People v. Smith

172 N.W.2d 902 | Mich. Ct. App. | 1969

19 Mich. App. 359 (1969) 172 N.W.2d 902

PEOPLE
v.
SMITH

Docket No. 3,856.

Michigan Court of Appeals.

Decided October 2, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George E. Thick II. Prosecuting Attorney, and Bruce J. Scorsone, Chief Assistant Prosecuting Attorney, for the people.

Robert J. Moskal, for defendant on appeal.

Before: LEVIN, P.J., and DANHOF and HOLBROOK, JJ.

LEVIN, P.J.

The defendant Ulister Smith's principal argument on appeal concerns the admissibility in evidence of certain items seized by the police in alleged contravention of his Fourth Amendment rights. The trial judge ruled that the items were admissible because the defendant's attorney failed to make a timely pretrial motion to suppress and also because he concluded on the merits that the search of the defendant's apartment was a valid search.

At 11 p.m., November 24, 1965, a police officer was shot as he attempted to pursue an apparent thief. His partner chased the unidentified man but did not apprehend him. The defendant was arrested the following day and later was charged with and now appeals his conviction of assault on the officer with intent to commit murder.^[1]

Five hours after the shooting, at 4:30 a.m., three police officers went to the defendant's three-room apartment looking for him. They were admitted by the defendant's 17-year-old brother, Willie Cassell, who lived there. Two of the three officers testified at the trial. They said that during this visit they obtained a single expended shotgun shell from a wastebasket in the bathroom. At 10 a.m. one of the officers who made the first visit and two other officers returned to the apartment for a second visit; at this time they obtained a box of unused shotgun shells. The police gave Cassell a receipt for the box of unused shells.

At the trial the officers identified a spent shell and unused shells as the ones they obtained at the defendant's apartment and these were admitted in evidence over objection. The spent shell was compared with a shell found in back of the store near the scene of the shooting; both of these shells were shown to have been fired from the same gun. The gun itself was never found.

The police did not have a search warrant on either visit to the defendant's apartment. On the first visit, they told Cassell that they were looking for his brother, the defendant, but they did not state the reason for their investigation. The officers asserted that on both visits Cassell voluntarily admitted them to the apartment. They contended that the shells were not discovered during the course of a search of the apartment. Rather, they said, on the first visit they asked Cassell whether the defendant had a gun and accompanied him as he went from one room in the apartment to another looking for a gun. They testified further that on the first visit Cassell produced the spent shell from a wastbasket in the bathroom.^[2] An officer testified that on the second visit Cassell obtained the box of unused shells from a dresser drawer in the bedroom and handed it to them.

Cassell testified that the police conducted a thorough search of the apartment and its contents, and themselves produced the spent shell from the wastebasket and obtained the box of unused shells from the dresser drawer. He asserted that he had never seen the spent shell before the police produced it.

The people argue that since Cassell voluntarily gave the police the shells there was no search and that even if the actions of the police could properly be characterized as a search and seizure, Cassell consented.

It is a familiar procedural rule that a motion to suppress must be made, if at all, in advance of trial. A trial judge is not obliged to turn aside from the trial of a criminal case to conduct a separate hearing on admissibility in the absence of the jury, although, as a matter of discretion, he may do so. People v. Ferguson (1965), 376 Mich. 90, 95. One of the questions before us is whether the refusal of the trial judge to conduct a separate hearing in this case was an abuse of his discretion.

At the trial the defendant's attorney asserted that he had no prior knowledge that the police had obtained a spent shell in the defendant's apartment. As previously mentioned a spent shell (not referred to in the receipt given (Cassell) was identified at the trial as having been fired by the same gun which fired a shell found near the scene of the shooting. The defendant's attorney, Joseph R. McDonald, filed an affidavit in support of a motion for a new trial. He asserted that Cassell turned over to him the receipt for the unused shells during a pretrial interview but did not tell him that a spent shell had also been obtained by the police.

Since the defendant's attorney knew of the seizure of the unused shells and chose not to attempt to suppress that evidence, the trial judge was not obliged to entertain out of time an objection to the introduction of the unused shells.^[3] However, as to the spent shell a different view is taken.

