[No. 76070-5. En Banc.]
Argued September 13, 2005. Decided November 23, 2005.
In the Matter of the Personal Restraint of RICHARD CADWALLADER , Petitioner . THE STATE OF WASHINGTON , Respondent , v. RICHARD ALLEN CADWALLADER , Petitioner .
[1] Personal Restraint - Scope - Nonconstitutional Error - In General. A personal restraint petitioner may obtain relief from nonconstitutional error if the petitioner shows that he or she is unlawfully restrained due to a fundamental defect that inherently results in a miscarriage of justice.
[2] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Prior Convictions - Acknowledgment - Wash Out of Prior Conviction - Effect. A convicted offender does not agree to a life sentence as a persistent offender by affirmatively acknowledging a criminal history that ostensibly includes two prior strike offenses if, based on the record, one of the strike offenses has "washed out" under applicable law.
[3] Criminal Law - Punishment - Sentence - Acknowledgment by Offender - Exceeding Statutory Authority - Validity. A convicted offender may not agree to a sentence in excess of what is statutorily authorized.
[4] Criminal Law - Punishment - Sentence - Criminal History - Disclosure - Necessity. A convicted offender is not required to disclose any prior convictions if the offender was not convicted pursuant to a plea agreement with the State.[5] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Prior Convictions - Proof - Burden and Degree of Proof. The State bears the burden of proving by a preponderance of
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the evidence that a convicted offender has two prior convictions of qualifying "strike" offenses before the offender may be sentenced to life in prison under the Persistent Offender Accountability Act (RCW 9.94A.505 , .555, and .570 and RCW 9.94A.030 (28), (32)).
[6] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Prior Convictions - Acknowledgment - Wash Out of Prior Conviction - Right to Relief - Existence of Nullifying Conviction - Absence From Record. When a convicted offender who did not enter a plea agreement is sentenced to life in prison as a persistent offender based on an acknowledged criminal history that includes two qualifying "strike" offenses, one of which had "washed out" under applicable law, the offender may obtain relief from the sentence regardless of the existence of a later conviction of the offender that would have nullified the wash out if the State failed to prove the later conviction at the time of sentencing. The defendant does not have a duty to reveal the existence of the later conviction; nor does the defendant have an obligation to object to the State's failure to include it in the offender's criminal history. Upon remand for resentencing, the State will be held to the existing record and will not be allowed to present evidence of the later conviction or to present pertinent findings made in collateral proceedings.
[7] Criminal Law - Judgment - Vacation - Review - Standard of Review. A trial court's decision on a CrR 7.8 motion to vacate a criminal judgment is reviewed for an abuse of discretion.
[8] Criminal Law - Judgment - Vacation - Fraud - Proof - Necessity. A criminal judgment may not be vacated on the grounds of fraud under CrR 7.8 absent proof of the elements of fraud.
BRIDGE , FAIRHURST , and J.M. JOHNSON , JJ., dissent by separate opinion.
Nature of Action: An offender who pleaded guilty to second degree robbery and was sentenced as a persistent offender to life in prison without the possibility of release sought relief from personal restraint on a claim that one of the predicate strike offenses had "washed out." After the petition was filed, the State moved to vacate or amend the judgment and sentence entered on the defendant's plea, alleging that the offender committed fraud and misrepresentation by failing to reveal the existence of an out-of-state conviction that qualified to interrupt the wash-out period.Superior Court: The Superior Court for Whatcom County, No. 98-1-00129-4, Michael F. Moynihan, J., on
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September 3, 2002, entered findings and a conclusion that the offender had an out-of-state conviction that was comparable to a class C felony in this state. The offender appealed this decision.
Court of Appeals: After consolidating the personal restraint petition and the appeal, the court remanded the case to amend the judgment to reflect the out-of-state conviction and denied the petition by an unpublished opinion noted at 122 Wn. App. 1023 (2004), ruling that the State was allowed to prove the out-of-state conviction to show that the prior domestic offense did not wash out.
Supreme Court: Holding that, because it was the State's burden to establish the offender's criminal history at sentencing, the State was not entitled to rely on the out-of-state conviction that it did not allege at sentencing to nullify the wash out of the prior domestic offense, the court reverses the decision of the Court of Appeals, grants the petition, and remands the case to the trial court for resentencing.
Eric Broman (of Nielsen, Broman & Koch, P.L.L.C. ), for petitioner.
David S. McEachran , Prosecuting Attorney, and Kimberly A. Thulin , Deputy, for respondent.
¶1 MADSEN, J. - The petitioner was sentenced as a persistent offender to life in prison without the possibility of early release. He argues that his sentence is unlawful because one of the two predicate strike offenses "washed out" and that the Court of Appeals erroneously allowed the State to prove an out-of-state conviction to show that the wash out period was interrupted. Because it is the State's burden to establish criminal history at sentencing (unless the defendant pleads guilty pursuant to a plea agreement),
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we agree that the State is not entitled to rely on the out-of-state conviction that it did not allege at sentencing. We reverse the Court of Appeals and remand this case for resentencing.
FACTS
¶2 In 1998 Richard Cadwallader pleaded guilty to second degree robbery committed in 1997.«1»His plea of guilty was not, however, pursuant to a plea agreement. Cadwallader was sentenced under the Persistent Offender Accountability Act (POAA) to life without the possibility of early release. Under the POAA a "persistent offender" is, in relevant part, an individual who is convicted of a felony that is a most serious offense and who has at least two prior felony convictions for most serious offenses. RCW 9.94A.030(33), .570. The State presented Cadwallader's criminal history, which is shown in his statement on plea of guilty and in his judgment and sentence: an August 1974 conviction for second degree burglary; a January 1978 conviction for third degree rape; an April 1981 conviction for second degree escape; an April 1993 conviction for second degree robbery; and an April 1993 conviction for taking a motor vehicle. The State identified the 1978 rape and the 1993 robbery as predicate strike offenses under the POAA.
¶3 Cadwallader's statement on plea of guilty states that he agreed that the prosecuting attorney's statement of his criminal history was correct and complete. At sentencing he did not object to the prosecuting attorney's presentation of his criminal history or characterization of the 1978 rape conviction as a predicate strike offense. It is undisputed that he thought that the sentence would be life without possibility of early release. The trial court accepted Cadwallader's plea and sentenced him as a persistent offender to life. In March 1999 Cadwallader filed a personal
«1»He was also charged with forgery.
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restraint petition challenging the validity of his guilty plea. The Court of Appeals dismissed the petition.
¶4 On October 7, 1999, this court issued State v. Cruz , 139 Wn.2d 186 , 985 P.2d 384 (1999), holding that a 1990 amendment to the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, that removed prior sex offenses from wash out provisions of the SRA applied prospectively only and that a rape conviction that had previously washed out was not revived by the amendment. On April 12, 2000, Cadwallader, acting pro se, filed the present personal restraint petition, arguing that the 1978 rape conviction washed out because he had no convictions during the five years following his January 31, 1983, release from confinement for that offense. He argued his life sentence was invalid. Cadwallader sought resentencing under the SRA. The State moved for additional time to respond to Cadwallader's petition, arguing that it needed to verify two felony convictions in Kansas about which it had recently learned. The Court of Appeals granted the motion. In its initial response, the State argued that one of the Kansas convictions, a 1985 theft conviction, interrupted the five-year period, and accordingly the 1978 conviction did not wash out. The Court of Appeals appointed counsel for Cadwallader, and the parties filed supplemental briefing.
¶5 Then, on March 4, 2000, the State filed a motion under CrR 7.8(b)(3) in Whatcom County Superior Court seeking to vacate or amend the judgment and sentence. The next day, the State sought a stay of the personal restraint petition proceedings in the Court of Appeals pending the trial court's consideration of the CrR 7.8 motion. The Court of Appeals granted the stay.
¶6 The State's motion in superior court for vacation or amendment of the judgment and sentence was based on its assertion that Cadwallader committed fraud and misrepresentation relating to his criminal history presented at the time of his plea and sentencing. The State's theory was that Cadwallader defrauded the court by remaining silent. The prosecuting attorney initially represented that the State
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believed it had set out Cadwallader's full criminal history and that it discovered the 1985 Kansas felony conviction in the course of responding to the personal restraint petition. However, in discovery provided to the defense prior to the 1998 sentencing, the State had provided a printout of a Washington State Identification Section (WASIS) and a National Crime Information Center (NCIC) criminal history that showed the Kansas theft conviction.«2»
¶7 Although it refused to find that the State established fraud, the trial court made findings and conclusions that Cadwallader had a 1985 felony theft conviction from Kansas that was comparable to the crime of theft in the second degree in Washington, a class C felony.
