*1 v. Lee People Scott Plaintiff-Appellant, Illinois, of the State Nunn, Defendant-Appellee. 11571;
(No. 27, 1972. September Fourth District TRAPP, dissenting. J.,P. Urbana,
Lawrence E. Burgess, State’s B. Johnson, Attorney, (James Student, State’s Jr., Assistant and L. Keith Senior Law Attorney, Hays, for the counsel,) People.
Donald M. Reno, Reno, for & O’Byrne Kepley, Champaign, Jr., appellee. CRAVEN of the court: opinion
Mr. delivered JUSTICE seized a room oc- Certain items of evidence were the defendant in his mother’s home factual circum- under cupied by the following stances related in A motion of the defendant stipulation. this evidence was allowed suppress following evidentiary hearing. This is an from the order of appeal by We affirm. suppression.
The facts are as follows: stipulated
“On the Honorable 1971, a was held before May hearing Frederick S. of the Sixth Green the Circuit Court Judicial Circuit, Urbana, Illinois, on motion Champaign County, seized suppress during certain evidence 9, 1971, Street, on March Cham- at South State Illinois, Nunn, mother of Defen- paign, home Mrs. Rose A. *2 dant-Appellee. 9, 1971, search,
On March the date the Defendant was nineteen years age had lived in Nunn’s time During home. the Mrs. Defendant house, lived in Mrs. Nunn’s there no restrictions were on her access to his room and no conversation whether police enter therein. Nunn’s in only Mrs. Defendant’s room was activity it, to clean his make bed and to the linen. change Defendant rent, no but paid Mrs. Nunn to ten dollars a in- gave five week Defendant termittently. could not recall the date he last worked prior March 1971.
Mrs. Nunn became concerned about the her dur- in home activity her ing absence when she returned once and found a marble top table broken. She discussed her concern with her hus- former band, the father of Nunn unofficially Defendant. tried to Mr. effect search of Defendant’s room the Police by police. declined unless Mrs. Nunn gave written consent. She police went to the station gave written consent. She accompanied officers her home and was present the search during Police thereof. utilized their pass key facilitate to Defendant’s entry room. evidence, which was the motion to subject suppress, was seized from a waste basket and a cabinet over the sink both located kitchen. This kitchen was accessible only Defendant’s room. to fourteen
Approximately days search, ten next preceding the out’, moved locked the to his Defendant door room and told Mrs. Nunn to allow no one enter.
The Court found: that the area in which the articles suppressed found had been set by were aside the mother of the Defendant for use, his exclusive to her using area for maintenance caring effects, for for purposes personal and that said mother had no to consent authority search. The al- Court lowed the motion to suppress.” is of facts a commendable practice one which
Stipulation court this case, however, we ordered a In this encourages. transcript hearing in a for additional factual information. filed Such quest furn- transcript found ishes no substantial those additional facts to supplement stipulation. the consent of whether by
The issue this appeal presented the war- related validates mother to the search under the circumstances when the same locked premises rantless and seizure of the search examination challenged compels This inquiry defendant. waiver question search and discussed initially seizure cases which the doctrine constitutional another under rights defendant’s or sufficient implied consent or agency apparent authority Amos States (1920), interest validate the consent. of a wife L.Ed. discussing husband, to consent to a search for to be against evidence used court intimated that The spe- such consent would not validate search. however, cific under holding, was to the effect that the consent there review was Forty years Chapman later coerced.
(1961), court held a landlord who still who suspected that tenant was operating had interests in the certain property, although possession, tenant could not consent to a validly the leased the course opinion Chapman court seemed to rule out the importation into law of search and seizure the subtle distinctions of law. *3 Such importation was deemed to be “unnecessary” “ill-advised.” In Stoner v. 483, 889, (1964), U.S. 11 L.Ed.2d S.Ct. the California court refused to into the import law of search and the seizure niceties of the of agency law or the doctrine of “apparent and in that case authority” held that a hotel clerk was not to authorized permit guest’s search of a room. The court rejected an argument based or upon agency apparent authority as “unpersuasive” and said: “* # * Our decisions make clear that the rights protected by
the
Amendment are
Fourth
not to be eroded
strained
applica-
the
of
tions of
law
or
agency
by unrealistic
of
doctrines
‘apparent
As this
said,
Court has
authority.’
‘it is
and ill-advised
unnecessary
into the
import
law
the
surrounding
constitutional
to be
right
free from unreasonable searches and seizures
distinctions,
subtle
and refined
developed
by the common
in
law evolving the body
which,
of private
law
property
more than almost
branch
other
any
law,
of
has been shaped by distinctions whose
is
validity
largely
* *
historical
*.
not to
ought
bow to
them the fair
[W]e
administration
the criminal
To do so would
law.
not comport
with our justly proud claim of the procedural protections accorded
to those charged with crime.’