The defendant was in custody from the time of his arrest the day after the shooting, November 25, 1965, until the trial, April 13, 1967. The facts that the police had visited the defendant's apartment and had there obtained a spent shell were not brought out at the preliminary examination. There is nothing in the record showing that the defendant or his attorney had any reason before the trial to believe that such evidence had been obtained by the police. On the stand Cassell was an unresponsive, difficult witness. It is understandable that the attorney's interview with him would not have brought to light the facts that the police had made two visits to the defendant's apartment and that they had obtained, on the first visit, evidence not listed in the receipt given Cassell at the conclusion of the second visit.

The fact that the police had obtained the unused shells, which was revealed by the receipt, would not have alerted the attorney to the fact that other items not listed had been taken. Indeed, one examining the receipt could reasonably assume that all the items taken were listed. There is no reason to disbelieve the attorney's assertion that he was unaware before the trial of the seizure of the spent shell.

The interest in the orderly conduct of a trial, which is the basis of the rule requiring that a motion to suppress be made in advance of trial, must be balanced against the defendant's constitutional right to have illegally seized evidence suppressed. In a case such as this where the prosecutor has obtained important evidence and decides not to disclose that fact before introduction of the evidence at the time of trial and there is no reason for the defendant or his counsel to have been aware that such evidence has been taken, the defendant does all that he can constitutionally be required to do when he objects to the introduction of the evidence at the time it is offered in evidence and seeks an opportunity then to show that it was illegally seized.^[4]

Having reached the conclusion just stated, the case would ordinarily be remanded for a testimonial hearing on the admissibility of the seized evidence. However, there is no need to adhere to that course of action in this case. In addition to his ruling that the defendant's objection was untimely, the judge stated on two occasions during the trial and again in explaining his denial of the motion for a new trial that on the merits the evidence was properly obtained. The prosecutor has not asked for an opportunity to introduce additional evidence. At the trial three police officers who went to the defendant's apartment and Willie Cassell were questioned extensively regarding the two visits.^[5] It does not appear that any additional relevant evidence would be forthcoming at a hearing following a remand.^[6]

In denying a renewed motion to suppress made after Cassell testified at the trial, the judge stated:

"The defendant has the burden of proof on a motion to suppress [and] has not made out a case here."

This was erroneous. On a motion to suppress evidence where the prosecution seeks to rely upon consent to justify a warrantless search, it has the burden of proving that the consent was in fact freely and voluntarily given.^[7]

In reviewing a trial judge's ruling on an issue involving asserted deprivation of a constitutional right, an appellate court is obliged itself to review the evidence and to make its determination guided but not controlled by the trial judge's factual determination.^[8] In this case the trial judge's determination is entitled to less weight than we would ordinarily give it since he imposed an improper burden of proof on the defendant.

The law regarding consent to a search by a defendant or a third party has been significantly affected by a fundamental shift in emphasis in the application of the Fourth Amendment^[9] announced by the United States Supreme Court:

"The premise that property interests control the right of the Government to search and seize has been discredited. Searches and seizures may be `unreasonable' within the Fourth Amendment even though the Government asserts a superior property interest at common law. We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts." Warden, Maryland Penitentiary v. Hayden (1967), 387 U.S. 294, 304 (87 S. Ct. 1642, 18 L. Ed. 2d 782).

In other cases,^[10] in evaluating claims that constitutional rights have been waived, the United States Supreme Court and the Michigan Supreme Court have applied the familiar principle that waiver is the intentional relinquishment or abandonment of a known right.^[11] In People v. Shaw (1968), 9 Mich. App. 558, where we reversed a finding that the defendant had consented to a search, we spoke of the presumption against waiver of constitutional rights and stated that the basis for the rule which requires us to indulge every reasonable presumption against waiver is (p 562) "not far to seek. It rests on the plain fact of human experience that rights easily waived are rights easily lost."

