State v. Harding

282 P.3d 31

697 Utah Adv. Rep. 54

2011 UT 78

STATE of Utah, Plaintiff and Respondent,

v.Tina HARDING, Defendant and Petitioner.

No. 20100291.

Supreme Court of Utah.

Dec. 16, 2011.

Rehearing Denied April 23, 2012.

Mark L. Shurtleff, Att'y Gen., Marian Decker, Asst. Att'y Gen., Salt Lake City, for respondent.

Margaret P. Lindsay, Provo, for petitioner.

On Certiorari to the Utah Court of Appeals

Justice PARRISH, opinion of the Court:

INTRODUCTION

¶ 1 The sole question before us is whether a police officer may search two backpacks belonging to a passenger in an automobile after receiving only the driver's consent to search the vehicle. The district court's factual findings are not sufficiently particularized for us to conclusively make this determination. We therefore remand with instructions for the district court to make additional factual findings.

BACKGROUND

¶ 2 Tina Harding was one of three passengers in a vehicle that was stopped by Officer Jeffrey Westerman on February 22, 2008. Officer Westerman had the driver exit the vehicle, issued her a citation, and then told the driver she was free to leave. While the passengers remained in the vehicle, the driver returned to ask Officer Westerman a question. At that time, Officer Westerman asked the driver if he “could take a look in the vehicle,” and the driver consented. Officer Westerman then asked the passengers to exit the vehicle and wait with a back-up officer while Officer Westerman “took a look in the vehicle.” Officer Westerman found several bags, including two backpacks, ¹ in the cargo compartment of the SUV, directly behind the rear passenger seat in which Ms. Harding was seated. Officer Westerman did not seek any information about who owned the backpacks or the other bags and proceeded to search all of them. In the backpacks he found “items identifying Ms. Harding as the owner of the bags,” including pieces of Ms. Harding's mail. Officer Westerman also discovered drugs and paraphernalia in the backpacks. The backpacks belonged to Ms. Harding.

¶ 3 The State charged Ms. Harding with possession of methamphetamine, possession of a dangerous weapon by a restricted person, provision of false information to a peace officer, and possession of paraphernalia. The false information and paraphernalia charges were dismissed. Ms. Harding moved to suppress the evidence discovered during the search. The parties stipulated that the initial traffic stop was legal and that Ms. Harding had standing to challenge the search because she had a legitimate expectation of privacy in her backpacks and she never abandoned them. The district court denied Ms. Harding's motion, holding that it would have been reasonable for Officer Westerman to have understood the driver's consent to extend to Ms. Harding's backpacks. Ms. Harding thereafter entered a conditional guilty plea to the methamphetamine possession and dangerous weapon charges.

¶ 4 Ms. Harding appealed her conviction to the Utah Court of Appeals. As to the sole question now presented, she asserted that Officer Westerman had improperly assumed the driver had authority to consent to the search of her backpacks. A majority of the panel of the court of appeals affirmed. State v. Harding, 2010 UT App 8, ¶ 1, 223 P.3d 1148. The majority concluded that Officer Westerman could have reasonably believed the driver had authority to consent to the search of Ms. Harding's bag and noted that any belief that the bags belonged to a passenger would have been based on speculation. Id. ¶ 19.

¶ 5 Judge Thorne dissented, reasoning that “the State bears the burden of demonstrating that one who consents to a search has the authority to do so.” Id. ¶ 24 (Thorne, J., dissenting). Relying on the district court's determination that the officer “had no way of knowing whose bags they were,” Judge Thorne concluded that the officer could not “be said to have had a reasonable belief as to the driver's ownership of the bags.” Id. ¶ 22 (Thorne, J., dissenting). “[T]he only indicia of ownership or control of the bags was their mere presence in the driver's vehicle, along with multiple passengers and in an area accessible to those passengers.” Id. ¶ 25 (Thorne, J., dissenting). Thus, Judge Thorne concluded that under the facts of the case, “[a]t best” ownership of the bags was ambiguous. Id. ¶ 26 (Thorne, J., dissenting). According to Judge Thorne, when ownership is ambiguous, an officer must make further inquiry to determine ownership before proceeding. Id. (Thorne, J., dissenting).

¶ 6 We granted Ms. Harding's petition for a writ of certiorari as to the following issue: “Whether the majority of the panel of the court of appeals erred in its analysis and/or application of the Fourth Amendment standards governing the apparent authority of a person to consent to a search of another person's property.” ² We have jurisdiction under section 78A–3–102(3)(a) of the Utah Code.

