People v. Huffar, No. 2-98-1608

2nd District, 25 May 2000

JUSTICE McLAREN delivered the opinion of the court:

Defendant, Kenneth Huffar, was charged with the manufacture of cannabis and the possession of cannabis with the intent todeliver (720 ILCS 550/5(d) (West 1998)). He moved to suppress evidence, arguing that the search that disclosed it violatedhis rights under the fourth and fourteenth amendments (U.S. Const., amends. IV, XIV). The trial court granted that motion.The State appeals, arguing that a third party's valid consent supported the search. We affirm.

At the hearing on the motion to suppress, the trial court heard the following evidence. Dorothy L. Fay testified that sheowned a two-unit apartment building. She lived on the first floor, in apartment No. 1. During the relevant period, defendantlived on the second floor, in apartment No. 2. The apartments had separate living quarters, utilities, and mail service.

The building contained an attic that could be accessed only through a stairway in apartment No. 2. When a tenant rentedapartment No. 2, he rented the attic as well. Defendant rented apartment No. 2 on a month-to-month basis. He paid $350 permonth, plus utilities.

One day, defendant's waterbed began to leak, and Fay entered his apartment to repair it. Defendant was not present. Laterthat day, police officers came to Fay's apartment. After a discussion, Fay agreed to let the police search the attic. She signeda consent form and told the officers how to access the attic. She did not accompany them because the door to apartment No.2 was unlocked. Defendant still was not present.

On cross-examination, Fay testified that defendant had not signed a written lease. When she went into apartment No. 2 torepair the waterbed, she noticed some extension cords running into the attic. A door separated the attic from the rest ofapartment No. 2, but the door had no lock. She went into the attic and saw "black plastic" hanging from the ceiling. Theattic contained some items that Fay owned but did not use. On redirect examination, Fay stated that, if she wanted to usethose items, she would ask her tenant for permission to retrieve them.

Jeff Rhode was one of the officers at the scene. He testified that the building contained an upper and a lower unit, but he didnot see any apartment numbers. He described the building as "just an old home," distinguished only by the fact that akitchen was on each floor. Fay told him that she owned the building and that defendant, her grandson, lived upstairs. Sheindicated that defendant was renting the "upstairs area." Rhode did not recall asking Fay what specifically was included inthe leased premises.

Rhode told Fay that the police had received a complaint and asked for permission to search the attic. Fay executed a consentform, and Rhode asked her how to get to the attic. Fay told him that he would "have to go through her grandson's area to getto the doorway which led to the attic." Rhode followed Fay up an internal stairway from the first floor to the second floor.He noticed that an external stairway provided a mode of direct entry onto the second floor.

The door to the attic was open. There was no other practical way to enter the attic. In the attic, Rhode found a large, blackplastic bag that contained cannabis.

On cross-examination, Rhode testified that Fay told him that she had been in the attic earlier in the day. She said thatdefendant rented the "upper apartment" but that she had personal items in the attic. Rhode believed that she was able toconsent to a search of the attic.

After its motion for a directed finding was denied, the State called Daniel P. Wesolek, another officer who was at the scene.He testified that he saw a marijuana leaf in the "second floor apartment." However, the police merely walked through thesecond floor on the way to the attic; they collected evidence from no other part of the building.

On cross-examination, Wesolek testified that he did not observe that the building contained two separate apartments. Henoticed that each floor had living quarters and a kitchen, but he did not see two mailboxes. He also noticed that an outerstairway provided a direct entrance onto the second floor. On the first floor, he observed only a family room and a kitchen.He did not ask Fay what portion of the building was rented. After Fay led the police to the second floor, they saw that theycould enter the attic only by passing through those living quarters. The door to the attic was open.

Defendant recalled Fay for rebuttal. She testified that, before she signed the consent form, she and the officers did notdiscuss how the building was divided. On cross-examination, she stated again that she did not go upstairs with the officers;she merely told Rhode that he could search the attic.

The trial court stated that the second floor was a separate unit that the police were not authorized to search. As a result, thecourt ruled, the officers were not permitted to enter that unit to get to the attic. Defendant's motion to suppress was granted,and the State's motion for reconsideration was denied. The State filed a certificate of impairment and notice of appeal. See145 Ill. 2d R. 604(a)(1). Although defendant did not file an appellee's brief, we will address the merits of this appeal inaccordance with First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).

When a trial court's ruling on a motion to suppress evidence involves factual determinations and credibility assessments, wemay reverse it only if it is manifestly erroneous. However, when the trial court faces no factual or credibility disputes, weconduct de novo review. People v. Buss, 187 Ill. 2d 144, 204-05 (1999). Here, we determine that the record contains nomaterial conflicts in the evidence. Therefore, we review the trial court's ruling de novo.

