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IN THE COURT OF APPEALS OF MARYLAND No. 100 September Term, 1996 ______________________________________

IN RE: TARIQ A-R Y ._____________________________________ Bell, C.J. Eldridge Rodowsky Chasanow *Karwacki Raker Wilner JJ. ___________________________________

Opinion by Karwacki, J. Bell, C.J., and Eldridge, J., dissent ___________________________________ Filed: October 21, 1997 *Karwacki, J., participated in the hearing of the case, in the conference in regard to its decision and in the adoption of the opinion, but he had retired from the Court prior to the filing of the opinion.

In this case, we granted certiorari to determine whether the parent of an unemancipated minor child can consent to a search of the child's personal belongings left in the common area of the home, over the child's objection. Petitioner, Tariq A-R Y, asserts that searches may not be effected without the consent of the minor owner. The State disagrees, positing that valid consent searches are permissible when the consent is given by one with authority to do so, such as a parent. For reasons that we set out infra, we shall hold that a parent of an unemancipated minor can consent to a search of his or her child's personal belongings left in the common area of their home, over the child's objection.

I. On May 16, 1995, in response to an anonymous telephone call, Officers Robert Marker and Shawn Stewart of the Frederick County Police Department went to a residence in the Heather Ridge section of the County. A knock on the front door of the home was answered by petitioner; an unidentified woman was observed walking from the house. Both denied having made a telephone call to the police department. At the same time, Tariq's mother drove up to the house. The officers spoke briefly with the unidentified woman, returned to the house, and observed that items there were strewn about and that plants were upset. On the floor was loose tobacco, the butt of a cigar,1 and an empty, overturned bottle of malt liquor. An odor of marijuana was present in the air and alcohol was detected on Tariq's breath. The officers brought these facts to the attention of Tariq's mother, who,

Specifically, the officers observed "the butt of a Phillie Blunt that had been cut up." Officer Marker testified that the use of cigar wrappers is a common method of smoking marijuana.

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according to the officers, thereafter consented to a search of the house "and anything in it." Starting in the dining room, Officer Marker picked up a vest that was lying on the table. As he did this, Tariq stood and indicated that the vest belonged to him. He was told to sit down and, in the pocket of the vest, a small bag containing what appeared to be marijuana was retrieved. As Tariq was being placed under arrest, he punched and kicked both officers. At the delinquency hearing held on the State's petition on August 10, 1995, the trial court denied Tariq's motion to suppress the marijuana recovered during the search of his vest. Tariq was later found involved in the possession of marijuana and in resisting arrest; he was found not involved in the possession of paraphernalia. He was thereafter committed to the custody of the Department of Juvenile Services. The Court of Special Appeals in an unreported opinion affirmed the trial court's judgment. Before this Court, Tariq urges that the trial court erred in denying his motion to suppress.

II. In reviewing the denial of a motion to suppress, we look only to the record of the suppression hearing and do not consider the evidence admitted at trial. Gamble v. State, 318 Md. 120, 125, 567 A.2d 95, 98 (1989); Herod v. State, 311 Md. 288, 290, 534 A.2d 362, 363 (1987); Trusty v. State, 308 Md. 658, 670, 521 A.2d 749, 755 (1987). We are further limited to considering only that evidence and the inferences therefrom that are most favorable to the prevailing party on the motion, in this instance the State. Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240 (1990); see also Simpler v. State, 318 Md. 311, 312, 568 A.2d 22, 22
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(1990). In considering the evidence presented at the suppression hearing, we extend great deference to the fact-finding of the suppression hearing judge with respect to determining the credibility of witnesses and to weighing and determining first-level facts. Riddick, 319 Md. at 183, 571 A.2d at 1240. When conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that those findings were clearly erroneous. Id. As to the ultimate conclusion of whether a search was valid, we must make our own independent constitutional appraisal by applying the law to the facts of the case. Id. In ruling on Tariq's motion to suppress the marijuana retrieved from the pocket of his vest, the trial court stated: "I think that the evidence is admissible under Maryland law. . . . And it would not seem to me that there would be any reasonable expectation of privacy in this vest that was laying in open view on the dining room table. The evidence shows that the owner of the premises gave consent to search the premises and its contents. Therefore, I'm going to deny your motion to suppress for the reasons given." Notably, the only witness who testified at the suppression hearing was Officer Marker and, as a result, we are limited to a review of that testimony alone in performance of our review. Guided by the principles of limited review set forth above, we defer to the court's assessment of Officer Marker's testimony and demeanor and hold that it did not err in finding as a fact that the consent given by Tariq's mother encompassed the entire house and its contents. See Florida v. Jimeno, 500 U.S. 248, 251-52, 111 S. Ct. 1801, 1803-04, 114 L. Ed. 2d 297, 303 (1991) (scope of consent search defined by expressed object of search unless expressly limited by consenter); United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 2170-3-

71, 72 L. Ed. 2d 572, 591 (1982) (consent "extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search"). We now address whether Tariq's mother was in a position to consent to a search of Tariq's personal effects within the house in the first instance. For that, we look to the Fourth Amendment.

