CO: Woman kicked out of house but still with the keys has no apparent authority, distinguishing Rodriguez

Colorado distinguishes Rodriguez and finds that a woman who was kicked out of a home but still had the keys had no actual authority. “Under Matlock, common authority comes from some combination of three components: use, access, and control.” Here, it all favored lack of authority to consent. People v. Morehead, 2015 COA 131, 2015 Colo. App. LEXIS 1514 (September 24, 2015):

[*15] The People’s other attempts to distinguish Rodriguez are no more persuasive. The People point to a lack of evidence that defendant ever attempted to dispossess N.H. of keys, and contrast this with the testimony in Rodriguez that the girlfriend had taken keys to the residence without Rodriguez’s knowledge. But the Court in Rodriguez indicated that it was not relying on the girlfriend’s testimony about the keys when it expressly recognized that the trial testimony was directly contradicted by the girlfriend’s pretrial testimony. Further, the fact that, here, N.H. had only moved out three days before the search is not dispositive. Cf. Rodriguez, 497 U.S. at 181 (Rodriguez’s girlfriend moved out of his residence one month before the search).

[*16] We also reject the People’s attempt to downplay the significance of N.H.’s lack of a continuing property interest after moving out. The People rely on this quote from Matlock: “Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements.” 415 U.S. at 171 n.7. As authority for this principle, Matlock cites Chapman v. United States, 365 U.S. 610 (1961), and Stoner v. California, 376 U.S. 483 (1964). Neither the landlord in Chapman nor the hotel clerk in Stoner had common authority to consent to a search, despite having a property interest in the premises. Chapman, 365 U.S. at 611-12, 616-18; Stoner, 376 U.S. at 488.

[*17] We do not read Matlock, Stoner, or Chapman to mean that property law is irrelevant to a common authority analysis. Instead, we read them to mean that a review of property interests does not necessarily control the analysis. See 4 Wayne R. LaFave, Search and Seizure § 8.3(a), at 192 (5th ed. 2012) (“[Chapman’s language limiting property analysis] is not to say, of course, that the law of property is totally irrelevant ….”). Our review of cases analyzing common authority shows support for our interpretation; courts (including the Chapman Court) consistently consider the existence or lack of a property interest as part of the common authority analysis. See Chapman, 365 U.S. at 616 (considering that landlord may have had right to enter house to view waste, but noting that entering to search went beyond viewing waste); see also Rodriguez, 497 U.S. at 181 (“Her name was not on the lease nor did she contribute to the rent.”); People v. Breidenbach, 875 P.2d 879, 888 (Colo. 1994) (“When third persons have broad rights to access and use of one’s property, one assumes the risk that they may consent to a search of those areas even if they never actually access or use the property.”).

[*18] Indeed, in cases analyzing the common authority of a person who moved out of the property subject to search, the existence or lack of a continuing property interest appears to be an important factor, if not the determining factor. The People cite no case, and we have found none, in which a court held that a person who had moved out of a residence, and had no continuing property interest, still retained common authority. Cf. Rodriguez, 497 U.S. at 181 (no common authority existed where girlfriend moved out and did not have name on lease or pay rent).

[*19] On the other hand, numerous cases have held that common authority existed where a person moved out and had a continuing property interest, usually where consent to search was given by a spouse who had moved out of the marital home. See, e.g., United States v. Trzaska, 859 F.2d 1118, 1120 (2d Cir. 1988) (wife had moved out of marital apartment); United States v. Long, 524 F.2d 660, 661 (9th Cir. 1975) (wife had moved out of marital home and was “joint owner”); People v. Payne, 839 P.2d 468, 469 (Colo. App. 1992) (wife had moved out but was “joint owner[] of the house with equal right[] of possession”); cf. United States v. Ryerson, 545 F.3d 483, 487 (7th Cir. 2008) (girlfriend had moved out but “remained connected to the home through her co-ownership” of the taxi business that the couple operated out of the house). All of the cases cited by the trial court in support of its determination that N.H. had actual authority fit into this category.

[*20] In addition to being supported by case law, our interpretation is consistent with the definition of common authority from Matlock. Under Matlock, common authority comes from some combination of three components: use, access, and control. See Matlock, 415 U.S. at 171 n.7. When a person moves out of a residence, that person’s use and access are diminished. In such circumstances, where use and access are diminished, it makes sense that courts look to Matlock’s third component of common authority: control. Because we interpret control to mean legal control, we consider a continuing property interest to be relevant to control. Therefore, where, as here, the consent-giver has been ejected from the residence, the existence or lack of a continuing property interest is particularly relevant.

[*21] We therefore conclude that Rodriguez guides our decision and that the People failed to prove that N.H. had actual authority to consent to the search of the common areas of defendant’s house.

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