               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40423

STATE OF IDAHO,                                  )      2014 Opinion No. 29
                                                 )
       Plaintiff-Respondent,                     )      Filed: April 17, 2014
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
SANTOS TENA,                                     )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia
       County. Hon. Michael R. Crabtree, District Judge.

       Order denying motion to suppress, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Ben Patrick McGreevy,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Santos Tena appeals from his judgment of conviction for possession of a controlled
substance, methamphetamine, a violation of Idaho Code § 37-2732(c)(1). Tena alleges the
district court erred by denying his motion to suppress. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Tena, thirty-one years old, lived in a room in his parents’ basement. Two officers arrived
at the residence with warrants for Tena’s arrest. As the officers approached the residence, the
garage door opened. Unable to see anyone inside, the officers entered the garage and knocked
on the door to the house. Tena’s mother answered the door and explained that Tena was asleep
in his room. When she went downstairs to retrieve him, the officers heard her and Tena arguing.
By then a third officer had arrived and the officers promptly went downstairs and arrested Tena.
As one of the officers escorted Tena to the patrol car to transport him to jail, Tena yelled not to



                                                1
let the officers into the house. The officer then secured Tena in the patrol car located to the north
of the residence.
       The other two officers remained at the residence to speak with Tena’s mother. The
officers spoke with her in English and one officer translated in Spanish, as necessary. The
officers asked if she owned the house and if she had access to it. She affirmatively answered
both questions. She also described her son as lazy, and said that he hardly ever left his room and
that she brought him meals and collected his laundry from the room. The officers then asked for
consent and explained that consent allowed them to search the house and Tena’s bedroom. After
the officer translated the relevant part of a consent form, Tena’s mother orally gave consent and
signed the form. Then, without hesitation, she took the officers to Tena’s bedroom. The room’s
door stood partially open and it had an old skeleton key lock on it. Tena’s mother later indicated
the door was never locked. The officers searched the room and found methamphetamine.
       Tena subsequently filed a motion to suppress the evidence found in his room. The
district court denied the motion, holding Tena’s mother had apparent authority to grant consent.
Tena entered a conditional guilty plea and the court sentenced him. Tena timely appeals.
                                                 II.
                                           ANALYSIS
       Tena argues his mother lacked apparent authority to consent because he objected to
allowing officers into the house. The standard of review of a suppression motion is bifurcated.
When a decision on a motion to suppress is challenged, we accept the trial court’s findings of
fact that are supported by substantial evidence, but we freely review the application of
constitutional principles to the facts as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d
1284, 1286 (Ct. App. 1996). At a suppression hearing, the power to assess the credibility of
witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is vested in the
trial court. State v. Valdez-Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v.
Schevers, 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct. App. 1999).
       The Fourth Amendment of the United States Constitution and Article I, Section 17 of the
Idaho Constitution protect the right of the people to be free from unreasonable searches and
seizures.   Without a warrant, searches and seizures within a home are presumptively
unreasonable. Kentucky v. King, __ U.S. __, __, 131 S. Ct. 1849, 1856 (2011); State v. Hansen,
151 Idaho 342, 346, 256 P.3d 750, 754 (2011). A well-established exception to the warrant


                                                 2
requirement is an individual’s consent to search. Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973); State v. Robinson, 152 Idaho 961, 965, 277 P.3d 408, 412 (Ct. App. 2012). The State
must establish that officers lawfully obtained consent. Illinois v. Rodriguez, 497 U.S. 177, 181
(1990); Hansen, 151 Idaho at 346, 256 P.3d at 754. Consent must come from someone with
actual authority to consent or from someone whose authority is reasonably apparent. Georgia v.
Randolph, 547 U.S. 103, 106 (2006); Hansen, 151 Idaho at 346, 256 P.3d at 754. When a third
party grants consent, “actual authority exists if the third party shares with the defendant
‘common authority over or other sufficient relationship to the premises or effects sought to be
inspected.’” State v. Aschinger, 149 Idaho 53, 56, 232 P.3d 831, 834 (Ct. App. 2009) (quoting
United States v. Matlock, 415 U.S. 164, 171 (1974)). The United States Supreme Court has
explained that common authority rests on:
       mutual use of the property by persons generally having joint access or control for
       most purposes, so that it is reasonable to recognize that any of the co-inhabitants
       has the right to permit the inspection in his own right and that the others have
       assumed the risk that one of their number might permit the common area to be
       searched.