In People v. Overall (1967), 7 Mich. App. 153, our Court held that a third party may not consent to a search, even of premises occupied and owned by him, if the search constitutes an invasion of the privacy of another person upon whom an investigation has focused.^[12] Other courts have stated that for a consent to search to be valid the person who is the object of the investigation must have been aware of his constitutional right to refuse to permit the requested search.^[13] Still other courts have ruled that unless a Miranda-type specific warning related to Fourth Amendment rights is given a suspect in custody, his consent to a search will not be effective.^[14] Support for all these propositions appears in opinions of the Michigan Supreme Court. People v. Zeigler (1960), 358 Mich. 355; People v. Kaigler (1962), 368 Mich. 281 (per T.M. KAVANAGH, J.); People v. Weaver (1928), 241 Mich. 616.^[15]

Application of the principles stated in Overall, Zeigler, Kaigler and Weaver requires reversal in this case and suppression of the evidence seized. Cassell could not consent to a search which had already focused on the defendant. Additionally, it is clear upon an examination of the record that the consent alleged to have been given by Cassell was not a knowing, freely-given, voluntary consent.

Returning to the facts of this case, it is noted at the outset that, in recognition of the fact that the Fourth Amendment "protects people, not places,"^[16] minimal significance may be attached to the fact that the apartment occupied by the defendant and Cassell was the defendant's, not Cassell's, and the defendant paid the rent and supported Cassell. More important is the totality of the facts and circumstances.^[17]

Willie Cassell, a 17-year-old negro youth, was confronted by three policemen at 4:30 a.m. Even if, as the police assert, he produced the spent shell and unused shells, this must have been, as the police testified, in response to a request by the police. The defendant's right of privacy in the contents of his dresser drawer where the unused shells were found is entitled to the utmost protection; it is not to be lightly waived.^[18] A consent to be valid must be a voluntary consent,^[19] and this, by definition, means knowledgeable agreement or acquiescence (see text accompanying footnote 10). Cassell, as the police officers' own testimony shows, was not informed of the purpose of the investigation. He was not advised that he could refuse to permit a search.^[20] These facts, together with Cassell's age, the hour of the police officers' arrival and the attendant coercive atmosphere negate a finding of voluntariness. It is idle to suppose that Cassell would have in any way interfered with the police officers.^[21] Looking at the totality of the facts and circumstances, Cassell's responses to the police request did not constitute a voluntary waiver of the defendant's constitutional right to be protected from an unreasonable search and seizure.

The wounded officer identified the defendant at a one-man showup on December 16, 1965, and at the trial but could not identify him in a five-man lineup on November 26, 1965, just two days after the shooting. His partner could not identify the defendant. Although there was other circumstantial evidence implicating the defendant it cannot be declared beyond a reasonable doubt^[22] that the defendant would have been convicted even if the illegally seized shells had not been introduced in evidence. Accordingly, the error was not harmless.

Another assignment of error needs to be mentioned because it concerns a matter likely to recur upon a retrial. Questions were put to Willie Cassell about his extrajudicial statements concerning shoes alleged to have been worn by the defendant. The prosecutor referred to this testimony in his argument to the jury. The testimony regarding the shoes was confusing and the prosecutor's argument may well have exceeded permissible bounds. On remand the testimony and argument should be kept within the limits set out in Ruhala v. Roby (1967), 379 Mich. 102.

Reversed and remanded for a new trial.

Judge HOLBROOK concurs for the reason that the search and seizure was illegal. The fact that the minor brother of the defendant furnished the spent shell and unused shells under the direction of the police does not make it any the less a search and seizure.

DANHOF, J. (dissenting).

The opinion of the majority is predicated upon the assumption that there was in fact a search in this particular case. It is with this assumption rather than the opinion that I disagree.

The trial judge said when he denied the motion for a new trial:

"Although there was some conflict, partly as a result of defendant's brother changing some of his previous statement to the police, the great weight of the evidence indicated that there was no unlawful search or seizure in this case.

"Unlike the cases cited by defendant's counsel, when the police here went to defendant's apartment to talk to defendant, defendant's teen-age brother opened the door, invited them into the apartment, and in answer to their questions about defendant, got the exhibits and gave them to the police, took a receipt for them.

"It is the opinion of this court both at the trial and now that the evidence which is on the record in this case, shows no search and seizure of defendant's premises in his absence, but a voluntary offer of the shells to the police by defendant's brother, who was in sole charge of the apartment and the premises at the time and apparently was trying to cooperate in establishing the innocence of the defendant of this offense or of any offense. (Emphasis supplied.)

"That the shells were later found to be material, circumstantial evidence in the case, did not make their original acquisition illegal or require that they be suppressed, in the opinion of this court, even if a timely motion to that effect had been presented in advance of trial."

