Monday, June 28, 2010

No apparent authority

Gregory D. Bell won in State v. Kerestessy, No. 101,851 (Kan. App. June 25, 2010), affirming Judge Keeley's suppression order in a Rice County manufacture prosecution. Based on items found in Mr. Kerestessy's car, officers sought to search his residence without a warrant. When they arrived, the officer's met Michelle Konen. Ms. Konen and Mr. Kerestessy were not married, but officers knew that the couple had lived together for a few years.

The district court found that Ms. Konen voluntarily consented to search of a bus on Mr. Kerestessy's residence, but also found that she did not have apparent authority to consent to the search of the bus. The COA affirmed this finding:
As set forth in the trial court's factual findings, the facts available to the officers failed to establish that a person of reasonable caution would believe that Konen had authority over the premises to be searched. Moreover, the officers never made any attempt to ascertain whether Konen had "mutual use" of the school bus or whether she had any sort of legal interest in the school bus.

This is not, as the State contends, a case where the officers misunderstood the facts. The State argues that this case is similar to Rodriguez, where officers searched the defendant's apartment after the defendant's girlfriend told officers she lived at the apartment and used her key to unlock the door before giving offito believe Konen had apparent authority to consent to a search of the bus. Moreover, the State maintains that the officers reasonably believed Konen had apparent authority because Konen was present and nearby during the search and did not object to the search of the bus or claim she had no authority over it.

Nevertheless, Konen was not obligated to object or to volunteer such information. In addition, Konen's and Kerestessy's marital-like relationship, without further inquiry, did not show that Konen had mutual use of the school bus. Although Konen's removing the dog from outside the bus might weigh in favor of her having apparent authority over the bus, the fact that the officers needed the dog to be removed before they could enter the bus could be considered evidence that Kerestessy did not want other people, including Konen, entering his bus. Moreover, the trial court considered the dog, which Konen described as a pit bull, to be a guard dog and found it weighed against Konen having apparent authority to consent to a search of the school bus. cers permission to search the apartment, in which she kept her clothes and furniture. Unbeknownst to the officers, the girlfriend had moved out of the apartment weeks earlier and did not have actual authority to consent to the search. The United States Supreme Court determined that the officers could rely on their mistake of fact because if the facts were as they believed them to be, the girlfriend would have had the apparent authority to consent.

Thus, the issue here is not whether these officers thought Konen had the apparent authority to consent, but whether a reasonable person given the information the police had in this case would believe Konen had "mutual use" of the school bus or a legal interest in the school bus, which would give rise to apparent authority to consent to a search of the bus.

According to the State, it was reasonable to believe that Konen had the apparent authority to consent to a search of the bus because the officers knew that Konen and Kerestessy were a "couple" and that they had been a couple and had shared the premises for some length of time. Our Supreme Court has found a marital relationship is a factor to consider when determining whether a person has common authority over property. The State also contends that the fact that the dog tethered outside the bus was a puppy and a family pet and was removed by either Konen or her friend shows it was reasonable.
I'm not sure this is the right standard of review, but the result would probably be the same.

[Update: the state did not file a PR and the mandate issued on August 2, 2010.]

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