Matlock, 415 U.S. at 171 n.7. Accordingly, co-inhabitants assume the risk that one of them may
consent to a search of common areas and items. Robinson, 152 Idaho at 965, 277 P.3d at 412
(citing State v. Johnson, 110 Idaho 516, 523, 716 P.2d 1288, 1295 (1986)). However, that actual
authority extends only so far as common areas and items in the common areas over which the
inhabitants share authority. Robinson, 152 Idaho at 965, 277 P.3d at 412. On the other hand,
apparent authority exists when, under the totality of circumstances, the officer reasonably
believes that the third party possesses actual authority to consent. Id. at 965-66, 277 P.3d at 412-
13 (citing Randolph, 547 U.S. at 109). Apparent authority analysis is limited to the information
known to officers prior to a search of the premises. Robinson, 152 Idaho at 966, 277 P.3d at 413.
       The district court concluded that regardless of whether Tena’s mother had actual
authority to consent, she had apparent authority to consent. The court relied on the following
information known to the officers when they conducted the search: the residence belonged to
Tena’s parents; Tena’s mother had access to the house; nothing suggested Tena locked his
bedroom door, had a key to the door, or had a means to exclude his parents from the room;
Tena’s mother accessed the room to do Tena’s laundry and bring him meals; and officers were
unaware that Tena may have paid rent to stay at the residence. One of the officers also testified


                                                 3
that Tena’s mother said she entered to clean the room. In its analysis, the district court did not
discuss that Tena yelled to his mother not to let the officers in the house. One of the officers
testified during the motion to suppress hearing that Tena “started yelling not to let [the officers]
in the house as he was taken out to the car.” Tena contends that apparent authority did not exist
because of his objection. In arguing the officers had apparent authority to search, the State relies
on the district court’s reasoning. The State also asserts that Tena’s yelling is not determinative
because he only yelled to keep the officers out of the house and not his bedroom.
       In support of his argument that officers unreasonably relied on his mother’s apparent
authority to consent, Tena offers State v. Benson, 133 Idaho 152, 983 P.2d 225 (Ct. App. 1999).
In Benson, officers responded to a residence based on reports that someone was manufacturing
methamphetamine. The homeowner answered the door and explained that her daughter lived in
the detached garage next to the house. Officers contacted the daughter and her boyfriend at the
garage, and both made it clear they did not want the officers on the property. The boyfriend was
arrested for a baggie of marijuana hanging out of his shirt pocket, and the daughter was separated
from her mother because she continued to scream at her mom not to talk with the officers. The
daughter yelled that the officers did not have a warrant and not to give them permission to
search. Having taken the mother aside, the officer asked her if the garage area was hers, if she
had access to it, and if she had any possessions inside. The mother affirmatively responded to
each question, and the officer then asked for consent to search the garage. The subsequent
search revealed evidence of methamphetamine manufacturing.
       We held that the mother lacked apparent authority to grant consent to search the garage. 1
Id. at 160, 983 P.2d at 233. In examining the reasonableness of an officer’s belief that a third
party has authority to consent, we explained that a court should examine: (1) the nature of the
joint access to the premises; (2) the presence of nonconsenting parties; and (3) whether the
nonconsenting party actively opposes entry and search. Id. at 158, 983 P.2d at 231 (quoting
United States v. Impink, 728 F.2d 1228, 1233 (9th Cir. 1984)). We held that the officers did not
have an objectively reasonable belief of authority because the daughter lived with her boyfriend



1
        We also held that the mother lacked actual authority to grant consent to search the garage.
State v. Benson, 133 Idaho 152, 156, 983 P.2d 225, 229 (Ct. App. 1999). The daughter babysat
children in lieu of rent, locked the garage when she and her boyfriend were away, and only the
daughter and boyfriend had keys to the lock.

