432 Pa. 466 | Pa. | 1968
Lead Opinion
Opinion by
Appellant was indicted on charges of aggravated robbery, burglary, conspiracy, and committing a crime of violence when armed. Appellant’s first two trials resulted in hung juries. At the third trial, appellant’s gun was admitted into evidence over objection that it was the product of an unlawful search and seizure.
Appellant was arrested on April 13, 196T, the day after the commission of the offenses charged. The police searched appellant and took from him, among other things, a key ring. Because of the illness of appellant’s wife, appellant had been staying with his wife at the home of his in-laws. As a result, appellant had leased from his employer two garages to be used for storage. The key to the garages was on appellant’s key ring.
After searching appellant’s automobile, the police gave the key ring, including the garage key, to appellant’s wife. Subsequently, a different detective went to the home of appellant’s in-laws and asked his wife if appellant had a gun. She replied that she did not know, but that if he did it would not be at her parent’s home. When asked where appellant’s and her belongings were, she told the detective about the garage and gave him permission to search there, offering the key. The detective asked appellant’s wife if a search warrant was necessary and she replied that it was not.
Appellant now claims that the search of the garage and the seizure of the gun without a search warrant violated his rights under the Fourth Amendment to the Constitution of the United States. The Commonwealth maintains that the uncoerced, knowing and intelligent consent of appellant’s wife immunizes the search and seizure from constitutional attack.
From the very start of this discussion, we wish to emphasize vigorously that an individual’s constitutionally ordained rights are personal to him, and cannot be forfeited or waived by any other person, acting without his authority or consent. Mindful of that premise, we meet the jugular issue in this appeal: Was this search and seizure a direct result of an unconstitutional waiver of the appellant’s rights by his wife?
The trial court sustained the constitutionality of the search by focusing upon the independent right of
We hold that the search and seizure were constitutionally permissible. In so deciding, we comport with the realities of the situation, realizing that only by the use of a legal fiction could we find a waiver under the facts of this case.
In admitting the police to the garages, the appellant’s wife did not claim authority from the appellant to admit them; she acted not as a servant, but as a master, empowered with all incidents of control over property,—the right to admit and the power to deny entrance. She offered the key to the garages to the police officer; the key, not just a symbolic expression of permission to enter, but the actual power to enter. And the bestowal of this means of access was not reluctant. It came not in response to a command, or even a request. It was offered without condition, — even with a statement that a search warrant was not necessary.
The Fourth Amendment’s protection of privacy is geared more toward people than property. Cf. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967). Property has no rights, no privacy. Persons do. So, in deciding whether the appellant’s constitutional rights were impinged upon, we must consider the gravity of the invasion upon Ms privacy. What was the nature of the appellant’s privacy here? He had the power of control over the premises, and indeed, it was a pervasive power, a broad power. But it was not absolute. For in the garage was furniture which belonged jointly to the appellant and his wife. Although the lease agreement did not mention the appellant’s wife, the facts reveal that the appellant “had no intention of excluding his wife either from the garages or from the
The Supreme Court of the United States has considered this problem in Stoner v. California, 376 U.S. 483, 84 S. Ct. 889 (1964), and Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776 (1961). We think that the result we reach is consonant with both of those decisions.
Stoner invalidates, as violative of the Fourth Amendment, a search of a defendant’s hotel room, initiated with thq consent of a hotel clerk. The basis of the Stoner decision was that the police had no reasonable basis for believing that the clerk was really authorized by the defendant to consent to the search.
The approach of Chapman v. United States, supra, differs from that of Stoner. In Chapman, the police entered a leased dwelling without a warrant but with the consent of the defendant’s landlord. Once within the house, they seized 1300 gallons of mash. The Government did not maintain that the search and seizure met Fourth Amendment approval because of an implied consent or waiver by the accused-tenant. Obviously there was none. Rather it argued that the search and seizure were valid because of an independent right in the landlord to enter the premises when he had good reason to suspect that the demised dwelling was being used for unlawful purposes.
