State v. Steele

                                                                               FILED
                                                                       IN THE OFFICE OF THE
                                                                    CLERK OF SUPREME COURT
                                                                        NOVEMBER 24, 2023
                                                                     STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                 

State of North Dakota,                                   Plaintiff and Appellee
      v.
Ashton Emanual Steele,                               Defendant and Appellant

                                No. 20230064

Appeal from the District Court of Mountrail County, North Central Judicial
District, the Honorable Todd L. Cresap, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Bahr, Justice.

Wade G. Enget, State’s Attorney, Stanley, ND, for plaintiff and appellee.

Rina Morales-Holmes (argued) and Kyle R. Craig (on brief), Minot, ND, for
defendant and appellant.
                               State v. Steele
                                No. 20230064

Bahr, Justice.

      Ashton Emanual Steele appeals from a criminal judgment entered after
he conditionally pleaded guilty to delivery of a controlled substance and
possession with intent to manufacture or deliver a controlled substance. The
plea reserved the right to appeal the denial of a motion to suppress evidence.
We conclude Steele had a reasonable expectation of privacy in the rented
bedroom and a reasonable officer would not believe the homeowner could
consent to a search of the bedroom. We reverse and remand.

                                       I

       The district court’s factual findings, made after an evidentiary hearing
on Steele’s motion to suppress evidence, are summarized as follows. Barbara
Lee owns a home in New Town. Police placed the home under surveillance for
drug activities. The officers saw Lee and her daughter, Jenna Walker, leave the
home and enter a motor vehicle. The officers conducted a traffic stop on the
vehicle. During the stop, the officers informed Lee they suspected a drug “plug”
was in her home. “Plug” is a term commonly used to refer to a supplier of drugs.
After 10 minutes of the officers “haranguing and badgering” Lee, she consented
to a search of the home “and told the officers that their suspect was in a back
bedroom.” Around this time, “[t]he officers further learned from Jenna Walker
that she had been paid $150 by Ashton Steele to stay in the home.”

      The officers entered the home and “proceeded to the back bedroom where
Barbara Lee told them they could find Ashton Steele.” “The door was closed.
Officers opened the door without knocking, without Ashton Steele’s consent to
entry, and without a warrant.” Inside the bedroom they discovered Steele,
along with drugs and drug paraphernalia.

      Denying Steele’s motion to suppress evidence, the district court
concluded “it was reasonable for the officers to conclude that Barbara Lee knew
Ashton Steele was in her home; she knew which bedroom he occupied within
the home; and that he had at least her tacit permission to be in the home.” The

                                       1
court held, “Under these facts, and when viewed objectively through the eyes
of the officers, the officers could reasonably conclude that Barbara Lee had
authority to authorize their entry and search into the back bedroom of her own
home.” The court then denied the motion to suppress evidence.

       Steele pleaded conditionally guilty to delivery of a controlled substance
and possession with intent to manufacture or deliver a controlled substance.
He reserved the right to appeal the order denying the motion to suppress. The
district court entered a criminal judgment.

                                      II

       The standard of review for a motion to suppress is well established. “In
reviewing the district court’s decision on a motion to suppress, we defer to the
district court’s findings of fact and resolve conflicts in testimony in favor of
affirmance.” State v. Krall, 

, 

. This Court “will
affirm the decision on a motion to suppress on appeal if there is ‘sufficient
competent evidence fairly capable of supporting the [district] court’s findings,
and the decision is not contrary to the manifest weight of the evidence.’” 

(quoting State v. Mayland, 

, 

). However,
“[w]hether law enforcement violated constitutional prohibitions against
unreasonable search and seizure is a question of law.” State v. Schmidt, 

, 

. The parties do not contest the district court’s
factual findings. Thus, based on those findings, we determine as a matter of
law whether the search and seizure was unreasonable.

       “The Fourth Amendment of the United States Constitution and Art. I,
§ 8, of the North Dakota Constitution protect individuals against unreasonable
searches and seizures.” State v. Bell, 

, 

. “When
an individual reasonably expects privacy in an area, the government, under
the Fourth Amendment, must obtain a search warrant unless the intrusion
falls within a recognized exception to the warrant requirement.” Krall, 

 (quoting State v. Gregg, 

, 

).
“Evidence discovered during a warrantless search when no exception exists
must be suppressed under the exclusionary rule.” State v. Williams, 

, 

 (quoting State v. Kuruc, 

, 

).

