Opinion
No. 60998-0-I.
January 12, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-01921-5, Richard D. Eadie, J., entered December 3, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED
Police may enter a dwelling without a warrant if they obtain consent to enter and the consenting person has authority to consent. Because the police in this case obtained consent to enter an apartment from the apartment manager, and because the manager had authority to consent by virtue of the tenant's relinquishment of exclusive possession and his request that the manager remove unauthorized persons from the apartment, the warrantless entry was lawful and the trial court properly denied the defendant's motion to suppress. We affirm.
FACTS
The stipulated facts establish that on January 19, 2007, Seattle Police Officers responded to a 911 call concerning the unauthorized occupancy of an apartment. Apartment manager Joe Eldred told them that the sole legal occupant of the apartment, Ali Muhammed, had recently called him to say he had entered in-patient treatment, that he would not be returning, and that he had promised all of his furniture and belongings to another resident in the building. He also said he wanted Eldred to remove unauthorized persons staying in the apartment, but "he did not want Eldred to call the police."
Although the stipulated findings do not include a finding that Muhammed said in his message that he would not be coming back, Eldred testified to that fact and Kibby does not dispute that testimony in his briefing on appeal. In fact, Kibby's opening brief in this court states that the tenant's phone message "said that he would not be returning to the apartment and had given all the furniture and belongings in the apartment to another tenant." In these circumstances, we will treat Eldred's testimony on this point as an undisputed fact.
Finding of Fact 2.
Eldred told the officers he heard sounds suggesting there were people inside the apartment. Residents had told him that a nonresident named "Detroit" was staying in the apartment without permission and was engaging in drug and prostitution activity in the building. A week before the 911 call, a tenant alleged that Detroit pulled a gun on him. Due to this report, Eldred's employers told him not to contact Detroit on his own, but to call police if he had reason to believe Detroit was in the building.
Eldred accompanied the police to Muhammed's apartment. The officers knocked and announced their presence, but no one responded. Eldred opened the apartment door and the officers entered. They found three men, including Freddie Kibby, inside the apartment. Kibby was reclining on a bed. One of the officers asked Kibby to take his hands out from under the bed sheets. Kibby hesitated, but eventually removed his hands. The officers then patted down all three suspects and searched the bed. They found a gun underneath a pillow that had been under Kibby's head.
When Kibby gave the officers a false name, they took him to the precinct to determine his identity and to arrest him for criminal trespass. During a search incident to arrest, they found cocaine and $300 in Kibby's pants pocket. They also learned that he had a prior felony conviction and that the gun found in the apartment was stolen. Based on these facts, the State charged Kibby with second degree unlawful possession of a firearm and possession of cocaine.
The State also charged Kibby with assault for the earlier incident with the gun, but that charge was dismissed in exchange for Kibby's agreement to a stipulated trial.
Kibby moved to suppress the evidence obtained after the officers' warrantless entry of the apartment. The court orally found that Eldred "had a reasonable basis to conclude that Mr. Muhammed had abandoned his apartment" and that Kibby "had no reasonable expectation of privacy in that apartment." The court concluded the warrantless entry was lawful because "[t]he apartment manager had the legal authority to consent to a search of the apartment by the officers, and the manager gave the officers valid consent to enter the apartment."
The CrR 3.6 findings expressly incorporated the court's oral findings and conclusions.
Following a trial on stipulated facts, the court found Kibby guilty as charged. He appeals.
DECISION
Kibby first challenges several of the court's findings of fact. Findings of fact related to a suppression hearing will be upheld if they are supported by substantial evidence.
State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
Kibby contends, and the State concedes, that the finding that he "admitted to the police that the cocaine was his" is not supported by substantial evidence. Our review of the record indicates the concession is well taken. Nevertheless, any error was harmless. Neither counsel referred to an admission regarding the cocaine in their closing arguments. Nor did the court mention any such admission in its oral ruling. The court simply said "I find that he is knowingly in possession of cocaine. . . . I will find it was on his person; that he was in knowing possession of the cocaine." The erroneous finding was therefore harmless. State v. Caldera, 66 Wn. App. 548, 551, 832 P.2d 139 (1992) ("[A]n erroneous finding of fact not materially affecting the conclusions of law is not prejudicial and does not warrant a reversal.").
Finding of Fact 16.
Kibby also challenges the court's finding that Ron Pavlik told Eldred that "`Detroit' pulled a gun on him a week prior to January 19. This incident was reported to the police." Kibby contends Eldred testified that he heard of the gun incident in December. While Eldred initially testified that he heard of the incident "within a month" of Kibby's arrest, he stated he "would have to look at the paperwork for exact dates." Later, after the prosecutor refreshed his memory with the police report regarding the gun incident, Eldred clarified that he learned about and reported the gun incident roughly one week before Kibby's arrest. The challenged finding is supported by the record.
Finding of Fact 9.
Finally, Kibby contends the record does not support Finding of Fact 13, which states: "The officers saw the defendant reclining on a bed, covered with a sheet or blanket. The officers ordered the defendant to take his hands out from under the blanket, then ordered him to stand up." Kibby claims only one officer testified that his hands were under the covers. That is true, but the court's finding does not conflict with that fact because the court did not find that both officers saw Kibby's hands underneath the covers. The finding also states that the "officers" ordered Kibby to show his hands. A literal reading of this finding would indicate, erroneously, that both officers ordered Kibby to show his hands. But even assuming that is a reasonable reading of the finding, the erroneous use of the plural "officers" was inconsequential to the court's conclusions of law and, therefore, harmless.
