Commonwealth ex rel. Cabey v. Rundle

248 A.2d 197, 432 Pa. 466, 1968 Pa. LEXIS 545

• Court: Supreme Court of Pennsylvania
• Decided: November 27, 1968
• Docket: Appeal, No. 333
• Status: Published

Opinions

Opinion by

Mr. Justice Eagen,

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.¹ Appellant was found guilty on all charges, and the Superior Court affirmed. This Court denied allocatur and the Supreme Court of the United States denied certiorari. 380 U.S. 926, 85 S. Ct. 902 (1965). Appellant’s subsequent petition for a writ of habeas corpus was dismissed, the Superior Court affirmed, but we granted allocatur and remanded to the trial court for consideration of appellant’s claim that evidence was admitted in violation of the rule of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961). After full hearing, Judge Spaeth denied appellant’s petition for a writ of habeas corpus. The Superior Court again affirmed and we granted allocatur.

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.

The trial court found as a fact that the rental agreement was only between appellant and his employer. The court further found that the only key to the garages was the one on appellant’s key ring. It also found, however, that the garages were used to store property belonging both to appellant and his wife, and that appellant had no intention of excluding his wife from the garages or from the property therein.

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 the wife to exercise control over the garages, and her incidental right to delegate intelligently that right to the police.

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 goods and furniture stored there.” Hence, the appellant’s privacy gave him the right to exclude vast numbers, perhaps the whole world,—all except his wife. But she too had rights and powers with respect to the garages; she could permit her friends, her neighbors, and her family to go there. And she could also allow the police to enter and search it.

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 hot say that a search and seizure could never survive •constitutional objection merely because it was authorizéd by a person who was not the defendant, but who •had an independent right to exercise control over the premises. The Court did say that the particular landlord in the particular fact setting had no independent right to enter the demised premises, absent an express covenant giving him such a right.

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.

Mr. Justice Musmanno did not participate in the decision of this ease.

1 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.