to

the hotel’s owner that she had stolen money from the hotel’s vending machines, the

hotel manager called the police department to report the theft and to request that an

officer respond. An officer did so and spoke with the hotel’s owner, who told the

officer that Stock was in her room at the hotel. The owner gave the officer the room

number, and the officer proceeded to that room. Notably, the officer testified that when

he first responded to the hotel, he did not know that he was going to be interviewing

Stock. Moreover, Stock testified to her understanding that the hotel owner did not wish

to press charges against her. These facts undermine the majority’s inference that the

officer’s arrival at Stock’s room was expected.

¶40 The officer found Stock’s room and knocked on the door. No evidence indicated

that the officer had announced, “Police,” or otherwise identified himself as he knocked.

¶41 Stock’s father, who the officer knew did not reside there, answered the door. No

evidence indicated that Stock had asked him to do so, and at the time her father

answered the door, Stock was in the center of the room crying. The father opened the

door, at which point, according to the father, the officer asked to speak with Stock and

asked the father to leave. The father stepped back, allowed the officer to enter, and then

left, pursuant to the officer’s instructions. The record does not indicate that Stock paid

any attention to what her father was doing at the door. Nor does the record indicate

that Stock had invited the officer into her home, consented to his entry, or authorized

her father to let the officer in. To the contrary, Stock specifically testified that she did

3
not invite the officer in and did not consent to his coming into her home, and her father

likewise testified that Stock had never invited the officer in.

¶42 In my view, these are the facts that must drive our analysis, and I turn next to

that analysis.

II. Analysis

¶43 I begin by noting the Fourth Amendment principles and related authorities that

govern this case. I then apply those principles to the record facts before us and

conclude that Stock did not consent to the officer’s entry into her home, thus

establishing a Fourth Amendment violation.

A. Fourth Amendment Principles

¶44 As the majority observes, the Fourth Amendment and article II, section 7 of the

Colorado Constitution prohibit unreasonable searches and seizures. Maj. op. ¶ 14.

Construing this prohibition, we have said that a warrantless entry into a person’s home

is per se unreasonable and in violation of the Fourth Amendment unless it falls within

one of a few well-delineated exceptions. People v. Taube, 864 P.2d 123, 129 (Colo. 1993).

¶45 The voluntary consent of a person authorized to grant such consent is one

recognized exception to the Fourth Amendment’s warrant requirement. United

States v. Matlock, 415 U.S. 164, 170–71 (1974). As the Supreme Court has explained,

such voluntary consent need not necessarily come from the defendant himself or

herself:

[W]hen 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
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 third party who possessed common authority over or other sufficient
relationship to the premises or effects sought to be inspected.

Id. at 171; accord Petersen v. People, 939 P.2d 824, 827–28 (Colo. 1997).

¶46 The common authority that justifies third-party consent rests on the “mutual use

of the property by persons generally having joint access or control for most purposes.”

Matlock, 415 U.S. at 171 n.7; accord Petersen, 939 P.2d at 827–28.

¶47 In addition to consent given by the defendant or a person with common

authority over the premises, both the United States Supreme Court and this court have

recognized that the voluntary consent exception can be satisfied (and a search can be

deemed reasonable) when a police officer reasonably but mistakenly believed that a

third party who had consented to a warrantless entry had common authority over the

property. See Illinois v. Rodriguez, 497 U.S. 177, 185–89 (1990); Petersen, 939 P.2d at

830–31.

¶48 As this court has observed:

Apparent authority is not a lesser version of common authority. An
apparent authority analysis begins by conceding that the consent obtained
by police is legally invalid because the consenting third party lacks
sufficient authority over the property to consent to a search. Apparent
authority is not authority at all, but merely the appearance of authority. A
search justified by the apparent authority doctrine is not authorized by
consent from one with authority to give it. Rather, such a search, without
valid consent, does not violate the Fourth Amendment because it is not
unreasonable. The doctrine relies on the fact that the determination of a
third party’s authority to consent is a factual determination, and that
mistakes of fact can be reasonable under certain circumstances.

Petersen, 939 P.2d at 830–31 (citing Rodriguez, 497 U.S. at 183).

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¶49 The People bear the burden of proving the existence of an exception to the

Fourth Amendment’s warrant requirement. Id. at 827; accord People v. Santisteven,

693 P.2d 1008, 1012 (Colo. App. 1984); see also People v. Fuerst, 2013 CO 28, ¶ 11,

302 P.3d 253, 256 (noting that a warrantless search of a home by the police is

presumptively unreasonable and that to overcome this presumption the prosecution

has the burden of showing that the warrantless search was justified under one of the

narrow exceptions to the warrant requirement). Mere acquiescence to a claim of lawful

authority, however, is insufficient to establish consent to a warrantless entry.

Santisteven, 693 P.2d at 1012.

¶50 With these principles in mind, I turn to the facts of this case.

B. Application

¶51 Here, it is undisputed that Stock did not personally invite the officer into her

home. Indeed, she testified, without contradiction, that she had neither invited nor

consented to the officer’s entry.

¶52 It is further undisputed that Stock’s father did not have common authority over

Stock’s home. Specifically, no evidence showed—and no party contended—that Stock’s

father had joint access to or control over Stock’s room at the hotel.

¶53 And it is undisputed that Stock’s father did not have the apparent authority to

allow the officer to enter. The officer knew that the father did not reside there, and the

People do not contend that the officer harbored a reasonable but mistaken belief that

Stock’s father had common authority over the room. See Rodriguez, 497 U.S. at 185–89

(noting that apparent authority is based on a police officer’s reasonable but mistaken
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belief that a third party who consented to a warrantless entry had common authority

over the property); Petersen, 939 P.2d at 830–31 (same).