Generally, the fourth amendment prohibits the warrantless search of a home. U.S. Const., amend. IV; Illinois v. Rodriguez,497 U.S. 177, 181, 111 L. Ed. 2d 148, 156, 110 S. Ct. 2793, 2797 (1990). However, a warrantless search is constitutional ifit is conducted with the voluntary consent of the person whose property is searched or of a third party who possessescommon authority over the premises. Rodriguez, 497 U.S. at 181, 111 L. Ed. 2d at 156, 110 S. Ct. at 2797. Even if a thirdparty lacks common authority, her consent validates a search if a police officer reasonably believes that she possesses it.Rodriguez, 497 U.S. at 188-89, 111 L. Ed. 2d at 161, 110 S. Ct. at 2801.

At issue here is whether Fay's consent supported the warrantless search of the attic. The State argues first that the searchwas valid because Fay actually possessed common authority over the attic. We disagree.

Generally, a landlord cannot validly consent to a search of leased premises. People v. Kramer, 204 Ill. App. 3d 1011, 1014(1990). This is because common authority is not implied merely from a property interest but rests instead upon the mutualuse of the property by persons generally having joint access or control for most purposes. People v. Steinberg, 260 Ill. App.3d 653, 657 (1994). Regardless of the nature of their relationship or the mere commingling of their belongings, a third partyand a defendant share common authority only if the third party's degree of control is equal to or greater than that possessedby the defendant. People v. Pickens, 275 Ill. App. 3d 108, 112 (1995).

Fay testified that the attic was part of apartment No. 2. As a result, although she used the attic to store some of herbelongings, she generally could not go into the attic without her tenant's permission. Thus, her right to access the attic wasnot equal to or greater than defendant's right. This is so despite the apparent fact that Fay was able to enter apartment No. 2to deal with maintenance problems, as she did soon before the police arrived. See People v. Sedrel, 184 Ill. App. 3d 1078,1080-81 (1989).

It is true that, when a defendant lives with a close relative, courts will presume that the relative possesses common authorityto consent to a search of the defendant's portion of the premises. People v. Brooks, 277 Ill. App. 3d 392, 400 (1996).However, although Fay and defendant were related, it is clear that they actually did not share any living space at all. Indeed,apartment No. 2 was completely distinct from apartment No. 1, with its own entrance, living quarters, kitchen, utilities, andmailing address. Hence, the presumption of common authority does not apply here as it does when relatives actually "live"together. Cf. People v. Bliey, 232 Ill. App. 3d 606, 609-10 (1992); People v. Callaway, 167 Ill. App. 3d 872, 875-76 (1988).Because the family relationship between Fay and defendant was completely incidental to their landlord-tenant relationship,Fay did not have actual common authority over the attic that defendant rented from her.

As we noted, however, this conclusion does not end our inquiry. The State argues alternatively that the search was validbecause the police reasonably believed that Fay had common authority over the attic. Again, we disagree.

A third party who lacks actual common authority nevertheless has effective "apparent" common authority if the factsknown to the officers were sufficient to enable them to reasonably conclude that the third party's right to occupy and use thearea at least approximated that of the defendant. People v. Keith M., 255 Ill. App. 3d 1071, 1084-85 (1993). We cannot usehindsight; the circumstances at the time of the entry control the determination whether the police reasonably believed thatthey had obtained valid consent. Brooks, 277 Ill. App. 3d at 400.

Before they entered the second floor, the police knew the following facts: (1) Fay owned the building; (2) Fay had personalitems in the attic; and (3) Fay had been in the attic earlier in the day. All of these facts indicated that Fay had the authorityto allow a search of the attic. Although Fay told the officers that defendant rented the "upper apartment," she did not specifythat he rented the attic as well. Therefore, before the police entered the second floor, all that they knew about the atticindicated that Fay could access it at will.

However, when the officers reached the second floor, they learned that they could access the attic only by entering the"upper apartment." The State does not argue, nor could it do so successfully, that Fay had apparent common authority overthe second floor. Therefore, we must determine whether the police reasonably believed that Fay had common authority overthe attic when they knew that she had to traverse defendant's separate living quarters to get there. We hold that they did not.

It is well established that the doctrine of apparent common authority does not allow a police officer to proceed withoutinquiry in ambiguous circumstances or to accept at face value the consenting party's apparent assumption that she has theauthority to allow the search. People v. James, 163 Ill. 2d 302, 319 (1994). As Professor LaFave pointed out: