State v. Ham

WALTERS, Chief Judge.

In this appeal, we are asked co determine whether the district court erred in refusing to suppress evidence that had been seized by the police during a warrantless search. The search occurred in the bedroom of the appellant, Andrew Ham, which was located in an apartment rented and occupied by Andrew’s mother. The search was conducted with his mother’s consent, while Andrew was not present. Following his arrest on a charge of grand theft, Andrew moved to suppress the seized evidence. The district court held the search was valid, based upon the mother’s consent. We affirm the order denying the suppression motion.

The circumstances surrounding the search, and the denial of the suppression motion, are detailed as follows.1 Andrew Ham, age nineteen, shared a bedroom with his minor brother in a two-bedroom apartment rented by his mother. Andrew had entered into an informal agreement in February, 1986, with his mother to pay “rent” to her for his bedroom. Apparently this arrangement was on a month-by-month basis. He paid for the month of March only. On April 7, 1986, Mrs. Ham informed Andrew that because he had failed to pay the April rent due her, he would have to “move out by Friday,” April 9. In the meantime, on April 8, 1986, Andrew became the focus of a burglary investigation by the police. At the Hams’ apartment, while Andrew *406was absent, the officers asked Mrs. Ham if they could search Andrew’s bedroom. The officers did not have a warrant for the search. Mrs. Ham consented to the search and evidence of the burglary was found in a closet in the bedroom used by Andrew and his minor brother. Andrew was thereafter arrested for grand theft by possession of stolen property.

Following his arraignment in district court, Andrew moved to suppress the evidence obtained in the search. He contended that his mother lacked authority to consent to the search of his bedroom. Andrew asserted that he had been paying rent for his bedroom and the bedroom was under his exclusive control. Although he admitted being in arrears on the rent, Andrew maintained that he was a holdover tenant. When the district court denied Andrew’s motion to suppress, Andrew entered a conditional plea of guilty, reserving the right to seek appellate review of the court’s ruling on the suppression motion. This appeal followed.

We begin with the proposition that a search conducted without a warrant issued upon probable cause is per se unreasonable under the Fourth Amendment as well as the Idaho Const, art. I, § 17. This rule, however is subject “to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). One of the exceptions is a search conducted with consent voluntarily given by a person having authority to consent to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In the instant case, the authority of a third party (such as Mrs. Ham) to consent to a warrantless search may be based on one of two grounds, depending upon the particular circumstances shown by the evidence. First, that consent may be predicated upon the third party’s superi- or “power, authority, ownership and possession” of the premises, State v. Hagan, 47 Idaho 315, 320, 274 P. 628, 629 (1929), also characterized as “such dominion and control ... as ordinarily obtains with regard to one’s dwelling and the possession adjacent thereto.” State v. Haggard, 89 Idaho 217, 225, 404 P.2d 580, 584 (1965). Alternatively, the consent may be obtained from a third party who shares control of the premises or the items to be searched. State v. Huskey, 106 Idaho 91, 675 P.2d 351 (Ct.App.1984), citing United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).

Andrew relies on State v. Carsey, 295 Or. 32, 664 P.2d 1085 (1983), to show that he had exclusive control over his bedroom and a reasonable expectation of privacy therein, so that Mrs. Ham had no authority to consent to the search. In Carsey the living arrangement between the defendant and his grandparents, from whom he rented a bedroom, was described by the trial court as follows:

The Defendant occupied a bedroom in his grandparents’ home for which he paid $60 per month as rent. He did his own cleaning and washing. His grandfather never went into his room. His grandmother never went into his room except to stick her head in and tell him that a meal was ready. She characterized the arrangement as a unspoken agreement that his room was under his exclusive control.

Id. 664 P.2d at 1089.

The instant case is clearly distinguishable from Carsey. Here, Mrs. Ham testified that she had free access to Andrew’s bedroom “to pick up dirty dishes and laundry.” She indicated she did this “about once every two days, at least.” Mrs. Ham gave permission to Andrew to lock the bedroom door while he was at home and she would knock prior to entering, but she refused to let Andrew or his brother lock the bedroom door when either of the boys were not present in the room. She testified that when the boys were home they would lock the bedroom door “quite often.” She related her “understanding” about the boys’ use of the room:

A. Both of the boys, I — you know, they needed their privacy so I said, “That’s your room then.”
*407Q. I see. So they pretty much had exclusive control over this room?
A. Over the room, yes.....
Q. Alright.
A......because I have no control over them.

In respect to her access to the room for picking up laundry, Mrs. Ham testified:

Q. Now did you ever — Andrew and you ever discuss you picking up his laundry? What was your understanding about that?
A. Not really, The only time was, he said not to pick up anything that was laying on his bed and most of it was on the floor.
Q. Did he ever give you any other.....
A. Huh-uh.
Q......directives like that?
A. No.

Although Andrew claims to have had exclusive possession of his room it is clear from his actions and those of his mother that his control was subservient and subject to the power, authority, ownership and possession of his mother over the premises.2 At the very least, and as found by the trial court in this case, Mrs. Ham shared common control with Andrew over his bedroom, sufficient to support the validity of her consent to the search. In United States v. Matlock, 415 U.S. 164, 171, n. 7, 94 S.Ct. 988, 993, n. 7, 39 L.Ed.2d 242 (1974), the Court stated:

The [common] authority which justifies the third-party consent ... rests ... [up]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.]

We hold that Mrs. Ham possessed sufficient use, control and authority over the premises, including the closet in the bedroom occupied by Andrew Ham, to give valid consent to a warrantless search. The order denying the motion to suppress is affirmed.

SWANSTROM, J., concurs.

. The facts of the search and seizure were presented to the district court through a transcript of a preliminary hearing held in the magistrate division. The purpose of that hearing was to determine if there was probable cause to hold the defendant to answer a charge of grand theft in district court. Other than that transcript, no evidence was presented by testimony from any witnesses in the suppression proceeding before the district judge. Our opinion, therefore, reflects the factual scenario we have drawn from the preliminary hearing transcript.

. Regarding Andrew’s claim of being a holdover tenant, the record shows Andrew made but one "rent” payment to his mother for his occupancy of her home. We believe such a minimal contribution is insufficient to negate the other factors showing joint access and control. See United States v. Wright, 564 F.2d 785 (8th Cir.1977) (although defendant "occasionally paid” mother for his family’s occupancy of her house, "such contributions were insufficient" to make their relationship one of landlord and tenant); State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984) (parents validly consented to search of non-rent-paying minor son’s room where door to room was kept closed but not locked, father retained right to enter without permission, and other family members used the room as well); State v. Packard, 389 So.2d 56 (La.1980), cert. denied, 450 U.S. 928, 101 S.Ct. 1385, 67 L.Ed.2d 359 (1981) (despite lock on the door, defendant’s mother could properly consent to search of room occupied by son and his wife when couple did not pay rent, no evidence that mother relinquished right to access to room, and wife acquiesced in search); State v. Swenningson, 297 N.W.2d 405 (N.D.1980) (although son paid rent, father’s consent valid when he shared common authority over room); Sorensen v. State, 478 S.W.2d 532 (Tex.Cr.App.1972) (parents' consent valid even though son paid $10 per week for rent).