dissenting: I respectfully dissent, principally because I believe that the majority has unduly extended the “common authority” and “apparent authority” rules to validate a third-party consent to search a residence by someone who had no more than a hope or intention of resuming residence at that location after an 18-month absence, knowing that there were now others living there who may be doing drugs and with whom he did not wish to reside. Those “others” possessed a reasonable expectation of privacy under the Fourth Amendment that could not be waived by a *218future occupant who lived there 18 months ago and merely “hoped” to reside there once again.
The facts here are critical. The parties stipulated as follows:
“Eugene Hanson lived at 1130 West 20tli Street prior to serving a sentence with the Kansas Department of Corrections of approximately a year to a year and a half. He lived there at that time with his mother and with Sandra Porting. So both Miss'Porting and the defendant lived there prior to him going to the Department of Corrections.
“When he was released from the Department of Corrections there was a proposed release plan developed by the Kansas Department of Corrections which identified his primaiy residence as 1130 West 20th Street. That was his mother’s residence, and Miss Porting was still a resident of that house. When Mr. Hanson was released from the Department of Corrections he . . . went straight to the custody of Ed Mora who was to transport him to his primary residence; that primaiy residence being listed on Iris parole plan as 1130 West 20th.
“Mr. Hanson indicated he had concerns about possible drugs in the house and asked the [parole] officer, Ed Mora, to search tbe house for drugs in order to malee sure . . . there were no drugs there as he entered the home. Upon entering the home the officer encountered Mr. Angel, who was an absconder from parole, and Miss Porting. Neither [Hanson’s] mother, who . . . [had] passed away, nor the defendants gave consent to enter the home. It was only on the consent of Eugene Hanson that the home was entered. And drugs were subsequently found either on or in the proximity of both defendants.”
Additionally, the parties stipulated that “Officer Mora entered into Miss Porting’s private bedroom within tire residence, which was the start of the finding of the drugs,” and that “Mr. Angel was an overnight guest and he had been . . . there all day and that he had personal belongings with him at the residence.” (Emphasis added).
The only other facts were established through the testimony of Officer Mora, who confirmed that “Mr. Hanson had some concerns that there was possibly some drug usage going on at the home and that there [were] people . . . living at the residence that he did not want living there any more and was afraid that when he went to the home that there may be some problems.” Regarding Hanson’s designation of the home as his intended residence, Mora had no reason to dispute that Hanson had been incarcerated for 18 months and designated the residence in his parole plan, but was concerned about people “living at the residence that he did not *219want living there.” Regarding Hanson’s designation of this residence for purposes of his parole plan, Mora testified:
“Q. And isn’t it true that if in fact you had gone over there and there was something wrong with the house that made it, in your opinion, inappropriate for Mr. Hanson to live there, you had tire authority to deny him living in that house?
“A. Ultimately that would be his assigned parole officer, but, yes.
“Q. In the interim, if you would have gone there and you would have seen something drat caused you grave concern about Mr. Hanson’s welfare, safety, and potential for success on parole, you had the authority to tell him at tirat time you can’t live here until we make other arrangements?
"A. Yes.”
Moreover, the record is entirely unclear that Hanson’s mother was living at the time of the search. Whether she died during Hanson’s incarceration or during the pendency of proceedings against the defendants is unknown, but the parties’ stipulation at trial gives no indication that any inquiry was made upon Hanson’s mother at the time of entry into tire residence or at any other time.
Highly summarizing other obvious omissions from these facts, the record does not indicate that Hanson had any interest in the property, does not indicate how long Hanson lived at the residence prior to incarceration, does not indicate whether his mother had approved his return, does not indicate whether he had personal effects at the residence, does not indicate whether he had conferred with the current occupants of the house regarding his hope or intent to return, does not indicate any spousal relationship with Porting, does not indicate whether Hanson had a key or how entiy was otherwise obtained, and certainly does not speak to the extent of investigation by the parole officer into these issues. Instead, it is clear that Hanson was aware of potential “problems” with his return to this residence because of other occupants, and used his unique situation to press the parole officer into effectively evicting those “unwanted” occupants from the home by means of a warrantless search revealing their anticipated drug usage. I respectfully depart from the analysis and outcome of the majority opinion because I do not share the belief that validating such consent can be squared with the Fourth Amendment.
*220First, I believe that the majority’s analysis cannot be squared with United States v. Matlock, 415 U.S. 164, 170-71, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974). Although the court in Matlock validated a search based upon the consent of a spouse, the court’s “common authority” or “sufficient relationship” test is limited. The court stated:
“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." (Emphasis added.) 415 U.S. at 171 n.7.
Here, it simply cannot be said that Hanson had mutual use of the property after his 18-month absence without apparent arrangements to resume his occupancy, but most importantly, the “others” now living at the residence certainly had not assumed the risk that he would permit a search, since he was hardly “one of their number.” The majority has departed from the “common authority” rule of Matlock.