¶8 Cadwallader appealed. The State then moved in the Court of Appeals pursuant to RAP 7.2(e) for entry of the trial court's findings and conclusions. The Court of Appeals granted the motion, lifted the stay, and consolidated the personal restraint petition and the appeal.
¶9 The Court of Appeals concluded that because Cadwallader failed to object to his criminal history and put the sentencing court on notice that the 1978 conviction washed out, and the parties thus had not litigated the washout issue before sentencing, the State should have the opportunity to prove the 1985 Kansas conviction to show
«2»The printout showed:
4-ARRESTED OR RECEIVED 1985/10/6
AGENCY-POLICE DEPARTMENT EMPORIA (KS0560100)
AGENCY CASE-15366
CHARGE 1-FELONY THEFT 2 CTS
COURT-
DISPOSITION-
CHARGE-FELONY THEFT 2 CTS
SENTENCE-
DISM 1 CT PG TO 1 CT SENT 1-5 YRS AND TO PAY COSTS OF $116
Clerk's Papers at 67 (the State stipulated that this document was in the discovery provided). The prosecuting attorney also conceded that he had filed a fugitive complaint in 1987 against Cadwallader seeking to extradite him for alleged parole violations for the 1985 theft conviction, but said he did not recall having handled the matter.
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that the 1978 rape conviction did not wash out. In re Pers. Restraint of Cadwallader , noted at 122 Wn. App. 1023, slip op. at 17 (2004), review granted , 154 Wn.2d 1001 (2005). The Court of Appeals observed that the State did not list the 1985 conviction because it did not appear necessary. Id. , slip op. at 17. The Court of Appeals also recognized, though, that there was no reason for Cadwallader to object to characterization of the rape offense as a predicate strike offense in light of the 1990 amendment to the SRA eliminating sex offenses from the wash out provisions. Id . That is, both parties believed at the time of sentencing that the 1978 rape conviction could not wash out.
¶10 The Court of Appeals accepted the trial court's findings that the conviction was valid and comparable and then dismissed Cadwallader's personal restraint petition because, in light of the Kansas conviction, the 1978 rape conviction did not wash out. The court remanded for amendment of the judgment to reflect the Kansas conviction.
ANALYSIS
[1]¶11 A petitioner cannot obtain collateral relief based on nonconstitutional error unless the petitioner shows that he or she is unlawfully restrained due to a fundamental defect that inherently results in a miscarriage of justice. In re Pers. Restraint of West , 154 Wn.2d 204 , 209, 110 P.3d 1122 (2005); In re Pers. Restraint of Goodwin , 146 Wn.2d 861 , 867, 50 P.3d 618 (2002); In re Pers. Restraint of Cook , 114 Wn.2d 802 , 812, 792 P.2d 506 (1990).
¶12 The first question is whether Cadwallader affirmatively acknowledged his criminal history, including the 1978 rape conviction, and agreed to his life sentence as a persistent offender. The State argues that Cadwallader's affirmative acknowledgement supplied the necessary facts for the trial court to impose the persistent offender sentence without further evidence from the State.
¶13 A sentencing court may rely on a stipulation or acknowledgment of prior convictions without further proof.
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See RCW 9.94A.530 (2). Acknowledgement includes not objecting to information included in presentence reports. Id . If the defendant disputes material facts, the sentencing court either must not consider the facts, or it must grant an evidentiary hearing on the matter. RCW 9.94A.530 (2) (formerly RCW 9.94A.370 (2)).
[2, 3]¶14 However, as Cruz and Goodwin demonstrate, Cadwallader could not agree to a life sentence as a persistent offender under the circumstances in this case. Like in Cruz , Cadwallader's judgment and sentence includes a predicate strike offense that washed out prior to the 1990 amendment to the SRA that eliminated sex offenses from the wash out provisions. When Cruz was decided it became clear that the 1990 amendment applied prospectively only and did not apply to revive washed out convictions. We held in Cruz that the defendant had to be resentenced using an offender score that did not include the washed out conviction.
¶15 In Goodwin the petitioner's statement on plea of guilty pursuant to a plea agreement stated that the petitioner agreed that the prosecuting attorney's statement of his criminal history was correct and complete. Goodwin , 146 Wn.2d at 864 . However, petitioner's judgment and sentence showed that one of the prior convictions used to calculate his offender score had washed out. We explained that a sentence based on a miscalculated upward offender score is in excess of statutory authority and generally may be challenged at any time. Id . at 873-74. The defendant cannot agree to a sentence in excess of that which is statutorily authorized. Id . at 876. We remanded for resentencing using a correct offender score.
¶16 As in Goodwin , Cadwallader's acknowledgement of his criminal history does not prevent him from challenging his sentence where the judgment and sentence shows that one of the prior convictions used to determine his sentence washed out.«3»
«3»While Goodwin involved only the determination of an offender score and not the characterization of a prior conviction as a predicate strike offense, this distinction is not material. A conviction for purposes of implementing the POAA must also be a conviction used to calculate the defendant's offender score. Cruz , 139 Wn.2d at 187 .
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¶17 Our decision in State v. Ross , 152 Wn.2d 220 , 226-27, 229-32, 95 P.3d 1225 (2004), is consistent. Waiver of a challenge to an allegedly invalid sentence "can be found where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion." Goodwin , 146 Wn.2d at 874 . "[W]aiver may be found where a defendant stipulates to incorrect facts." Id . In Ross , the criminal history relied on by the State included convictions from other jurisdictions that defense counsel affirmatively acknowledged were properly included in the defendants' offender scores. We held that the defendants had waived any challenges that the State failed to prove their offenses were comparable to Washington crimes. As Cadwallader contends, there is a difference between a stipulation to facts, such as the comparability of an out-of-state offense, which can constitute waiver, and a stipulation to a legal conclusion, which cannot. Cadwallader could not stipulate to a persistent offender life sentence where the State did not allege a prior conviction - the 1985 Kansas conviction - that was a fact necessary to show that the 1978 rape conviction did not wash out.
¶18 The next question is whether the State may now prove the 1985 Kansas conviction. The Court of Appeals held that the failure to object to use of the 1978 rape conviction means that the State is entitled to allege and prove the 1985 Kansas conviction to show that the 1978 rape conviction did not in fact wash out and Cadwallader's life sentence was proper.
[4]¶19 Unless a defendant is convicted pursuant to a plea agreement, he or she has no obligation to disclose any prior convictions. State v. Lopez , 147 Wn.2d 515 , 519, 55 P.3d 609 (2002); State v. Ammons , 105 Wn.2d 175 , 183, 713 P.2d 719, 718 P.2d 796 (1986) (former RCW 9.94A.100 (1981),«4»which requires the defendant to disclose prior convictions, applies only when he or she enters a plea of
«4»Now RCW 9.94A.441 .
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guilty pursuant to a plea agreement). Here, Cadwallader did not plead guilty pursuant to a plea agreement.
[5]¶20 The State bears the burden of proving by a preponderance of the evidence the existence of prior convictions, whether used for determining an offender score or as predicate strike offenses for purposes of the POAA. State v. Ford , 137 Wn.2d 472 , 479-80, 973 P.2d 452 (1999) (prior convictions for offender score); Lopez , 147 Wn.2d at 519 (predicate strike offense). The burden is on the State "because it is 'inconsistent with the principles underlying our system of justice to sentence a person on the basis of crimes that the State either could not or chose not to prove.' " Ford , 137 Wn.2d at 480 (quoting In re Pers. Restraint of Williams , 111 Wn.2d 353 , 357, 759 P.2d 436 (1988)). Where the prior convictions are from another jurisdiction, the State also bears the burden of proving the convictions are comparable to Washington crimes. Id . at 482-83; State v. McCorkle , 137 Wn.2d 490 , 495, 973 P.2d 461 (1999).
[6]¶21 Given that Cadwallader had no obligation to disclose his criminal history, it follows that he had no obligation to object to the State's failure to include the 1985 Kansas theft conviction in his criminal history. Regardless of whether it appeared necessary to present the Kansas conviction at the time of sentencing, it was the State's burden to present criminal history, not Cadwallader's.«5»
¶22 The State contends, however, that Cadwallader failed to put the court on notice of a defect that needed to be litigated, i.e., whether the 1978 rape conviction washed out, and accordingly under Ford the State must be given the opportunity to present further evidence.
¶23 In Ford , the State alleged out-of-state convictions as prior felonies for purposes of determining the defendant's offender score but failed to provide proof of their existence and classification. At sentencing the defendant did not
«5»As noted, the State was aware of the 1985 Kansas conviction, as shown by the WASIS and NCIC printout the State provided to the defense as discovery prior to the 1998 sentencing.
