People v. Bunker, Docket No. 3947

• Decision Date: 23 March 1970
• Docket Number: Docket No. 3947,No. 2,2
• Citation: 177 N.W.2d 644,22 Mich.App. 396
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Arthur BUNKER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 644

177 N.W.2d 644

22 Mich.App. 396

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Arthur BUNKER, Defendant-Appellant.

Docket No. 3947.

Court of Appeals of Michigan, Division No. 2.

March 23, 1970.

Released for Publication June 26, 1970.

Robert L. Coburn, Schmidt, Nahas & Coburn, Mt. Clemens, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Rpos. Atty., Thaddeus F. Hamera, Chief

Appellate Lawyer, Don L. Milbourn, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and McGREGOR and V. J. BRENNAN, JJ.

LESINSKI, Chief Judge.

Defendant David Bunker and another man were convicted of first degree murder, M.C.L.A. § 750.316 (Stat.Ann.1954 Rev. § 28.548), following a trial by jury. The codefendants were sentenced to life imprisonment. Defendant Bunker appeals as of right.

During the late afternoon on December 23, 1966, a red, 1962 Chevrolet convertible with a white top, pulled into the Clark Service Station on Van Dyke Avenue in the city of Utica. One of the station attendants, Alan Pringle, serviced the car. He put $2 worth of gasoline into the car, then went to the driver's side for payment.

At this time the station manager came out of the station to see if he could give assistance. He observed the pump turned off at $2 worth of fuel and started back toward the building while Pringle went to collect from the driver. When the manager was approximately eight to ten feet from the car he heard a loud report. He turned and saw Pringle slumping to the pavement with money falling around him. The red convertible immediately left the station at a high rate of speed.

Shortly after the incident officers of the Sterling Township Police Department observed an automobile matching the description of the car seen at the service station and gave chase. The chase, at speeds up to 110 miles per hour, led through the city of Warren and several subdivisions. The car managed to avoid a police road block at one point, but finally went out of control after hitting another vehicle and came to a stop on the median strip of Mount Road.

Defendant, the driver of the red Chevrolet, and Robert Casper, the passenger, were immediately placed under arrest. Both were subsequently charged with first degree murder, following the death of Alan Pringle.

At trial it was established by the prosecution through the testimony of a qualified ballistics expert that the gun which fired the fatal shot was the game gun which the police found along the chase route shortly after the chase. It was also established that the same gun had shot several spent bullets found in the basement of defendant's home.

The bullets from defendant's basement were found there during a police search conducted several days after the crime without a search warrant but allegedly with the consent of his parents. Prior to trial defendant made the proper motions to suppress the evidence found in his basement. Following the lower court's denial, they were renewed at trial, at which time an extensive record was established out of the presence of the jury on the question of the warrantless search. The trial court held that consent had been given and that the search was, therefore, legal. Defendant's motion was again denied.

Defendant's first issue raised on appeal concerns the admissibility of the items located in his basement.

Initially we note that defendant has standing to attack the validity of the search of the basement of his home. Defendant, 18 years old at the time of the trial, lived at home with his parents. He contributed $20 per week toward his room and board and had his own bedroom. He had equal access, along with the rest of the family, to the basement. Defendant falls within the general rule stated in 78 A.L.R.2d 246, § 12(a), 267: 'As a general proposition a member of a family who lives on family premises has been held to have standing to attack the legality of a search of such premises.' See, also, Jones v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Bumper v. State of North Carolina (1968), 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797.

Defendant's attack on the warrantless search is twofold. First, it is contended that defendant's parents could not legally consent to the search of their basement and the seizure of the items taken. Second, defendant argues that even if his parents could consent, that they did not in fact do so. Defendant concludes that the evidence produced by the search is inadmissible under the exclusionary rules of Mapp v. Ohio (1961), 367 U.s. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

In the instant case Mr. and Mrs. Bunker were the sole owners of the house. Defendant did not have a financial interest. The basement was a common area for the It is not necessary for the defendant The items that were seized were a high chair and a storage box, both apparently owned by defendant's parents and several cartridge casings from the floor and a bullet, found in the storage box, which had penetrated the high chair and the outside of the storage box.