Second, I believe that the majority’s analysis cannot be squared with State v. Ratley, 16 Kan. App. 2d 589, 827 P.2d 78 (1992). Relying on Matlock, our court in Ratley adopted a case-by-case approach to the “common authority” test, but provided factors to be considered in determining if common authority exists:
“(1) the non-occupying spouse’s retention of a key to the premises, (2) the non-occupying spouse’s access to the property, (3) changed locks, (4) the length of time file non-occupying spouse is away from the premises, (5) whether the non-occupying spouse left personal property on the premises, and (6) the reason for die non-occupying spouse’s departure.” 16 Kan. App. 2d at 594.
Here, the record is silent as to many of these factors, i.e., Hanson’s retention of a key is unknown, whether the locks had been changed is unknown, and whether he left personal property in the premises is unknown. What is shown by the record is that he had not been in the property since being incarcerated, the length of time he was away was 18 months, and the reason for his departure was indefinite incarceration. Clearly, these factors weigh against Hanson’s *221“common authority” rather than support it, especially when it is considered that Ratley involved husband and wife, which the court specifically noted “ha[ve] been treated differently than [the relationship] between non-spouses,” stemming “from their unique relationship which gives diem a common authority and sufficient relationship arising from the marital bonds affecting all aspects of their lives.” 16 Kan. App. 2d at 592. Hanson had no such “bonds” witii Porting or the other occupants of this residence.
Third, the majority’s alternative reliance upon die “apparent authority” rule is misplaced. This rule has its genesis in Illinois v. Rodriguez, 497 U.S. 177, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990), in which the Court validated a search where the officers entering without a warrant reasonably — though erroneously — believed that the person providing consent was a resident. But the Court carefully restricted its holding, stating:
“[W]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 circunistances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry.” (Emphasis added.) 497 U.S. at 188.
Precisely. And when Hanson told the authorities that he wanted diem to accompany him to the residence because there were people living there with whom he did not want to live, I believe that any reasonable person would háve made further inquiry regarding Hanson’s degree of authority over diese premises. The search cannot be validated on the “apparent audiority” rule.
Fourth, I am concerned that the majority has shifted the burden of proof by presumptions based purely on lack of evidence. The State bears the burden of proving the lawfulness of a search by a preponderance of the evidence. State v. Garcia, 250 Kan. 310, 318, 827 P.2d 727 (1992). 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 common authority, warrantiess entry is unlawful without further inquiry. See Rodriguez, 497 U.S. at 188-89. The gov*222erament must therefore come forward with persuasive evidence in order to support third-party consent. Rodriguez, 497 U.S. at 181. The majority relies in part on the fact that “there was no evidence that Hanson voluntarily and permanently surrendered control or access to the premises. Nor was there any evidence that anyone had changed the locks or attempted to restrict Hanson’s access of the premises in any way,” and “there was no evidence whatsoever to suggest that Hanson was not welcome or permitted to return to the residence after his release.” (Emphasis added.) I would not construe these evidentiaiy omissions in favor of the State. The State has the burden to show affirmatively that objective facts support Hanson’s apparent or common authority, and the majority errs in “presuming” such supportive facts from a silent record.
Fifth, even if the case is closer as to entry into the residence, it is less close as to enty into tire closed bedroom. The stipulated facts state that this was the “private bedroom” of Porting. There is absolutely no showing in the record to support Hanson’s apparent or common authority over Porting’s “private bedroom.”
Finally, I fundamentally disagree with the concept that apparent authority is sufficient to support a search under these circumstances. Focus on “reasonableness” of the officer’s belief rather than the voluntariness of a person’s license to others to forfeit his or her expectation of privacy is not consistent with Fourth Amendment jurisprudence. What a person knowingly exposes to the public, even in his or her own home or office, is not a subject of Fourth Amendment protection; thus, an individual’s decision to grant to another some degree of “authority” limits that individual’s reasonable expectation of privacy and to that extent limits his or her Fourth Amendment protections. If an individual has not so limited his or her expectation of privacy, however, the police may not dispense with the safeguards established by the Fourth Amendment, notwithstanding the “reasonableness” of their belief of common authority. See Rodriguez, 497 U.S. at 189-90 (Marshall, J., dissenting). Although a panel of our court has embraced the apparent authority rule of Rodriguez in Ratley, I would not extend it to the facts of this case. Here, the occupants of a residence had their Fourth Amendment protections trampled as a result of Hanson’s *223mere designation of his prior residence in his parole plan, which the majority holds somehow clothed him with purported apparent authority to consent to search of the premises he had not occupied for 18 months arid knew were occupied by “others.” With all due respect to my colleagues, I would not consider this outcome consistent with current Fourth Amendment jurisprudence; the majority has taken away some of the liberty that the Fourth Amendment was designed to protect.
I would reverse the district court.