Opinion
No. 73-CR-372
Decided August 28, 1973.
Criminal law — Search and seizure — Illegal search of apartment after arrest — Subsequent consent to search not applicable to prior search, when.
Where one in custody of police officers gives permission for the search of his apartment, such consent cannot be extended retroactively to apply to an illegal prior search of the apartment.
Mr. Lee C. Falke, county prosecutor, and Mr. John Slavens, for plaintiff.
Mr. Thomas R. Noland, for defendant.
The defendant, David M. Green, has moved the court to suppress "all evidence obtained or seized pursuant to the search of or on and about defendant's apartment or personal possessions by law enforcement officers on the 23rd day of February, 1973, for the reason that said search and subsequent seizure of certain articles found in the search violated defendant's rights under the Fourth Amendment of the Constitution of the United States of America, and Article VIII, Section 5 of the Constitution of the State of Ohio."
[ sic] Article I, Section 14.
The parties have stipulated the following relevant facts: On February 23, 1973, the defendant was arrested by Oakwood police officrs at defendant's residence. After being placed into a police cruiser in the custody of two officers, a third officer, a detective went back to the residence to talk to defendant's landlady. The landlady took the detective to the defendant's room and showed him a television set that, apparently, the defendant had just recently acquired. The television set turned out to be the one the detectives had been looking for in connection with the charges for which the defendant had been arrested. At no time had the police obtained a search warrant or arrest warrant.
On the next day, February 24, 1973, while the defendant was in custody and under arrest, the defendant wrote out and signed a note giving the Oakwood Police Department permission to search his room. The note further stated that no threats or promises had been made to him. On the same day, the detective was contacted by the defendant's landlady who told him she had found some keys while cleaning defendant's room. The detective again went to defendant's residence, this time with the consent to search form, took possession of the keys, and had further conversation with the landlady.
The defendant is seeking to suppress the introduction into evidence of the television set seized by the police on February 23, 1973.
The issue presently confronting the court is whether the television set seized as a result of the February 23, 1973 search was seized as the result of an unreasonable and illegal search. If the television set was illegally seized, the court would be compelled to suppress its introduction into evidence by virtue of Mapp v. Ohio (1961), 367 U.S. 643. a decision of the United States Supreme Court.
The defendant advances three arguments for invalidating the warrantless February 23rd search and the resulting seizure: first — the landlady could not give effective consent for the search of the defendant's room; second — the consent form the defendant signed on February 24th cannot be extended, retroactively to apply to the February 23rd search; third — the search was not made incident to a lawful arrest.
As concerns the landlady's consent, the court is of the opinion that she could not give a legally effective consent to the search of the defendant's room. It is fundamental that one person, without proper authorization, cannot waive the constitutional rights of another person. The apparent "exceptions" to this rule are grounded on the right of the submissive party to waive his own rights on his own behalf. Consequently, a wife may assent to a warrantless search of her house (EXCEPTING THE HUSBAND'S PERSONAL EFFECTS) when she and her husband have common dominion over the house in question., e. g.., Roberts v. United States (C. A. 8, 1964), 332 F.2d 892. There is no evidence before the court that the landlady of the defendant had any such equal rights to the use or occupation of defendant's room. The cases of Chapman v. United States (1961), 365 U.S. 610, a landlord case, and Stoner v. California (1964), 376 U.S. 483, a hotel clerk case, make it clear that, in the case at bar, the landlady did not have the right to conduct the detective to the defendant's room and show him the television set.
As to the consent form the defendant signed on February 24, the court is of the opinion that it cannot be extended retroactively to apply to the February 23rd search. The most important consideration in this regard is the fact that the consent form is written in the present tense. The form recites that, "I, David M. Green, give permission * * *." (Emphasis added.) Even if it could be held that the consent form did operate retroactively, a perusal of the relevant cases reveals that the courts negatively view consents obtained after illegal entries, searches, detentions, or arrests, from defendants who are in custody. Annotation, Validity of Consent to Search Given by One in Custody of Officers, 9 A. L. R. 3d 858, especially, Sections 8 and 9. Some courts have held that such consents are necessarily invalid, e. g., Commonwealth v. Spofford (1962), 343 Mass. 703. Other courts have held that such consents may be valid if the prosecution overcomes the heavy burden of proving absence of duress, e. g., Gibson v. United States (C. A. D.C. 1945), 149 F.2d 381. Accordingly, even if the consent form was valid as to subsequent searches, it would severely strain the applicable law and logic to hold it applicable to a prior search.
Finally, the court agrees with the defendant's contention that the challenged search was not made incident to a lawful arrest. As stated in the headnote to Chimel v. California (1969), 395 U.S. 752:
"An officer may search the arrestee's person to discover and remove weapons and to seize evidence to present its concealment or destruction, and may search the area `within the immediate control' of the person arrested, meaning the area from which he might gain possession of a weapon or destructible evidence."
Chimel involved a search of the defendant's entire house after the defendant was arrested therein. More directly in point would be the case of Shipley v. California (1969), 395 U.S. 818. In the headnote of the Shipley case, the United States Supreme Court held that:
"* * * it has never been constitutionally permissible for the police, absent on emergency, to arrest a person outside his home and then take him inside for the purpose of conducting a warrantless search."
It is apparent that the defendant was not in his room when arrested. A later search cannot, therefore, be validated as incident to the arrest.
The defendant's motion being well-founded should be and hereby is sustained.
This decision and Order was served upon all counsel as indicated below by ordinary mail on the 28th day of August, 1973.
Defendant's motion sustained.