                                                 4
in a detached garage, the mother accessed the garage with the limited purpose of storage, and
both individuals staying in the garage strenuously objected to the officers’ presence and entry.
Benson, 133 Idaho at 159-60, 983 P.2d at 232-33. This Court emphasized that officers with such
limited information are required to make a further inquiry in order to rely on the third party’s
consent when faced with an actively objecting party. Id. at 158-60, 983 P.2d at 231-33. A duty
to further inquire may exist if the officers lack an objectively reasonable basis to believe
authority exists.
       However, Benson is distinguishable in a number of respects. First, Tena was not present
and actively objecting. Officers arrested Tena and placed him in the patrol car to be transported
to jail. Second, the circumstances of the joint access are markedly different. Tena’s mother told
officers she had access to his room to bring meals, do laundry, and clean the room. Unlike
Tena’s mother, the mother in Benson merely accessed the garage for the limited purpose of
storage. Finally, the mother in Benson consented to the search of a detached garage; whereas
here, the mother gave officers consent to search a room within the mother’s own house. Thus,
the first factor does not support requiring a further inquiry.
       The remaining factors to be considered are Tena’s presence and objection to the officers’
entry. In Georgia v. Randolph, 547 U.S. 103 (2006), the United States Supreme Court examined
the reasonableness of officers relying on the consent of a wife over the refusal of the present and
objecting husband. Officers responded to the residence on a domestic dispute call. The wife
informed the officers that her estranged husband used cocaine and that the house contained
evidence of drug use. The officers asked for consent. The husband unequivocally refused, but
the wife readily consented. The subsequent search revealed incriminating evidence.
       The Court held “that a warrantless search of a shared dwelling for evidence over the
express refusal of consent by a physically present resident cannot be justified as reasonable as to
him on the basis of consent given to the police by another resident.” Randolph, 547 U.S. at 120
(emphasis added). Because the husband was present and objecting, the officers unreasonably
relied on the wife’s consent.
       In Fernandez v. California, __ U.S. __, 134 S. Ct. 1126 (2014), 2 the United States
Supreme Court clarified the breadth of a co-tenant’s ability to frustrate another tenant’s consent.



2
       The district court and the parties did not have the benefit of Fernandez.

                                                  5
In that case, officers responded to the area to investigate a possible gang-related robbery. When
officers arrived, they encountered a man who said that the “guy” was in the apartment. The
officers then observed someone run into the same building the man had pointed out. The officers
heard screaming and fighting coming from the building. Once backup arrived, they knocked and
a woman answered the door who appeared upset and had visibly fresh injuries. An officer asked
the woman to step outside to allow them to conduct a protective sweep of the residence.
Fernandez, wearing only boxer shorts, stepped into view and told the officers they did not have
the right to enter and that he knew his rights. Officers removed Fernandez from the residence
and placed him under arrest. The robbery victim identified Fernandez as the initial assailant and
officers then transported Fernandez to the police station. Approximately one hour later, one of
the officers returned to the residence and obtained consent to search from the woman. The
search resulted in the discovery of gang paraphernalia, evidence of the robbery, a knife,
ammunition, and a sawed-off shotgun.
       The Court reviewed the denial of Fernandez’s motion to suppress and noted that
Randolph’s exception requires the objecting co-tenant’s presence. Fernandez, __ U.S. at __, 134
S. Ct. at 1133. The Court stated that it “went to great lengths to make clear that its holding was
limited to situations in which the objecting occupant is present.” Id. The Court then addressed
Fernandez’s two arguments that Randolph should apply in his situation despite his absence.
Fernandez first argued that Randolph should still apply because his absence was a result of the
police having removed him.       The Court rejected this argument and clarified language in
         3
Randolph that suggested an officer’s untoward motive could make a co-tenant’s removal
invalid. The Court explained that the relevant analysis is whether the officer’s action was
objectively reasonable. Id. at __, 134 S. Ct. at 1134 (quoting King, __ U.S. at __, 131 S. Ct. at
1859). The Court then held “that an occupant who is absent due to a lawful detention or arrest
stands in the same shoes as an occupant who is absent for any other reason.” Fernandez, __ U.S.
at __, 134 S. Ct. at 1134. Thus, the removal of a defendant from the premises is proper so long




3
       “So long as there is no evidence that the police have removed the potentially objecting
tenant from the entrance for the sake of avoiding a possible objection . . . .” Georgia v.
Randolph, 547 U.S. 103, 121 (2006).