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object to the classification of the convictions but argued on appeal that his sentence was based on an erroneous offender score because the State had failed to prove that the convictions were comparable to Washington felonies. The Court of Appeals affirmed, holding that the defendant had waived any challenge by failing to object to comparability. We reversed. Although a defendant can acknowledge unchallenged facts and information by a failure to object, a defendant does not acknowledge the State's position regarding the classification of prior offenses absent an affirmative agreement. Ford , 137 Wn.2d at 483 . Therefore, if out-of-state convictions are part of the history used to calculate the defendant's offender score, and the defendant neither objects to nor affirmatively agrees to their comparability as in Ross , waiver is not found. In such cases, however, the defendant's failure to raise deficiencies will lead to remand for an evidentiary hearing to allow the State the opportunity to prove the classification of the disputed convictions. Id . at 485-86.
¶24 Ford does not control, contrary to the State's contention. In Ford the State alleged the out-of-state convictions used to determine the defendant's offender score. In contrast, here the State did not even allege the 1985 Kansas conviction, much less present proof of it. A "defendant is simply not obligated to disprove the State's position, at least insofar as the State has failed to meet its primary burden of proof." Id . at 482. And, absent the 1985 Kansas conviction, Cadwallader's criminal history, listed in both his statement on plea of guilty and the judgment and sentence, shows that his 1978 rape conviction washed out.
¶25 Both Cadwallader and the State rely on Lopez in support of their arguments. In Lopez , the prosecuting attorney alleged prior convictions but failed to provide any supporting evidence for one of them. The defendant objected to his life sentence as a persistent offender absent proof of the prior offense. Lopez , 147 Wn.2d at 521 . We determined that the State had failed to prove the offense, but unlike in Ford , declined to permit the State a second
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opportunity to prove it. We held that "remand for an evidentiary hearing is appropriate only when the defendant has failed to specifically object to the state's evidence of the existence or classification of a prior conviction." Id. at 520. If the defendant has objected, and the disputed issues have been fully argued at sentencing, the State will be held to the existing record, the unlawful portion of the sentence will be excised, and the case will be remanded for resentencing without allowing the State to produce further evidence. Id. at 520-21 (citing Ford , 137 Wn.2d at 485 ). We observed, as we did in Ford , that the State does not meet its burden by bare assertions and that " '[t]o uphold procedurally defective sentencing hearings would send the wrong message to the trial courts, criminal defendants, and the public.' " Id. at 523 (quoting Ford , 137 Wn.2d at 484 ). It would send an equally wrong message to allow the State a second opportunity to prove its allegations of the defendant's history. Id. at 523.
¶26 The State maintains that because Cadwallader did not object to inclusion of the 1978 rape conviction as part of his criminal history, unlike the defendant in Lopez who did object to use of the prior offense as a predicate strike, the State is not foreclosed from now proving the Kansas conviction. Cadwallader contends, on the other hand, that where the prosecution does even less than in Lopez , i.e., it does not even allege a necessary prior conviction, here the 1985 Kansas theft conviction necessary to show that the 1978 rape conviction did not wash out, the defendant has no obligation to object and the State should not be allowed the remedy of an evidentiary hearing to correct its failure. We agree. At sentencing, unlike in both Ford and Lopez , the State failed even to allege the out-of-state conviction.
¶27 The State next argues that Cadwallader cannot meet his burden on collateral review of establishing that he is restrained due to a fundamental defect inherently resulting in a complete miscarriage of justice, Goodwin , 146 Wn.2d at 867 , because in fact the 1985 Kansas conviction interrupted the wash out period for the 1978 rape. Before
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this argument may even be considered, however, there must be some legal basis for permitting the State to prove the Kansas conviction when it did not even allege the 1985 Kansas conviction at sentencing, i.e., there must be some legal justification for entry of findings regarding the 1985 Kansas conviction.
¶28 The State first urges us to follow the course that the Court of Appeals took, which was to consider the CrR 7.8 hearing to be essentially a reference hearing. Cadwallader , slip op. at 17. As mentioned, the Court of Appeals granted the State's motion pursuant to RAP 7.2(e) for entry of the trial court's findings and conclusions. The Court of Appeals concluded that it was not in the interest of judicial economy to require a trial court to rehear the issue and accepted the trial court's findings and found they were supported by substantial evidence. Id .
¶29 If a personal restraint petitioner presents a prima facie case of error, but the issues cannot be resolved on the existing record, the case will be transferred to superior court for a reference hearing. RAP 16.11(b); In re Pers. Restraint of Rice , 118 Wn.2d 876 , 885, 828 P.2d 1086 (1992). However, only competent, admissible evidence may be considered at a reference hearing. See In re Pers. Restraint of Lord , 123 Wn.2d 296 , 303, 868 P.2d 835 (1994) (to obtain an evidentiary hearing, a personal restraint petitioner must present competent, admissible evidence to establish facts entitling him to relief). The evidence of the 1985 Kansas conviction would not be admissible on direct appeal to overcome Cadwallader's claim of an unlawful sentence because the State completely failed in its burden of proving that prior conviction at sentencing - it did not even allege the conviction. The evidence does not become admissible simply because this case is now on collateral review. Accordingly, we will not consider evidence of the 1985 conviction offered at the CrR 7.8 hearing.
[7, 8]¶30 The State also contends that the superior court's decision on the CrR 7.8(b)(3) should be upheld as a CrR 7.8 decision. We disagree. A decision on a CrR 7.8
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motion is reviewable for abuse of discretion. State v. Hardesty , 129 Wn.2d 303 , 317, 915 P.2d 1080 (1996). CrR 7.8 allows for vacation or amendment of a final judgment on certain grounds, including mistake, excusable neglect, newly discovered evidence, and fraud. Here, the State alleged fraud. It is error, however, to vacate a judgment on the ground of fraud absent a hearing and findings on the elements of fraud. Id . at 317-18. The trial court said that fraud was not established and thus did not have grounds to decide that the judgment and sentence should be amended to include the 1985 Kansas theft conviction.«6»
CONCLUSION
¶31 Cadwallader did not stipulate to a predicate strike offense and a life sentence as a persistent offender when the State failed to allege a 1985 Kansas conviction that was factually necessary to show the 1978 predicate strike offense did not wash out. Because Cadwallader did not plead guilty pursuant to a plea agreement, he had no obligation to present the 1985 Kansas conviction or to complain about the State's failure to allege that conviction at sentencing. Thus, Cadwallader did not waive any challenge to use of the 1978 rape conviction as a predicate offense. On collateral review there is no legal basis for permitting the State to prove the 1985 Kansas conviction when it failed to allege that conviction at sentencing. Cadwallader's sentence as a persistent offender is unlawful.
«6»Although CrR 7.8(b)(5) permits a judgment to be vacated for "[a]ny other reason justifying relief," a vacation under this section is limited to extraordinary circumstances not otherwise covered by the rule. State v. Brand , 120 Wn.2d 365 , 369, 842 P.2d 470 (1992). CrR 7.8(b)(5) does not apply when the circumstances offered for vacation existed at the time the judgment was entered. State v. Zavala-Reynoso , 127 Wn. App. 119 , 123, 110 P.3d 827 (2005). As explained, the State knew or should have known of a 1985 Kansas felony conviction prior to sentencing.
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¶32 We grant Cadwallader's personal restraint petition and remand for resentencing under the SRA. The Court of Appeals is reversed.
ALEXANDER, C.J., and C. JOHNSON, SANDERS, CHAMBERS, and OWENS, JJ., concur.
¶33 BRIDGE, J. (dissenting) - Amendments to the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, reveal the legislature's continued displeasure with our interpretations of the act. LAWS OF 2000, ch. 26, § 1, codified at RCW 9.94A.345 ; LAWS OF 2002, ch. 107, § 1, codified at RCW 9.94A.030 . I fear today's ruling will fall victim to the same fate. I agree that the defendant's case should be remanded for resentencing, but I am persuaded that the State should also be allowed to present evidence of Richard Cadwallader's 1985 Kansas conviction upon remand. I respectfully dissent.
¶34 The facts of this case present a novel question: whether at sentencing the State must prove a conviction when it is unnecessary to a defendant's persistent offender score or waive its ability to introduce the crime in the event of resentencing. And, because this is a case of first impression, the case law the majority cites for its proposition that the State may not present evidence of the 1985 conviction upon remand does not control here. The majority concludes that there is no legal basis for allowing evidence of the 1985 conviction on remand. Majority at 882. But neither does it present any legal basis squarely prohibiting that course of action.
¶35 In a sentencing hearing, the State must prove the predicate offenses on which it relies for a "three-strikes" conviction by a preponderance of the evidence. State v. Lopez , 147 Wn.2d 515 , 519, 55 P.3d 609 (2002). But some predicate offenses will "wash out" of an offender's criminal history if there is a crime-free statutory period of time between the date of release from the prior offense and the next date of confinement. See RCW 9.94A.525 (2). In 1990,
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the legislature passed an amendment to the SRA that barred sex offenses from being washed out regardless of timing. In 1999, this court held that the 1990 amendment was prospective only and sex offenses committed before 1990 could wash out. State v. Cruz , 139 Wn.2d 186 , 190, 193, 985 P.2d 384 (1999). However, at Mr. Cadwallader's 1998 sentencing, the understanding of both parties was that Mr. Cadwallader's 1978 rape conviction could not wash out, even though his next predicate offense was not until 1993. Majority at 875.
¶36 Having already proved the existence of these two requisite predicate offenses via Mr. Cadwallader's stipulation, the State did not additionally seek to prove a then-superfluous offense, the 1985 Kansas conviction. The unintentional error presented by reliance on Mr. Cadwallader's 1978 rape conviction was not illuminated until the decision in Cruz .
¶37 Today the majority contends that because the State knew about Mr. Cadwallader's 1985 conviction at the time of his sentencing, but did not gratuitously include it in his criminal history, it should not be allowed to do so now. The majority points to State v. Ford , 137 Wn.2d 472 , 973 P.2d 452 (1999) and Lopez , 147 Wn.2d 515 , 55 P.3d 609, to support this proposition. In those cases, the State completely failed its burden of production in the sentencing hearing, to say nothing of its burden of persuasion. In Ford , the State failed to produce evidence to support its oral assertion that the out-of-state predicate felonies were comparable to Washington felonies. Ford , 137 Wn.2d at 475 -76. Likewise, in Lopez , the State failed to produce copies of the judgments on the predicate felony offenses. 147 Wn.2d at 520 . Thus, the State did not meet its initial burden of proof on the predicate offenses and could not get a "second bite at the apple" upon remand.
¶38 Mr. Cadwallader argues here that the State egregiously failed its burden of proof because it did not even allege the 1985 Kansas conviction. See majority at 881. But this assertion ignores a crucial difference between Mr.
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Cadwallader's case and the authority he cites. Here, the 1985 Kansas conviction was not a predicate offense, and the State did not need to present evidence of it.
¶39 At the time of Mr. Cadwallader's conviction, it was the understanding of both parties that the 1990 SRA amendments foreclosed the "washing out" of Mr. Cadwallader's 1978 rape conviction. Majority at 875. While the 1999 decision in Cruz later rejected that reading of the 1990 amendments, in 1998 all the State needed to show was evidence of the 1978 rape conviction and Mr. Cadwallader's 1993 robbery conviction to sentence him under the Persistent Offender Accountability Act (POAA), RCW 9.94A.505 , .555, and .570 and RCW 9.94A.030 (28), (32)). In fact, that is what the State did. Unlike the prosecution in Ford and Lopez , here the State met its burden of proof in 1998. Today the majority apparently seeks to increase the State's burden by requiring it to use time and resources to allege every conceivable crime against a defendant under the POAA, as opposed to every applicable crime. Such a result is not consistent with the stated purpose of the SRA to "[m]ake frugal use of the state's and local governments' resources." RCW 9.94A.010 (6).
¶40 And though our existent law may not quite answer this question, the legislature would likely not endorse the majority's decision to prohibit evidence of Mr. Cadwallader's 1985 conviction on remand. The 2002 amendments to the SRA expressed the legislature's displeasure with the majority decisions in Cruz , 139 Wn.2d 186 , and State v. Smith , 144 Wn.2d 665 , 674-75, 30 P.3d 1245, 39 P.3d 294 (2001) ("[b]ecause the SRA contains no explicit legislative intent for retroactivity, and the 1997 amendment [to juvenile "wash-out" provisions] is neither curative nor remedial, we hold the 1997 amendment cannot be applied retroactively."). The legislature admonished that neither Cruz nor Smith "properly interpreted legislative intent." LAWS OF 2002, ch. 107, § 1; RCW 9.94A.030 (13). "When the legislature enacted the sentencing reform act . . . and each time the legislature has amended the act,
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the legislature intended that an offender's criminal history and offender score be determined using the statutory provisions that were in effect on the day the current offense was committed ." Id . (emphasis added); State v. Varga , 151 Wn.2d 179 , 183, 86 P.3d 139 (2004) (holding that the 2002 SRA amendments "require that sentencing courts include defendants' previously 'washed out' prior convictions when calculating defendants' offender scores at sentencing for crimes committed on or after the amendments' effective date.").
¶41 Richard Cadwallader's offense occurred in 1997 and is not encompassed by the legislative intent announced in the 2002 SRA amendments. Nevertheless, such legislative sentiments indicate that the legislative intent behind the SRA is best served when courts err on the side of "[e]nsur[ing] that the punishment for a criminal offense is proportionate to the seriousness of . . . the offender's criminal history." RCW 9.94A.010 (1). Therefore, while legislative intent does not mandate the inclusion of the 1985 conviction upon remand of Mr. Cadwallader's case, it suggests that such a course of action would be preferable to the decision the majority announces today. Even though his 1978 rape conviction washed out, Mr. Cadwallader committed a crime in 1985 that should continue to subject him to persistent offender sentencing. Thus, he can hardly claim that his continued incarceration under those laws is a miscarriage of justice necessitating collateral relief. See majority at 875.
¶42 In closing, I note that my preference to allow evidence of the 1985 conviction is in no way connected to Mr. Cadwallader's failure to object to the predicate offenses, as the State argues it ought to be. Such an argument is unpalatable to the principles underlying the burden of proof in the criminal justice system, which does and always should properly lie with the prosecution. Instead, my dissent stems from the simple fact that the State met that burden of proof at Mr. Cadwallader's sentencing hearing
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under the law in 1998, and nothing more was required of it. Accordingly, I dissent.
FAIRHURST and J.M. JOHNSON, JJ., concur with BRIDGE, J. No. 75915-4. En Banc.]
Argued June 9, 2005. Decided December 1, 2005.
THE STATE OF WASHINGTON , Respondent , v. ROBERT JAMES MORSE , Petitioner .
[1] Searches and Seizures - Consent - Joint Control - Presence of Defendant - Defendant's Consent - Necessity. One who has equal or lesser control over a premises does not have the authority to consent to a search of the premises for those who are present and have equal or greater control. "Presence" is used in accordance with its ordinary meaning. A person having equal or greater control is not absent merely because the police are unaware of the person's presence; nor is such a person "absent" until such time as the police come upon the person during a warrantless search.
[2] Searches and Seizures - Consent - Authority To Consent - Question of Law or Fact. "Authority" to consent is a matter of status or control and is a question of law.[3] Searches and Seizures - Consent - Police Procedure. The better practice for a law enforcement officer who is seeking to search a residence upon the consent of an occupant thereof is to first ask for the man and/or woman of the house. If the man and/or woman of the house is not present, a brief inquiry could determine the identity of the person present and that person's authority to give consent. This
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would give police officers the information needed to properly proceed and to ensure protection of constitutional rights.
[4] Searches and Seizures - Warrantless Search - Validity - State Constitution. Warrantless searches are per se unreasonable under Const. art. I, § 7. The warrant requirement is especially important for purposes of Const. art. I, § 7 as it is the warrant that provides the requisite "authority of law" for conducting a search.
[5] Searches and Seizures - Warrantless Search - Validity - Warrant Exception - Necessity. A warrantless search violates Const. art. I, § 7 if the search is not justified by a judicially recognized exception to the warrant requirement. Exceptions to the warrant requirement are jealously and carefully drawn.
[6] Searches and Seizures - Warrantless Search - Validity - Burden of Proof. The State bears the burden of proving that a warrantless search or seizure is justified by a recognized exception to the constitutional warrant requirement.
[7] Searches and Seizures - Warrantless Search - State and Federal Protection - Analytical Approaches - Differences. Fourth Amendment analysis of a challenge to the validity of a warrantless search or seizure focuses on whether law enforcement officers acted reasonably under the circumstances. Under Const. art. I, § 7, the analysis focuses on the expectations of the people searched and, if consent is involved, on the scope of the consenting party's authority.
[8] Searches and Seizures - Consent - Joint Control - Common Authority - In General. Under Const. art. I, § 7, the validity of a person's consent to a search of premises over which the person has common authority with a co-occupant is based on the person's independent authority to so consent and the reasonable expectation of the co-occupant about that authority. The consenting party must be able to permit the search in his or her own right, and it must be reasonable to find that the co-occupant has assumed the risk that the person might permit a search.
[9] Searches and Seizures - Consent - Joint Control - Common Authority - What Constitutes - Effect. The common authority of co-occupants of a premises to consent to a search thereof is analyzed in terms of "control" over the premises. The right of control may be based on consent by one with an equal or superior interest in the premises or on some independent authority. The touchstone of this inquiry is that the person with common authority must have free access to the shared area and authority to invite others into the shared area. Such access must be significant enough that it can be concluded that the nonconsenting co-occupant assumed the risk that the consenting co-occupant would invite others into the shared area.
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[10] Searches and Seizures - Consent - Joint Control - Houseguest - Authority To Consent - Scope. When a guest is more than a casual visitor and has the "run of the house," the guest's lesser interest in the property is sufficient to render the guest's consent to search the premises effective only as to the areas therein where a visitor would normally be received.
[11] Searches and Seizures - Consent - Authority To Consent - Scope - In General. The scope of consent given for a warrantless search must not exceed the scope of the consenting person's authority. The person may have free access to some areas of the premises but not to all areas.
[12] Searches and Seizures - Consent - Joint Control - Common Authority - Scope - Question of Law or Fact. The existence and scope of a co-occupant's common authority to consent to a search of the premises is a question of law that is determined by the court based on the facts of the particular case.
[13] Searches and Seizures - Consent - Authority To Consent - Scope - Determination - Police Officer's Subjective Belief. A police officer's subjective belief, made in good faith, about the scope of a consenting party's authority to consent cannot be used to validate a warrantless search under Const. art. I, § 7.
[14] Searches and Seizures - Consent - Authority To Consent - Apparent Authority - Validity - State Constitution. The validity of a person's consent to a warrantless search of a place or thing under Const. art. I, § 7 may not be based on the person's apparent authority to give consent.
[15] Searches and Seizures - Consent - Entry Into Dwelling - Right To Refuse - Warning - Necessity - Burden on Police. The burden is on the police to obtain consent from a person whose property they seek to search. In obtaining that consent, the police are required to tell the person from whom they are seeking consent that the person may refuse to consent, may revoke consent, or may limit the scope of the consent given.
[16] Searches and Seizures - Consent - Fruit of Illegality - Unlawful Search - Effect. Under the exclusionary rule, evidence seized under an unlawful consent to search must be suppressed.
FAIRHURST , J., ALEXANDER , C.J., and BRIDGE , J., concur by separate opinion.Nature of Action: Prosecution for unlawful possession of a controlled substance. Evidence of the crime was discovered by police officers in the defendant's bedroom in the course of a warrantless search of the defendant's residence that was conducted upon the consent of a houseguest. The
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defendant was at home at the time, but the police did not request his consent to search the apartment until after they found contraband in his bedroom.
Superior Court: The Superior Court for Snohomish County, No. 02-1-01516-1, Gerald L. Knight, J., entered a judgment of guilty on February 10, 2003.
Court of Appeals: The court affirmed the judgment by an unpublished opinion noted at 121 Wn. App. 1079 (2004).
Supreme Court: Holding that the search was unlawful, the court reverses the decision of the Court of Appeals and the judgment.
Susan F. Wilk (of Washington Appellate Project ), for petitioner.
Janice E. Ellis , Prosecuting Attorney, and Seth A. Fine and Thomas M. Curtis , Deputies, for respondent.
¶1 CHAMBERS, J. - [1-3]Under article I, section 7 of the Washington Constitution, warrantless searches are per se unreasonable. Exceptions to the warrant requirement are jealously and carefully drawn. Properly obtained, consent to a warrantless search is one of those carefully drawn exceptions. Although Robert James Morse was at home, police gained entry into his apartment by obtaining the consent of a houseguest who, with her husband, had been at Morse's apartment for only five days. The police did not have a search warrant, were looking for another person, and did not obtain Morse's permission to search his apartment until after they found contraband in his bedroom. The State argues (1) that the houseguest had actual and apparent authority to consent and (2) that the police had no duty to obtain Morse's consent until they came upon him and then only if he objected to the search. We disagree. One who has equal or lesser control over a premises does not have
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authority to consent for those who are present and have equal or greater control. "Presence" is used in accordance with its ordinary meaning. Persons are not absent merely because the police do not know they are present, nor are they absent until police have come upon them during a warrantless search. "Authority" to consent is a matter of status or control and a question of law. The subjective beliefs and understandings of law enforcement officers are irrelevant to the question of "authority." Law enforcement officers, who seek to conduct a warrantless search based upon the exception of consent, are well advised to ask for the woman and/or man of the house before seeking consent to search a home. If the man or woman of the house is not present, a brief inquiry could determine the identity of the person present and their authority to give consent; this would give police officers the information needed to properly proceed and to assure protection of constitutional rights. The search of Morse's apartment was unlawful, and we reverse.
FACTS
¶2 On January 29, 2002, two city of Everett police officers contacted the property manager for the Deer Creek Apartments. The officers had information that Sarah Wall, who was wanted on multiple outstanding felony warrants, was staying in the apartment complex. The manager told the officers that while Wall may have stayed there in the past, she did not believe that Wall was there anymore because bounty hunters had unsuccessfully searched for her in apartment C-108 a few days earlier. She also told officers that she did not recognize Wall from a picture that they showed her. The manager told the officers that Morse was the only tenant on the lease for apartment C-108 and that she was not aware of anyone else living in that apartment.
¶3 The officers then went to Morse's apartment and knocked on the door. A woman, Pam Dangel, answered the
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door and told the officers that Wall was neither in the apartment, nor had she been there in over a week. While standing at the door, the officers did not ask Dangel if she lived at the apartment, nor did they inquire as to the nature of her relationship to Morse. Police asked only whether they could enter to search for Wall. According to the police, Dangel agreed to let them enter to look for Wall.«1»
¶4 After police entered, they learned that Dangel and her husband had been staying at Morse's apartment for only a few days. Dangel and her husband planned to stay for one additional night while their apartment was being painted. As one of the officers talked to Dangel, the other proceeded directly to the master bedroom. From outside the bedroom he saw Morse, who was sitting on his bed. The officer identified himself, indicated that he was looking for Wall, and entered the room. As he entered the bedroom, the officer looked toward a closet where he saw a scale, packaging material and a large bag with bluish powder sitting on a desk. Morse claimed that what appeared to be drug paraphernalia was his, but that what appeared to be drugs were not. Morse was then arrested and only after his arrest was his consent to search the rest of his bedroom sought and obtained.
¶5 Morse was convicted of possession of methamphetamine. On appeal, Morse argued that the warrantless search of his bedroom violated article I, section 7 of the state constitution. He argued that Dangel lacked authority to consent to the search. He also argued that because he was present and able to object to the search, the police erred by failing to get his permission prior to entering and searching his bedroom. In an unpublished opinion, the Court of Appeals rejected both arguments, finding that Dangel had both actual and apparent authority to consent to the search, and that because Morse did not explicitly
«1»Dangel disputed this fact. She claimed that she attempted to prevent the police from entering but that they forced their way in. The trial court found the police officers' testimony that Dangel told them to "come on in" more credible. Clerk's Papers at 47.
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object to the search, the police did not have to secure his consent before entering his bedroom. We granted review. State v. Morse , 153 Wn.2d 1023, 110 P.3d 213 (2005).
ANALYSIS
COMMON AUTHORITY
[4-6]¶6 Under article I, section 7 of the Washington Constitution, warrantless searches are per se unreasonable. State v. Hendrickson , 129 Wn.2d 61 , 70, 917 P.2d 563 (1996). Article I, section 7 provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Under this provision, the warrant requirement is especially important as it is the warrant which provides the requisite "authority of law." State v. Ladson , 138 Wn.2d 343 , 350, 979 P.2d 833 (1999). Exceptions to the warrant requirement are to be " 'jealously and carefully drawn.' " State v. Reichenbach , 153 Wn.2d 126 , 131, 101 P.3d 80 (2004) (quoting Hendrickson, 129 Wn.2d at 72 ). The burden of proof is on the State to show that a warrantless search or seizure falls within one of the exceptions to the warrant requirement. State v. Acrey , 148 Wn.2d 738 , 746, 64 P.3d 594 (2003) (quoting State v. Kinzy, 141 Wn.2d 373 , 382, 5 P.3d 668 (2000)).
