Wednesday, May 26, 2010

Case Summary - Douglas Michael Hubert v. State

Douglas Hubert was on parole and living with his grandfather when his grandfather called Hubert's parole officer to report that Hubert had violated numerous conditions of his parole, including possessing a firearm. Hubert's parole officer got a blue warrant for Hubert's arrest, and two officers went to execute it. They found Hubert on the porch and arrested him.

Hubert's grandfather also gave the officers consent to search Hubert's room. Hubert's bedroom door was closed, but not locked. Additionally, the grandfather told the police that he did not sleep in Hubert's room. However, he opened the door for the officers, and as far as the officers knew, the house belonged to the grandfather. Inside they found weapons and ammunition, which lead to a charge of possession of a firearm by a felon.

At the motion to suppress hearing, Hubert testified that he and his grandfather were co-owners of the house. Hubert's fiancee testified that the grandfather was not allowed to enter the room without express permission because he was excluded from Hubert's bedroom. She also testified that Hubert and his grandfather co-owned the house. Hubert tried to introduce a deed that purported to show that Hubert and his grandfather co-owned the house, but the State objected and the deed was not introduced. The trial court denied the motion to suppress.

The court of appeals reversed in a published opinion. According to the court, the legal property interest was not dispositive, but there was no evidence of common authority presented by the State. The officer's testimony showed that only Hubert (and sometimes his fiancee) slept in the room and the door was closed. This did not show that the grandfather had actual authority to consent to the search of Hubert's room. (Here's a link to the court of appeals case info if you're interested.)

The CCA reversed the court of appeals and held that Hubert's granddad did have authority to consent to the search of Hubert's room. Presiding Judge Price, joined by Judges Womack,Johnson, Keasler, Hervey, Holcomb, Cochran, and Presiding Judge Keller, explained that a third party can consent to a search to the detriment of another's privacy if there is mutual use of property by people generally having joint access or control for most purposes. Moreover, the majority rejected view held by several courts that there is a presumption that an occupant exercises sole control over his own bedroom and has no joint access to others' bedrooms. Rather than apply such a presumption, the Court simply looked at the facts of the case in a light most favorable to the trial court's ruling. As the majority saw it, Hubert, lacking any proprietary interest or even possessory right other than by the grace of his grandfather, assumed the risk that his grandfather might permit the search of any area of the house including Hubert's bedroom. The Court declined to consider whether the officers also had apparent authority to consent to the search of the bedroom.

Judge Meyers dissented. According to the dissent, this case was like Vennus v. State where the defense excluded evidence that justified the officer's conduct only to complain later that the record did not support the officer's conduct. Here, the State prevented Hubert from introducing evidence that he had a proprietary interest in the house, so they should not be allowed to argue that the court of appeals because there was nothing showing that Hubert's grandfather lacked authority to consent. [Here's a link to the CCA case information if you're interested.]

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Why didn't they just get a search warrant? I mean seriously. Anyway, that's neither here nor there. Meyers' dissent does hit upon the discomforting feeling that the State is adding by subtracting, and that's kind of why I would rather they had decided the case on apparent authority grounds. But I do think his analogy is not as direct as he thinks. In Vennus, the State had to prove reasonable suspicion and the defense objected to prevent the evidence from coming in. Then on appeal, the defense wanted to complain about a lack of evidence the defense had caused. Here, the State wasn't trying to rely upon something it had tried to keep out. The defense was trying to rely upon something the State had kept out. A distinction without a difference? Maybe. But it's not the direct analogy that Meyers makes it out to be. Perhaps the defense should've argued on appeal that the trial court erred by keeping it out, but in any event the error on appeal wasn't invited by the State. Of course, the whole goose-gander thing always gets me confused, so if you shake me enough I might change my mind.

As for the majority, seems pretty thin on actual authority, though it does seem that the trial court could've reasonably concluded that the defendant was staying in the residence by the grace of his grandfather. Even if he were a co-owner of the residence, that kind of cuts both ways. Sure he has a property interest, but it also shows joint ownership. Proprietary interest isn't the deciding factor, and the majority's reliance upon that kind of hints that there wasn't much evidence on common use of the bedroom. All this makes me wonder how bad the "apparent authority" argument would have been if the Court felt the need to find "actual authority" to avoid that inquiry.