Kibby next contends the officers' warrantless entry was unconstitutional and requires suppression of all evidence discovered in the apartment and on his person. The State responds that because police entered with the manager's consent, and because that consent was valid, a warrant was unnecessary and the entry was constitutional. We agree with the State.
Because the superior court did not address Kibby's standing to challenge the entry, and because the State has not briefed that issue on appeal, we do not address it here. We note, however, that the caselaw suggests that Kibby was not entitled to automatic standing in these circumstances. See State v. Williams, 142 Wn.2d 17, 22-23, 11 P.3d 714 (2000).
A warrantless search is presumptively unreasonable and it is the State's burden to demonstrate that such a search falls within an exception to the warrant requirement. State v. Leach, 113 Wn.2d 735, 738-39, 782 P.2d 1035 (1989). One well established exception is consent to search. Leach, 113 Wn.2d at 738. To establish valid consent, the State must show that the person consenting to the search had authority to consent. Id.; State v. White, 141 Wn. App. 128, 136, 168 P.3d 459 (2007). While a landlord or apartment manager normally lacks authority to consent to a search of a tenant's apartment, a tenant may relinquish exclusive possession in such a way as to bestow such authority.
State v. Christian, 95 Wn.2d 655, 660-61, 628 P.2d 806 (1981) (landlord's consent valid where tenant communicated intent to vacate, landlord informed tenant that he planned to enter property at a particular time, and landlord saw tenant remove belongings at an earlier date); State v. Roff, 70 Wn.2d 606, 611-12, 424 P.2d 643 (1967) (motel manager can authorize police to enter motel room where tenant, who was known to be absent, had not paid the rent for a 24-hour period).
In this case, apartment manager Joe Eldred obtained authority to consent in several ways. First, the tenant relinquished exclusive possession of the apartment, thereby authorizing Eldred to enter under the terms of the lease. The lease provided in part that "[i]f the tenant moves before this agreement ends, the landlord may enter the unit to decorate, remodel, alter or otherwise prepare the unit for re-occupancy." The court orally found that Eldred had a reasonable basis to believe the tenant had abandoned the apartment. That finding is supported by the record. The tenant's message indicated that he had entered an in-patient treatment program, would not be returning to the apartment, and had given all the furniture and belongings in the apartment to another tenant. In these circumstances, Eldred had authority under the lease to enter the apartment to prepare it for reoccupancy. That authority necessarily included authority to remove any unauthorized persons and, if necessary, to do so with the assistance of police.
Second, the tenant expressly authorized Eldred to enter the apartment to remove any people inside it. Kibby contends that authority did not include authority to bring police into the apartment. The record provided does not support that contention. Although the court found the tenant "did not want Eldred to call the police," it did not find this desire was expressed or intended as a limitation on Eldred's authority to enter. Nor does the record support such a limitation. During cross-examination regarding the tenant's phone message, defense counsel asked Eldred the following question: "[The tenant] said `You don't have to call the police.' And he said, in fact, he specifically asked you not to call the police, correct?" Eldred said "[c]orrect." While this testimony establishes the tenant's preference, there is no indication that his preference was expressed as a command or in a manner suggesting a limitation on Eldred's authority.
Although it was his burden to do so, Kibby has not made the message machine tape a part of the record on appeal. State v. Garcia, 45 Wn. App. 132, 140, 724 P.2d 412 (1986) (appellant bears the burden of providing this court with a sufficient record to review the issues raised on appeal).
During argument on the motion to suppress, the prosecutor characterized the tenant's concern about police as a "request," stating: "What Mr. Muhammed said is, you called the police last time, we don't need to have the police come, and you if you just ask those people to leave, that would be fine. However, Mr. Eldred is not bound by that request of Mr. Muhammed."
Contrary to Kibby's assertions, our decision in State v. Birdsong, 66 Wn. App. 534, 832 P.2d 533 (1992) is easily distinguished. Birdsong moved out of his rental house several weeks before the end of his lease but still had furniture on the premises. While checking on the house, Birdsong's landlord discovered that Birdsong had moved out and that someone had been growing marijuana in the house. He called the police. After the police arrived, but before they entered the house, Birdsong showed up to clean the house and remove his possessions. Without asking for Birdsong's consent, the landlord allowed the police into the house. We held that the evidence was insufficient to show an abandonment of the property by Birdsong and that "[a] search and seizure without Mr. Birdsong's consent was an unreasonable violation of his private affairs. . . ." Birdsong, 66 Wn. App. at 538.
The evidence in this case, by contrast, strongly supports a finding of abandonment. The tenant told the landlord that he was living elsewhere, was not coming back, and that his possessions had been given to another tenant. And unlike Birdsong, the tenant in this case was not present when the police entered his apartment. The evidence amply supports the court's finding that the tenant abandoned his apartment.
Kibby argues in the alternative that even if the tenant abandoned his apartment, "the abandonment would not be automatic." He points to the manager's testimony that "[u]ntil he was evicted, [the tenant] would still have the right to go there. At that point we have the right to post abandonment. If he doesn't object to it, then we can just move on. . . . I can't just post abandonment and stop him from going in." Kibby concludes that in the absence of "eviction proceedings or legal notices to vacate, the mere presence of grounds for eviction do not amount to immediate abandonment." The manager's testimony, however, only establishes that he could not prevent the tenant from entering the apartment until the eviction process was complete; it does not establish that the manager could not immediately enter the apartment under the circumstances.
The trial court did not err in upholding the warrantless entry and denying the motion to suppress.
We affirm the judgment and sentence.