*1
part
set
part
in
hereinbefore
Reversed in
affirmed
plaintiff.
forth. Costs are tо be taxed in favor
DOYLE, JJ„
and BIEGELMEIERand
WOLLMAN, J.,
part
part.
in
concurs in
and dissents
dissenting
WOLLMAN, Judge (concurring
part).
part
part
majority opinion
concur in that
that relates
originаl
plaintiff's
attorney.
affidavit of
the remain-
dissent from
reviewing
however,
majority оpinion,
der of the
because after
record
amI
left with a definite
firm
that the trial
conviction
finding
court was mistaken in
that defendant did not know of
plaintiff's pregnancy.
Hobelsberger,
In re Estate of
STATE, Respondent LEWIS, Appellant 397) *2 Vickerman, Pierre, Gen., plaintiff Atty. for R. Asst. Thomаs Gen., Pierre, Atty. on brief. Mydland, respondent; Gordon and Rieb, appellant. Rapid City, defendant William J. DOYLE, Judge. grand charged guilty of found with and defendant was The Pennington County, by jury of
larceny in the Circuit Court a judgment appeals and sentence the He from South Dakota. penitentiary thereon. the state truck, investigating larceny pickup aof
In the of the course investigating a with thief wore boots the the оfficers determined print. pickup found abandoned was later distinctive The stоlen prints in fresh snow followed distinctive and the officers the boot dwelling The house. the rear door of defendant's mother's by where admitted into home defendant's mother officers were the they asleep the bedroom with found defendant in a basement awakened, on was the floor next to The defendant boots the bed. rights by statutory of- the and advised of his and constitutional acknowledged was ficers. He the boots to his. Defendant then be jail. the officers then arrested and taken to Sometime later same missing pickup. radio The were advisеd a from the stolen dwelling returned to for the officers and the defendant the hоuse purpose of further search with the of the a defendant. mother, agаin by whereupon They were admitted necessity produced the defendant radio the a search. assigns The defendant now contends as error that failed, motion, upon proper suppress trial court as evidence the triаl the were with- radio because the same rights IV Amendment out warrant in of his under violation VI, Dakota the South United States Art. 11 of Constitution and § Constitution. entry into
Defendant сontends that the initial of his house invitation and at the illegal proper mothеr was search warrant. in the absence of a cause, required by Here the officers had SDCL23- reasonable 22-7(2)(3),to arrest the under shown. the circumstances A search be made without search warrant as Merrill, to a lawful arrest. State 349. N.W.2d illegality case the defendant does not contend the of his *3 agree аrrest. We do not Stoner defendant's contention that California, 483, 889, 856, v. 376 U.S. 84 S.Ct. 11 L.Ed.2d which held that dеsk clerk could not consent to the search of a rented room, applicable. hotel is here case defendant's apparently mothеr's control over the absolute. An (defendant old) emancipated yeаrs child was 22 does not have right privacy family the same constitutional home as he Kinderman, have a rented hotel room. State v. 271 Minn. 405, 577, 909, 1349, 136 N.W.2d cert. 384 den. U.S. 86 S.Ct. 16 L.Ed.2d 361.
Defendant's further contention that the search in connection with the radio was in violation of his constitutional right equally is clearly without appears merit. It from the record that the search acquiescence was conducted with the consent and of both defendant and his mother. A search without a search warrant is vаlid if made occupant. with the consent of the State Merrill, supra. v.
Affirmed. WINANS, JJ„ and BIEGELMEIER
WOLLMAN,J., specially. concurs WOLLMAN,Judge (concurring specially).
766
agree
lawfully
defendant's
police
that the
a warrant.
of defendant
lawful arrest
294,
Hayden,
87
Warden,
Penitentiаry
387 U.S.
Maryland
v.
See
234,
States,
782;
1642,
390 U.S.
United
18
Harris v.
L.Ed.2d
S.Ct.
752,
California,
1067;
992,
U.S.
395
Chimel v.
19 L.E.2d
S.Ct.
88
685; Coolidge
Hampshire,
2034,
New
v.
L.Ed.2d
89 S.Ct.
holding,
it
In view this
his CUNDY,
STATE, Appellant Respondent 20, 1972) denying rehearing petition 29, 1972 Order November