Grant v. State

• Court: Arkansas Supreme Court
• Writing for the Court: FOGLEMAN; HARRIS
• Citation: Grant v. State, 267 Ark. 50, 589 S.W.2d 11 (Ark. 1979)
• Decision Date: 05 November 1979
• Docket Number: No. CR79-156,CR79-156
• Parties: Sherman GRANT, Appellant, v. STATE of Arkansas, Appellee.

Page 11

589 S.W.2d 11

267 Ark. 50

Sherman GRANT, Appellant, v. STATE of Arkansas, Appellee.

No. CR79-156.

Supreme Court of Arkansas, In Banc.

Nov. 5, 1979.

John W. Achor, Public Defender by James H. Phillips, Deputy Public Defender, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Ray E. Hartenstein, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Sherman Grant was found guilty of murder in the first degree and sentenced to a term of 40 years' imprisonment. His appeal raises only one ground for reversal, even though it is stated in two points. Basically, his contention is that the trial court erred in denying his motion to suppress incriminating evidence discovered and seized by a police officer in a bedroom he occupied in the home of his foster parents, Rufus Cyrus, Sr. and Dorothy Cyrus. The ground on which the motion was based was that the warrantless search of the room was unreasonable because the written consent given by Rufus Cyrus, Sr., was invalid for two reasons first, because he had no authority to consent to a search of Grant's room, and second, because his consent was not voluntarily given. Since we find no basis for overturning the finding of the trial court denying the motion to suppress, we affirm.

Detective David Garner, as a member of the homicide and robbery division of the Little Rock Police Department, was assigned on February 13, 1978, to investigate a homicide at 7408 Preston Drive in Southwest Little Rock. He arrived at the scene at 12:40 a. m. and obtained information that caused him to go to the Cyrus residence at 2201 South Battery Street in Little Rock. When he arrived there he found Detective Quattlebaum and Patrol Officers Middleton and Williams. Garner said that two of them were on the second floor of the residence where Grant's room was located, standing with Grant, awaiting Garner's arrival. They conducted no search. On the basis of the information he had obtained, Garner took Grant into custody and conveyed him to the Little Rock Police Department. The other officers remained at the Cyrus residence.

Because he wanted to obtain the advice of the prosecuting attorney as to further procedure, Garner made no attempt to conduct a search at the Cyrus residence. While at police headquarters, he called the prosecuting attorney and asked whether he should try to get a search warrant or to obtain consent of the father to the search. Based upon the advice he was given, Garner returned to the Cyrus dwelling without attempting to obtain a search warrant. The search was conducted after Cyrus had executed a form bearing the title, "Consent to Search," by which he gave his consent to the search.

When completed, the document bore the signature of Rufus Cyrus, Sr., and Detective D. Garner and Officer S. M. Williams signed their names as witnesses. Otherwise, the document read as follows:

2-13-78

(Date)

2201 S. BATTERY

(Location)

I, RUFUS CYRUS SR., having been informed of my constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant and of my right to refuse to consent to such a search, hereby authorize officer/s DET. D. GARNER, , OFFICER S. WILLIAMS of the Little Rock Police Department to conduct a complete search of my premises/auto located at 2201 S. BATTERY. These Officers are authorized by me to take from my premises/auto any letters, papers, materials or other property which they may desire.

This written permission is being given by me to the above-named officers voluntarily and without threats or promises of any kind.

(The portions which are capitalized were handwritten into blanks in the form.)

After this form was executed, the officers went into the room which had been occupied by Grant and found a .45 caliber Colt automatic pistol, two clips of .45 caliber bullets, one containing five rounds and the other seven, 31 rounds of .45 caliber ammunition in a box and eight rounds of .32 caliber ammunition.

We do not agree with appellant's argument that only he could give consent to a search of the room. We held in Asher v. City of Little Rock, 248 Ark. 96, 449 S.W.2d 933 that one having joint possession or equal authority with another over the premises may authorize a warrantless search. The only argument advanced by appellant is that Asher is distinguishable because, even though Grant paid Cyrus no rent for the room, he paid board and everything in the room belonged to Grant. We do not think these distinctions are sufficient to show that the consent given by Cyrus was invalid. Under Rule 11.2(c), Arkansas Rules of Criminal Procedure, consent justifying a search and seizure, in the case of a search of premises, may be given by a person who, by ownership or otherwise, is apparently entitled to give or withhold consent. Garner testified that the two-story building appeared to be a one-family house and that he was told by Cyrus that it was Cyrus's house. Officer Susan Williams testified that Garner was told that Grant was the foster son of Cyrus by Cyrus himself. Cyrus testified that the house was his. He said that Grant had lived with him since Grant was five years old, except for a one-year period during which he was employed by United Parcels. Mrs. Cyrus also testified that she washed Grant's clothes and sometimes put them in the dresser drawer in his room.

The search based on a voluntary consent by Cyrus would be valid under Rule 11.2, which validates consent by any person who, based upon circumstances as they appear to the officer conducting the search, is apparently entitled to give or withhold consent. Although this rule relieves the searching officer of any criminal or civil liability, it does not, standing alone, govern admissibility of things seized during the search. See Commentary to Article IV, Arkansas Rules of Criminal Procedure. The standards for suppression of evidence are set out in Rule 16.2. In Comment I to this rule, it is pointed out that a motion to suppress may be based upon the fact that consent was not given by any person authorized to give consent. The limitation on Rule 11.2, however, does not mean that the appearance of authority to give consent is not an important factor in determining validity of consent to search, if the searching officers could reasonably believe in good faith that the one giving consent had authority to do so. United States v. Peterson, 524 F.2d 167 (4 Cir., 1975), cert. den. 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99; 424 U.S. 925, 96 S.Ct. 1136, 47 L.Ed.2d 334; United States v. Sells, 496 F.2d 912 (7 Cir., 1974).

The question here is whether the search was in violation of the Fourth Amendment to the United States Constitution. That amendment only prohibits, and the exclusionary rule only applies to, unreasonable searches. Norris v. State, 259 Ark. 755, 536 S.W.2d 298.

We cannot find any basis for reversing the trial court's holding that the consent was authorized. We held in King v. State, 262 Ark. 342, 557 S.W.2d 386, that the mother-in-law of an accused had the authority, as owner and co-occupant of the premises, to consent to a warrantless search of her premises. In Robinson v. State, 256 Ark. 675, 509 S.W.2d 808, 809, we quoted Asher to the effect that there can be no doubt that an occupant who has a proprietary interest in a building can consent to entry by police officers, a search of the premises and seizure of evidentiary material found there. See also, Giles v. State, 261 Ark. 413, 549 S.W.2d 479, cert. den. 434 U.S. 894, 98 S.Ct. 272, 54 L.Ed.2d 180.

The validity of the consent under the Fourth Amendment standards, however, cannot rest upon the ownership of the premises. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Instead, it rests upon mutual use of the property by persons generally having joint access or control for most purposes. The pertinent question is whether the one giving consent possesses common authority or other sufficient relationship to the premises.

There could be little doubt under our earlier decisions about the authority of Cyrus to consent to this search. See Maxwell v. State, 236 Ark. 694, 370 S.W.2d 113. Our decisions were in accord with pre-Matlock decisions in other jurisdictions. A child, either dependent or emancipated (having reached his majority) does not have the same constitutional right or expectation of privacy in the family home that he might have in a rented hotel room, and the rights of the father were held to be superior to those of the child, so that the father's consent to a search of the child's room was sufficient to render a warrantless search reasonable. State v. Kinderman, 271 Minn. 405, 136 N.W.2d 577 (1965), cert. den. 384 U.S. 909, 86 S.Ct. 1349, 16 L.Ed.2d 361. See also, People v. Wood, 31 N.Y.2d 975, 341 N.Y.S.2d 310, 293 N.E.2d 559 (1973); United States v. DiPrima, 472 F.2d 550 (1 Cir., 1973); United States v. LaVallee, 417 F.2d 523 (2 Cir., 1969), cert. den. 397 U.S. 1002, 90 S.Ct. 1150, 25 L.Ed.2d 413; United States v. Stone, 401 F.2d 32 (7 Cir., 1968); Vandenberg v. Superior Court, 8 Cal.App.3d 1048, 87 Cal.Rptr. 876 (1970).

In this family situation we think the constitutional standards are met, as they were in King, a post-Matlock case. Quite a number of jurisdictions have adhered to basic pre-Matlock principles in a family situation, such as we have here. In People v. Johnson, 23 Ill.App.3d 886, 321 N.E.2d 38 (1974), it was held that a mother's consent to a search of the room of a son, who was married but living in a house owned by his father and mother and not with his wife, was sufficient basis for a warrantless search. The consent of a mother who was head of the family to a search of her son's room in a family home jointly owned by the mother and son was held valid by Matlock standards in State v. Forbes, 310 So.2d 569 (La., 1975).

Since it is clear that Cyrus, in addition to being the owner of the premises which constituted and were...