¶7 In search and seizure cases involving cohabitants, this court has adopted the common authority rule. State v. Thompson , 151 Wn.2d 793 , 92 P.3d 228 (2004); State v. Walker , 136 Wn.2d 678 , 965 P.2d 1079 (1998); State v. Leach , 113 Wn.2d 735 , 782 P.2d 1035 (1989). Because a person's expectation of privacy is necessarily reduced when authority to control a space is shared with others, Leach , 113 Wn.2d at 739 , such persons necessarily assume some risk that others with authority to do so will allow outsiders into shared areas. We have said that the authority does not rest upon the law of property, with its attendant legal refinements, but rests rather on mutual use of the property. Id. We have, thus, justified the common authority rule based upon the theories of "reasonable expectations of
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privacy" and "assumption of risk." State v. Christian , 95 Wn.2d 655 , 659-60, 628 P.2d 806 (1981); Leach , 113 Wn.2d at 739 . In the context of a search, consent is a form of waiver. Ordinarily, only the person who possesses a constitutional right may waive that right. Cf. Walker , 136 Wn.2d 678 (wife's consent not effective as waiver of husband's constitutional right to be free from invasion of privacy). Common authority under article I, section 7 is grounded upon the theory that when a person, by his actions, shows that he has willingly relinquished some of his privacy, he may also have impliedly agreed to allow another person to waive his constitutional right to privacy.
¶8 The United States Supreme Court, interpreting the Fourth Amendment to the federal constitution, also applies the doctrine of common authority in searches involving cohabitants. Because of differences in the text of the Fourth Amendment and article I, section 7 discussed below, the United States Supreme Court adopted the apparent authority doctrine. This doctrine is grounded upon the reasonableness of the search rather than on reasonable expectations of privacy and the appropriate scope of consent. See Illinois v. Rodriguez , 497 U.S. 177, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990).
AUTHORITY TO CONSENT
¶9 The narrow issue in this case is whether a temporary guest has authority to authorize a search of the private areas of her host's home while the host is present. More broadly, this case involves the differing analytical frameworks used in applying two different constitutional provisions: the fourth amendment to the United States Constitution and article I, section 7 of the Washington Constitution.«2»
«2»The State filed a motion to strike portions of Morse's supplemental brief. That motion is denied.
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THE FOURTH AMENDMENT
[7, 8]¶10 The fourth amendment to the United States Constitution prohibits "unreasonable searches and seizures." U.S. CONST . amend. IV. The Fourth Amendment does not prohibit "reasonable" warrantless searches and seizures. The analysis under the Fourth Amendment focuses on whether the police have acted reasonably under the circumstances. The following is illustrative of the analytical approach taken under the Fourth Amendment:
The upshot was that the officers in good faith believed Miller was Hill and arrested him. They were quite wrong as it turned out, and subjective good-faith belief would not in itself justify either the arrest or the subsequent search. But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers' mistake was understandable and the arrest a reasonable response to the situation facing them at the time.
Hill v. California , 401 U.S. 797, 803-04, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971).
¶11 In Rodriguez , Justice Antonin Scalia, writing for the Court, observed that "what is at issue when a claim of apparent consent is raised is not whether the right to be free of searches has been waived , but whether the right to be free of unreasonable searches has been violated ." Rodriguez , 497 U.S. at 187. Thus, since there may be circumstances where a police officer's reasonable good faith belief that a person authorizing a search has the authority to do so, such a good faith belief may mean the search itself is reasonable under the Fourth Amendment.
ARTICLE I, SECTION 7
¶12 Unlike in the Fourth Amendment, the word "reasonable" does not appear in any form in the text of article I, section 7 of the Washington Constitution. We have also long declined to create "good faith" exceptions to the exclusionary rule in cases in which warrantless searches were based
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on a reasonable belief by law enforcement officers that they were acting in conformity with one of the recognized exceptions to the warrant requirement. State v. White , 97 Wn.2d 92 , 110, 640 P.2d 1061 (1982) ("the language of our state constitutional provision . . . shall not be diminished by . . . a selectively applied exclusionary remedy."). We have also repeatedly held that article I, section 7 provides greater protection of individual privacy than the Fourth Amendment. E.g. , State v. Jackson , 150 Wn.2d 251 , 259, 76 P.3d 217 (2003); State v. Jones , 146 Wn.2d 328 , 332, 45 P.3d 1062 (2002); State v. Vrieling , 144 Wn.2d 489 , 495, 28 P.3d 762 (2001); see also Charles W. Johnson, Survey of Washington Search and Seizure Law: 2005 Update , 28 SEATTLE U. L. Rev. 467, 587 (2005).
¶13 Under article I, section 7, whether a person can consent to the search of a premises is based upon that person's independent authority to so consent and the reasonable expectation of his co-occupant about that authority. First, the consenting party must be able to permit the search in his own right. Second, it must be reasonable to find that the defendant has assumed the risk that a co-occupant might permit a search. State v. Mathe , 102 Wn.2d 537 , 543-44, 688 P.2d 859 (1984). "In essence, an individual sharing authority over an otherwise private enclave inherently has a lessened expectation that his affairs will remain only within his purview, as the other cohabitants may permit entry in their own right." Leach , 113 Wn.2d at 739 . In short, while under the Fourth Amendment the focus is on whether the police acted reasonably under the circumstances, under article I, section 7 we focus on expectations of the people being searched and the scope of the consenting party's authority.
[9-12]¶14 In Leach , we analyzed common authority in terms of "control" over the premises. Leach, 113 Wn.2d at 739 . The right of control may be based upon consent by one with an equal or superior interest in the premises or upon some independent authority. The touchstone of the inquiry is that the person with common authority must have free
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access to the shared area and authority to invite others into the shared area. That access must be significant enough that it can be concluded that the nonconsenting co-occupant assumed the risk that the consenting co-occupant would invite others into the shared area. When a guest is more than a casual visitor and has " 'run of the house,' " her lesser interest in the property is sufficient to render consent to search effective only as to the areas of the home "where a visitor would normally be received." 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 8.5(e), at 235 (4th ed. 2004). Cf . State v. Hoggatt , 108 Wn. App. 257 , 30 P.3d 488 (2001) (defendant assumed the risk that cohabitant would allow entry to others into common areas of the apartment, such as the living room, but not into private areas such as the bedroom). Likewise, the scope of consent given must not exceed the scope of the consenting person's authority. A person may have free access to some areas of the premises but not all areas. For example, the possessor of a home may share control and access to areas such as the kitchen, the dining room, the living room, and the bathroom but not other, private areas such as the possessor's bedroom, office, basement, or attic. The existence and scope of common authority is a legal question which must be determined by the court based upon the facts of each case.
[13]¶15 This court has never used the words "apparent authority" in the context of a cohabitant's authority to consent to a search. However, the Court of Appeals based its opinion below, in part, on an earlier case of that court interpreting the Fourth Amendment. See State v. Holmes , 108 Wn. App. 511 , 519, 31 P.3d 716 (2001). In Holmes , the court stated that a person has apparent authority to consent to search if he or she "appears to have authority, so long as police have a reasonable belief in the authority of the person giving consent." Id. (emphasis added). Finding that the officers' subjective belief about the consenting party's authority was unreasonable, the Holmes court determined that even if the doctrine of apparent authority existed under the Washington Constitution, a question the
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court explicitly declined to answer, Holmes , 108 Wn. App. at 518 n.20, that subjective belief did not validate the objectively unreasonable warrantless search. We pick up where the Holmes court left off by holding that, standing alone, a police officer's subjective belief made in good faith about the scope of a consenting party's authority to consent cannot be used to validate a warrantless search under article I, section 7.
[14]¶16 In this case, the court below erroneously applied the doctrine of "apparent authority" to article I, section 7. This may have been done because in Mathe , we adopted the "common authority" test used under the Fourth Amendment, see United States v. Matlock , 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974), as the proper guide for determining questions of consent under article I, section 7. Mathe , 102 Wn.2d at 543 . Matlock , however, did not involve the doctrine of apparent authority, but rather whether a wife who was a cohabitant with her husband had actual authority over the marital residence. Because our constitution focuses on the rights of the individual, rather than on the reasonableness of the government action, the apparent authority doctrine, as articulated in Rodriguez and applied in the Fourth Amendment context is not appropriate to any analysis under article I, section 7.«3»
«3»We note that "apparent authority" as used to analyze common authority under the Fourth Amendment, is quite different than "apparent authority" as used in agency law. Under principles of agency, an agent can bind a principal when he or she has either actual or apparent authority to do so. King v. Riveland , 125 Wn.2d 500 , 507, 886 P.2d 160 (1994). Actual authority is based on the principal's objective manifestation to the agent, and apparent authority stems from the principal's objective manifestation to a third party. A party asserting apparent authority must prove that he or she actually believed that the agent had authority to bind the principal and that his or her belief is objectively reasonable. Id.
