Lester v. State

• Decision Date: 06 July 1965
• Citation: 216 Tenn. 615,20 McCanless 615,393 S.W.2d 288
• Parties: , 216 Tenn. 615 Kenneth LESTER v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 288

393 S.W.2d 288

20 McCanless 615, 216 Tenn. 615

Kenneth LESTER v. STATE of Tennessee.

Supreme Court of Tennessee.

July 6, 1965.

Rehearing Denied Sept. 7, 1965.

James T. Havron, Metropolitan Public Defender, Nashville, for plaintiff in error.

George F. McCanless, Atty. Gen., Edgar P. Calhoun, Asst. Atty. Gen., Nashville, for the State.

BURNETT, Chief Justice.

Lester was indicted and convicted of robbery with a deadly weapon, and was sentenced to twenty years in the State penitentiary. From this judgment he has seasonably appealed. Able briefs have been filed, and, after thoroughly considering the record and authorities cited, we are now in a position to decide the matter.

Essentially the only question involved herein is whether or not the wife of the plaintiff in error may, after having the facts and circumstances explained to her, allow the officers to make discoveries from which evidence is introduced towards the guilt of the accused without the necessity of a search warrant. In other words, may the wife consent to a search of the home of the wife and the husband, the plaintiff in error here, without his consent and when he is not present, by officers whereby they secure certain evidence which is introduced against the interest of the plaintiff in error?

There is no serious dispute about the facts. On November 29, 1963, one Sue Brewer left the place where she was employed in downtown Nashville and drove to her home. This was in the early morning hours. The plaintiff in error followed her and, when she parked her car near her apartment, robbed her and also apparently attempted to abduct her but was scared away. In this robbery plaintiff in error slashed this woman on the face with a knife-like instrument and beat her. During the struggle between them she pulled some buttons off the coat that he was wearing. When another car drove up near where this was happening the plaintiff in error ran. At the trial he was identified by Miss Brewer and by the man who came up and saw the robbery towards the end.

The stationwagon the plaintiff in error was driving belonged to a Mrs. Buckmon who stated that she had loaned this stationwagon to one Herbert, who stated that he had loaned it to the plaintiff in error. As a result of this information the officers went to the home of plaintiff in error and were invited inside by his wife. The officers advised her of the case up to that point and asked about her husband's whereabouts and the clothing worn on the night of the robbery. The wife readily gave the officers the requested information and even went to a closet in the living room, got out the coats of the plaintiff in error, and handed them to one of the officers. The officers could see that three buttons were missing from the front of one coat and a small button was missing from a sleeve. There was a button in the pocket and also a black scarf.

Later plaintiff in error was arrested and during the trial he testified in his own behalf. He admitted that the coat in question belonged to him but said that the buttons had been missing for some time prior to the robbery herein. There was other evidence which connected the plaintiff in error with the crime, but in view of the fact that it is overwhelmingly to the effect that this man committed this crime there is no argument raised concerning the evidence. The bill of exceptions is in the narrative form.

Considering the word 'search' in the broad sense, we seriously doubt if there were such a search in the present instance as to be violative of the constitutional rights of the plaintiff in error as guaranteed under the Fourth Amendment of the United States Constitution and under Article 1, Section 7, of the Constitution of the State of Tennessee. A 'search' as applied under the provisions of these Constitutions means searches and seizures by an examination of a man's home, buildings, premises, his person, or what not, with a view to the discovery of contraband, illicit stolen property, or some evidence of guilt to be used in a criminal prosecution against him and implies invasion and quest which in turn implies some sort of force, actual or constructive, much or little.

In the instant case there was no search in this sense of the word, but when the wife was told what had happened and what they were looking for she voluntarily went to the closet and brought out the coats and things of the kind and gave them to the officers. We think, under these circumstances, she had the right and did waive any right that the man had to rely upon these constitutional prohibitions. Then, too, there is the further fact that on the trial of this case the plaintiff in error readily identified the coat in question, but claimed that the buttons missing therefrom had been missing before the facts in this case happened. Of course, this evidence was contradicted and this left a question of fact for the trial judge and jury to determine. This fact has been determined against the plaintiff in error.

Both briefs in the present case ably set forth the contentions of the repective parties. We, after fully investigating the authorities pro and con, feel that the statements made in the State's brief are sound and are absolutely a fair summary of the case from any standpoint. The State says in its brief:

'It is generally held that persons having equal rights to use or occupation of the premises may consent to a search of the premises and that such consent will be binding upon the co-occupants. When the occupants are husband and wife, however, there is a sharp conflict in other jurisdictions as to the existence of any implied authority on the part of the wife to consent to a search of her husband's premises or seizure of property found thereon. These principles are discussed in [Dalton v. State of Indiana, 230 Ind. 626, 105 N.E.2d 509] 31 A.L.R.2nd 1071. It appears that the cases collected therein are about equally divided on either side of the wife-husband question.

'Since the publication of the aforementioned annotation in 1953, there have been a number of cases decided on the issue, and it appears that there is a definite trend toward adoption of the proposition that a wife may consent for her husband, at least to some degree. Of the cases digested in the A.L.R. system from 1953 to 1964, the courts have held in the following that the wife may consent for her husband: People v. Dominquez, 144 Cal.App.2d 63, 300 Pac.2d 194; Hoop [Hook] v. State, 15 Misc.2d 672, 181 N.Y.S.2d 621; Padilla v. State, 160 Tex.Crim. [R.] 618, 273 S.W.2d 889; Joslin v. State , Tex.Crim. [R.] , 305 S.W.2d 351; People v. Carter, 48 Cal.2d 737, 312 Pac.2d 665; People v. Shambley, 4 Ill.2d 38, 122 N.E.2d 172; People v. Perroni, 14 Ill.2d 581, 195 N.E.2nd 578; Bellam v. State , 196 A.2d 891 (Md); State v. Shephard [255 Iowa 1218], 124 N.S. [W.]2d 712 (Iowa) (This case involved the husband consenting to a search for his wife.)

'The courts have refused to allow the wife to consent for her husband in only four cases digested by A.L.R. since 1953, the same being Manning v. Commonwealth, ---- Ky. ----, 328 S.W.2d 421; Foster v. U. S. [8 Cir.], 281 Fed.2d 310; State v. Evans , Hawaiian Rep. , 372 Pac.2d 365; State v. Pina, 94 Ariz. 243, 383 Pac.2d 167. Actually, only the Arizona case adopts the strict rule that a wife has no implied authority to waive her husband's rights relative to search and seizure. The holding in each of the other cases was considerably more limited and is distinguishable in that it involved coercion, a business house, or a search of the husband's personal effects.'

Of course, cases may arise wherein...