Supreme Court of the State of Colorado

Case Number: 2017 CO 80 5

Judge: Monica M. Márquez

Court: Supreme Court of the State of Colorad

Plaintiff's Attorney:

Cynthia H. Coffman, Attorney General 19
Carmen Moraleda, Assistant Attorney General

Defendant's Attorney:

Douglas K. Wilson, Public Defender
Kielly Dunn, Deputy Public Defende

Description: Review of a trial court’s suppression order presents a mixed question of law and
fact. People v. Simpson, 2017 CO 25, ¶ 12, 392 P.3d 1207, 1210. In reviewing a trial
court’s suppression ruling, we defer to the trial court’s findings of historical fact that are
supported by competent evidence in the record, but we assess the legal effect of those
historical facts de novo. Id. We may affirm a trial court’s suppression ruling on any
grounds supported by the record. Moody v. People, 159 P.3d 611, 615 (Colo. 2007)
(“[A]ppellate courts have the discretion to affirm decisions, particularly denial of
suppression motions, on any basis for which there is a record sufficient to permit
conclusions of law, even though they may be on grounds other than those relied upon
by the trial court.”).
B. Fourth Amendment Principles
¶14 The Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures. U.S. Const. amend. IV. A parallel provision of the Colorado
Constitution likewise protects against unreasonable searches and seizures and is
1 We granted certiorari to review the following issue: Whether a police officer’s entry into the defendant’s hotel room constituted an unreasonable entry that violated the Fourth Amendment, where the officer was invited by the defendant’s father and the defendant herself consented to the entry.


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generally coextensive with the Fourth Amendment. Colo. Const. art. II, § 7; Simpson,
¶ 16, 392 P.3d at 1211.
¶15 The Fourth Amendment does not proscribe all government searches; rather, it
proscribes only those that are unreasonable. Florida v. Jimeno, 500 U.S. 248, 250 (1991).
A warrantless entry into a person’s home is presumptively unreasonable unless it falls
within a recognized exception to the Fourth Amendment’s warrant requirement. See
People v. Taube, 864 P.2d 123, 129 (Colo. 1993).
¶16 One such recognized exception is the voluntary consent of a person authorized
to grant such consent. United States v. Matlock, 415 U.S. 164, 170–71 (1974). The
Supreme Court has long approved of consensual searches “because it is no doubt
reasonable for the police to conduct a search once they have been permitted to do so.”
Jimeno, 500 U.S. at 250–51. Where a third party (rather than the subject of the search)
communicates consent, the search is invalid unless the third party has the authority to
consent to the particular search at issue. Stoner v. California, 376 U.S. 483, 487–90
(1964). A third party’s authority to consent to a search of a premises typically stems
from the third party’s “common authority” over the premises, arising from “mutual use
of the property by persons generally having joint access or control for most purposes.”2
2 Additionally, a defendant’s right to be free from unconstitutional searches is not violated when an officer reasonably, but mistakenly, concludes that a third party possesses the requisite “common authority” to consent. Illinois v. Rodriguez, 497 U.S. 177, 181, 187–89 (1990); Petersen v. People, 939 P.2d 824, 830 (Colo. 1997). In these circumstances, the consent given is invalid, but there is nevertheless no Fourth Amendment violation because the government’s search based on the appearance of the requisite authority is not unreasonable. Rodriguez, 497 U.S. at 183–84.


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Matlock, 415 U.S. at 171 n.7; People v. Strimple, 2012 CO 1, ¶ 21 n.7, 267 P.3d 1219, 1224
n.7. However, both the Supreme Court and this court have also recognized a third
party’s authority to consent to a search where the subject of the search has conferred
authority to consent to the third party. See Stoner, 376 U.S. at 487–89 (discussing
whether police had a basis to believe that the defendant had authorized a hotel night
clerk to permit police to search the defendant’s room); Petersen v. People, 939 P.2d 824,
829 (Colo. 1997) (discussing “authority conferred to an agent by express or implied
delegation”).
¶17 In the context of any third-party consent—as in all Fourth Amendment
inquiries—the touchstone for determining the constitutionality of the search is
reasonableness, Jimeno, 500 U.S. at 250, and “[w]hat is reasonable depends upon all of
the circumstances surrounding the search or seizure and the nature of the search or
seizure itself,” United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). Of
“great significance” in assessing the Fourth Amendment reasonableness of a search
based on third-party consent are our culture’s “widely shared social expectations,
which are naturally enough influenced by the law of property, but not controlled by its
rules.” Georgia v. Randolph, 547 U.S. 103, 111 (2006); see also Rakas v. Illinois, 439 U.S.
128, 143 n.12 (1978) (subject’s reasonable expectation of privacy depends in part on
“understandings that are recognized and permitted by society”); Minnesota v. Olson,
495 U.S. 91, 99–100 (1990) (same).
¶18 Regardless of social expectations, however, the consent given must be voluntary,
as “determined from the totality of all the circumstances.” Schneckloth v. Bustamonte,


