Opinion
No. 29788-4-II.
Filed: April 27, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No: 02-1-00119-8. Judgment or order under review. Date filed: 11/22/2002. Judge signing: Hon. M Karlynn Haberly.
Counsel for Appellant(s), Michelle Bacon Adams, Attorney at Law, 623 Dwight St, Port Orchard, WA 98366-4619.
Counsel for Respondent(s), Jeremy Aaron Morris, Kitsap County Prosecuto's Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Michael A. Johnson appeals his conviction for unlawful possession of a firearm, alleging an illegal search and insufficient evidence. We affirm.
Deputy John Loftus, Sergeant Edwin Miller, and other Kitsap County officers wanted to arrest Johnson on outstanding felony warrants. Around 8 p.m. on August 3, 2002, they went to a Port Orchard home based on a tip Johnson might be there. They found Melanie Lundeen and another woman gardening in the front yard. Lundeen said that she was housesitting for the owners and was responsible for the house. Loftus asked if anyone was inside the house, and Lundeen said no. Loftus explained that they were looking for Michael `Blackie' Johnson, and Lundeen said she did not know him. Loftus asked for consent to search the house, which Lundeen refused.
At that point, a man came into the garage from the house. He was carrying a backpack. Loftus asked why Lundeen had lied about no one being in the house and asked for consent to search the house for other people. Lundeen agreed on the condition that she be present. Accompanied by Lundeen, the officers walked through the house, finding no one.
Meanwhile, Miller was speaking to the man who had come out of the house. The man identified himself as `David Goldberg.' He said that he was `visiting a friend' and had just gotten out of the shower. His hair appeared wet. He allowed Miller to look in his backpack for identification, and inside the backpack Miller found what appeared to be stolen mail. Miller arrested the man for possessing stolen property, searched his person incident to arrest, and found several .38 caliber bullets in his pocket. The man was taken to jail, where the staff soon identified him as Johnson.
I Report of Proceedings (RP) at 73.
Loftus was advised of these events while still with Lundeen. When Miller had found the stolen mail, Loftus had asked Lundeen if he could search the house to be sure the man had not cached more stolen mail inside. After trying unsuccessfully to reach the owner of the house for advice, Lundeen had permitted Loftus to walk the perimeter of the house, and he was still doing that when he learned the man had been identified as Johnson. Based on that information, he arrested Lundeen for harboring a fugitive and making false statements to an officer. She apologized for lying and asked if Loftus wanted to recover a gun from the house. Loftus said he would need her to sign a written consent form and that she could limit the scope of consent if she wished. She signed the form but limited the search to a small bedroom near the back of the house, adjacent to the garage.
Lundeen, Loftus, and another officer went through the garage and into the bedroom. Lundeen pointed to a black bag that she said contained a handgun. Loftus then saw the butt of a handgun in plain view. He seized the gun, which was a .38 caliber and loaded. He also saw that the bag contained male hygiene products. Lundeen said Johnson had carried the gun into the house just that day, although he had been staying there for a few weeks.
The State charged Johnson with unlawfully possessing a firearm on January 26, 2002; jumping bail in March 2002; jumping bail in June 2002; and unlawfully possessing a firearm on August 3, 2002. Only the last charge is pertinent to this appeal.
Before trial, Johnson moved to suppress the gun found in the house. After a hearing, the trial court denied the motion to suppress. Orally, the court found that Lundeen `appeared to have the authority to consent'; `gave the officer permission to walk through the house with her'; `indicated that she was house-sitting'; `did not at any point say, `It's not my house.' `I cannot give you consent.' Or `you have to get the owner's consent.'' As a result, her conduct `gave the officers a reasonable belief that she was in a position to give consent.' In its written findings, the court found that `[a]t no time did Lundeen tell the deputies she was not authorized to give consent to search the residence' and that she `gave the deputies limited permission to search specific rooms in the house.' The court also found `[t]hat the defendant's coming out of the house into the garage did not put the officers in a position to ask for his consent prior to searching the house.'
RP (Oct. 16, 2002) at 70.
RP (Oct. 16, 2002) at 70.
Clerk's Papers (CP) at 64.
CP at 65.
At a jury trial held in early November 2002, Johnson did not claim to have been staying at the house. He testified that he had been living elsewhere and that his girlfriend had dropped him off so he could shower before going to dinner. After getting out of the shower and putting his dirty work clothes, shaving equipment, shampoo, and hygiene products in his backpack, he left the rear bedroom and went into the garage. When he encountered the officers, he panicked and gave a wrong name because he had outstanding warrants, not because he knew that a gun was in the house. The jury found him guilty, he was sentenced, and this appeal followed.
