Bartlett v. State, 6 Div. 80
| Citation | 387 So.2d 886 |
| Decision Date | 18 March 1980 |
| Docket Number | 6 Div. 80 |
| Parties | Dennis James BARTLETT v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Carl E. Chamblee, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
This is an appeal from a judgment convicting appellant and sentencing him to imprisonment for five years for grand larceny of an "Acetylene Welder Set."
A major insistence of appellant is that the trial court erred in overruling defendant's motion to suppress as evidence the specified personal property that was found without a search warrant therefor in the garage of defendant, appellant contending, as he did on the trial, that there was a violation of his right to freedom from unreasonable search and seizure guaranteed by the Fourth Amendment to the Constitution of the United States.
The garage in which the stolen property was located was a two-car garage with a door for each car. It was located on two separate lots with half of the garage on one lot and the other half on the other, the line of division being the boundary line between the two lots as it ran from midway between the two doors to a point at the center of the back of the garage. There was no partition or marker of any kind between the two parts of the inside of the garage. Defendant and his wife lived in a dwelling on one of the lots and used as a garage that part of the two-car garage that was on the same lot; Mr. and Mrs. Holder and family lived in the dwelling on the other lot and used as a garage that part of the two-car garage on that lot.
On January 10, 1979, the owner of the welding set reported the theft thereof to Deputy Dennis Spradlin, an investigator with the Cullman County Sheriff's Office. Deputy Spradlin obtained a description of the property and the names of three people that had recently been engaged in construction work at the site from which the welding set was stolen. One of the three was Dennis Bartlett. Unable to locate Mr. Bartlett at his work, Deputy Spradlin proceeded on January 11, 1979, to Mr. Bartlett's residence, accompanied by another officer. Both doors of the two-car garage were closed. He went to the back door of defendant's residence and knocked on the door; Mrs. Bartlett came to the door; he inquired whether Mr. Bartlett was at home, and she replied that he was not. He asked her if he could look in her garage and she said, "No."
Deputy Spradlin testified that he then went to the residence of Mr. and Mrs. Holder, let her know what he was looking for, and asked her permission to search her garage. She gave her permission and manifested it by her signature to a consent search form. The deputy then walked into the Holders' side of the garage; he did not go into the Bartletts' side, but he saw therein a welding set in plain view, which matched the description of the set given to him by the owner of the stolen set. According to his further testimony, he and his accompanying officer then returned to their automobile, and he phoned headquarters; while he was in the process of advising headquarters and the office of the district attorney, Mr. Bartlett drove up in an automobile. The officer told him "what we were doing, told him why we (at that time Mr. Larry Waldrip had joined them) were there and I needed to know where the acetylene tank came from." Mr. Bartlett then excused himself to go to the bathroom and promptly returned. He said, "he didn't know where it came from." The officer asked Mr. Bartlett if he would consent to their going into "his side of the garage." Mr. Bartlett advised that they "could." They walked back through the Holders' side of the garage and went into Mr. Bartlett's side. His testimony continues as follows:
Further testimony of Deputy Spradlin was to the effect that before obtaining any further information from appellant, the officer proceeded to read and explain to him his rights from the regular form, including his right to an attorney, and while in the process of doing so appellant "advised that he would like to call his lawyer." Deputy Spradlin then handed Mr. Bartlett the phone book and appellant proceeded to call his named lawyer, who was either busy or not in his office. Mr. Bartlett left word for him with his secretary to tell him that he was at the county jail. Spradlin further testified: The officer then left defendant and his lawyer to themselves in another room, where they were for approximately "ten minutes," with the statement in the handwriting of the officer that appellant had given him orally but which statement was not fully completed. Upon the return of Mr. Bartlett and his attorney from the office, Officer Spradlin was advised by the attorney that Officer Spradlin could complete the statement made by Mr. Bartlett for Mr. Bartlett's signature. The statement was completed, and Mr. Bartlett signed it. The statement was comprehensive as to all requirements as to voluntariness and Miranda warnings against self-incrimination and the right to counsel, at the expense of the state if necessary.
On the motion to suppress evidence as to finding the stolen property in the garage of appellant and taking it to headquarters, defendant offered the testimony of Mrs. Holder, Mrs. Bartlett and Mrs. Bartlett's mother as to what they observed about Officer Spradlin's activities while on or about the premises of the Holders and the Bartletts, in an effort to show an illegal search and seizure. As a whole the testimony is rather lengthy, but nothing has been specified therein on appeal as in conflict with the testimony of Officer Spradlin other than testimony by one or more of them to the effect that before Officer Spradlin obtained the consent of Mrs. Holder to enter their side of the garage, he was peeping into a crack of the garage or under a door thereof.
The court was not in error in overruling defendant's motion to suppress the stolen property as evidence, or in overruling defendant's objection to its introduction in evidence. Officer Spradlin's entry into the Holders' side of the garage had the consent of the only person on the premises at the time who had authority to consent to such entry. It is an established principle of law, on the subject of consent to search and seizure, that where two or more responsible persons are in joint occupancy of particular premises, with coequal rights therein, any...
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