The United States Supreme Court rejected the argument of the Government because it failed to establish the landlord’s right under Georgia law to enter forcibly the leased premises “to view waste.” The Court did
The test of substantial control of the premises by a person other than the accused has sustained searches and seizures in Stein v. United States, 166 F. 2d 851 (9th Cir.), cert. denied, 334 U.S. 844, 68 S. Ct. 1512 (1948); Woodard v. United States, 254 F. 2d 312 (D.C. Cir.), cert. denied, 357 U.S. 930, 78 S. Ct. 1375 (1958); and Roberts v. United States, 332 F. 2d 892 (8th Cir. 1964), cert. denied, 380 U.S. 980, 85 S. Ct. 1344 (1965). In line with the reasoning of these decisions, we conclude that the appellant’s wife had sufficient control over the premises involved to grant in her own right a valid consent to the search.
Order affirmed.
A motion to suppress the gun was granted at the first trial. The gun was admitted at the second trial because of failure to file a pretrial motion to suppress.
Dissenting Opinion
Dissenting Opinion by
I dissent from the majority’s determination that appellant’s gun was properly used as evidence against him.
At the outset, I have grave doubts whether this evidence could properly be used under state law. To begin Avith, appellant was tried three times, the first two trials resulting in hung juries. At the first trial, appellant’s motion to suppress the gun was granted and the Commonwealth took no appeal. This having been done, I believe that the Commonwealth could no longer utilize this evidence.
I believe decisions from the analogous confession area support this result. Thus, in Commonwealth v. Warfield, 418 Pa. 301, 211 A. 2d 452 (1965), “we impliedly held . . . that the trial judge cannot reverse on the same record at trial the decision made after the pretrial suppression hearing. . . .” Commonwealth v. Washington, 428 Pa. 131, 133, n. 2, 236 A. 2d 772, 773 n. 2 (1968). Although Warfield was decided after appellants trial, it was decided under circumstances equivalent to those which prevailed when appellant was tried, in that rules of criminal procedure governing the problem had not yet been adopted. Thus it is in effect a decision which forms part of the “common law” of state procedure, and its reasoning is persuasive in our case.
Although the Court in Warfield did not need to reach the issue now before us, the statement in Washington is based on the Warfield court’s apparently favorable reference to United States v. Wheeler, 256 F. 2d 745, 747-48, cert. den. 358 U.S. 873, 79 S. Ct. 111 (1958), where the Court stated that a judge should not be placed in a position where he might “overrule a decision by another judge of the same court in the same case.” Although Wheeler applies on its facts to a
Once the determination of suppression was made, that decision should be regarded as final as a trial matter. The Oommonwealth’s proper remedy is an appeal from the suppression order, which it is allowed to take. See Commonwealth v. Bosurgi, 411 Pa. 56, 190 A. 2d 304 (1963), cert. den. 375 U.S. 910, 84 S. Ct. 204 (1963). The fact that the trial on the merits resulted in a hung jury is irrelevant to allowing the Commonwealth to once again raise the suppression issue at a subsequent trial, since the determination that the evidence was to be suppressed was separate from the failure of the jury to reach a decision.
Furthermore, because the consent was given by appellant’s wife, I believe that as a matter of state evidentiary law it is questionable whether the evidence which was found as a result of the search may be used against appellant. Pennsylvania follows the rule that, with exceptions not here relevant, a spouse may not give testimony in any form against the other spouse. E.g. Commonwealth v. Wilkes, 414 Pa. 246, 199 A. 2d 411 (1964). The rationale of the rule is to preserve
Here there is absolutely no indication of marital discord at the time of the event in question. Thus under Wilkes and prior cases it seems clear that the wife herself could not offer evidence of the gun. If she could not offer that evidence directly, I do not think it is permissible for her to aid the police in finding the evidence “on their own.” In either event, the threat of marital discord is equally great.
Although I believe this case should be decided as a question of state law, since the majority has reached the federal Constitutional ground, I believe it is necessary to dissent from its Constitutional determination. In my view, the most logical reading of the decisions of the Supreme Court of the United States compels us to reverse appellant’s conviction and grant him a new trial.
