Nix v. State
Nix v. State
Opinion of the Court
On November 10, 1977, the Anchorage residence of Mr. and Mrs. Gary McDaniel was burglarized. Mrs. McDaniel told a coworker, Debbie Miller, what was taken.
In order to gain sufficient information to obtain a search warrant, Officer Mark Headlough, dressed in plain clothes, went with Miller to her brother’s apartment. Miller knocked on the door and both she and Headlough entered at the invitation of Mike Lawyer, a friend of Long’s who occasionally spent the night at the apartment. Long was asleep. Miller explained to Lawyer that she had come to leave some money for her brother. Headlough was not introduced to Lawyer and did not speak with him. Miller went into the bedroom where her brother was asleep, decided not to awaken him, left some money on the dresser and returned to the area near the door of the apartment where Headlough had been waiting. She and Headlough then left. The entire transaction took less than five minutes.
From his position near the door, Head-lough was able to observe the items stolen from the McDaniel residence arranged on open shelves. Based on his observations, a search warrant was obtained and executed the same day. The search disclosed property stolen from the residence of Dennis O’Brien as well as from the McDaniels’. The apartment was occupied by Long, the defendants, Nix, and Perry, and a fourth person, DeTemple. Based on this search Nix and Perry were arrested and eventually indicted for burglary of the McDaniel and O’Brien residences and for malicious destruction of property contained in the O’Brien home.
The defendants moved to suppress the evidence seized as a result of the search and the fruits of that evidence. Their motions were denied. Subsequently, they entered pleas of nolo contendere on all counts, reserving their right to appeal the legality of the warrantless entry of their residence.
Among the recognized exceptions to the rule that a search must rest upon a warrant are searches conducted pursuant to a valid consent.
We turn first to the question of whether Lawyer’s consent was involuntary because he did not knew Headlough was a policeman. Cases from other jurisdictions have generally held that one’s consent to entry by a policeman is not to be regarded as involuntary merely because the policeman’s identity is either not revealed or affirmatively misrepresented.
Of course, not every ruse or guise is permissible. Some, such as gaining entry by pretending to be an employee of a gas company acting on the report of a gas leak,
In this case, the standard of fairness was not violated. No affirmative misrepresentation of Officer Headlough’s identity was made. He was able to view the stolen property, openly displayed in the common area of the apartment, just as Ms. Miller and the other guests of those occupying the apartment had been able to. The limits of Lawyer’s consent were not exceeded by venturing into private rooms or prying into closed containers. Authorities in which similar police conduct has been found appropriate include United States v. Glassel, 488 F.2d 143 (9th Cir. 1973); United States v. Haden, 397 F.2d 460 (7th Cir. 1968), cert. denied, 396 U.S. 1027, 90 S.Ct. 574, 24 L.Ed.2d 523 (1970); People v. Manieri, 373 N.Y.S.2d 504 (N.Y.County Ct. 1975).
We now must determine whether Lawyer was appropriately authorized to permit Headlough to enter. The first question is whether Lawyer must have had actual authority from one of the regular occupants to permit Miller and her unknown acquaintance to enter, or merely apparent authority, in the sense that it reasonably appeared to Headlough that Lawyer had the right to invite Miller and him inside the premises. In Robinson v. State, 578 P.2d 141 (Alaska 1978) we issued a remand to the trial court with directions to conduct further hearings to determine both the actual and the apparent authority of a third party who had permitted a police entry. However, in Robinson we retained jurisdiction of the appeal pending receipt of the superior court’s findings and did not resolve the question whether the third party’s consent had to be based on actual authority or apparent authority, or both.
We now align ourselves with those authorities, representing the majority view, which hold that apparent authority alone is required.
We think that there can be little question that apparent authority existed here. Officer Headlough reasonably believed that Lawyer had the authority to allow Miller, the sister of his host, and her companion to enter the premises. It would be extraordinary if any house guest lacked such authority under similar circumstances. As LaFave observes:
[N]ote must betaken of a case . .. where the guest is actually present inside the premises at the time of the giving of the consent and the consent is merely to a police entry of the premises into an area where a visitor would normally be received. There is sound authority that, at least when the guest is more than a casual visitor and “had the run of the house,” his lesser interest in the premises is sufficient to render that limited consent effective. It may also be suggested that the apparent authority doctrine may come into play in these circumstances, so that the police are entitled to assume without specific inquiry as to that person’s status that one who answers their knock on the door has the authority to let them enter.
LaFave, supra, § 8.5 at 759.
For these reasons the judgment is AFFIRMED.
DIMOND, Senior Justice, dissents.
. The property taken included stereo equipment and statues of horses’ heads.
. This procedure has been approved as to dispositive issues in Oveson v. Municipality of Anchorage, 574 P.2d 801 (Alaska 1978) and Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
. Davis v. United States, 328 U.S. 582, 593-94, 66 S.Ct. 1256, 1261, 90 L.Ed. 1453, 1460 (1946); Zap v. United States, 328 U.S. 624, 630, 66 S.Ct. 1277, 1280, 90 L.Ed. 1477, 1483 (1946); Schraff v. State, 544 P.2d 834, 841 (Alaska 1975).
. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
. United States v. Matlock, 415 U.S. 164, 170-72, 94 S.Ct. 988, 992, 39 L.Ed.2d 242, 249-50 (1974); Robinson v. State, 578 P.2d 141, 144-45 (Alaska 1978).
. State v. Goeller, 264 N.W.2d 472 (N.D. 1978), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978) (agent posing as invitee to defendant’s party); United States v. Raines, 536 F.2d 796 (8th Cir.), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 (1976) (police officer posing as acquaintance of defendant’s friend); United States v. Ressler, 536 F.2d 208 (7th Cir. 1976) (police officers posing as acquaintances); and People v. Nisser, 189 Colo.
. People v. Jefferson, 43 A.D.2d 112, 350 N.Y.S.2d 3 (1973); W. LaFave, Search and Seizure § 8.2, at 683 (1978).
. On remand Robinson was dismissed.
. United States v. Peterson, 524 F.2d 167 (4th Cir. 1975), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976); United States v. Turbyfill, 525 F.2d 57 (8th Cir. 1975); United States v. Grigsby, 367 F.Supp. 900 (E.D.Ky. 1973); State v. Miller, 159 N.J.Super. 552, 388 A.2d 993 (1978); People v. Gorg, 45 Cal.2d 776, 291 P.2d 469 (1955).
Dissenting Opinion
dissenting.
I dissent for the reasons set forth in my concurring opinion in Pascu v. State, 577 P.2d 1064, 1069 (Alaska 1978). In the case at bar, the police used subterfuge and deceit to gain entry into the defendants’ apartment so that they could acquire probable cause to have a search warrant issued. While the deceptive measures employed in Pascu were more dramatic, the principle remains the same. As I stated in Pascu, “[T]his means of obtaining a desired end is distasteful and objectionable, because it eventually undermines, rather than enhances, the high standards of conduct in the administration of justice required of law enforcement agencies and the courts of this state.” 577 P.2d at 1069-70. I would reverse the judgment because I believe the deception used by the police rendered Lawyer’s consent involuntary and, therefore, the evidence seized from the apartment should have been suppressed.
Reference
- Full Case Name
- Timothy P. NIX, Appellant, v. STATE of Alaska, Appellee; Allan PERRY, Appellant, v. STATE of Alaska, Appellee
- Cited By
- 45 cases
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- Published