States,
362 U.S.
Jones
725,
was a and was not personal dependent upon of the defendant right extent or interest in the searched. property against of the Fourth Amendment discussing scope protection unreasonable search and seizure Katz there concerned third S.Ct. while not with party consent, the court indicates that the Fourth Amendment protects clearly which is sought or areas —and that to be people places protected —not is an know that he is free individual’s entitlement to from unreasonable intrusion. and seizure or governmental DeForte, 20 L.Ed.2d v. In Mancusi to “a equated Amendment reasonable expectation the Fourth Combs from intrusion.” In United governmental freedom S.Ct., 33 L.Ed.2d the court dis- L.Week (40 4917) (U.S.), again Mancusi, cusses, the defendant’s in the reasonable language expecta- intrusion searched governmental tion freedom the cases to nature Thus, relating to us that and extent it appears consenter, the relationship the interest defendant, and the issue author agency apparent consenter determinative, historical, than significance rather considering are of ity to an clearly a third otherwise invalid search. party validity School), Law 313 Law (Emory Public Washington See Journal of 12-28, and Law cases 1967), pp. there cited. Quarterly (Vol. University here area searched had set been readily apparent It use in mother’s exclusive home. Everything defendant’s aside for transcript evidence before facts us points *4 the stipulated the seized material was in an area where the de that to the conclusion freedom from governmental reasonably expect intrusion fendant The mother’s consent. facts clearly negate the ex or without with mother, expressed or implied, make a valid of istence negate any The facts likewise the search. interest possessory consent The fact to authorize sufficient search. minority mother in the does of this not the defendant under the constitution of his deprive rights State the Fourth or of the United that States. There no suggestion Amendment is limited to “adult” protection people. not people, places,
In Thomas, the case of 256 N.E.2d People 120 Ill.App.2d Court who Appellate for the District held that a mother pro Fifth duced a weapon of the at the of two officers request defendant had sufficient possessory interest in the the defendant lived house where as to authorize a search. The court cited Court two Illinois Supreme cases in of its support conclusion, both of related wife of a defendant to a search holding The occupied premises. jointly Thomas, the factual although recited, are not may details well be con sistent with the reasonable expectation privacy concept.
Thus, we conclude that under the test reasonable expectation interest, this privacy, search was If the test is invalid. search was If invalid. the test is implied the search apparent authority, was invalid. The judgment of the circuit court of County was Champaign correct its allowance the motion to and that suppress judgment affirmed.
Judgment affirmed.
SIMKINS,
concurs.
J.,
TRAPP
Mr. PRESIDING
dissenting:
JUSTICE
The
reached
the facts
upon
conclusions
in the
are
principal opinion
not
Defendant’s
itself is
persuasive.
argument
not
the in-
persuasive termittent
of some five or
gift
ten dollars elevated him into the status
of a
as
bring
tenant so
this case within the
of Chapman
rule
States,
U.S.
L.Ed.2d
One is constrained DeForte, to note that Mancusi v. 364, 20 2120; L.Ed.2d States, S.Ct. Combs v. United (U.S.), L.Ed.2d S.Ct, 4 Jones do not approach issue a consent to a parent Jones, householder. the issue “standing” move suppress it was held that one legitimately on the such standing. actual tenant was not present and there was no issue of consent by the occupant having control of Mancusi, the issue again
606 seized of the custody papers
was to standing suppress. Defendant were not such although papers several by the office occupied persons, but give standing suppress, was said to him private This property. have could superiors that defendant’s opinion recognizes explicitly Combs, the defen consent, given was not at issue. In consent although The issue farm. dant had shed on his father’s stored stolen a whiskey concerning was issue consent standing to was no There suppress. States, 389 search that Katz father. Nor can it be said by 347, authority as 576, 507, upon 19 L.Ed.2d is relevant 88 S.Ct. elec subject these issues. a booth As user of the paying telephone a tenant surveillance, tronic that of akin to the statute of Katz was more or of a person entitled to the sole use of the premises.
The a number cases are not such substantial as to overcome of cases and to the use oc- which have determined that one entitled a cupancy may give valid consent a of the premises. to search consent Stone, 32, gave 401 F.2d a step-mother In United v. de home, where a area the basement specific to search including as held valid she was fendant stored The consent personal belongings. v. Bumper In had immediate control premises. 1788, 797, it was de Carolina, 543, 20 North 391 U.S. au a coerced grandmother’s by apparent termined that consent was warrant, the inference that of a search but the thority opinion supports v. People In otherwise be valid. but for such fact consent would 573, Koshiol, 446, a consent to search was 45 262 N.E.2d husband’s Ill.2d also There was right premises. authorized possession here, a himself from involved, right protect as the case perhaps Haskell, 241 v. Ill.2d People his wife’s actions. See also poisonous N.E.2d 430. 577, defendant resided 136 N.W.2d (Minn.), v. Kinderman
In State
a
which
by police,
consented to search
The latter
home of his father.
It
of the house.
parts
closet and other
defendant’s bedroom
included
v.
In Mears
search was valid.
held that the
parental
stolen furs in
mother found
State,
N.W.2d
52 Wis.2d
held to be
upon
search was
valid
police
Her consent to
her son’s closet.
Vidor,
75 Wash.2d
In State v.
occupancy.
to use
her
mother’s con-
The
at his mother’s home.
the son was visiting
Pac.
the basis of
control
was upheld upon
to a
sent
police
in Illinois.
rule had been followed
This
possession
219,
were into the shoes be- invited home the mother. The tennis Here, came items of evidence were in plain upon view floor. items were basis in waste basket and a shelf. There is substantial for saying that nothing that the mother was excluded stipulated suggests *6 from her use and of the entire house. in Abel
Finally, 683, it was held the matters found the waste basket of hotel room after the defendant had moved out were considered the light of abandoned not Such is ap- exclusion. view here. plicable
In the several suggested, the trial aspects court erred in excluding evidence. Larry Illinois, State Plaintiff-Appellee,
Woodward, Defendant-Appellant. 71-130;
(No. Fifth September 1972. District