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412 U.S. 218, 227 (1973). Consent to a search need not be express, but may be implied
from the context and circumstances. See Birchfield v. North Dakota, 136 S. Ct. 2160,
2185 (2016) (“[C]onsent to a search need not be express but may be fairly inferred from
context . . . .” (citing Florida v. Jardines, 133 S. Ct. 1409, 1415–16 (2013), and Marshall v.
Barlow’s, Inc., 436 U.S. 307, 313 (1978))); People v. Hyde, 2017 CO 24, ¶ 21, 393 P.3d 962,
967. In addition, the scope of consent given is limited to “that of ‘objective’
reasonableness”—that is, what “the typical reasonable person [would] have understood
by the exchange [with] the officer” about the nature and extent of the search that was
authorized. Jimeno, 500 U.S. at 251.
C. Application
¶19 Given the Fourth Amendment’s defining emphasis on reasonableness and the
“great significance” given to “widely shared social expectations,” Randolph, 547 U.S. at
111, we conclude that the officer’s limited entry into Stock’s hotel room, in her
immediate presence and without her objection, did not violate Stock’s Fourth
Amendment right to be free from unreasonable searches. As previously noted, we need
not decide whether Stock’s father had authority to consent to a search of the entire
room; instead, the narrow question before us is whether Stock’s father could consent to
the officer’s limited entry a few steps inside the door.
¶20 On the facts of this case, we conclude that Stock conferred on her father the
authority to consent to the officer’s limited entry. The third party who allowed the
officer to enter the room was an adult family member and Stock’s invited guest. He
answered the hotel-room door and stepped aside to allow the officer to step inside, and


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did so in Stock’s immediate presence and with her knowledge. Stock did not object in
any way to her father’s actions; to the contrary, the events immediately after the
officer’s entry confirm that Stock had in fact conferred to her father the authority to
consent to the officer’s limited entry.
¶21 First, after the officer stepped into the room, the father asked whether he should
stay, indicating both that the officer’s arrival was expected, and that the father had
permitted the officer to enter for the purpose of speaking with Stock, who was present
in the room just a few feet away. Next, Stock expressly agreed to talk with the officer
and proceeded to clear a seat for him in the room. These actions are inconsistent with
Stock’s present contention that she did not consent to the officer’s entry; to the contrary,
they further confirm that she had, in fact, given her father authority to permit the officer
to enter the hotel room to speak with her. Although Stock testified at the suppression
hearing that she did “not really” want the officer to enter the room and speak to her, the
trial court did not credit that testimony, instead finding that aspects of Stock’s
testimony were contradictory and that her credibility was affected by her prior felony
conviction and her self-interest in having the suppression motion granted.
¶22 Further, the trial court’s conclusion that the father’s gestures constituted an
expression of consent to enter is supported by substantial evidence. The trial court
found that the father “welcomed [the officer] into the room by opening the door fully
for him and stepping back.” On this issue, the officer testified that the father stepped
back from the door, and the trial court specifically found that the officer’s account of the
entry was credible.


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¶23 From the officer’s side of the interaction, the opening door revealed an adult
whom the officer knew was a close relative of Stock’s. And although the officer knew
the father was not staying in that room, the prevailing social expectation is that visitors
can rely on invitations to enter given by adult guests of a dwelling because one
generally does not answer a door if one has not been authorized by the resident to
either admit or turn away visitors. See, e.g., People v. Ledesma, 140 P.3d 657, 705 (Cal.
2006) (“[T]he police may assume, without further inquiry, that a person who answers
the door in response to their knock has the authority to let them enter.”). That is, there
is a common social expectation that houseguests will confer with residents before
admitting a visitor. Cf. Olson, 495 U.S. at 99 (“[F]ew houseguests will invite others to
visit them while they are guests without consulting their hosts . . . .”). Additionally,
that the person who answered the door was known to be a close relative of Stock’s
further suggests that the two would be in communication, giving Stock the opportunity
to express her wishes regarding the admission or refusal of guests.
¶24 The officer also knew that Stock was physically present in the room because the
hotel owner had told the officer he could find Stock in her room. And because Stock’s
hotel room was a typical single-room unit, Stock presumably would have been aware of
the officer’s knock, giving her the opportunity to turn away the police officer, had she
so wished. Given our “widely shared social expectations,” the immediate physical
presence of the resident who is the subject of a search is a particularly significant fact
because that individual has a clear opportunity to refuse consent. Fernandez v.
California, 134 S. Ct. 1126, 1133–35 (2014); Randolph, 547 U.S. at 113–20; see also