STANDARD OF REVIEW

¶ 7 On certiorari, we review a decision of the court of appeals for correctness. Harold Selman, Inc. v. Box Elder Cnty., 2011 UT 18, ¶ 15, 251 P.3d 804. “The correctness of the court of appeals' decision turns on whether that court accurately reviewedthe [district] court's decision under the appropriate standard of review.” State v. Visser, 2000 UT 88, ¶ 9, 22 P.3d 1242. In a search and seizure case, the reviewing court independently applies the facts to the constitutional standard to determine whether the search is lawful. See State v. Duran, 2007 UT 23, ¶ 5, 156 P.3d 795.

ANALYSIS

¶ 8 Ms. Harding argues that Officer Westerman violated her Fourth Amendment right to be free from unreasonable searches by searching her backpacks, which were located in the cargo compartment of the SUV in which she was riding, without her consent. She contends that it was unreasonable under the circumstances for Officer Westerman to believe that the driver's consent to search the vehicle extended to her backpacks. We agree.

¶ 9 At the outset, we note that Ms. Harding's claim was brought wholly under the Fourth Amendment to the United States Constitution. Ms. Harding has not argued that her rights under the Utah Constitution have been violated. Thus, despite our pronouncement that “we will not hesitate to give the Utah Constitution a different construction where doing so will more appropriately protect the rights of this state's citizens,” State v. DeBooy, 2000 UT 32, ¶ 12, 996 P.2d 546,³ our analysis in this case proceeds solely under federal Fourth Amendment principles.

¶ 10 The Fourth Amendment to the United States Constitution prohibits unreasonable searches. SeeU.S. Const. amend. IV. A warrantless search is per se unreasonable unless it comes within one of a few recognized exceptions. Kentucky v. King, ––– U.S. ––––, ––––, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011). One such exception applies where the officer has consent to search the property. Id. at 1858. Consent may come from the person whose property is to be searched, Georgia v. Randolph, 547 U.S. 103, 109, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), from a third party who has common authority over the property, id.,⁴ or from a third party who has apparent authority to consent to a search of the property, Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).

¶ 11 Whether a third party has actual common authority over property is determined by the test articulated in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The test is whether the third party has mutual use and control of the property such that the other party has “assumed the risk that [the third party] might permit the [property] to be searched.” Id. at 171 n. 7, 94 S.Ct. 988.

¶ 12 Whether a third party has “apparent authority” to consent to a search of another's property is governed by the standard articulated by the United States Supreme Court in Rodriguez, 497 U.S. 177, 110 S.Ct. 2793. Under that standard, a warrantless search is valid where the police reasonably, but mistakenly, believe that a third party consenting to a search has the authority to do so. Id. at 186, 110 S.Ct. 2793. The test is an objective one: a police officer's belief is reasonable when “the facts available to the officer at the moment ... warrant a man of reasonable caution in the belief that the consenting party had authority over the” items to be searched. Id. at 188, 110 S.Ct. 2793 (alteration in original) (internal quotation marks omitted). This standard leaves room for reasonable mistakes on the part of police officers. The requirement “is not that [officers] always be correct, but that they always be reasonable.” Id. at 185, 110 S.Ct. 2793. In some circumstances, the facts surrounding a driver's consent to search could “be such that a reasonable person would doubt” the driver's authority “and not act upon it without further inquiry.” Id. at 188, 110 S.Ct. 2793. But not every possible “doubt” requires further inquiry. The ultimatetouchstone is reasonableness, and the ultimate question is therefore whether any doubt an officer may have is sufficient to undermine a reasonable belief that the driver had authority to consent to the search.

¶ 13 The Rodriguez apparent authority rule applies only to mistakes of fact; Rodriguez cannot “validate ... a search premised upon an erroneous view of the law.” United States v. Brown, 961 F.2d 1039, 1041 (2d Cir.1992) (per curiam).⁵ Reasonableness “is measured ... by examining the totality of the circumstances,” Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), and the burden is on the State to prove the reasonableness of the officer's actions, see Rodriguez, 497 U.S. at 181, 110 S.Ct. 2793.⁶

¶ 14 The State does not contend that the driver had actual common authority to consent to the search of Ms. Harding's backpacks, nor is there evidence that the driver possessed such authority. Rather, the State's only argument is that the warrantless search was constitutionally...