The record discloses a conflict in testimony between the police officers and defendant's brother, Willie Cassell. And, since Willie Cassell repeatedly admitted on the witness stand that he had lied to the police in earlier statements it was for the trial judge to determine the question of credibility, and he made this determination in favor of the police officers. I cannot say that upon this record that such determination was clearly erroneous.

This Court follows the "plain view" rule that where an officer sees the evidence in open or plain view without the necessity of a search, the evidence is admissible as no search has occurred, People v. Kuntze (1963), 371 Mich. 419; People v. McDonald (1968), 13 Mich. App. 226.

The case of Davis v. United States (CA9, 1964), 327 F2d 301, is factually similar to the instant case. Davis' eight-year-old daughter admitted two customs agents and two policemen to his home. One of the agents observed a wastebasket in plain view containing what the agent recognized as marihuana. The court said, pp 304, 305:

"It is obvious from its denial of defendant's motion to suppress that the trier of the fact credited the testimony of the officers that they had gone to defendant's home solely for the purpose of talking to him — and not for the purpose or intent of entering and searching the premises or arresting him, without a warrant. Likewise, it is certain that he believed the officers' testimony as to the manner of entry into the house and that the intent of the officers at the instant of entry was still but to attempt to talk to the defendant. * * *

"This case is distinguished from all of the cases referred to by appellant, by the entirely peaceful and invited entry into the home, with no search or intent to search in the minds of the officers upon entry. However, once legally inside the room, the officers were not required to remain blind to the obvious. The fact that a wastebasket containing marihuana was in their plain sight within five feet of the door at the time that they entered and that another wastebasket containing marihuana was in plain sight in the bathroom at that time was uncontradicted by the defendant when he testified on the motion to suppress. `It is well established that it is not a search to observe what is open and patent either in daylight or in artificial light.' (Citations omitted.) As was said by Judge Holtzoff, (citations omitted) `if, without a search and without an unlawful entry into the premises, a contraband article * * * is seen in the premises, the police are not required to close their eyes and need not walk out and leave the article where they saw it.'"

While it is true that the agents and the police officers in the Davis Case, supra, went to defendant's house in the daytime and not at night, I do not find that this factual difference should be controlling. There is nothing to indicate that the officers conducted themselves in anything other than a lawful manner. To imply, as it is done by the majority, otherwise is unfair.

In State v. Brant (1967), 260 Iowa 758 (150 N.W.2d 621) the court held that where the defendant consented to officers entering his hotel room and one officer picked up defendant's coat and saw a gun sticking out of the inside pocket there was no search and the officer could properly seize that which was readily observable.^[1]

This case might also be considered as one in which if there was a search it was by the defendant's brother as a private citizen who then handed the particular items in question to the police, and thus, there was no search by police officers.^[2]

Either way I cannot find upon this record that a search was conducted by the police officers so as to preclude the introduction into evidence of the spent shell or the unused shells. I would affirm.

NOTES

[1] MCLA § 750.83 (Stat Ann 1962 Rev § 28.278).

[2] The bathroom door was not in "plain view" (see People v. McDonald [1968], 13 Mich. App. 226, 234); one of the officers testified it was a "bit out of the way."

[3] Nevertheless, as appears below, we have concluded that upon the retrial we have ordered neither the spent nor the unused shells are to be admitted in evidence. Although the trial judge was not obliged to entertain out of time a motion to suppress the unused shells, he did decide the question of the admissibility of both the spent and unused shells on the merits. Furthermore, the reason for not allowing a belated motion is not pertinent when the case will be retried and we have before us the facts concerning the admissibility of the unused shells; see Gouled v. United States (1921), 255 U.S. 298 (41 S. Ct. 261, 65 L. Ed. 647) and Amos v. United States (1921), 255 U.S. 313, 316 (41 S. Ct. 266, 65 L. Ed. 654), discussed in the next footnote.

