Opinion
No. 70-167
Decided April 28, 1971.
Criminal procedure — Evidence — Search and seizure — Constitutionally reasonable, when — Wife's voluntary consent to search of her and her husband's residence — Common areas thereof — Article IV, Amendments, U.S. Constitution.
The Fourth Amendment to the Constitution of the United States interdicts only those searches and seizures which are unreasonable, and a wife's voluntary consent to a search of her and her husband's mutual residence is sufficient to constitutionally permit an otherwise reasonable search of the common areas thereof.
APPEAL from the Court of Appeals for Cuyahoga County.
At about 5:00 p.m. on December 28, 1966, Max Fischer was fatally shot in his Cleveland barber shop. On the same evening, Christopher McCarthy, appellant herein, surrendered himself to the Cleveland police with respect to an unrelated charge of assault and battery. The police had been given a description of the man who shot Fischer by two witnesses. One witness had seen a man enter the barber shop just prior to the shooting. The other witness had heard the shots, had seen a man leaving the barber shop immediately after the shooting, had followed him down the street and had seen him with a gun. At trial, both witnesses identified the appellant as that man.
The appellant did not become a suspect until the morning of December 30, 1966, when the police were informed that appellant may have been involved in the Fischer killing and that some potentially incriminating evidence might be found in the basement of appellant's home. This information was given to the police by one Thomas Shaughnessy, who was a neighbor of the McCarthys and represented Mrs. McCarthy as her attorney.
Appellant was formally charged with the murder of Max Fischer, and on November 24, 1967, a pretrial hearing was held on appellant's motion to suppress evidence which was seized at his home. At the hearing, evidence was adduced that the first of two visits by detectives to appellant's residence occurred on the evening of December 30, 1966. At that time, the detectives spoke with Mrs. McCarthy relative to their examination of the family automobile. At trial, it was stipulated that the car was registered in the name of appellant's wife and that appellant used the car. Mrs. McCarthy invited the officers in and stated that she wished to call her attorney. When she returned from making the call, she gave her permission for the police to tow the car away for examination. A search of the car revealed some .38 caliber bullets in the glove compartment.
There was conflicting evidence as to why Mrs. McCarthy consented to the search of her automobile. She testified that she had pleaded guilty to a felony and was, at the time of the consent, awaiting a probation report. She stated further that a detective brought up the subject of the probation report and urged her to cooperate. This was denied by the detective, who testified that the only reference to the probation report was made by Mrs. McCarthy herself when she stated that she blamed her husband for her felony charge.
On January 1, 1967, Mrs. McCarthy went to Central Police Station to pick up her car. She testified that while there, she was accused by a detective of being uncooperative and was threatened regarding her pending probation report. The detective involved denied that any discussion about her probation status took place.
On January 2, four detectives visited appellant's residence. The police introduced themselves, and one of them stated that they wanted to come in, with her permission, and search the home for a gun and some pellets that were supposed to be in the basement. Mrs. McCarthy invited them in, and again informed them that she would first have to discuss their request with her attorney. After making a phone call, she returned and told the police that she would cooperate. She advised the police that the basement was dark and they would probably need a flashlight. She went down to the basement and directed two of the officers to a fruit cellar door. The officers found a pellet in the door and also searched some of the beams and other areas of the basement. Mrs. McCarthy provided the police with a wood chisel for removing the pellet, and helped care for one of the detectives when he injured himself with the chisel.
The trial court overruled the pre-trial motion to suppress the evidence seized at appellant's home, finding that appellant's wife had the right to consent to the search and that her consent was voluntarily given. Appellant was tried and convicted of first degree murder, with a recommendation of mercy. The Court of Appeals affirmed the judgment of conviction.
The cause is before this court as an appeal as of right and pursuant to the allowance of a motion for leave to appeal.
Mr. James J. Carroll, for appellant.
Mr. John T. Corrigan, prosecuting attorney, and Mr. William J. Coyne, for appellee.