The majority agrees that appellant’s wife could not “waive” his right to be free from warrantless searches, but reasons that there was no “waiver” in this case because the wife had an independent right to exercise Control over the garages. This verbal sleight of hand completely misses the point of the Fourth Amendment protection which appellant claims. The majority concedes that only by use of a legal fiction could we find a waiver in this case. I find it equally fictitious to say that because appellant’s wife was willing to let police enter the garages, appellant could no
Despite the majority’s insistence to the contrary, I am forced to conclude that it has made appellant’s constitutional rights subservient to his wife’s property rights. This is despite the command of the Supreme Court of the United States that “the Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511 (1967). Katz overruled the “trespass” test for determining the validity of electronic evesdropping. It had been held that unless a listening device penetrated a wall, as opposed to merely being attached to a wall, a Fourth Amendment claim was barred. Under the Court’s developing emphasis on protecting the rights of individuals, not property, the old rule became untenable.
In my view, the majority has misread the import of Stoner v. California, 376 U.S. 483, 84 S. Ct. 889 (1964) and Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776 (1961). The majority distinguishes Stoner by saying that its “basis . . . was that the police had no reasonable basis for believing that the clerk was really authorized by the defendant to consent to the search.” Of course the police in this case had no more basis to believe that appellant authorised his wife to consent to the search; rather clearly he did not. The fact that the wife had an interest in the property in no way indicates that she was permitted to let in the poliee to search for evidence which was to be used against appellant.
Stoner reaffirmed and elaborated on Chapman, which I believe the majority also has misread. The majority states that Chapman was based on the government’s failure “to establish the landlord’s right under Georgia law to enter. . . .” This is not entirely accurate. Although the Court did note that it could find no Georgia cases to support the government’s position, it als'o had to meet the government’s argument that the landlord had a general common law right to
There is no more reason to put an individual’s constitutional rights at the mercy of his wife than there is to allow his landlord to decide whether he will receive Fourth Amendment protection. Certainly the mere existence of a marriage does not create an agency agreement under which a spouse may consent to a search and seizure of the other spouse’s property. The folly of permitting a husband’s rights to turn on whether a wife has an independent right to enter the property is emphasized by the case in which the wife is working hand-in-glove with the police because she is angry at her husband. See Stein v. United States, 166 F. 2d 851 (9th Cir. 1948), cert. denied, 334 U.S. 844, 68 S. Ct. 1512 (1948). The correct focus in determining appellant’s rights can only be on appellant himself, and the proper inquiry is whether he had “a reasonable expectation of freedom from governmental intrusion.” Mancusi v. DeForte, 392 U.S. 364, 368, 88 S. Ct. 2120, 2123-24 (1968). Appellant certainly could reasonably have expected his wife to enter the garages, but this in no way indicates and is not even relevant to whether he reasonably expected to be free from police entry.
The Commonwealth argues here that the police were entitled to search without a warrant because they acted “reasonably.” However the trend of decisions of the Supreme Court of ¡the United States indicates that the Fourth Amendment must be considered “a pervasive rule requiring a warrant, subject only to narrow and
In conclusion then I believe that the Commonwe¡alth should have been barred from introducing the evidence in question because of the unappealed-from prior determination of suppression, the state law bar preventing a wife from testifying against her husband, and because the consent of appellant’s wife was insufficient to permit a warrantless search for appellant’s property, and thus I dissent.
Even if the wife could validly consent to a search for evidence that could be used against her husband, I assume that for that consent to be valid, she would need to have been informed that (1) absent her consent, the police would need a warrant, and (2) that evidence found therein could be used against her husband. There is no doubt that for the wife to waive her own freedom from a warrantless search would require “an intentional relinquishment or abandonment of a known right or privilege,” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938). I believe, despite the majority’s protestations to the contrary, that a consent-search must be based on a doctrine of waiver, see Stoner v. California, 376 U.S. 483, 489, 84 S. Ct. 889, 893 (1964); Commonwealth v. Gockley, 411 Pa. 437, 446, 192 A. 2d 693, 698 (1963), and even if a wife could waive her husband’s rights by consenting to a search, that waiver must be knowing and intelligently made. This would have to be affirmatively shown on the record, and I find no such showing here.