Dwelling Located at 728 Belmont Ave., Charlotte, In re

• Decision Date: 25 November 1974
• Docket Number: No. 7426SC746,7426SC746
• Citation: 210 S.E.2d 73,24 N.C.App. 17
• Parties: In the Matter of the DWELLING LOCATED AT 728 BELMONT AVENUE, CHARLOTTE, North Carolina, and owned by Double Triangle Properties, Inc.
• Court: North Carolina Court of Appeals

Page 73

210 S.E.2d 73

24 N.C.App. 17

In the Matter of the DWELLING LOCATED AT 728 BELMONT AVENUE CHARLOTTE, North Carolina, and owned by Double Triangle Properties, Inc.

No. 7426SC746.

Court of Appeals of North Carolina.

Nov. 25, 1974.

Lindsey, Schrimsher, Erwin & Bernhardt by Lawrence W. Hewitt, for petitioner appellant.

City Atty. W. A. Watts, Charlotte, for respondent appellee.

City of Greensboro by City Atty. Jesse L. Warren, Greensboro, and Asst. City Atty. Dale Shepherd, and Legal Aid Society of Mecklenburg County by Terence Roche, Charlotte, amici curiae.

BALEY, Judge.

Does an administrative search or inspection by municipal authorities for detection of violations of a housing code, conducted without a warrant and without permission of the owner of the dwelling house, violate the owner's constitutional right to be free from unreasonable search when the tenant-occupant consents to such search? The trial court has determined that it does not, and we agree.

The Fourth Amendment to the United States Constitution states:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause supported by Oath or Affirmation and particularly describing the place to be searched, and the persons or things to be seized.'

The protection afforded by this amendment is against Unreasonable searches and seizures. 'The immunity to unreasonable searches and seizures is a privilege personal to those whose rights thereunder have been infringed. They alone may invoke it against illegal searches and seizures.' State v. Craddock, 272 N.C. 160, 169, 158 S.E.2d 25, 32; Accord, State v. Ray, 274 N.C. 556, 164 S.E.2d 457; State v. McPeak, 243 N.C. 243, 90 [24 N.C.App. 22] S.E.2d 501. Only the person whose privacy is invaded by a search has standing to object or to consent to such a search. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). See also Annot., 78 A.L.R.2d 246 (1961); Annot., 31 A.L.R.2d 1078 (1953).

In this case the petitioner surrendered its right to possession of the dwelling by renting it to the tenant, Mrs. Geiger, who was actually occupying the premises. Any intrusion for a search would be a violation of the tenant's right to privacy. Mrs. Geiger was in lawful possession of the dwelling. Clearly she could have objected and demanded that a warrant be secured. See Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Instead, she voluntarily consented to the search. Such consent renders a warrantless search valid. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Vestal, 278 N.C. 561, 180 S.E.2d 755.

In search and seizure cases, our North Carolina Supreme Court had consistently given priority to the rights of the tenant in possession. In State v. Mills, 246 N.C. 237, 243, 98 S.E.2d 329, 334, our court quoted the general rule that '(w)here premises are leased or rented to another, and in the possession of such lessee or tenant, the owner may not complain of an unauthorized search made thereupon, even though the officers pass through unleased property. The lessee claiming the property seized may do so . . ..' In State v. Schaffel, 4 Conn.Cir. 234, 229 A.2d 552 (1966), in a situation substantially identical to the facts in this case, tenants invited inspectors to enter apartments which were in their possession and control to inspect for probable violations of the Municipal Housing Code. The court in a well reasoned opinion...