The United States Supreme Court's analysis under the Fourth Amendment seems to focus only on the second prong of apparent authority - that a party asserting apparent authority has a reasonable objective belief that the agent has authority. While we are reluctant to inject the words "apparent authority" into our article I, section 7 jurisprudence, we note that the application of the first prong of apparent authority according to agency principles may be useful in analyzing a cohabitant's authority under article I, section 7. For example, it might be appropriate to ask whether the principal, by his conduct, objectively manifested to third parties (the police) that that person had common authority over the premises. Evidence of such objective manifestations might include, for example, permitting a person to live at the premises, giving the person a key to the premises, permitting the person to share in the expenses of the premises, or permitting the person to invite guests into the premises.
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COMMON AUTHORITY WHERE A COHABITANT IS PRESENT
¶17 The State argues that Dangle had common authority to consent to a search of the premises and that when they came upon Morse, the police officers had no duty to obtain his consent. The State argues that it was Morse's affirmative duty to explicitly object to the search. It is essentially the State's position that Morse was not present in his own apartment until police found him. While such a suggestion may make sense from the perspective of the Fourth Amendment's "reasonableness" requirement, simply inquiring into whether a police officer's subjective beliefs are reasonable is not sufficient under article I, section 7.
[15]¶18 We have been quite explicit that under our constitution, the burden is on the police to obtain consent from a person whose property they seek to search. In obtaining that consent, police are required to tell the person from whom they are seeking consent that they may refuse to consent, revoke consent, or limit the scope of consent. State v. Ferrier , 136 Wn.2d 103 , 116, 960 P.2d 927 (1998). We have never held that a cohabitant with common authority can give consent that is binding upon another cohabitant with equal or greater control over the premises when the nonconsenting cohabitant is actually present on the premises. We have never held that a person is not present in her home unless and until the police come upon her. We decline to do so now.
¶19 In Leach , we held that where the police have obtained consent to search from an individual possessing, at best, equal control over the premises, "that consent remains valid against a cohabitant, who also possesses equal control, only while the cohabitant is absent." Leach 113 Wn.2d at 744 . In Walker , Mrs. Ellen Walker consented to a search of her home. Before the search began, however, Mr. Gus
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Walker, Mrs. Walker's husband, arrived. The police failed to obtain Mr. Walker's consent to search and he did not affirmatively object to the search. Contraband was found in the couple's bedroom. Only Mrs. Walker was convicted and she argued, relying on Leach , that without her husband's consent, the search was invalid as against her. While we rejected her argument, we concluded the following about Leach : "It follows from [ Leach ] that because Ellen and Gus were cohabitants and both present during the search, Ellen's consent to the search was invalid as to Gus." Walker , 136 Wn.2d at 684 .
[16]¶20 In the case before us, Morse was the sole signatory on the lease and the sole tenant in the apartment searched. As guests in Morse's apartment for five days, Dangel and her husband had limited control and, therefore, limited authority over that portion of the apartment they shared with Morse. The record, however, is unclear as to the precise scope of their authority. There is certainly insufficient evidence in the record to support a conclusion that the Dangels shared control over Morse's bedroom. Moreover, since Morse was at all times present in his apartment,«4»the State must prove that Dangel had greater authority over the areas of the premises searched in order to consent to a search that would bind Morse. We hold that the State has failed to meet its burden and that Dangel's consent to search was ineffective as to Morse. Since there is insufficient evidence to support the conviction without the fruits of the unlawful search we reverse Morse's conviction.
CONCLUSION
¶21 The Washington Constitution guarantees to its citizens that they will neither be disturbed in their private affairs, nor have their homes invaded, without authority of
«4»"Present" is defined as "being in one place and not elsewhere: being with reach, sight, or call or within contemplated limits." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1793 (1993). Since the door to Morse's bedroom was "less than ten feet" from the front door of the apartment, Report of Proceedings at 10, Morse was certainly within "reach" or "call" of the officers while they stood at his front door.
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law. CONST . art. I, § 7. Warrantless searches are per se unreasonable. Hendrickson , 129 Wn.2d at 70 . While consent is a recognized exception to the warrant requirement, all such exceptions are narrowly drawn. Reichenbach , 153 Wn.2d at 131 . Common authority to consent to a search is based upon authority to control the premises. A cohabitant who has common authority to use and control the premises has authority to consent to a search that is within the scope of that authority. Authority to control is determined by the shared use of the premises, the reasonable expectations of privacy, and the degree to which a cohabitant has assumed the risk that others will consent to a search. The scope of the authority of a cohabitant to consent extends only to areas shared by the cohabitants. When a cohabitant who has equal or greater authority to control the premises is present, his consent must be obtained and the consent of another of equal or lesser authority is ineffective against the nonconsenting cohabitant. "Presence" is used according to its ordinary meaning. A person is not absent just because the police fail to inquire, are unaware, or are mistaken about the person's presence within the premises. If the police choose to conduct a search without a search warrant based upon the consent of someone they believe to be authorized to so consent, the burden of proof on issues of consent and the presence or absence of other cohabitants is on the police.«5» Acrey , 148 Wn.2d at 746 .
¶22 Robert Morse was present in his home when police arrived at his door without a search warrant and looking for someone else. Despite his actual presence, police failed to get Morse's consent to search his apartment. Instead, they relied upon the consent of a houseguest who lacked the
«5»We recognize that issues of "common authority" and "presence" will not always be simple and straightforward. It may be difficult to determine, for example: (1) whether a child has "common authority" over her parent's home sufficient to authorize that child to consent to a warrantless search, (2) whether a farmer operating a tractor on his back forty is "present" when the police arrive at the front door of his farmhouse, or (3) whether an employee at a factory has authority to consent for an employer who is on the factory's campus, but in a another building at the time. However, such difficulties may be avoided by the police by obtaining either a search warrant or the consent of the person whose property is to be searched.
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authority to consent to a search of Morse's home that would bind Morse under the Washington Constitution. Because the search of Morse's apartment did not satisfy the requirements of article I, section 7 of the Washington Constitution, nor did police obtain valid waiver of those requirements by an effective consent, the search of Morse's home was unlawful, and the fruits of that search should have been suppressed. We therefore reverse the courts below and reverse the conviction.
C. JOHNSON, MADSEN, SANDERS, OWENS, and J.M. JOHNSON , JJ., concur.
¶23 FAIRHURST, J. (concurring) - Like the majority, I would find the search invalid, but I use our established Fourth Amendment analysis to determine that Pam Dangel did not have authority to consent to the search of Robert Morse's apartment.
¶24 We have expressly adopted the federal analysis under the Fourth Amendment for consent to search questions.«6» State v. Mathe , 102 Wn.2d 537 , 543, 688 P.2d 859 (1984) (citing United States v. Matlock , 415 U.S. 164, 170-71, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974)). The Fourth Amendment generally prohibits the warrantless entry to a person's home to conduct a search. Illinois v. Rodriguez , 497 U.S. 177, 181, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). We recognize certain limited exceptions to this general prohibition, however, and the State "bears the burden of showing a warrantless search falls within one of these exceptions." State v. Thompson , 151 Wn.2d 793 , 802, 92 P.3d 228 (2004).
«6»Although the majority correctly notes our conclusion that article I, section 7 provides greater protection of individual privacy than the Fourth Amendment, we have never analyzed that protection in the context of consent to search questions. Majority at 10. We do not consider the constitutionality of a claim under the Washington Constitution unless a party provides the independent analysis required by State v. Gunwall , 106 Wn.2d 54 , 61-62, 720 P.2d 808 (1986). State v. Ferrier , 136 Wn.2d 103 , 110, 960 P.2d 927 (1998). Because neither party addressed this question until the supplemental briefs to this court and it can be resolved based on our existing consent to search jurisprudence, we should decline to reach the question.
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¶25 One exception to the warrant requirement is consent. Id. at 803. To meet its burden of showing that consent was valid, the State must show that (1) the consent was voluntary, (2) the person giving consent had authority to consent, and (3) the search did not exceed the scope of the consent. Id. This case presents only the question of whether the second prong of the test has been met. Initially, we must determine whether Dangel had authority to consent to a search of any part of Morse's apartment. If she did, we must determine the effect, if any, on the police officers' encounter with Morse in the bedroom.
¶26 Because the State did not show that Dangel had either actual common authority or apparent authority to permit the police officers to search Morse's apartment, the entire search was invalid.
ISSUES
¶27 A. Did Dangel have common authority over Morse's apartment?