The basic question presented is whether a wife, by virtue of her status as a joint resident of premises with her husband, may give valid consent to a warrantless search thereof by the police.
At the outset, it should be noted that we harbor doubts as to whether the police activity at appellant's residence on January 2, 1967, was a "search and seizure" within the contemplation of the Fourth Amendment. It has been stated that a search ordinarily implies a quest by an officer of the law, a prying into hidden places for that which is concealed; and that a seizure connotes a forcible dispossession of the owner. See Weeks v. United States (1914), 232 U.S. 383, 397, 58 L. Ed. 652. Since the record supports a conclusion that Mrs. McCarthy voluntarily directed the officers to the fruit cellar door, wherein the pellet in question was found, it is arguable that the traditional aspects of a search and seizure are not presented. The police did, however, examine the basement ceiling beams and other areas of the basement, and stated at the outset of their visit that they were looking for a gun and some pellets. Thus, in view of the scope of police activity and the posture of the case as briefed and argued by the parties, we will review the cause upon the premise asserted.
The question of inter-spousal consent to a search of the marital residence has engendered a sharp conflict among the courts which have considered it, and two opposite views of authority have emerged. See 47 American Jurisprudence, Searches and Seizures, Section 72; 79 Corpus Juris Secundum, Searches and Seizures, Section 62; annotation, 31 A.L.R. 2d 1078, and supplement. See, also, Mascolo, Inter-Spousal Consent to Unreasonable Searches and Seizures: A Constitutional Approach, 40 Conn. Bar. J. 351; 69 Dickenson L. Rev. 69; 79 Harv. L. Rev. 1513; 33 Chicago L. Rev. 797.
One line of authority, emphasizing agency concepts and the personal nature of Fourth Amendment rights, has uniformly denied the efficacy of a wife's consent to a search of the home, absent the husband's authorization. E.g., Veal v. Commonwealth (1923), 199 Ky. 634, 251 S.W.2d 648; State v. Wilkerson (1942), 349 Mo. 205, 159 S.W.2d 794; Maupin v. State (1927), 38 Okla. Cr. 241, 260 P. 92; State v. Hall (1965), 264 N.C. 559, 142 S.E.2d 177.
Those courts which have upheld the validity of spousal consent eschew the agency analysis, reasoning that the question is not one of authority to waive the husband's rights, but rather is one turning upon the wife's own right to authorize a search of the resident premises over which she exercises joint control. E.g., People v. Palmer (1964), 31 Ill.2d 58, 198 N.E.2d 839; Bellam v. State (1963), 233 Md. 368, 196 A.2d 891; Commonwealth v. Martin (Mass. 1970), 264 N.E.2d 366; State v. Coolidge (1969), 109 N.H. 403, 260 A.2d 547; State v. Kennedy (1969), N.M. 152, 452 P.2d 486; Commonwealth, ex rel. Cabey, v. Rundle (1968), 432 Pa. 466, 248 A.2d 197; State v. Cairo (1948), 74 R.I. 377, 60 A.2d 841. From the rationale of the joint-control approach, it follows that the scope of spousal consent should be limited to a search of areas of the abode under common control, as distinguished from a search directed toward the personal effects of the absent spouse. See, e.g., People v. Carter (1957), 48 Cal.2d 737, 312 P.2d 665; State v. Evans (1962), 45 Haw. 622, 372 P.2d 365.
On June 29, 1970, the United States Supreme Court granted certiorari in the case of State v. Coolidge, supra. 38 U.S.L.W. 3522. The cause was argued on January 12, 1971 (39 U.S.L.W. 3309), and, as yet, no decision has been rendered.
Appellant contends that this court has already decided, in principle at least, that a wife may not consent to a search of the home without her husband's authorization, and cites State v. Lindway (1936), 131 Ohio St. 166, 2 N.E.2d 490, and State v. Bernius (1964), 177 Ohio St. 155, 203 N.E.2d 241.
