Cobb v. State, 4 Div. 586
| Decision Date | 07 February 1978 |
| Docket Number | 4 Div. 586 |
| Citation | 355 So.2d 741 |
| Parties | Alvin Lee COBB v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Timothy B. Loggins, Opp, for appellant.
William J. Baxley, Atty. Gen. and Susan B. Bevill, Asst. Atty. Gen., for the State.
The Grand Jury of Covington County returned an indictment against the appellant, Alvin Lee Cobb, charging him with robbery. Appellant entered a plea of not guilty. A jury found him guilty as charged and fixed his punishment at 20 years imprisonment in the penitentiary and the court duly sentenced him to twenty years in the penitentiary. The appellant appeals to this Court.
Appellant was represented at all proceedings in the trial court, and is here represented by court appointed counsel. This appeal was submitted to this Court on briefs.
It is not necessary to state the evidence of the robbery and of defendant's plea of alibi, other than to make the observation that the guilt or innocence of the appellant presented a question of fact to be decided by the jury.
The appellant argues in his brief five reasons why his conviction should be reversed; first, because the trial court permitted the introduction into evidence a waiver of search warrant and a consent to search; second, that the consent to search did not apply to appellant but only to the party who signed it; third, that the state did not prove that the consent to search was given freely, unequivocally and voluntarily; fourth, that the party who signed the consent to search was not in court to be cross-examined by appellant; fifth, by allowing to be introduced into evidence a pair of blue shoes, fruits of the search.
There was evidence presented during the trial in the lower court in the presence of the jury, and on voir dire that Mrs. Alberta McGhee was a tenant and in the actual possession of the premises located at 2480-6th St. N.E., Winter Haven, Florida; that she freely and voluntarily, and without compulsion or threats of any kind, and understanding her constitutional rights in regard to the search, completely and intentionally waived them, and consented that the premises be searched without a search warrant; that the waiver of search warrant and consent to search was in figures and writing, and signed by Alberta McGhee as a tenant, and was witnessed by Don Harrell, Chief Deputy, Covington County, Alabama, Detective David Smith, Polk County, Florida, Sheriff's Office, and Detective Guy W. Henry of Winter Haven, Florida Police Department; that the consent to search was signed in the presence of the three witnesses, and is in words and figures, as follows:
I fully understand my Constitutional Rights in regard to the search and it is
my intention to fully and completely waive such rights by this consent.
Don Harrell, Chief
Deputy Cov. Co. Al.
State's evidence further tends to prove that the above named officers searched the premises and found a pair of blue shoes, and that Alberta McGhee was the only person present except the officers making the search.
The appellant testified that he rented and was buying the premises that were searched; that the premises were his home and that Alberta McGhee was a girl friend living in the home with him.
First we consider the authority of Alberta McGhee to waive a search warrant and to consent to a search of the premises. The authority of a person to waive a search warrant and to consent to the search of premises rest on the mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit an inspection in his or her own right, and that the others have assumed the risk that one of their members might permit the common area to be searched.
The evidence before the trial court fully sustains the finding of the trial court that Alberta McGhee was in possession of the premises searched and lived in them with the appellant as his girl friend. The premises searched was a house trailer.
We hold that under the decisions of this Court when applied to the facts in this case the trial court did not err in determining from the evidence that Alberta McGhee had the authority to waive a search warrant and consent to a search of the premises. Scott v. State, Ala.Cr.App., 337...
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Ballard v. State
...that the wife of an absent defendant can validly consent to a search of the premises or effects of the defendant. Cobb v. State, 355 So.2d 741 (Ala.Crim.App.1978); Liptroth v. State, 342 So.2d 959 (Ala.Crim.App.), cert. denied, 342 So.2d 961 (Ala.1977), cert. denied, 434 U.S. 869, 98 S.Ct. ......
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Brooks v. State
...that the wife of an absent defendant can validly consent to a search of the premises or effects of the defendant. Cobb v. State, 355 So.2d 741 (Ala.Crim.App.1978); Liptroth v. State, 342 So.2d 959 (Ala.Crim.App.), cert. denied, 342 So.2d 961 (Ala.1977), cert. denied, 434 U.S. 869, 98 S.Ct. ......
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Dixon v. State
...of a home are valid where a co-occupant consents to the search. Jackson v. State, 414 So.2d 1014 (Ala.Cr.App.1982); Cobb v. State, 355 So.2d 741 (Ala.Cr.App.1978); Hawkins v. State, 333 So.2d 846 (Ala.Cr.App.), cert. denied, 333 So.2d 851 (Ala.1976); Johnson v. State, 353 So.2d 62 (Ala.Cr.A......
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Mickens v. State
...a search warrant and consent to the search. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Cobb v. State, 355 So.2d 741 (Ala.Cr.App.1978); Liptroth v. State, 342 So.2d 959 (Ala.Cr.App.), cert. denied, 342 So.2d 961 (Ala.1977); Hawkins v. State, 333 So.2d 846 (A......