¶28 B. Did Dangel have apparent authority to consent?
¶29 C. What was the effect, if any, of the encounter with Morse in his bedroom?
ANALYSIS
A. Common authority
¶30 A third party may consent to a search of premises only if that person has "common authority" over the premises. Mathe , 102 Wn.2d at 543 . A person has common authority over the premises if that person (1) is able to permit the search in his or her own right and (2) if the nonconsenting party has assumed the risk that the other person might permit a search. Thompson , 151 Wn.2d at 804 . " 'Common authority' " is based on the " 'mutual use of the property by persons generally having joint access or
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control for most purposes.' "«7» Rodriguez , 497 U.S. at 181 (quoting Matlock , 415 U.S. at 171 n.7). The third party's interest is not merely a property interest, but a recognition that "any of the co-inhabitants has the right to permit the inspection." Matlock , 415 U.S. at 171 n. 7. To qualify as a coinhabitant, the State must show that the person had "equal control over the premises." Thompson , 151 Wn.2d at 805 .
¶31 We have found that a person had common authority where both parties were signatories on the lease for the premises or where the premises were jointly occupied by a husband and wife. State v. Leach , 113 Wn.2d 735 , 738, 782 P.2d 1035 (1989) (cotenants); State v. Walker , 136 Wn.2d 678 , 681, 965 P.2d 1079 (1998) (husband and wife). We have found that there was not common authority where a son was living on only a portion of his parents' property and did not pay rent. See, e.g ., Thompson , 151 Wn.2d at 806 . In Rodriquez , the United States Supreme Court held that the defendant's former roommate did not have common authority because, although she had a key, she never went to the house when Rodriguez was not home, her name was not on the lease, and she did not pay rent.
¶32 To find that Dangel, a temporary guest, had common authority over Morse's apartment, we would have to conclude that she exercised such joint control over Morse's apartment that she could be considered a coinhabitant. The record does not support such a conclusion. Although the record suggests that Dangel was free to move about the apartment and go into any room, it also indicates that Dangel was staying at the apartment for only seven days and that she did not pay any rent. The record is silent as to whether Dangel had a key to the apartment or whether she was dependent on Morse for access. On balance, Dangel's control over the apartment is far more analogous to that of
«7»Authority to consent under the common authority test refers to the person's authority in fact , or actual authority, as opposed to the authority that a police officer might reasonably believe the person has, or apparent authority. See Rodriguez , 497 U.S. at 181-82.
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the former roommate in Rodriguez and the son in Thompson , than it is to the cotenant in Leach or the wife in Walker . For these reasons, Dangel did not meet the criteria of a coinhabitant and she did not have common authority over the premises. Because Dangel did not meet the criteria of a coinhabitant, we need not decide whether Morse assumed the risk that she would consent to a search of his apartment.
B. Apparent authority to consent
¶33 If a third party does not have common authority over the premises, consent may still be valid if the third party had "apparent" authority to consent. Rodriguez , 497 U.S. at 188. Rodriquez established a two pronged test for determining whether a third party has apparent authority. A third party has apparent authority to consent if " 'the facts available to the officer at the moment . . . warrant a man of reasonable caution in the belief' that the consenting party had authority over the premises?" Id. (emphasis added) (quoting Terry v. Ohio , 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (internal quotation marks omitted). However, if the surrounding circumstances are such that a reasonable person would doubt that the consent was valid, police officers must conduct further inquiry. Id.
¶34 The majority is correct that this court has never explicitly applied the apparent authority test with reference to a consent to search question. Majority at 11. The Washington Court of Appeals and courts in other jurisdictions have applied the federal apparent authority test, however, and although those rulings are not binding on this court, they provide insight into the application of the test.
¶35 Division One of the Court of Appeals has held that a temporary guest does not have apparent authority to admit police officers to conduct a search or execute an arrest warrant. State v. Holmes , 108 Wn. App. 511 , 519-20, 31 P.3d 716 (2001) (because the person who claimed to be a coinhabitant did not have a key, police officers should have doubted her authority to consent, despite her explicit assur
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ance that she lived there) ; State v. Ryland , 65 Wn. App. 806 , 829 P.2d 806 (1992) (a houseguest who had spent the previous night on the living room couch did not have apparent authority because the officer did not inquire into the extent of the guest's authority).
¶36 Other jurisdictions that have applied the apparent authority test have reached conflicting conclusions, however. Apparent authority has been found when the third party provided police officers with indicia of authorization prior to being admitted, or when the third party's relationship to the defendant suggested such authority. Flanagan v. State , 440 So. 2d 13, 15 (Fla. Dist. Ct. App. 1983) (third party who engaged in lengthy negotiations with police prior to allowing them to enter trailer had apparent authority); People v. Shaffer , 111 Ill. App. 3d 1054, 1059, 444 N.E.2d 1096, 1099, 67 Ill. Dec. 612 (1982) (defendant's brother, although not an occupant of "indefinite duration," was not merely a casual visitor); Nix v. State , 621 P.2d 1347, 1350 (Alaska 1981) (defendant's friend, who occasionally spent the night at the apartment, had apparent authority to admit defendant's sister accompanied by an undercover police officer).
¶37 Courts in other jurisdictions have concluded that a third party did not have apparent authority when the police made no inquiry about the third party's authority prior to entering. State v. Buhler , 137 Idaho 685, 52 P.3d 329, 332-33 (Ct. App. 2002) (tenant's guest did not have apparent authority because police did not know how long he had been there, whether he had a key, or whether he had free access to the premises); People v. Pickens , 275 Ill. App. 3d 108, 655 N.E.2d 1206, 1210, 211 Ill. Dec. 823 (1995) (officers could not accept at face value a consenting party's apparent assumption that he has authority; police should have inquired further into social guest's authority). In addition, one federal district court has held that a defendant's girl friend did not have apparent authority to permit a search of his apartment when the police failed to make further inquiry about the girl friend's claim that she was autho
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rized. United States v. Gonzalez Athehorta , 729 F. Supp. 248, 258 (E.D.N.Y. 1990).
¶38 In this case, nothing that Dangel did or said would give a reasonable person the belief that she had authority to consent to a search of the premises. Both parties agree that the police officers asked Dangel just two questions when she answered the door: if Ms. Wall was in the apartment, and if they could come in. Although the parties dispute whether Dangel actually told the officers they could enter, it is clear that the officers did not ask any questions that might elicit information about whether she was a resident of the apartment before they entered.
¶39 The record also shows that the officers knew from prior discussion with the apartment manager that Morse was the only person on the lease and the apartment manager thought Ms. Wall had departed because bounty hunters had been there several days earlier. In addition, it was not until after the officers had already entered the apartment that Dangel told the officers that she was staying at the apartment for about a week. Even then, the officers did not make any further inquiries to validate her authority over the premises. There was no indication that she had independent access to the apartment, received mail there, or shared expenses with Morse. Indeed, the only evidence in the record that even suggests Dangel had authority to let the police enter was a statement she made during the suppression hearing. However, that statement was made long after the event and has no bearing whatever on what the officers may have believed at the time .
¶40 Based on the above analysis, the officers were not justified in believing that Dangel had apparent authority to consent to a search of any part of Morse's apartment.
C. Entry to Morse's bedroom
¶41 The Mathe common authority rule applies only when the nonconsenting coinhabitant is absent. Thompson , 151 Wn.2d at 804 . If an equal coinhabitant is present and "able to object" at the time of the search, police must obtain
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that person's consent as well for the search to be valid as to him or her. Walker, 136 Wn.2d at 683 -84.
¶42 We have never addressed whether a coinhabitant with an inferior interest may consent to a search as to a superior coinhabitant . Nor have we considered what law enforcement officers must do if a coinhabitant is present but elsewhere on the premises when a search begins and the coinhabitant's presence is discovered during the search .«8»Neither question need be answered here, however, because Dangel was not a coinhabitant and did not have either common authority or apparent authority over the premises. Therefore, she was not authorized to allow the police officers to enter the apartment in the first place, much less enter Morse's bedroom.
CONCLUSION
¶43 I concur with the majority's result, but not its analysis. Because the State failed to show that Dangel met the Fourth Amendment tests for common authority or apparent authority over Morse's apartment, the search of Morse's apartment was invalid as to him.
ALEXANDER, C.J., and BRIDGE, J., concur with FAIRHURST, J.
«8»The most comparable situation we have considered to date was a case in which a husband arrived at the premises he shared with his wife while police were in the process of conducting a search that had been permitted by his wife. Walker , 136 Wn.2d at 681 . We held that the wife's consent was invalid as to the husband even though the husband did not object to the search at the time.