In State v. Lindway, supra, at page 171, Judge Zimmerman stated:
"Since the constitutional barrier to unreasonable searches and seizures is in the nature of a personal privilege, it is questionable if it may be waived by anyone except the person whose rights are invaded. * * *"
Yet, in paragraph two of the syllabus, the court proceeded upon the assumption that a wife may voluntarily consent to a search:
"Assuming that a wife in the absence of her husband may waive his constitutional immunity against search of his dwelling as granted by Section 14, Article I of the Constitution of Ohio, such waiver cannot be said to have occurred where the testimony as to the wife's assent is conflicting, and there is a probability that any assent given was by reason of the coercive influence of an officer or officers of the law."
In State v. Bernius, supra, the police conducted a search of the defendant's car, in his absence but with the permission of a casual borrower of the car. They examined the entire automobile and discovered a suitcase in the trunk. Upon breaking open the suitcase, the police found photographs which the court held inadmissible as the fruit of an unreasonable search and seizure. Bernius, on its facts, is clearly distinguishable from the case at bar.
Neither party has cited the case of State v. Carder (1966), 9 Ohio St.2d 1, 222 N.E.2d 620. There, the parents of a minor defendant permitted the police to enter the home and see the defendant's clothes and motorbike. The defendant urged as error that the evidence so obtained was the result of an illegal search and seizure. In the opinion, at page 10, Judge Matthias observed:
"The general rule is that a parent who owns or controls the premises in which a child resides has the right to consent to a search thereof even though such search may produce incriminating evidence against the child. See Maxwell v. Stephens, 229 F. Supp. 205; Maxwell v. State, 263 Ark. 694, 370 S.W.2d 113; McCray v. State, 236 Md. 9, 202 A.2d 320; and State v. Kinderman, 271 Minn. 405, 136 N.W. 577; annotation, 31 A.L.R. 2d 1081."
That language from the opinion in State v. Carder, supra, is persuasive in its application to the issue before us.
Appellant contends that even if a wife's consent to a search is otherwise valid, the search in the instant case was unreasonable because of Mrs. McCarthy's alleged antagonism to her husband. The record could lend itself to an interpretation supportive of this characterization of Mrs. McCarthy's attitude. However, she stated at trial that she still loved the defendant, and it was not established that she desired to engineer his conviction. While some courts have discused the question of a wife's antagonism in relation to the efficacy of her consent to a search (see, e.g., In re Lessard, 62 Cal.2d 497, 42 Cal. Rep. 583), this factor has no bearing upon a rule recognizing that the wife's right to consent to a search arises from her co-equal control over the mutual residence. As stated by the Supreme Judicial Court of Massachusetts, in Commonwealth v. Martin (Mass. 1970), 264 N.E.2d 366, 370:
"* * * While they are both living in the premises the equal authority does not lapse and revive with the lapse and revival of amicable relations between the spouses. The existence of antagonism by one spouse against the other may reveal motives for consenting to a search, and it may bear on the weight and credibility of any testimony given by the antagonistic spouse, but it does not change that spouse's position with reference to the right to give such consent."
It must be remembered that the Fourth Amendment interdicts only unreasonable searches and seizures, and we think that a wife's voluntary consent to a search of her and her husband's mutual residence is sufficient to constitutionally permit an otherwise reasonable search of the common areas thereof, even though the search may produce incriminating evidence against the husband. Cf. Frazier v. Cupp (1969), 394 U.S. 731, 740, 22 L. Ed. 2d 684.
From an examination of the record we are convinced that the search conducted by the police at appellant's residence was constitutionally reasonable and that the pre-trial motion to suppress the evidence seized at appellant's home was properly denied. We have also considered the remaining contentions raised by appellant and find no prejudicial error therein.
Judgment affirmed.
O'NEILL, C.J., DUNCAN, CORRIGAN, STERN, and LEACH, JJ., concur.
SCHNEIDER, J., dissents on the basis of the reasoning stated in the cases cited in the fourth paragraph of the opinion.