dissenting.
I respectfully dissent.
Defendant, under the alias Raymond Douglas Williams, originally rented the storage space from Astrozon in 1985 for a period of one month which was extended as anticipated by the rental agreement through December 1988. Commencing January 1989, Astrozon rented the unit to a Kevin L. Cherry-
The payment of rent on the storage unit was irregular commencing in 1985 and more so during 1989, with the outstanding rent and fees during 1989 reaching as much as $306 (five plus months). Astrozon had mailed notices to both Williams and Cherry on several occasions demanding payment of the rent and had previously “over-locked” the storage unit. “Over-locking” means Astrozon places its lock on the storage unit together with the occupant’s lock, a procedure which, without further action, denies both Astrozon and the occupant access to the unit without the con*289sent or cooperation of the other. The occupant can regain complete access by the payment of the rent. Both can, and Astrozon did, gain access by cutting the other’s lock. It was the practice of Astrozon to “over-lock” a unit when the rent was ten days overdue, and the unit was “over-locked” on August 29, 1989, at the time of the first search.
Astrozon had never taken any action to limit the occupant’s access to the storage unit other than to “over-lock” prior to consenting to the search and took no formal action to terminate the rental agreement until October 6,1989, well after the execution of the search warrant.
There had been a series of burglaries of, and thefts from, self-storage units in or near Colorado Springs including those operated by Astrozon. Astrozon managers provided information to the police which, together with other information, caused suspicion to focus on the occupants of the storage unit and on the storage unit as a possible repository of stolen property.
On August 28, 1989, an Astrozon manager advised the investigating officer that the August rent had not been paid on the storage unit and that Astrozon had “over-locked” the unit. The officer testified that he understood that the rent was three or four months in arrears, which is understandable because the managers had stated that the rent had been late a number of times in 1989. The investigating officer inquired farther and reviewed the records relating to the unit which established that the occupant had paid rent through July 31, but had not paid rent for August. An Astrozon manager testified that she believed that Astrozon was allowed access to the unit if a tenant was more than 30 days delinquent with rent, which was consistent with the lien statute, but which was not yet the case on August 28, 1989. The officer contacted a supervisor and later a deputy district attorney to ascertain whether, in their opinion, the landlord could legally consent to a search of the storage unit. Both agreed that the operator could let him into the unit.
The officer returned to Astrozon on August 29,1989, and asked if he could enter and search the storage unit. Astrozon, through its managers, gave both oral and written consent, cut the occupant’s lock, and opened the storage unit for the officer. The officer entered the storage unit and observed its contents, which did not include any stolen property, but did include personal property of unspecified interest to the officer. The officer left the unit undisturbed, and the co-manager re-locked it.
Officers searched the unit two additional times without a search warrant, and then on September 15 with a search warrant. The officers found and removed documents from the unit which were offered and received into evidence at defendant’s trial.
The trial court found that defendant had not abandoned the property or the storage unit and had standing to challenge the searches. Because the transcript of this proceeding is not available on appeal, we are bound by the trial court’s findings. I perceive that they may be more far-reaching than does the majority.
Defendant contends that the trial court erred in failing to suppress the evidence seized from the storage unit as the fruits of a warrantless search in violation of the Fourth Amendment. I agree.
I.
The initial inquiry is whether Astrozon, acting through its managers, had the authority in its own right to consent to a search of the storage unit. I conclude that it did not.
Generally, a warrantless search predicated on the consent of a landlord is not valid. The Supreme Court in Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), held that the consent of a landlord who had a common law right of access to prevent waste could not form the basis of a warrantless search of a residence for distillery equipment.
Our supreme court in People v. Brewer, 690 P.2d 860 (Colo.1984) held that a landlord cannot give a valid consent to search a tenant’s premises. In addition, the court held that the good faith exception to a warrantless search in such a situation did not apply because the officers made a mistake of law and *290not of fact. See § 16-3-308, C.R.S. (1986 Repl.Vol. 8A) (good faith mistake of fact exception to warrant requirement).
The majority relies, in part, on People v. Montoya, 914 P.2d 491 (Colo.App.1995), for the proposition that a landlord may have actual authority in some instances. In Montoya, a division of this court held that an occupant of a motel room has a reduced expectancy of privacy after the rental period has expired without any granting of overtime privileges. The hotel-motel business is significantly different from the rental of self-storage units. In the hotel-motel context the room is rented for a short stated period of time at the expiration of which it will normally be immediately rented to another occupant who may have already reserved the privilege. The short duration of occupancy and expectation of immediate turnover serve to reduce the expectancy of privacy of a guest following the expiration of the term in a hotel-motel context.
Here, given that long-term occupancy is the norm and that tolerance for late payment of rent has been demonstrated, there was no reduction in the expectancy of privacy under the circumstances. In addition, an exception noted in the authority relied upon by the court in Montoya is when the hotel or motel has tolerated late payment or overtime stays without permission in the past. See United States v. Owens, 782 F.2d 146 (10th Cir. 1986).
I also find United States v. Reyes, 908 F.2d 281 (8th Cir.1990), relating to an expectancy of privacy in a bus terminal storage locker after expiration of the term, similarly unpersuasive. Both United States v. Elliott, 50 F.3d 180 (2d Cir.1995) and United States v. Williams, 523 F.2d 64 (8th Cir.1975), cited by the majority, turn on abandonment which, as the trial court found, did not occur here.
In my view, Astrozon, as owner or landlord, did not have actual authority to consent to the search of the unit.
II.
The majority concludes that a valid third party consent was obtained based on “apparent authority;” the officer had an objectively reasonable good faith belief that Astrozon, acting through its managers, had actual authority to consent to a search. This apparent authority arises, in the view of the majority, because there had been a breach of the lease or rental agreement.
Generally, a valid consent for a search may be obtained either from the individual who has actual authority to consent — the person whose property is searched — or from a third party who has common authority over the property — a person who has joint access or control over the property for most purposes. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). In Mat-lock, the Supreme Court held that the consent search of a bedroom by a cohabitant having “common authority” was binding on the defendant. There, the defendant granted, either expressly or by implication, the common authority held by the third party.
In Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), the Supreme Court extended the common authority doctrine, adopted the concept of “apparent authority,” and approved a warrantless search based on the officers’ objectively reasonable good faith, yet mistaken, belief, after inquiry, that the consenting third party cohabited the premises with the defendant and therefore had “common authority” to consent to a search.
Our supreme court has recently addressed third party consents to search in People v. Breidenbach, 875 P.2d 879 (Colo.1994); People v. Hopkins, 870 P.2d 478 (Colo.1994); and People v. McKinstrey, 852 P.2d 467 (Colo. 1993); see 3 W. LaFave, Search and Seizure § 8.3(g) (3d ed. 1996).
In Breidenbach, a third party gave consent to search the common area of a parcel of land containing two residences. A non-residential owner (defendant’s father) and the occupant of one of the residences (defendant’s brother) gave the consent, each having “common authority” over the common areas.
In Hopkins, officers searched a “fanny pack” with the consent of the person who possessed it with the knowledge and consent of the defendant at the time of the request. Only after the discovery of drugs did the *291consenting party say the “fanny pack” was not Ms and identified the defendant as the owner. The court’s rationale was that the owner had a diminished expectancy of privacy in personal property when he relinquished exclusive control to another. Furthermore, the court found that it was unreasonable to expect the officer to ascertain the actual title to such property when such a determination is difficult in the best of circumstances.
In McKinstrey, the defendant advised the officer that he occupied the cabin with the consent of a Mr. Sanchez. Later, the officer obtained a consent to search from a neighbor who had a key to the cabin and professed to be, along with Mr. Sanchez, a partial owner. The court concluded that the neighbor did not have “joint access or control for most purposes” and, therefore, no actual “common authority” to give a binding third party consent. The court remanded to the trial court for a determination of whether the officer had an objectively reasonable good faith belief that the third party had authority to consent to the search as required by Rodriguez.
In Rodriguez, Hopkins, and Breidenbach, the “apparent authority” was, in some manner, conferred by the defendant or existed with the knowledge and consent of the defendant. In McKinstrey, the defendant occupied the property on an informal basis with the alleged consent of one of the co-owners; another co-owner, who demonstrated authority over the property both prior to and at the time of the defendant’s occupancy, gave the consent to search.
In this instance, defendant’s right of occupancy and his relationsMp to Astrozon were formal and pursuant to a written contract. That rental agreement granted the occupant exclusive use of the unit to the exclusion of Astrozon except for limited rights of entry for maintenance. The breach of that agreement by the failure to pay rent, or otherwise, might, under other circumstances, result in an abandonment or act to defeat standing, but the trial court concluded that no abandonment had occurred and defendant had standmg.
The breach by failure to pay rent m a timely manner was common in the contractual relationsMp between Astrozon and the occupant. Astrozon had tolerated tMs breach on several occasions and for periods substantially greater than had occurred at the time of the search without reentering the umt or taking any formal action to terminate the agreement.
The practice of “over-locking,” without more, excludes both Astrozon and the occupant without the consent of the other. As-trozon never took any action beyond “over-locking,” and, more importantly, there is no evidence that Astrozon had any present intent to take further action with respect to the uMt prior to the officer’s request for a consent to search. See Chapman v. United States, supra (landlord may have had the right to enter to prevent waste, but that was not the reason for the entry). Astrozon took no further action with respect to the uMt until October 6, 1989, or more than two months after the consent to search was given.
The Fourth Amendment interest to be protected is the occupant’s objective expectation of privacy.
In my view, the question whether any consent search based on an objectively reasonable good faith, but mistaken, belief of the investigating officer with respect to the actual authority of a landlord was one of law, not of fact. United States v. Brown, 961 F.2d 1039 (2d Cir.1992); People v. Brewer, supra.
It is anomalous to me that a landlord without authority to consent to a search as a matter of law can have “apparent authority” based on a breach of the rental agreement of short duration as common and tolerated as the failure to pay rent. Many people live in rented quarters, work in rented offices, and store property m rented premises. If such a breach of the lease or rental agreement, without more, or any careless or incorrect representations by the landlord as to the status of the lease to an officer who accepts them in good faith, can confer “apparent authority” on a landlord, then the right to be secure from unreasonable searches and seizures will be severely diluted. The anomaly, of course, is that a landlord under these circumstances can accomplish what the mag*292istrate is incapable of doing, that is, consent to the search without probable cause.
In addition, I am concerned that Astrozon was a nominal victim of the crimes under investigation at the time of the consent. It was the Astrozon managers who gave the consent that provided the officer with the information which caused the officer’s interest to center on the storage unit, which, in fact, contained no stolen property. At the time of the consent, the managers were active participants in the investigation. The consent in this case was given by antagonistic strangers.
In my view, the landlord, as such, has no power as a matter of law to grant a consent to search.
I would reverse the conviction and remand with orders to grant the defendant’s motion to suppress.