[4] See Agnello v. United States (1925), 269 U.S. 20, 34 (46 S. Ct. 4, 70 L. Ed. 145, 51 A.L.R. 409); People v. Zeigler (1960), 358 Mich. 355, 363-365; People v. Kaigler (1962), 368 Mich. 281, 294 (KAVANAGH, J.); State v. Cullen (1968), 103 NJ Super 360 (247 A2d 346). See, also, People v. Johnson (1967), 38 Ill 2d 399 (231 NE2d 447). See, generally, 2 Gillespie, Michigan Criminal Law & Procedure, § 874, p 1143; 1968 Cum Supp § 874, p 157. Cf. People v. Dombrowski (1968), 10 Mich. App. 445, 448; People v. Bass (1926), 235 Mich. 588, 593; People v. Ferguson (1965), 376 Mich. 90, 95; People v. Wilson (1967), 8 Mich. App. 651; People v. Harper (1966), 3 Mich. App. 316, 320; People v. Heibel (1943), 305 Mich. 710, 712.

See, also, Gouled v. United States, supra, where defendant's motion for suppression had been denied before trial and the United States Supreme Court held, nevertheless, that on the facts of that case it should have been reconsidered when renewed upon trial (pp 312, 313): "where, in the progress of a trial, it becomes probable that there has been an unconstitutional seizure of papers, it is the duty of the trial court to entertain an objection to their admission, or a motion for their exclusion, and to consider and decide the question as then presented, even where a motion to return the papers may have been denied before trial. A rule of practice must not be allowed for any technical reason to prevail over a constitutional right." Similarly, see Amos v. United States, supra, where no pretrial motion had been made and the facts came out at the trial.

[5] Had there been a separate hearing on the motion to suppress, the record of the trial could not be considered to amplify the evidence adduced before trial. People v. Kaigler, supra, pp 292, 297-299. But here, since the trial record is the record upon which the trial judge concluded on the merits that the evidence was admissible, that is the record which we review.

[6] The two officers who visited the apartment but who did not testify were not endorsed as witnesses on the information.

[7] Bumper v. North Carolina (1968), 391 U.S. 543 (88 S. Ct. 1788, 20 L. Ed. 2d 797); People v. Kaigler, supra; People v. Shaw (1968), 9 Mich. App. 558, 565.

[8] Wren v. United States (CA 10, 1965), 352 F2d 617, 619; Cf. People v. Hamilton (1960), 359 Mich. 410, 418; People v. Pallister (1968), 14 Mich. App. 139, 141; People v. Summers (1968), 15 Mich. App. 346, 348. In People v. Shaw, supra, our Court reversed the trial judge's determination that the defendant had consented to a search; the facts and circumstances were somewhat similar to those in the present case. Cf. Ker v. California (1963), 374 U.S. 23, 33, 34 (83 S. Ct. 1623, 10 L. Ed. 2d 726, 738); Cox v. Louisiana (1965), 379 U.S. 536, 545, fn 8 (83 S. Ct. 453, 13 L. Ed. 2d 471); Jacobellis v. Ohio (1964), 378 U.S. 184, 188, 189 (84 S. Ct. 1676, 12 L. Ed. 2d 793).

[9] Applicable to the States through the Fourteenth Amendment. See Mapp v. Ohio (1961), 367 U.S. 643 (81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 ALR2d 933).

[10] See, e.g., Johnson v. Zerbst (1938), 304 U.S. 458, 464 (58 S. Ct. 1019, 82 L. Ed. 1461); Maxey v. Proctor (1955), 343 Mich. 453; Book Furniture Company v. Chance (1958), 352 Mich. 521. Recently the Michigan Supreme Court declared that "A true waiver is an intentional, voluntary act and cannot arise by implication. It has been defined as the voluntary relinquishment of a known right." Kelly v. Allegan Circuit Judge (1969), 382 Mich. 425, 427.

[11] In Miranda v. Arizona (1966), 384 U.S. 436 (86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR3d 974), the United States Supreme Court extended this concept to require police officers to advise an accused person in custody of his constitutional right to remain silent as one of several preconditions to the use in court of any statement he might subsequently make. See footnotes 13 and 14.

[12] The Overall decision was based on Stoner v. California (1964), 376 U.S. 483 (84 S. Ct. 889, 11 L. Ed. 2d 856), and People v. Kaigler, supra.

In Stoner the Court held invalid a search of a hotel room authorized by a night clerk, stating (pp 488, 489):

"Our decisions make clear that the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of `apparent authority.' As this Court has said. `it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical * * * we ought not to bow to them in the fair administration of the criminal law. To do so would not comport with our justly proud claim of the procedural protections accorded to those charged with crime.' [Citations omitted.]