¶54 The question thus becomes whether Stock authorized her father to consent to the

officer’s entry into her home. Unlike the majority, I perceive no evidence to support a

conclusion that she did. Specifically, nothing in the record shows that Stock directly

authorized her father to consent to the officer’s warrantless entry into her home, and the

majority cites no such evidence. Instead, the majority infers such authorization from

the existing and assumed circumstances. But it does so without record support.

¶55 Nor do I believe that Stock’s conduct after the officer had entered her home

establishes the requisite consent. In reaching its conclusion that Stock had authorized

her father to allow the officer to enter the home, the majority principally relies on the

facts that once the officer was in the home, Stock agreed to speak with him and even

cleared a place for him to sit. Maj. op. ¶ 21. The Fourth Amendment violation,

however, occurred when the officer crossed the “firm line at the entrance to the house.”

Payton, 44 U.S. at 590. Moreover, the majority does not explain, nor do I perceive, how

Stock’s post-violation conduct here bears on any authority that she may have given her

father. Specifically, the fact that Stock agreed to speak to the officer after he had already

entered her home says nothing about how or when Stock authorized her father to allow

the officer to enter. This is especially true here, where (1) Stock testified that she did not

invite the officer into her home and did not consent to his entry, (2) Stock’s father

likewise testified that Stock had never invited the officer into the home, and (3) Stock

testified that she felt that she was required to speak to the officer at that point.

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¶56 The cases on which the majority relies for the proposition that consent may be

implied from the context and circumstances, see maj. op. ¶ 18, likewise do not support

its inference of consent. Specifically, Birchfield v. North Dakota, 136 S. Ct. 2160, 2185

(2016), and People v. Hyde, 2017 CO 24, ¶ 21, 393 P.3d 962, 967, both involved statutory

implied consent to warrantless blood and breath tests in cases involving people

suspected of driving under the influence. In cases such as these, by statute, a driver’s

consent to a warrantless blood or breath test can be inferred from the driver’s own

conduct—namely, exercising the privilege to drive. Here, in contrast, we have no

statute delineating what conduct would evince implied consent. Nor do we have

evidence that Stock did anything to consent to the officer’s warrantless entry into her

home. Instead, we have (1) the majority’s inferences and assumptions, based on what it

views to be prevailing social expectations, and (2) Stock’s post-violation agreement to

speak with the officer, which, on the facts presented here, I believe to be irrelevant.

¶57 Florida v. Jardines, 133 S. Ct. 1409, 1415–16 (2013), and Marshall v. Barlow’s, Inc.,

436 U.S. 307, 313 (1978), which, as the majority notes, Birchfield cited, are even less

helpful.

¶58 In Jardines, 133 S. Ct. at 1415–16, the Court contrasted a homeowner’s placing a

knocker on his or her front door with a police officer’s having a trained police dog

explore the area around the home in hopes of discovering incriminating evidence. The

Court observed that the knocker would evince the owner’s invitation to knock to

attempt to gain entry. See id. In contrast, the owner could not be deemed to have

implicitly consented to the search involving the dog. See id. at 1416.

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¶59 In Marshall, 436 U.S. at 313, the Court noted the exceptional case of certain

industries in which the history of close governmental regulation is so pervasive that a

proprietor could not assert a reasonable expectation of privacy in the operation of the

enterprise.

¶60 Neither of these cases supports the majority’s inference of consent in the present

case. To the contrary, they generally affirm the right of people to be free from

warrantless intrusions into their homes absent either express consent or narrowly

circumscribed implied consent.

¶61 Finally, I do not believe that the broad “inferred consent” exception that the

majority appears to adopt is sufficiently articulated such that our trial judges will be

able to apply it with consistency. Although I appreciate the majority’s efforts to limit its

holding to the facts of this case, it is unclear to me how the exception that the majority

appears to adopt will be applied in future cases. Is the size of the home determinative?

(The majority emphasizes that Stock’s home was “a typical single-room unit.” Maj. op.

¶ 6.) Does it matter how far into the home the officer ventured? (The majority deems it

pertinent that the officer “took a couple of steps past the hotel-room door” and refers to

the officer’s entry as “limited.” Id. at ¶¶ 6, 27.) Does inferred consent turn on whether

the defendant was present or nearby? And if so, how near is near enough? (The

majority makes a point of noting that Stock “was present in the room just a few feet

away.” Id. at ¶ 21.)

¶62 The doctrines of actual authority, common authority, and apparent authority

clearly delineate methods of proving consent, and those doctrines can easily be applied.

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In contrast, the majority’s apparent “inferred consent based on the circumstances”

exception provides no discernible standard, and I fear that such an exception could

potentially be applied so broadly that it would swallow the Fourth Amendment rule

against warrantless entries into a person’s home, at least in cases involving third-party

consent.

III. Conclusion

¶63 Although the evidence in this case does not suggest, nor do I intend to imply,

that the officer here acted with anything other than good faith, the officer’s conduct

must be measured against well-settled case law delineating what police officers must do

to vindicate every citizen’s Fourth Amendment right to be secure in his or her home.

¶64 Here, for the reasons set forth above, I believe that the officer’s warrantless entry

into Stock’s home crossed the Fourth Amendment’s firm line. Because the People have

not established Stock’s consent to this warrantless entry and because I cannot endorse

what I view to be the majority’s significant expansion of the consent exception to the

Fourth Amendment’s warrant requirement, I respectfully dissent.

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