Opinion
December 21, 1970
Appeal from an order of the County Court, Tompkins County, granting respondent's motion to suppress as evidence certain quantities of frozen meat. On the afternoon of August 25, 1969 police officers seized a quantity of meat from a refrigerator located in an apartment which the respondent shared with one Paul Stupke and another. An affidavit by Stupke clearly indicates that when he was approached in front of the apartment by the police officers he was informed by them that he did not have to let them in and that he voluntarily admitted them, led them to the refrigerator and opened it for them. There is no evidence in the record to refute these allegations and no evidence to indicate that consent by Stupke was obtained by coercion, either express or implied. Since the search was not conducted pursuant to a search warrant or incident to an arrest the issue is whether Stupke's consent to search the refrigerator was valid against respondent. And this in turn depends not on the relationship between Stupke and the respondent but on the relationship between Stupke and the property searched. Under certain circumstances others than the defendant may consent to what otherwise would have been an illegal search ( People v. Overton, 20 N.Y.2d 360, 361, affd. on rehearing 24 N.Y.2d 522; People v. Regan, 30 A.D.2d 983). One who has equal rights with one complaining of the validity of the search to the use of the premises may legally authorize a search of such premises (4 Wharton's Criminal Law and Procedure, § 1579, p. 216; People v. Terry, 57 Cal.2d 538, cert. den. 375 U.S. 960). Clearly Stupke had a right to the use and occupancy of the premises here involved and access to the refrigerator. The search was made with a valid and effective consent and was, therefore, reasonable and not a violation of the Fourth Amendment. Accordingly, the motion to suppress should have been denied. Order reversed, on the law and the facts, and motion denied. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.