       In a motion to suppress, “[a] person alleging a Fourth Amendment
violation has an initial burden of establishing a prima facie case of an illegal
search or seizure.” City of Jamestown v. Casarez, 

, 

 (quoting Schmidt, 

). “However, after the defendant has
made a prima facie case, the burden of persuasion is shifted to the State to
justify its actions.” State v. Casson, 

, 

 (quoting
City of Fargo v. Sivertson, 

, 

).

                                       A

      Steele argues he had a reasonable expectation of privacy in the bedroom.

       “Whether an individual has a reasonable expectation of privacy in an
area is reviewed under the de novo standard of review.” State v. Adams, 

, 

. “Whether there is a reasonable expectation of
privacy in a given area must be decided on a case-by-case basis.” 

 (quoting
State v. Kitchen, 

, 

). “A reasonable
expectation of privacy has two elements: 1) the individual must exhibit an
actual, subjective expectation of privacy, and 2) that expectation must be one
that society recognizes as reasonable.” State v. Gatlin, 

, 

. When considering whether a person has a legitimate expectation
of privacy, this Court considers “[w]hether the party has a possessory interest
in the things seized or the place searched; whether the party can exclude others
from that place; whether the party took precautions to maintain the privacy;
and whether the party had a key to the premises.” State v. Nguyen, 

, 

 (quoting United States v. Mendoza, 

(8th Cir. 2002)). No single factor determines whether an individual has a
legitimate expectation of privacy. See State v. Gardner, 

, 

.

      The district court found it was reasonable for the officers to conclude
Steele had Lee’s tacit permission to be in the home and paid money to stay in
the home. When the officers entered the home, the door to the bedroom Steele


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occupied was closed. Steele’s actions demonstrate he excluded people from the
bedroom and “exhibit[ed] an actual, subjective expectation of privacy” in the
bedroom. Gatlin, 

. Society recognizes as reasonable an
expectation of privacy of a paying occupant in a closed bedroom. See 

 (“This
Court has recognized that overnight guests have Fourth Amendment
protection in the home of a third party and has extended that protection to nonovernight guests.”); State v. Oien, 

, 

 (“This
Court has recognized that a guest generally has a reasonable expectation of
privacy in a host’s home.”); see also State v. Williams, 

, 

 (“A hotel guest has a reasonable expectation of privacy in his hotel
room[.]”). Therefore, the court’s findings support the conclusion Steele had a
reasonable expectation of privacy in the bedroom.

       The State argues “Lee requested that law enforcement remove Steele
from her residence[.]” This Court has held “someone who is trespassing or has
been legitimately expelled from the premises searched does not have an
expectation of privacy that society recognizes as reasonable.” Oien, 

; see Williams, 

 (stating “a hotel guest no longer has
a reasonable expectation of privacy after he has been evicted from the hotel”).
In this case, unlike in Oien, Steele was not legitimately expelled from the
bedroom prior to the search. In Oien, the property manager gave the renter
verbal and written notice the defendant was not allowed on the property and
sent the defendant a “no trespass” order forbidding him from being on the
property. Oien, at ¶¶ 2, 12, 13 (“Although [defendant] may have been an
overnight guest, we conclude he is not entitled to the Fourth Amendment
protections because he did not have a reasonable expectation of privacy in [the
renter’s] apartment after he became aware the landlord legitimately forbid him
from being on Housing Authority property.”). There is not anything in the
record which demonstrates Steele received notice Lee wanted him removed.
See Williams, at ¶ 12 (“The facts and circumstances must be considered to
determine whether the defendant was evicted, including whether the hotel
took any affirmative action that was a clear and unambiguous sign of
eviction.”). Because Lee had not expelled Steele from the bedroom or taken any
affirmative action to inform Steele he was no longer welcome to stay in the



                                       4
bedroom, Steele maintained a reasonable expectation of privacy in the
bedroom.

     We hold Steele possessed a reasonable expectation of privacy in the
bedroom.

                                       B

      The State argues Lee had common authority to consent to the search of
the entire home, including the bedroom occupied by Steele.

      “Consent may be given by an individual with actual or apparent
authority.” Gatlin, 

. “Authority to consent to a search may
be exclusive to one individual, or two or more people may have common
authority.” 

