This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Stephen Claude Porter, petitioner,





State of Minnesota,



Filed December 4, 2001


Halbrooks, Judge


Hennepin County District Court

File No. 99027814


John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487  (for respondent)


            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant was convicted of second-degree possession of a controlled substance in violation of Minn. Stat. § 152.022, subd. 2(1) (1998) (possession of more than six grams of cocaine).  Appellant petitioned for postconviction relief, asking the court to reconsider its pretrial order that denied appellant’s motion to suppress the evidence seized in his motel room.  The court denied the motion.  Because the postconviction court’s decision has sufficient support in the record, we affirm. 


On March 22, 1999, Brooklyn Center police officers responded to a call regarding a possible stolen vehicle in the parking lot of the Brooklyn Center Super 8 Motel.  Officer Walter Filson asked the desk clerk if she knew who had driven the car, and she informed him that the car’s occupants were staying in room 211.  At Filson’s request, the clerk called room 211 and asked that if anyone in the room “belonged to the Lincoln,” they should come downstairs and move the vehicle.  Appellant’s girlfriend, Tamisha Pride, came downstairs in response to the phone call.  She stated that appellant had been driving the car and that he was upstairs sleeping in the room.  Filson requested that Pride remain in the lobby with another officer.  

Officers Filson and Becker, who did not have a warrant, went to room 211 to investigate.  Filson testified that he knocked on the door three times in rapid succession at a normal volume.  He had his hand on his gun, but his holster remained buckled.  According to Filson, a man later identified as Smith opened the door approximately two to two and a half feet.  Filson asked Smith if the Lincoln was his, and Smith said that it was not.  Filson then asked Smith if he knew who the driver of the Lincoln was, and Smith responded that it was appellant.

Smith then stepped back, pulled the door further open and pointed into the room.  Filson testified that he considered Smith’s act of opening the door and pointing inside the room to be permission to enter.  Appellant, who was lying on the bed, was not visible to the officers until they walked through the short entry past the bathroom. 

Upon entering the room, Filson detected a haze and a strong smell of tobacco mixed with marijuana.  He also noted two cigar boxes by the windows on the other side of the room.  When Filson walked over to the boxes, he saw marijuana debris on top of one of them.  

Filson patted down appellant and Smith.  The pat-downs did not yield anything.  Filson inquired about the Lincoln, and appellant confirmed that he was driving it and stated that he had gotten it from a friend.  Filson and Becker waited in the room while seeking confirmation from the Minneapolis police that the car was not stolen.   

While waiting, Filson walked back toward the door and saw a black leather jacket lying on the dresser.  The inside left-hand jacket pocket was visible and Filson saw a plastic bag in the pocket containing what he believed to be rocks of crack cocaine.  Filson then searched the jacket, finding money and a driver’s license bearing appellant’s name.  Appellant and Smith were taken into custody.  Becker continued to search the room and found what he suspected to be crack cocaine on a table near the bed.

Appellant argued at the pretrial hearing that the seized evidence should be suppressed because the officers entered the room without consent and the drugs were not in plain view.  The trial court denied appellant’s motion.  Appellant waived his right to a jury trial on the charge of first-degree possession of a controlled substance and agreed to submit a lesser charge to the trial court on stipulated facts.  The trial court found appellant guilty of second-degree possession.  Appellant’s petition for postconviction relief was subsequently denied.  This appeal follows.


1.         Consent to Enter


            On appeal from a denial of a petition for postconviction relief, we review the postconviction court’s findings to determine whether there is sufficient evidentiary support in the record to support its conclusions.  See Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  A trial court’s findings of fact are given great deference and will not be reversed unless they are clearly erroneous.  Id

            The Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution provide that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated.”  The reasonableness requirement mandates that law-enforcement officers obtain a warrant before a search and seizure of persons or property found within a residence.  See Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380 (1980).  If law-enforcement officials seize evidence in violation of the warrant requirement, the evidence must be suppressed at trial.  See State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992) (citing Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415-16 (1963)).  This protection extends to hotel guests.  Stoner v. California, 376 U.S. 483, 490, 84 S. Ct. 889, 893 (1964) (citing Johnson v. United States, 333 U.S. 10, 15, 68 S. Ct. 367, 369 (1948)); State v. Perkins, 582 N.W.2d 876, 879 (Minn. 1998); State v. Williams, 409 N.W.2d 553, 554 (Minn. App. 1987).

But there are “a few specifically established and well-delineated exceptions” to the warrant requirement.  See Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967).  One exception is a consent to search.  Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44 (1973).  A valid consent must be given voluntarily.  Id. at 223, 93 S. Ct. at 2045.  Judicial determination of the validity of consent involves an inquiry into all of the circumstances surrounding the search to determine if the consent was voluntary.  As the Schneckloth Court wrote, this inquiry is fact-driven.

The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. 


            * * * *


Voluntariness is a question of fact to be determined from all of the circumstances * * * .


Id. at 229, 248-49, 93 S. Ct. at 2048, 2059.  Another factor to consider in examining the validity of consent is whether the defendant knew he had a right to refuse to allow law-enforcement officials onto the premises.  The fact that the defendant is unaware that he has a right to refuse will not invalidate the consent.  See id. at 249, 93 S. Ct. at 2059.  The burden of proving that consent was voluntary rests with the government, and “this burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.”  Bumper v. North Carolina, 391 U.S. 543, 550, 88 S. Ct. 1788, 1792 (1968).  See also State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985) (“Mere acquiescence of a claim of police authority or submission in the face of a show of force is, of course, not enough.”). 

Here, the trial court’s conclusion that Smith consented to the officers’ entry has sufficient support in the record.  The trial court found that Smith partially opened the door in response to the officers’ knock.  When the officers questioned Smith about the driver of the Lincoln, he opened the door even wider, pointed inside the room, and named appellant.  Although appellant presented witnesses with conflicting testimony at the hearing, it is within the power of the trial court to evaluate the credibility of witnesses.  Frost v. Comm’r of Pub. Safety for the State of Minn., 348 N.W.2d 803, 804 (Minn. App. 1984).  This court will not substitute its judgment for that of the trial court when the findings of fact are not clearly erroneous.  Bergstedt, Wahlberg, Berquist Assocs., Inc. v. Rothchild, 225 N.W.2d 261, 263 (Minn. 1975).

2.         Common Authority

            Appellant argues that, even if Smith consented to the police entry, the consent was invalid because Smith lacked the authority to consent.  An individual may consent to police entrance and search of an area if the individual has authority over the area.  See State v. Thomas, 598 N.W.2d 389, 391 (Minn. App. 1999), review denied (Minn. Sept. 28, 1999) (citing In re Welfare of D.A.G.,484 N.W.2d 787, 789 (Minn. 1992)).  As the Supreme Court stated in United States v. Matlock:

[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.


United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974).  Matlock set the following standard for determining whether common authority exists:

The authority which justifies the third-party consent * * * rests rather 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.


See id. at n.7.  

This court adopted the Matlock analysis in State v. Hatton, in which we held that mutual use was necessary for common authority to permit an inspection of a hotel room.  State v. Hatton, 389 N.W.2d 229, 233 (1986), review denied (Minn. Aug. 13, 1986).  In Hatton, we noted that “a mere guest of a premises may not give consent to search those premises when his or her interest is inferior to that of the host.”  Id. 

            We have previously concluded that the guest of an individual renting a motel room possessed common authority to consent to a police search of the room when certain factors existed.  Thomas, 598 N.W.2d at 392.  In Thomas, the guest accompanied appellant to request a different room, was in the room when appellant was absent, and told the police she was staying in the room with appellant.  See id.  The Minnesota Supreme Court has held that common authority to consent existed when co-tenant or family members sharing a residence consented to a search.  State v. Pilot, 595 N.W.2d 511, 519 (Minn. 1999) (a live-in girlfriend consented to a police search of the apartment she and defendant shared); D.A.G., 484 N.W.2d at 789 (noting that co-tenants have common authority to consent to search of shared premises); State v. Hummel, 483 N.W.2d 68, 73 (Minn. 1992) (finding that defendant’s mother had common authority to consent to a police search of the house in which she and defendant lived). 

            Applying these factors, we agree that Smith lacked common authority to consent to the police entry.  The room was not registered to him, he was not spending the night in the room, and he did not have a key to the room.  Although Smith was not restricted in his use of the premises, his contact with the room does not rise to the level of contact present in other cases in which common authority has been found.

3.         Apparent Authority

Although Smith lacked common authority to consent, the officers’ entry was valid under the Fourth Amendment because the officers reasonably relied on Smith’s apparent authority to consent. 

The U.S. Supreme Court has adopted the following standard for evaluating police action in response to apparent authority:

[D]etermination of consent to enter must “be judged against an objective standard:  would the facts available to the officer at the moment * * * ‘warrant a man of reasonable caution in the belief”’ that the consenting party had authority over the premises?


Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 2801 (1990) (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968)).

            In State v. Thompson,578 N.W.2d 734, 740-41 (Minn. 1998), the Minnesota Supreme Court applied a totality-of-the-circumstances test and found that the individual answering an apartment door had apparent authority to consent to police entry even though he did not reside there.  The officers told the 18-year-old man who answered the door that they wished to speak to the renter and a guest of the renter.  The young man wordlessly led them to the tenant’s bedroom.  The court stated:

Even though the young man acknowledged he did not live there, he obviously was there in the early hours of the morning with the permission of someone in the building, he knew * * * the renter and where she lived, and he appeared to be of sufficient age to appreciate the seriousness of the officers’ presence and their request.  Under the totality of the circumstances it was reasonable for the officers to believe that the young man who answered the door had the apparent authority to give them limited consent to enter the apartment for the purpose of talking with the occupants therein. 


Id. at 740. 

In this instance, the officers’ belief that Smith had authority to consent to their entry was reasonable.  Smith was present in the room with appellant’s apparent permission.  He did not respond to the officers’ knock by seeking directions from appellant, but opened the door approximately two to two and a half feet.  When asked about the driver of the Lincoln, Smith opened the door to a 90-degree angle and pointed inside the room to an area not visible from the door.  At no time did Smith, or anyone else, object to the officers’ entry.

            Finally, the trial court determined that the officers found the drugs in plain view.  Because appellant does not challenge this conclusion on appeal, we do not address it.