                                                6
as officers do not effectuate the removal “by means of an actual or threatened violation of the
Fourth Amendment.” See King, __ U.S. at __, 131 S. Ct. at 1862 (officer-created exigencies are
lawful unless officer’s act was objectively unreasonable in creating the exigency).
       Fernandez’s second argument was that his objection, made at the premises, remained
effective until he withdrew it. The Court again rejected Fernandez’s argument. A continuing
objection would not comport “with the ‘widely shared social expectations’ or ‘customary social
usage’ upon which the Randolph holding was based.” Fernandez, __ U.S. at __, 134 S. Ct. at
1135 (quoting Randolph, 547 U.S. at 111, 121).         Once the objecting party is absent, the
uncomfortable situation that existed from the co-tenant’s objection is likely to cease with the co-
tenant’s absence. Fernandez, __ U.S. at __, 134 S. Ct. at 1135. The rule allowing a standing
objection would also create numerous practical problems. The Court was concerned with the
difficulty of determining the proper duration of a continuing objection, the existence of common
authority over the premises after the passage of time, the procedure necessary to invoke the
continued objection, and who would be bound by the objection. Id. at __, 134 S. Ct. at 1135-36.
“If Randolph is taken at its word--that it applies only when the objector is standing in the door
saying ‘stay out’ when officers propose to make a consent search--all of these problems
disappear.” Id. at __, 134 S. Ct. at 1136.
       The Court then briefly addressed the presence requirement itself:
               In response to these arguments, petitioner argues that Randolph’s
       requirement of physical presence is not without its own ambiguity. And we
       acknowledge that if, as we conclude, Randolph requires presence on the premises
       to be searched, there may be cases in which the outer boundary of the premises is
       disputed. The Court confronted a similar problem last Term in Bailey v. United
       States, [__ U.S. __, 133 S. Ct. 1031] (2013), but despite arguments similar to
       those now offered by petitioner, the Court adopted a rule that applies only when
       the affected individual is near the premises being searched. Having held that a
       premises rule is workable in that context, we see no ground for reaching a
       different conclusion here.

Fernandez, __ U.S. at __, 134 S. Ct. at 1136. The Court does not seem to adopt Bailey’s “near
the premises” rule, but the approach taken in Bailey provides guidance on how courts are to view
an occupant’s presence in the context of Randolph.
       In Bailey v. United States, __ U.S. __, 133 S. Ct. 1031 (2013), the United States Supreme
Court defined the geographic parameters of officers’ authority to detain individuals while
executing a search warrant. Id. at __, 133 S. Ct. at 1042 (holding officers could not rely on

                                                7
authority under Michigan v. Summers, 452 U.S. 692, 705 (1981) because they were beyond
immediate vicinity of premises to be searched); see Michigan v. Summers, 452 U.S. 692, 705
(1981) (holding “a warrant to search for contraband founded on probable cause implicitly carries
with it the limited authority to detain the occupants of the premises while a proper search is
conducted” (footnotes omitted)). 4    The Court reviewed the justifications in Summers 5 and
concluded:
               A spatial constraint defined by the immediate vicinity of the premises to
       be searched is therefore required for detentions incident to the execution of a
       search warrant. The police action permitted here--the search of a residence--has a
       spatial dimension, and so a spatial or geographical boundary can be used to
       determine the area within which both the search and detention incident to that
       search may occur. Limiting the rule in Summers to the area in which an occupant
       poses a real threat to the safe and efficient execution of a search warrant ensures
       that the scope of the detention incident to a search is confined to its underlying
       justification. Once an occupant is beyond the immediate vicinity of the premises
       to be searched, the search-related law enforcement interests are diminished and
       the intrusiveness of the detention is more severe.

Bailey, __ U.S. at __, 133 S. Ct. at 1042. However, this spatial limitation deals with the
underlying policy concerns of executing a warrant. Therefore, in dealing with what constitutes
physical presence for an objecting co-tenant, we must examine the underlying justifications for
the rule in Randolph.      As noted above, Randolph is based on the widely-shared social
expectations or customary social usage that exists when a visitor is confronted with a present and
objecting resident.
       Explaining why consent by one occupant could not override an objection by a
       physically present occupant, the Randolph Court stated:
              [I]t is fair to say that a caller standing at the door of shared premises
              would have no confidence that one occupant’s invitation was a sufficiently
              good reason to enter when a fellow tenant stood there saying, “stay out.”