"It is important to bear in mind that it was the petitioner's constitutional right which was at stake here, and not the night clerk's nor the hotel's. It was a right, therefore, which only the petitioner could waive by word or deed, either directly or through an agent. It is true that the night clerk clearly and unambiguously consented to the search. But there is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner's room."

In State v. Matias (1969), 51 Haw. 62, 270 (451 P2d 257), the Supreme Court of Hawaii (one justice dissenting) held on the authority of Stoner that "the Fourth Amendment right may be waived only by the individual entitled to the right," and that, accordingly, a third-party consent is always insufficient. Another decision which recognized the potential impact of Stoner is United States v. Mackiewicz (CA 2, 1968), 401 F2d 219, 223, 224, but the court there found that the consenting spouse had been authorized to consent to a search of personal tax records because the consenter was the agent of the nonconsenting spouse for "tax matters" and the return under investigation was a joint return. See, also, State v. Pina (1963), 94 Ariz 243 (383 P2d 167, 169), and State v. Warfield (1924), 184 Wis 56 (198 N.W. 854).

Our decision in Overall and that of the Hawaii Supreme Court in State v. Matias, supra, excepted, courts generally have not adopted Stoner's de-emphasis of "apparent authority" and "private property law" concepts and the statements that a defendant's constitutional right is his own, which only he or his "authorized agent" can waive. Illustrative is Commonwealth v. Rundle (1968), 432 Pa 466 (248 A2d 197), where a closely divided Pennsylvania Supreme Court held valid and binding on the defendant his wife's consent to search premises used by the defendant which she had a right to enter; the dissenters would have held the search invalid on the authority of Stoner. Similarly, see Jenkins v. State (1967), ___ Del ___ (230 A2d 262), where the Delaware Supreme Court held that defendant's girl friend with whom he lived in premises rented by her, defendant contributing to the rent payments, could give effective consent to search because she was the sole legal tenant; Stoner was distinguished on the ground that the right of control and possession of the consenting party in that case was inferior to that of the nonconsenting party. This decision was affirmed by the United States Supreme Court (1969), 395 U.S. 213 (89 S. Ct. 1677, 23 L. Ed. 2d 253) on other grounds; fn 2 of the Court's opinion states:

"Petitioners remaining contentions have been adequately resolved by the court below. See Jenkins v. State (1967), ___ Del ___ (230 A2d 262), and Jenkins v. State (1968), ___ Del ___ (240 A2d 146)."

In Frazier v. Cupp (1969), 394 U.S. 731 (89 S. Ct. 1420, 22 L. Ed. 2d 684), the United States Supreme Court recently held that where the defendant owned a duffel bag and used it jointly with his cousin and left the bag at the cousin's home, the cousin could consent to its search at the time of his (the cousin's) arrest (p 740): "he clearly had authority to consent to its search." The Court ruled that evidence found in the search implicating the defendant was admissible even though he had not consented to the search on the authority of Harris v. United States (1968), 390 U.S. 234 (88 S. Ct. 992, 19 L. Ed. 2d 1067). "It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence," p 236, and Warden, Maryland Penitentiary v. Hayden (1967), 387 U.S. 294, 299, 300 (87 S. Ct. 1642, 18 L. Ed. 2d 782), where the Court held admissible identifying clothing found in a hot-pursuit search for weapons. The Court concluded its opinion with the observation that in allowing his cousin to use the bag and in leaving it at his cousin's home, the defendant (p 740) "must be taken to have assumed the risk that [the cousin] would allow someone else to look inside." (Emphasis supplied.)

Although it is greatly to be doubted whether the United States Supreme Court, having criticized in Stoner the "unrealistic doctrines of `apparent authority' and `subtle distinctions, developed and refined by the common law in evolving the body of private property law,'" meant to introduce still another and novel fiction — assumption of risk — into this already badly muddled area of the law, it is apparent from the Court's nonaction in Jenkins v. Delaware, supra, that it is content at the moment to treat as adequate (whether or not correct) State interpretations which are grounded on "subtle distinctions, developed and refined by the common law in evolving the body of private property law."

Frazier v. Cupp itself may be explained on the ground that there the cousin of the defendant, who as a co-user of the duffel bag consented to its search, may have thought he would obtain some advantage by consenting to a search in the police investigation which had also focused upon him. The balancing of the right of a co-owner or co-user to protect himself in a police investigation as best he can against the other owner's or user's right of privacy does not justify reliance on a third party's consent in a case such as this one where the consenter is not one upon whom an investigation has focused.

[13] Schoepflin v. United States (CA 9, 1968), 391 F2d 390, 399; Cipres v. United States (CA 9, 1965), 343 F2d 95, 97; Rosenthall v. Henderson (CA 6, 1968), 389 F2d 514 (burden of proof is on government to show that consent was intelligently given); Gorman v. United States (CA 1, 1967), 380 F2d 158 (where the defendant is in custody, the burden on the government to show that the consent was voluntary, i.e., the intentional relinquishment or abandonment of a known right, is particularly heavy); Wren v. United States (CA 10, 1965), 352 F2d 617, 618 (the defendant must be cognizant of his rights; the government has the burden of proof); United States v. Barton (DC Mass, 1967), 282 F Supp 785. See, also, the cases in footnote 14 which hold that advice regarding the right to withhold consent is a necessary precondition to the validity of a consent.

[14] United States v. Nikrasch (CA 7, 1966), 367 F2d 740, 744; United States v. Blalock (DC Pa, 1966), 255 F Supp 268; United States v. Moderacki (DC Del, 1968), 280 F Supp 633, 636. However, most courts which have considered the matter have concluded that where the consent relied on is that of the defendant no specific Fourth Amendment warning need be given if the defendant has been given the Miranda warnings; these courts have reasoned that the Miranda warnings are sufficient to apprise a defendant of his right to remain silent. Gorman v. United States (CA 1, 1967), 380 F2d 158; State v. Oldham (1968), 92 Idaho 124 (438 P2d 275); People v. Beal (1968), 268 Cal App 518 (73 Cal Rptr 787) and cases therein cited.

[15] "The law of searches and seizures, as revealed in that [the United States Supreme] Court's decisions, is the product of the interplay of the 4th Amendment's guarantee against unreasonable search and seizure and the 5th Amendment's guarantee that no person shall be compelled in any criminal case to be a witness against himself, its dual purpose being to protect the privacy of the individual and to protect him against compulsory production of evidence to be used against him. (Citations omitted.) Proof of confession is never admissible unless shown to have been made voluntarily, and the burden of proof is on the people to show that it was. (Citation omitted.) Confessions have been held to have been made voluntarily and to be admissible (citations omitted) when the proofs show that the officers to whom the confessions were made first advised the confessor of his rights, told him he was under no obligation to talk at all and cautioned him that his statements would be used as evidence against him. * * *

"Such are the safeguards thrown around admission into evidence of confessions, to help insure their voluntary character. And so, with respect to incriminating evidence, other than confessions, obtained by search and seizure, under a conceivable showing of facts, such as, inter alia, that the accused was first advised of his rights, informed that he need not submit to a search and that, if he did, the fruits thereof would be used in evidence against him, his consenting to the search and seizure may well, in the absence of contrary indications, be held to be voluntary, not an involuntary act secured under coercion, and, hence, a waiver of his constitutional rights, rendering such evidence admissible." People v. Zeigler, supra, pp 363-365.

Similarly, see People v. Kaigler, supra, p 294 (per T.M. KAVANAGH, J., three other justices concurring, the other justices reaching the same result by different reasoning and signing separate opinions).

The following statement by our Supreme Court is also pertinent:

"The case which goes further than any other that we have found is State v. Griswold, 67 Conn 290 (34 A 1046, 33 LRA 227). In this case the search was made with the consent and assistance of one in charge of defendant's office and found by the court to be his agent. It was held that defendant's constitutional rights had not been infringed. I think this decision is fundamentally unsound. If the constitutional rights of the citizen may be waived by any Tom, Dick, or Harry, whom he employs and temporarily puts in charge of his property, they hang by a very slender thread indeed." (Emphasis supplied.) People v. Weaver (1928), 241 Mich. 616, 620, 621.

Also relevant is People v. Shaw, supra, decided by our Court.

[16] Katz v. United States (1967), 389 U.S. 347, 351 (88 S. Ct. 507, 19 L. Ed. 2d 576).

[17] "What constitutes waiver or consent under the Fourth Amendment is determined by the particular circumstances in each case." People v. Kaigler, supra, p 295.

[18] See State v. Evans (1962), 45 Haw. 622 (372 P2d 365, 372); State v. Warfield (1924), 184 Wis 56 (198 N.W. 854).

[19] People v. Kaigler, supra; People v. Zeigler, supra; People v. Shaw, supra; Judd v. United States (CA DC, 1951), 190 F2d 649. See, also, Waldron v. United States (CA DC, 1955), 219 F2d 37.

See, generally, 2 Gillespie, Michigan Criminal Law & Procedure, 1968 Cum Supp § 875, p 161.

[20] Even if, as a number of courts have held (see footnote 14), it is not an essential precondition to the validity of an accused person's consent to a search that he shall have been given a specific Fourth Amendment warning as long as he was given the Miranda warnings, the failure to give any advice concerning the constitutional right to withhold consent is a factor to be considered in appraising whether the alleged consent is voluntary. Rosenthall v. Henderson (CA 6, 1968), 389 F2d 514, 516; People v. Haskell (1968), 41 Ill 2d 25 (241 NE2d 430). Cf. United States v. Barton (DC Mass, 1967), 282 F Supp 785; Gorman v. United States, supra, where the court emphasized that the Miranda warning of the right to remain silent had been given the defendant both in finding that his consent to search was voluntary and in holding that a specific search and seizure warning was not required.

It, therefore, appears that the law of consensual searches has progressed at least to the point of the pre-Miranda confession cases in the sense that whether an accused person was advised of his rights is a significant factor in determining the voluntariness of his actions Davis v. North Carolina (1966), 384 U.S. 737, 740 (86 S. Ct. 1761, 16 L. Ed. 2d 895). See discussion 8A Moore's Federal Practice, § 41.07[4], pp 41-45.

[21] See United States v. Roberts (D DC, 1959), 179 F Supp 478 (consent of mother to police search at midnight held not freely and intelligently given); United States v. Shropshire (ED La, 1967), 271 F Supp 521 (consent obtained when defendant admitted police at early morning hour held involuntary). Also finding invalid a consent obtained under the implied coercion of the apparent authority of police officers are Amos v. United States (1921), 255 U.S. 313, 317 (41 S. Ct. 266, 65 L. Ed. 654); Pekar v. United States (CA 5, 1963), 315 F2d 319; Higgins v. United States (1954), 93 App DC 340 (209 F2d 819); Talavera v. State (Fla App, 1966), 186 So 2d 811); People v. Haskell (1968), 41 Ill 2d 25 (241 NE2d 430); Cf. Nelson v. United States (CA DC, 1953), 208 F2d 505.

See, also, People v. Jennings (1956), 142 Cal App 2d 160 (298 P2d 56) (dictum that two minor daughters [ages 15 and 17] could not consent; police arrived early in the morning accompanied by a police matron); State v. Malcom (1964), ___ Del ___ (203 A2d 270) (dictum that 16-year-old son could not consent); United States v. Block (SD NY, 1962), 202 F Supp 705 (20-year-old handyman could not consent); May v. State (Miss, 1967), 199 So 2d 635 (son cannot waive defendant's right).

[22] People v. Liggett (1967), 378 Mich. 706, 716, 717; Chapman v. California (1967), 386 U.S. 18, 23, 24 (87 S. Ct. 824, 17 L. Ed. 2d 705), reh. den. 386 U.S. 987 (87 S. Ct. 1283, 18 L. Ed. 2d 241).

[1] See also article entitled "Third Party Consent to Search and Seizure" in Wash U L Quarterly 12, 18-20 (1967).

[2] People v. Helmus (1966), 50 Misc. 2d 47 (269 NYS2d 613) [defendant's wife gave his gun to police]; Gutridge v. Maryland (1964), 236 Md 514 (204 A2d 557) [defendant's wife opened his locker and handed narcotics therein to police]; Lucas v. Texas (Tex, 1963), 368 S.W.2d 605, reh. den. (1963) [defendant's landlord found plastic masks while checking commodes and gave masks to police].