 “A co-occupant’s consent to search extends only to the areas over
which that co-occupant has common authority.” Id. at ¶ 11; see also State v.
Holly, 

, 

 (“Third-party consent does not,
however, extend to a search of the premises under another person’s exclusive
control.”). Common authority “does not rest on any proprietary interest, rather
solely upon common authority.” State v. Swenningson, 

(N.D. 1980). When determining whether a party possesses common authority
over the premises, courts look to “‘mutual use of the property by persons
generally having joint access or control for most purposes . . . .’ The burden of
establishing that common authority rests upon the State.” Illinois v.
Rodriguez, 

 (1990) (quoting United States v. Matlock, 

 (1974)).

      The district court found Lee knew Steele was in her home and that Steele
had Lee’s tacit permission to be in the home. It further found Lee knew which
bedroom Steele occupied in the home and that Steele paid to be in the bedroom.
Further, the officers found the bedroom door closed when they conducted the
search. Based on the court’s findings, Lee did not have joint access or control
over the bedroom Steele rented and had permission to occupy. We conclude Lee
did not have common authority over the bedroom, and she could not consent to
a search of the bedroom.



                                       5
                                       C

      The State argues the officers reasonably believed Lee had actual or
apparent common authority to consent to the search of the bedroom occupied
by Steele.

       “[V]alid consent to search may be given by parties with actual or
apparent common authority, when viewed from the officer’s perspective.” State
v. Asbach, 

, 

 (quoting State v. Zimmerman,

 (N.D. 1995)). “Apparent authority exists where a person
of reasonable caution would believe, based on the facts available to the officer
at the time of consent, that the consenting party had authority over the place
or thing to be searched.” Gatlin, 

. However, “[e]ven when the
invitation [to search] is accompanied by an explicit assertion that the person
lives there, the surrounding circumstances could conceivably be such that a
reasonable person would doubt its truth and not act upon it without further
inquiry.” Rodriguez, 

. The district court found the officers
learned, before the search, that Lee knew what bedroom Steele was staying in,
Steele had Lee’s permission to be in the bedroom, and Steele paid to be in the
bedroom. Viewing these findings from the officers’ perspective, it was
unreasonable to believe Lee could consent to the search. See Gatlin, 

. The circumstances surrounding the search are such that a
reasonable person would doubt Lee had common authority to consent to the
search of the bedroom. See Rodriguez, 

. Therefore, the officers
could not rely on Lee’s consent to search the room.

      The district court cited State v. Zimmerman, 

 (N.D.
1995), for the proposition “[v]alid consent to search may be given by parties
with actual or apparent common authority when viewed from the officer’s
perspective.” In Zimmerman, a game warden searching for unlawfully
possessed deer obtained a warrant for a building on a farmstead. 

.
The farm house was owned by the defendant’s parents and the defendant
owned the remainder of the farm. 

 He lived in a trailer a quarter-mile away
from the farm house. 

 The warden, accompanied by another warden,
searched the building covered by the warrant. 

 The defendant’s father asked


                                       6
a warden if he had found the deer yet, told the warden the deer were in the
milking parlor, and then led the wardens to the milking parlor. 

 There were
already tracks in the snow from the house to the milking parlor and other
buildings. 

. Once at the milking parlor, the father opened the door
and led the wardens to where the deer were hidden under a tarp. 

.
This Court affirmed the district court’s finding the defendant’s father lacked
common authority over the milking parlor. 

. However, we held the
wardens “had good reason to believe” the father “had common authority over
the farm.” 

 Because “[t]he facts available to the wardens support a finding
of apparent authority[,]” we concluded “[t]he wardens did not act unreasonably
in searching the milking parlor.” 

. This case is distinguishable from
Zimmerman as a reasonable officer would not believe the officer could search
a paying guest’s bedroom with a closed door without the guest’s consent.

      We conclude officers of reasonable caution would not believe Lee could
consent to a search of the bedroom Steele was paying for and occupying with
Lee’s approval.

                                     III

      We have considered the State’s other arguments and conclude they are
either without merit or unnecessary to our decision. We reverse the order
denying suppression and the criminal judgment. We remand to the district
court to allow Steele to withdraw his guilty plea and for further proceedings
consistent with this opinion.

      Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




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