4
        “The rule in Summers extends farther than some earlier exceptions because it does not
require law enforcement to have particular suspicion that an individual is involved in criminal
activity or poses a specific danger to the officers.” Bailey v. United States, __ U.S. __, __, 133
S. Ct. 1031, 1037-38 (2013) (citing Muehler v. Mena, 544 U.S. 93 (2005)).
5
        “[M]inimizing the risk of harm to the officers,” that “the orderly completion of the search
may be facilitated,” and “the legitimate law enforcement interest in preventing flight in the event
that incriminating evidence is found.” Bailey, __ U.S. at __, 133 S. Ct. at 1038-40 (quoting
Michigan v. Summers, 452 U.S. 692, 702-03 (1981)).

                                                8
               Without some very good reason, no sensible person would go inside under
               those conditions.
               It seems obvious that the calculus of this hypothetical caller would likely
       be quite different if the objecting tenant was not standing at the door. When the
       objecting occupant is standing at the threshold saying “stay out,” a friend or
       visitor invited to enter by another occupant can expect at best an uncomfortable
       scene and at worst violence if he or she tries to brush past the objector. But when
       the objector is not on the scene (and especially when it is known that the objector
       will not return during the course of the visit), the friend or visitor is much more
       likely to accept the invitation to enter.

Fernandez, __ U.S. at __, 134 S. Ct. at 1135 (emphasis added) (footnote and citation omitted).
Based on Tena’s location off the premises and the circumstances of his removal, it is clear that
officers obtained consent when Tena was no longer present. 6
       When officers removed Tena from the house, he yelled back to keep the officers out of
the house. The officers then secured him in the patrol car parked off the premises. Not only was
Tena not at the front door, but he was no longer on the premises at all. There was also no chance
that Tena would return while officers spoke with his mother. The officers handcuffed and placed
Tena in the rear of the patrol car with the express purpose to transport him to jail. Any social
pressure that may have existed from Tena’s objection had been removed because Tena was no
longer in a place to express his objection and he was on his way to jail. The officers also acted
objectively reasonably by removing Tena from the premises. The officers acted under the
authority of two arrest warrants. Once they lawfully removed Tena from the premises, the
officers were free to talk with and rely on his mother’s consent to search her house. 7



6
        Though this is not a close case, the United States Supreme Court provided guidance in
such cases under the Summers context:
        In closer cases courts can consider a number of factors to determine whether an
        occupant was detained within the immediate vicinity of the premises to be
        searched, including the lawful limits of the premises, whether the occupant was
        within the line of sight of his dwelling, the ease of reentry from the occupant’s
        location, and other relevant factors.
Bailey, __ U.S. at __, 133 S. Ct. at 1042.
7
       The Court concluded Fernandez by discussing the rights of the non-objecting tenant:
       Putting the exception the Court adopted in Randolph to one side, the lawful
       occupant of a house or apartment should have the right to invite the police to enter
       the dwelling and conduct a search. Any other rule would trample on the rights of
       the occupant who is willing to consent. Such an occupant may want the police to

                                                 9
                                               III.
                                        CONCLUSION
       Officers acted under the lawful consent of Tena’s mother when searching his room.
Therefore, the district court’s order denying Tena’s motion to suppress is affirmed.
       Chief Judge GUTIERREZ and Judge LANSING CONCUR.




      search in order to dispel “suspicion raised by sharing quarters with a criminal.”
      [Randolph, 547 U.S. at 116; see also Schneckloth v. Bustamonte, 412 U.S. 218,
      243 (1973)] (evidence obtained pursuant to a consent search “may insure that a
      wholly innocent person is not wrongly charged with a criminal offense”). And an
      occupant may want the police to conduct a thorough search so that any dangerous
      contraband can be found and removed. In this case, for example, the search
      resulted in the discovery and removal of a sawed-off shotgun to which [the
      woman’s] 4-year-old son had access.
              Denying someone in [the woman’s] position the right to allow the police
      to enter her home would also show disrespect for her independence. Having
      beaten [the woman], petitioner would bar her from controlling access to her own
      home until such time as he chose to relent. The Fourth Amendment does not give
      him that power.
Fernandez v. California, __ U.S. __, __, 134 S. Ct. 1126, 1137 (2014).


                                                10