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Strimple, ¶¶ 31–39, 267 P.3d at 1225–26. Indeed, under such circumstances, the
“inhabitant’s express refusal of consent to a police search is dispositive as to him,
regardless of the consent of a fellow occupant”: the police may not thereafter conduct a
consent search in the inhabitant’s presence. Randolph, 547 U.S. at 122–23.
¶25 Importantly, the nature and scope of the consent given in this case were also
limited. See Florida v. Jardines, 133 S. Ct. 1409, 1416 (2013) (“The scope of a license—
express or implied—is limited not only to a particular area but also to a specific
purpose.”). Although the Fourth Amendment “draw[s] a firm line at the entrance to the
house,” Payton v. New York, 445 U.S. 573, 590 (1980), the subject of a consent search is
free to modify that firm line by “delimit[ting] as he chooses the scope of the search to
which he consents,” Jimeno, 500 U.S. at 252; see also People v. Arapu, 2012 CO 42, ¶ 16,
283 P.3d 680, 684 (“[C]onsent . . . may include express or implied limitations.”).
¶26 Here, the father allowed the officer merely to step past the entryway for the
limited purpose of speaking to the father and Stock, and not for the purpose of
searching the room for evidence. Had the father suggested that the officer could rifle
through Stock’s belongings, it would not have been reasonable for the officer to infer
that the father had authority to consent to such a search without further inquiry. See
People v. McKinstrey, 852 P.2d 467, 473 (Colo. 1993) (“[P]olice officers . . . should make
reasonable inquiries when they find themselves in ambiguous circumstances regarding
the authority of the third party to consent to the search.”); cf. Randolph, 547 U.S. at 112
(“‘[A] child of eight might well be considered to have the power to consent to the police
crossing the threshold into [the entryway]’ . . . but no one would reasonably expect such


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a child to be in a position to authorize anyone to rummage through his parents’
bedroom.” (quoting 4 Wayne LaFave, Search and Seizure § 8.4(c) (4th ed. 2004))).
¶27 In sum, considering the totality of these circumstances, we reach the same
conclusion as the trial court: that the father consented to the officer’s limited entry into
Stock’s hotel room on her behalf, with Stock’s authorization.
¶28 Stock argues that instead of entering into the hotel room upon the father’s
gesture of invitation, the officer should have waited outside the threshold to obtain
consent directly from Stock herself. However, the Supreme Court has cautioned against
treating third-party consent cases as inquiries into alternative measures the police might
have taken. Randolph, 547 U.S. at 122 (reasoning that inviting other cotenants to refuse
consent would transform “every [third-party] consent case [into] a test about the
adequacy of the police’s efforts to consult with a potential objector”); cf. Illinois v.
Lafayette, 462 U.S. 640, 647 (1983) (“The reasonableness of any particular governmental
activity does not necessarily or invariably turn on the existence of alternative ‘less
intrusive’ means.”). Similarly here, we need not consider counterfactual scenarios
about what the officer might have done, given our conclusion that, on the particular
facts of this case, Stock’s father had authority to consent to the officer’s limited entry in
her immediate presence.
¶29 Finally, because we conclude that the officer’s entry was justified on other
grounds, we need not reach the People’s argument that the entry was justified under
the court of appeals’ decision in People v. White, 64 P.3d 864 (Colo. App. 2002). In that
case, the court of appeals concluded that a family friend visiting the defendant’s father


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as an overnight houseguest had authority to consent to a police entry into the area of
the father’s house where a visitor would normally be received. Id. at 871–72. As we
have explained above, the validity of a search depends not on whether a unique third
party consent rule applies to a home’s receiving area; rather, the validity of a search
depends on the particular circumstances and nature of the search and consent given. ture of the search and consent given

Outcome: