Opinion
No. 94CA0551
January 25, 1996 Petition for Rehearing DENIED February 29, 1996 Petition for Writ of Certiorari DENIED September 3, 1996
Appeal from the District Court of El Paso County, Honorable Michael J. Heydt, Judge, No. 92CR3028.
JUDGMENT AFFIRMED
Gale A. Norton, Attorney General, Stephen K. ErkenBrack Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, M. Catherine Duba, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
John Turner, Colorado Springs, Colorado, for Defendant-Appellant.
Defendant, James L. Upshur, appeals from the judgment of conviction entered on a jury verdict finding him guilty of violating the Colorado Organized Crime Control Act (COCCA); conspiracy to violate COCCA; theft; and second degree forgery. The single issue raised in this appeal is the validity of the warrantless search of a storage locker. We affirm.
In 1989, self-storage businesses in Colorado Springs, including Astrozon Self-Storage (Astrozon), were experiencing a series of burglaries and thefts of items from self-storage lockers. On August 28, based upon reports of suspicious activity concerning locker A-3, a police officer was sent to Astrozon to investigate.
During the investigation, a manager of Astrozon told the officer that they could not locate the lessee of storage unit A-3. She also told the officer that the lessee of locker A-3 had not paid rent for several months. In fact, however, the rent was unpaid only for the month of August.
The manager further explained that the lessee of A-3 was "locked out" of the storage unit and that Astrozon had "seized" the locker by placing one of its own locks on the locker. This action, according to the manager, prevented the lessee from entering the locker to retrieve his property until he paid rent or until Astrozon had sold items in the locker to satisfy the debt.
According to his testimony, the officer then asked to see the records of this locker, which included two rental agreements, correspondence, a document purporting to give power of attorney, and some accounting records.
The records indicated that defendant had originally rented the storage space for a one-month term which extended through December 1988. A proposed power of attorney had transferred defendant's "interest" to one Kevin Cherry, who also had signed a new lease agreement. The new lease agreement was for a six-month term ending on July 1, 1989. According to the file, Astrozon had sent Cherry a past-due notice for August rent.
Several notices of non-payment of rent, returned as undeliverable, were included in the file. The records, although difficult to read, showed that payment of rent on the locker had been erratic, that earlier arrearages had been paid, and that no rent had been paid for August. The officer testified that, based upon his review, he believed that the rent was several months overdue.
The pertinent rental agreement in the file had four, separate termination mechanisms: (1) "with or without cause at the end of any storage term"; (2) for "reasonable cause" at any time by giving 24 hours written notice; (3) in the event that rent was due and unpaid, "by reason of default in the payment of rent"; or (4) if lessee defaulted in any of the lease covenants or abandoned the premises, the lessor could enter and remove all property "in which event [the] agreement shall terminate." The lease also provided that any acceptance of a late rental payment did not waive any of the terms of the contract.
The lease also provided that the lessee's personal property was subject to a lien after 14 consecutive days of nonpayment of rent. After 14 days, the lessor could send a preliminary lien notice, and if the lessee did not pay the delinquent rent by the time specified in the notice, then, according to the lease terms, lessor had the right to enter the locker and seize the property for subsequent sale. A sign in the office, posted pursuant to the Self-service Storage Facility Liens Act, § 38-21.5-104, C.R.S. (1982 Repl. Vol. 16A), confirmed that stored property would be sold after 30 days of non-payment of rent. Several preliminary lien notices from prior months were in the file.
The officer testified that, after he ended the interview, he contacted a supervisor and later a deputy district attorney for advice as to whether the lessor could let him enter locker A-3. Both agreed that it could.
The officer returned to Astrozon the next day and asked the manager for permission to enter the locker. The manager consented, and again confirmed that it was her understanding that the lessee had no further right to enter the storage unit because of nonpayment of rent. Upon entry into the locker, the officer observed weapon inventories, instruction manuals for security alarms, electrical detonators, and a large quantity of what the police officer described as "Islamic propaganda materials." The officer left the locker as it was, and the manager relocked it.
Two days later, the police department's intelligence unit, again with the consent of the manager, entered locker A-3 and took photographs. The original investigating officer ultimately entered the unit with a search warrant on September 15 and seized a number of items.
Prior to trial, defendant filed a motion to suppress the evidence, contending that the warrantless entry into the locker was unreasonable in violation of his Fourth Amendment rights. The trial court found that the officer reasonably believed that the lessor had the authority to consent to the search and denied the motion to suppress.
A.
Initially, we address the trial court's determinations that the defendant had standing to challenge the search and had not abandoned the property in the locker.
The trial court concluded that defendant had not abandoned any personal property and had a reasonable expectation of privacy in the storage locker. Because this factual determination has support in the limited portion of the record which has been provided on appeal, we are bound by those findings. See People v. Thomas, 853 P.2d 1147 (Colo. 1993).
B.
Relying on Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), and People v. McKinstrey, 852 P.2d 467 (Colo. 1993), the court concluded that an officer could rely on the consent of a lessor as long as that reliance was objectively reasonable. It determined that the warrantless entry was justified here because the officer reasonably believed that the lessor had authority to consent to the entry into the locker. The court found specifically that, before the officer accepted the consent of the manager, he acted in good faith, reviewed a complicated lease agreement, and consulted a supervisor and an attorney.
A trial court's ruling on a motion to suppress will not be disturbed if it is based upon a proper application of the law to factual findings which are adequately supported by the record. People v. Palmer, 888 P.2d 348 (Colo.App. 1994). We find no error.
"The Fourth Amendment is not [a] guarantee against all searches and seizures, but only against unreasonable searches and seizures." United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605, 613 (1985). The validity of an intrusion based upon a warrantless search must be tested against an objective standard of reasonableness based on the totality of the facts and circumstances known to the officer at the time. See Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). The officer may proceed on the basis of the "factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949).
A warrantless search may be conducted if valid consent is obtained from a third party who has the authority to give such consent. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); People v. Hopkins, 870 P.2d 478 (Colo. 1994); see also People v. Sanders, 904 P.2d 1311 (Colo. 1995).
"Whether the basis for such authority exists is the sort of recurring factual question to which law enforcement officials must be expected to apply their judgment; and all the Fourth Amendment requires is that they answer it reasonably." Thus, even if a consenting third party lacks actual authority, if a police officer reasonably believes that such third party has authority to consent to a search, the search is not unconstitutional. Illinois v. Rodriguez, supra, 497 U.S. at 186, 110 S.Ct. at 2800, 111 L.Ed.2d at 160.
The test is whether the police officer's belief that a third party had authority to consent is objectively reasonable. People v. McKinstrey, supra; see United States v. Whitfield, 939 F.2d 1071, 1074 (D.C. Cir. 1991) (Regardless if a third person has the authority to validate a search, a search will be upheld if an officer would have had valid consent to search "if the facts were as he reasonably believed them to be.").
Generally, a lessor does not have common authority over leased premises. And, although a lessor may have a right of access to leased property, that factor, standing alone, usually will not give the lessor authority to authorize a search. See People v. Brewer, 690 P.2d 860 (Colo. 1984); see also Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).
This does not mean, however, that a lessor never has the authority to consent to a search of leased property. See, e.g., People v. Montoya, ___ P.2d ___ (Colo.App. No. 94CA1265, September 14, 1995) (lessee had no reasonable expectation of privacy in motel room after rental period expires). See also United States v. Reyes, 908 F.2d 281 (8th Cir. 1990), cert. denied, Reyes-Resendez v. United States, 499 U.S. 908, 111 S.Ct. 1111, 113 L.Ed.2d 220 (1991) (when rental term expires, even if lessor has not removed stored property, lessee has no expectation of privacy in bus storage locker); cf. United States v. Elliott, 50 F.3d 180 (2d Cir. 1995), cert. denied, ___ U.S. ___, ___ S.Ct. ____, ___ L.Ed.2d ___, (64 U.S.L.W. 3466) (1996) (landlord has authority to consent to a search by police of dwelling units that are not leased); United States v. Sledge, 650 F.2d 1075 (9th Cir. 1981) (although tenant's lease had not yet expired, it was objectively reasonable based on the condition of the apartment to believe that the apartment was vacant).
Defendant asserts that a valid lease existed, and, therefore, lessor had no legal authority to consent to a search of the leased premises. Thus, he concludes, any mistake on the police officer's part that the lessor had such authority was not an objectively reasonable good faith belief, but was a mistake of law. We disagree. Contrary to defendant's assertion, the issue here does not turn on the niceties of lease or contract law. Rather, the issue is whether it was objectively reasonable under these particular facts for the police officer to act as he did.
Here, the lease allows termination without notice upon nonpayment of rent. The officer, based upon his investigation, believed that: (1) the lessee had not paid rent for several months; (2) the lessee could not be located; and (3) the lessor had retaken control of the locker. That is, if the facts were as the officer believed them to be, the lessee had defaulted on the lease for nonpayment of rent, possession of the locker had reverted to the lessor, and the lessor therefore had the authority to consent to a search.
Simply because the lessor may or may not have had the authority to sell the contents of the locker under the numerous requirements of the Self-service Storage Facility Liens Act did not mean that the lessor otherwise could not legally repossess the storage locker. The lease enabled the lessor to retake possession of the storage unit upon nonpayment of rent. The facts available to the police officer, although inaccurate in part, indicated that is what had occurred.
Defendant asserts that, nevertheless, the officer's belief was not objectively reasonable.
Although we defer to the trial court's findings of historical facts when, as here, they are supported by competent evidence in the record, the question of objective reasonableness is one of law subject to de novo review. People v. McKinstrey, supra. From our independent review, we disagree with defendant and conclude that the officer's reliance on the lessor's authority to consent was objectively reasonable.
Here, the manager told the officer that the locker had been "seized" because the lessee was several months behind in payment of rent and could not be located. The manager also told the officer that the lessee no longer had any right to enter the locker because of the nonpayment of rent.
The officer then personally observed the manager's lock on the locker, and took steps to attempt to verify the manager's statements by reviewing the company files. These files reflected a history of late payments, delinquent notices, preliminary lien notices, and unpaid rent.
Although a more thorough review of these documents indicated that, in fact, the rent was unpaid only for August, considering the disorganized condition of the ledger sheets, documented history of frequent arrearages, multiple delinquency and preliminary lien notices, combined with the managers' statements and the officer's personal observations, it was reasonable for a police officer under these circumstances to believe that the lessee was several months behind in rent and, therefore, that the lessor had the authority to consent to a search. Cf. United States v. Brown, 961 F.2d 1039 (2d Cir. 1992) (mistaken belief that the landlord's limited authority to enter a tenant's premises to turn off electrical appliances constituted general authority to consent to search was misapprehension of the law, not a reasonable but factually erroneous belief).
Thus, even if the lessor lacked the authority to consent to the search, the officer had an objectively reasonable belief that the manager had such authority. Hence, we perceive no error in the trial court's denial of the motion to suppress.
The judgment is affirmed.
JUDGE CASEBOLT concurs.
JUDGE ROY dissents.