Com. v. Wright

• Decision Date: 16 April 1963
• Citation: 411 Pa. 81,190 A.2d 709
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Walter L. WRIGHT.
• Court: Pennsylvania Supreme Court

Page 709

190 A.2d 709

411 Pa. 81

COMMONWEALTH of Pennsylvania, Appellant, v. Walter L. WRIGHT.

Supreme Court of Pennsylvania.

April 16, 1963.

Rehearing Denied May 24, 1963.

Arlen Spector, Louis F. McCabe, Asst. Dist. Attys., F. Emmett Fitzpatrick, Jr. First Asst. Dist. Atty., James C. Crumlish, Jr., Dist. Atty., for appellant.

Martin Vinikoor, Marvin S. Baker, Philadelphia, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.

EAGEN, Justice.

The Commonwealth appeals from an order of the Court of Oyer and Terminer of Philadelphia County, granting the petition of the defendant, Walter Wright, under indictment for murder, to suppress certain money evidence allegedly obtained through an illegal search and seizure.

The relevant facts may be stated thusly:

On October 26, 1961, at about 3:15 a. m., an armed robbery of a taproom in South Philadelphia occurred, during which the bartender was shot and killed. Information given the police pointed the finger of suspicion at the defendant, who was arrested without a warrant in his apartment about 6:15 a. m. on the same day. The legality of the arrest is not questioned. At the time the defendant was taken into custody, the apartment was searched but nothing material was found.

Following the arrest, the defendant was taken to police detective headquarters and questioned.

About 10:30 a. m., the police investigating officers returned to the defendant's apartment. Up to this point, the defendant had not made any incriminating statements. No search warrant had been issued or was in their possession. The officers were met in the hallway by the defendant's wife and they told her that her husband was under arrest. They also told her that he had admitted the crime and sent them for the 'stuff.' This latter statement was false. Admittedly, the wife was frightened and upset. She admitted them to the apartment and immediately told them that her husband had returned home earlier in the morning in a highly excited state and asked her the whereabouts of the 'doll with the hole in it,' which was a doll with a zipper in the back. She related that the defendant had opened the zipper and stuffed money into the opening. The police then picked up a doll, but the wife said that it was not the one and pointed to another. An examination of this last mentioned doll revealed the presence of one hundred sixteen dollars inside. ¹ It is this evidence that is the subject of the attack in this proceeding.

Subsequently, the defendant made a written statement admitting participation in the crime.

Two questions are raised in this appeal: (1) Does the Commonwealth have the right to appeal from the order of suppression? (2) Was there a valid consent by the defendant's wife to a search of the apartment so as to waive any constitutional guarantees the defendant personally enjoyed against unlawful search and seizure of his home?

The first question involving the right of the Commonwealth to appeal herein has been effectively answered by this Court in the scholarly opinion of Mr. Justice Jones in the case of Commonwealth v. Bosurgi, Pa., 190 A.2d 304 (1963).

The second question requires attention and is determinative.

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), ruled that 'all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority inadmissible in a state court.' (page 655, 81 S.Ct. page 1691, 6 L.Ed.2d 1081). Such rule of exclusion being 'an essential part of both the Fourth and Fourteenth Amendments * * *.' (page 657, 81 S.Ct. page 1693, 6 L.Ed.2d 1081). Save in certain cases as incident to arrest, there is no sanction in the decisions of the courts, federal or state, for the search of a private dwelling without a warrant: Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1956). However, it is likewise the law that the constitutional right prohibiting an unreasonable search and seizure may be waived by the defendant personally: Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649 (1951); Comm. v. Bosurgi, 198 Pa.Super. 47, 182 A.2d 295 (1962, aff'd Pa., 190 A.2d 304 (1963); 58 A.L.R. 737 (1929). It has also been held that such consent or waiver is valid even if made under a threat to procure a search warrant: United States v. Haas, 106 F.Supp. 295 (D.C.1952).

The federal court decisions, as to whether or not the consent given by one spouse to search their common dwelling house is binding upon the other in his or her absence, are not in accord. In the following instances, the consent was held binding: United States v. Heine, 149 F.2d 485 (2 Cir., 1945), cert. denied 325 U.S. 885, 65 S.Ct. 1578, 89 L.Ed. 2000 (1945); United States v. Sergio, 21 F.Supp. 553 (E.D.N.Y.1937). In United States v. Rykowski, 267 F. 866 (E.D.Ohio 1920), such consent was held legally ineffective as to the other spouse. However, it is established beyond argument that such consent to be valid must be unequivocal, specific and voluntarily given without the presence of duress or coercion, actual or implied: Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921); Judd v. United States, supra; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1937). Moreover, searches and seizures made without a proper warrant are generally regarded as unreasonable and violative of the Fourth Amendment and the burden is upon the searcher to prove the presence of consent or waiver by clear and positive testimony: Amos v. United States, supra; Judd v. United States, supra, and Johnson v. Zerbst, supra. Further, it is well established that the consent may not be gained through stealth, deceit or misrepresentation, and that if such exists this is tantamount to implied coercion: United States v. Guerrina, 112 F.Supp. 126 (D.C.1953); Moyer v. Brownell, 137 F.Supp. 594 (D.C.1956); Fraternal Order of Eagles, No. 778, Johnstown, Pa. v. United States, 57 F.2d 93 (1932); United States v. Mitchneck, 2 F.Supp. 225 (D.C.1953); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921); Amos v. United States, supra. Even if we assume, as the Commonwealth contends, that the evidence was obtained without a search, under the circumstances, this is not controlling. The seizure was gained through the use of deceit and misrepresentation. This vitiated the...