Johnson now advances two arguments. First, he argues that the search of the house was unlawful and that the gun should have been suppressed. Second, he argues that the evidence is insufficient to support his conviction.
I.
The Fourth Amendment prohibits unreasonable searches and seizures. `Warrantless searches are per se unreasonable unless they fall within an established and well-delineated exception to the warrant requirement.' One such exception to the warrant requirement is consent. The State has the burden to show (1) voluntary consent; (2) that the person had authority to consent; and (3) that the search did not exceed the scope of the consent. Johnson argues that the search of the house was unlawful. Johnson asserts (A) that Lundeen could not consent, and (B) even if she could, that his consent was also needed.
See U.S. Const. amend. VI; Wash. Const. art. I, sec. 7.
State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1998).
Walker, 136 Wn.2d at 682.
Walker, 136 Wn.2d at 682.
A.
We first analyze whether Lundeen could consent. A person can consent to a search if he or she has actual or apparent authority. He or she has actual authority if he or she has a sufficient relationship to or common authority over the property. He or she has apparent authority if he or she `appears to have authority,' so long as the police, after reasonable inquiry, `have a reasonable belief' in the existence of his or her authority. The reasonable belief standard is objective, so the officer must have facts that `would justify the belief in a person of reasonable caution that the consenting party had authority.' Factors to consider include possession of and access to the premises.
State v. Holmes, 108 Wn. App. 511, 518-19, 31 P.3d 716 (2001).
State v. Rison, 116 Wn. App. 955, 961, 69 P.3d 362 (2003) (quoting United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 So. Ct. 988, 39 L.Ed.2d 242 (1974)).
Holmes, 108 Wn. App. at 519 (citing Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)).
Holmes, 108 Wn. App. at 519 (citing Wayne R. LaFave, Search and Seizure sec. 8.3(g), at 747 (3d ed. 1996)).
Holmes, 108 Wn. App. at 519 (citing Rodriguez, 497 U.S. at 186)).
Rison, 116 Wn. App. at 962.
Rison, 116 Wn. App. at 962.
Holmes, 108 Wn. App. at 520 n. 29 (citing United States v. Yarbrough, 852 F.2d 1522, 1534 (9th Cir. 1988), cert. denied, 488 U.S. 866 (1988)); United States v. Baswell, 792 F.2d 755, 759 (8th Cir. 1986).
According to the record here, Lundeen was housesitting for the Browns. She had possession of the house, access to it, and the apparent right to invite others into it. The officers reasonably believed she had authority to consent, and they were entitled to enter based on her consent.
B.
We next analyze whether the officers needed to obtain Johnson's consent. Often if not always, officers must obtain consent from an inhabitant who is present and able to object.
State v. Hoggatt, 108 Wn. App. 257, 266, 30 P.3d 488 (2001).
They need not, however, obtain consent from a mere guest.
State v. Thang, 145 Wn.2d 630, 638-39, 41 P.3d 1159 (2002) (`consent to search by a host is always effective against a guest within the common areas of the premises'); State v. Rodriguez, 65 Wn. App. 409, 415, 828 P.2d 636 (guest's expectation of privacy in host's apartment was `qualified by the possibility [the host] would consent to a search of her apartment'), review denied, 119 Wn.2d 1019 (1992).
As far as the record shows here, Johnson was a mere guest at the house. That is what he told the officers and what he testified to at the later trial. The officers did not need to obtain his consent, and the officers' entry into the rear bedroom was lawful.
II.
Johnson argues that the evidence is insufficient to support his conviction. Evidence is sufficient if, when viewed in the light most favorable to the State, it permits any rational trier of fact to find beyond a reasonable doubt each essential element of the crime charged. A person is guilty of unlawfully possessing a firearm in the first degree if he or she possesses or controls a firearm after being convicted of a serious offense.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
See RCW 9.41.040(1)(a).
The evidence in this case shows that Johnson left the rear bedroom and went into the garage; that he had .38 caliber bullets in his pocket; that he claimed he had just showered and put hygiene products in his backpack; that the officers found male hygiene products in a bag in the rear bedroom, but not in his backpack; that the officers found a loaded .38 caliber gun in the same bag in the rear bedroom; and that Johnson lied to the officers about his name and about staying at the Brown residence. The parties stipulated that Johnson had previously been convicted of a serious offense. Taking such evidence in the light most favorable to the State, a rational trier of fact could reasonably infer that Johnson was in possession or control of the gun. Accordingly, we hold that the evidence is sufficient to support the conviction.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON and HUNT, JJ., concur.