In Morris v. Commonwealth (1948), 306 Ky. 349, 208 S.W.2d 58, the Court stated at 60:

'The next complaint concerning the evidence is that the cartridge case or empty shell shown to have been fired by the rifle tested was found in a search of appellant's residence which was neither authorized by warrant nor by consent of appellant. Appellant lived in the home of his father. The officers who searched the dwelling asked the father, who was the head of the house, for permission to search the house; he consented to the search, and the evidence obtained was found in the kitchen which was under the control of the father. We invariably have held that the head of a house, or the one in charge of the house at the time a search is made, may consent to its search, and such consent will render competent the evidence thus obtained. It is necessary for the defendant himself to give consent, unless he is the head of the house or in charge of the premises at the time the officers commence the search.'

More recently in United States v. Roberts (E.D.Ark.1963), 223 F.Supp. 49, aff'd (CA 8, 1964), 332 F.2d 892, cert. den. 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274, the police had received consent from defendant's wife for a warrantless search. There the police were seeking a spent bullet lodged in the ceiling of defendant's home in an effort to determine whether it came from the same gun which fired the fatal shot. After a review of the authority, the Court concluded at 59:

'If a general rule must be extracted from the cases cited above and many others which might have been cited, it may be said with some degree of assurance that assuming a truly voluntary and understanding consent or authorization the same is sufficient to validate a search If given by a person who is in the sole possession or has sole control of the premises in question or who has an equal right with the defendant or suspect to the possession or control of the premises, provided that the search is limited to the general premises and does not involve entry into portions of the premises obviously reserved to the exclusive use of the defendant or suspect or the opening or breaking into drawers, bureaus, boxes, trunks, or like containers used for the storage of his property or effects.' (Emphasis supplied.)

Finally, it is significant that the United States Supreme Court did not question the right of a grandmother to consent to a search of her home for evidence incriminating her grandson who lived with her. Bumper v. State of North Carolina (1968), 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797. Although the Court found a lack of consent on the part of the grandmother, it made reference to the possible effect of her consent, had it been voluntary, by way of footnote at 548, 88 S.Ct. at 1791:

'Mrs. Leath owned both the house and the rifle. The petitioner concedes that her voluntary consent to the search would have been binding upon him. Conversely, there can be no question of the petitioner's standing to challenge the lawfulness of the search. He was the 'one against whom the search was directed,' Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697, and the house searched was his home. The rifle was used by all members of the household and was found in the common part of the house.'

We conclude, therefore, that where the area to be a searched is open to the common access of all members of the family, ¹ that the homeowning parents have the right to consent to a search for items which may incriminate one of their children who is living at home.

The issue is thus reduced to the question of whether Mr. and Mrs. Bunker consented to the search.

Two points concerning consent to a search are firmly established in the law. First, the consent must have been specific and unequivocal, free and voluntary, and knowing and intelligent. Second, the burden is on the prosecutor to establish that such consent was given by clear and convincing evidence.

In People v. Kaigler (1962), 368 Mich. 281, at 294, 118 N.W.2d 406, at 413, the Court stated:

'(S)uch waiver of consent must be proved by clear and positive testimony And there must be no duress or coercion, actual or implied, and the prosecutor must show a consent that is unequivocal and specific, freely and intelligently given.'

Again, in Bumper v. State of North Carolina (1968) 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, and People v. Smith (1969), 19 Mich.App. 359, 172 N.W.2d 902, it was held that the prosecution has the burden of proving that consent was freely and voluntarily given, when it seeks to rely upon consent to justify a warrantless search. In People v. Smith, Supra, p. 369, 172 N.W.2d p. 907, we noted 'the familiar principle that waiver is the intentional relinquishment or abandonment of a known right.' See, also, People v. Shaw (1968), 9 Mich.App. 558, 157 N.W.2d 811.

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