III. A principal tenet of the Fourth Amendment is the security of privacy rather than property. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 301, 87 S. Ct. 1642, 1647, 18 L. Ed. 2d 782, 788-89 (1967). To this end, its main import is the protection against invasions of the sanctity of one's person, home, and the privacies of life. Id. at 301, 87 S. Ct. at 1647, 18 L. Ed. 2d at 788-89; Duncan v. State, 281 Md. 247, 254, 378 A.2d 1108, 1113 (1977); see also Gorman v. State, 161 Md. 700, 704, 158 A. 903, 904 (1932) ("[The] constitutional right of the citizen is the maxim that `every man's house is his castle'; and in the enjoyment of it he shall not be subjected to unreasonable or illegal searches and seizures."). While the requirement that a warrant based upon probable cause serves to effectuate this goal, only those searches and seizures that are unreasonable are constitutionally prohibited. Little v. State, 300 Md. 485, 493, 479 A.2d 903, 907 (1984); Duncan, 281 Md. at 254, 378 A.2d at 1113; Buettner v. State, 233 Md. 235, 239, 196 A.2d 465, 467 (1964). While searches and seizures conducted without a warrant are considered per se unreasonable, see Ricks v. State, 322 Md. 183, 188, 586 A.2d 740, 743 (1991);
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Riddick, 319 Md. at 192, 571 A.2d at 1245; Peterson v. State, 281 Md. 309, 312, 379 A.2d 164, 166 (1977), cert. denied, 435 U.S. 945, 98 S. Ct. 1528, 55 L. Ed. 2d 542 (1978); see also Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854, 858 (1973) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2031-32, 29 L. Ed. 2d 564, 576 (1971); Chambers v. Maroney, 399 U.S. 42, 51, 90 S. Ct. 1975, 1981, 26 L. Ed. 2d 419, 428 (1970); Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576, 585 (1967)), if it can be demonstrated that the search falls within one of a carefully defined set of exceptions, it will be upheld, Ricks, 322 Md. at 188, 586 A.2d at 743. When the sanctity of the home is involved, exceptions to the warrant requirement are few. A permissive search pursuant to voluntary consent is one such limited exception. United States v. Matlock, 415 U.S. 164, 165-66, 94 S. Ct. 988, 990, 39 L. Ed. 2d 242, 246 (1974); Schneckloth, 412 U.S. at 219, 93 S. Ct. at 2043-44, 36 L. Ed. 2d at 858 (citing Zap v. United States, 328 U.S. 624, 66 S. Ct. 1277, 90 L. Ed. 1477 (1946); Davis v. United States, 328 U.S. 582, 66 S. Ct. 1256, 90 L. Ed. 1453 (1946)); Vale v. Louisiana, 399 U.S. 30, 35, 90 S. Ct. 1969, 1972, 26 L. Ed. 2d 409, 413-14 (1970); McCray v. State, 236 Md. 9, 14, 202 A.2d 320, 323 (1964). The reason therefor is clear -- the individual whose right it is to be free from unreasonable searches and seizures may waive Fourth Amendment protection. This waiver will be effective, however, only as to property in which the individual possesses an actual expectation of privacy, and then only if that expectation is one that society would recognize as reasonable. Liichow v. State, 288 Md. 502, 511, 419 A.2d
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1041, 1046 (1980); see also Doering v. State, 313 Md. 384, 397, 545 A.2d 1281, 1287 (1988) ("In assessing the gravity of an intrusion, we consider the objective expectation of privacy that reasonably existed, and the extent to which it was invaded."); see also United States v. Ramapuram, 632 F.2d 1149, 1154 (4th Cir. 1980), cert. denied, 450 U.S. 1030, 101 S. Ct. 1739, 68 L. Ed. 2d 225 (1981) (Ownership alone is insufficient to establish a reasonable and legitimate expectation of privacy for purposes of determining the validity of a warrantless search and seizure; ownership is relevant to the inquiry but the totality of the circumstances determines whether the individual challenging the search has a reasonable and legitimate expectation of privacy in the locus of the search.). In further assessing the validity of the search, one's expectation of privacy is to be measured as of the time of the offending intrusion. Faulkner v. State, 317 Md. 441, 447, 564 A.2d 785, 788 (1989). As we have observed, "The concept of a reasonable expectation of privacy in a particular place is not simplistically singular. It involves, instead, a bundle of privacy interests." Doering, 313 Md. at 394, 545 A.2d at 1286. Encompassed within the rubric of permissive searches is the notion of third-party consent, see Nestor v. State, 243 Md. 438, 443-45, 221 A.2d 364, 367-68 (1966); McCray, 236 Md. at 14, 202 A.2d at 322, the constitutional validity of which has been recognized by the United States Supreme Court, see Frazier v. Cupp, 394 U.S. 731, 740, 89 S. Ct. 1420, 1425, 22 L. Ed. 2d 684, 693 (1969). To this end: "when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant but may show that permission to
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search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.7
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Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U.S. 610[, 81 S. Ct. 776, 5 L. Ed. 2d 828] (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U.S. 483[, 84 S. Ct. 889, 11 L. Ed. 2d 856] (1964) (night hotel clerk could not validly consent to search of customer's room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched."

Matlock, 415 U.S. at 171, 94 S. Ct. at 993, 39 L. Ed. 2d at 249-50; see also Carter v. State, 236 Md. 450, 453, 204 A.2d 322, 323 (1964) (A search by permission of person entitled to constitutional protection from unreasonable search is lawful.); Gross v. State, 235 Md. 429, 443, 201 A.2d 808, 816 (1964) (same). It was in Matlock that the concept of "common authority" as a determinative factor in the validation vel non of warrantless searches became firmly entrenched in Supreme Court jurisprudence. Although earlier cases such as Frazier and Coolidge indicated that "the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared," Matlock, 415 U.S. at 170, 94 S. Ct. at 993, 39 L. Ed. 2d at 249, the

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Matlock Court looked specifically to joint access or control in upholding the search authorized by a woman with whom Matlock shared a room, that recovered, inter alia, evidence incriminating Matlock in a bank robbery. Thus, it appears that the Supreme Court's theoretical basis for the third-party consent in Matlock is: "(i) that the consenting party could permit the search in `his own right'; and (ii) that the defendant had `assumed the risk' that a co-occupant might permit a search." 3 W. LA FAVE, SEARCH AND SEIZURE

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