Silva v. State

• Decision Date: 24 March 1977
• Docket Number: No. 49094,49094
• Citation: 344 So.2d 559
• Parties: Daniel Nelson SILVA, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 559

344 So.2d 559

Daniel Nelson SILVA, Petitioner, v. STATE of Florida, Respondent.

No. 49094.

Supreme Court of Florida.

March 24, 1977.

David J. Busch and Michael M. Corin, Asst. Public Defenders, for petitioner.

Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.

ADKINS, Justice.

By petition for writ of certiorari, we are asked to review the decision of the District Court of Appeal, First District, Silva v. State, 327 So.2d 107 (Fla.1st DCA 1976), which affirmed the conviction of defendant, petitioner herein, and upheld the trial court's denial of a motion to suppress evidence seized in the course of a search of his apartment. Petitioner assigns conflict with several Florida appellate decisions, but relies primarily on Lawton v. State, 320 So.2d 463 (Fla.2d DCA 1975). We have jurisdiction.

The facts of the case are as follows: Petitioner, Daniel Silva, and a Mrs. Brandon lived together from August, 1973, until New Year's Day, 1975. When petitioner moved in, they leased their apartment in the names of Mr. Silva and Mrs. Silva (who was actually Mrs. Brandon). Until a few months before his arrest, petitioner had paid the rent. Mrs. Brandon had lived in this same apartment for six years prior to the time petitioner moved in.

On New Year's Day, 1975, petitioner hit Mrs. Brandon in the mouth while her nine-year-old son watched. The son ran from the house screaming that he was going to call the police. Petitioner told Mrs. Brandon to go after the boy, which she did. Instead of returning home, however, she continued walking to a local convenience store where she called the police. In her call, she informed the police that petitioner had hit her and that he was a convicted felon and had guns in the closet.

The then returned home with her son but waited outside until the police arrived. When they arrived and Mrs. Brandon tried to let them in, she discovered the door was locked. In order to get in, Mrs. Brandon put her hand through the jalousies and unlocked the door from the inside. Once inside the apartment, she told the police that the gunds were in the hall closet. Testimony at trial established that the closet contained only petitioner's belongings, that Mrs. Brandon went into it only when cleaning house, and that her son occasionally went in.

Petitioner told the police officers that he forbade them to search the closet. With Mrs. Brandon's consent, but over petitioner's objections, they conducted a warrantless search of the closet, found and took the guns, and arrested petitioner. The trial court denied a motion to suppress the evidence seized.

This case conflicted with Lawton v. State, supra. In Lawton, the defendant and his wife had separated. Two weeks after the wife moved out, she returned to their apartment to pick up her marriage license preparatory to filing for dissolution. When she went in, she found defendant with another woman and immediately phoned the police. When they arrived, defendant attempted to prevent them from entering and searching the apartment. At the wife's continued urging and over defendant's objections, the police searched the bedroom and seized marijuana and drug paraphernalia found therein. The trial court's denial of defendant's motion to suppress was reversed by the Second District Court of Appeal. The court held that assuming, without deciding, that the wife 'had sufficient control of the premises to authorize her to consent to a search, . . . the search cannot stand because Appellant was physically present on the premises and affirmatively objected to a search.' Lawton v. State, supra, at 464 (Emphasis theirs.)

Though the law in Florida concerning a spouse's lack of authority to consent to a search of the couple's premises is not without exceptions, it has generally been held that the husband and wife relationship, without more, does not authorize one spouse to waive the constitutional rights of the other by consenting to a warrantless search. State v. Blakely, 230 So.2d 698 (Fla.2d DCA 1970) at 700; and Carlton v. State, 111 Fla. 777, 149 So. 767 (Fla.1933). Situations in which a man and woman are living as husband and wife without being married have produced the opposite result. The living arrangements of a couple and the appearance of their relationship to the outside world may be identical to those of a married couple. However, the couple who have not been formally married have been more freely permitted to waive one another's constitutional rights against unreasonable searches. Baugus v. State, 141 So.2d 264 (Fla.1962), and State v. Blakely, supra. The language in Blakely and Baugus, clearly indicate that the consent of a paramour will be sufficient to validate a search under circumstances in which the consent of a wife would not. On justifying their finding that the warrantless search of a hotel room was lawful, over the objections of co-defendant but with the consent of a female paramour, the Court stated, 'The woman who shared the room with Sikalis could not be dignified as a wife.' Baugus v. State, supra, at 268. In Blakely, the State argued that since, under Baugus, a mistress has authority to consent to a search of a hotel room, surely a wife must have at least as much authority to consent to a search of the house in which she and her husband live. The Second District Court held that the paramours in Baugus used the room as individuals and that the husband and wife relationship was of such a nature as to prevent either spouse from acting against the family's interest by consenting to a warrantless search of the other's property. State v. Blakely, supra, at 700.

Other state courts and some federal courts have held that husbands and wives generally do have authority to consent for one another to searches when the other spouse is absent. There are exceptions, however. In Kelley v. State, 184 Tenn. 143, 197 S.W.2d 545 (1946), the Tennessee court held that although the wife normally could consent, Mrs. Kelley had abused her duty to act in the family's interest, which was the basis of the authority conferred on her. By requesting and consenting to a search, in anger over her husband's having beaten her and in order to punish him, she had given up authority to voluntarily consent for her husband. The United States Court of Appeal for the Third Circuit in United States ex rel. Cabey v. Mazurkiewicz, 431 F.2d 839 (3rd Cir. 1970), held:

'A new and intruding element which has not been isolated heretofore may be said to distinguish a third class of cases. This element is the consenting party's agreement to the search out of motives of hostility to the other, made with the intent to harm him by an antagonistic consent. Where it is possible to identify this element a serious question would arise whether the right to consent is not spent when it reaches this point of deliberate antagonistic intrusion on the rights of the other who has an equal right to possession or control. This would be especially true where a wife intentionally acts against her husband's interest, since she would not be acting in harmony with the marital relationship from which her joint right of ownership or control is derived, but in antagonism to it.' At 843.

Even in states which authorize spousal consent, neither Mrs. Lawton's nor Mrs. Brandon's consent would have met the validity tests cited above.

In circumstances where a couple have joint dominion and control of a premises and one party is present and objecting while the other party has consented to a search without a warrant, the validity of the search should not hinge on the marital status of the parties. There is nothing which distinguishes the married couple from the unmarried one that has any real bearing on the validity of a consent to a warrantless search.

Certain other relationships have been found inadequate to confer authority on the consenting party. Sons may not consent for fathers. Padron v. State, 328 So.2d 216 (Fla.4th DCA 1976). Landlords may not consent for current tenants. Talavera v. State, 186 So.2d 811 (Fla.2d DCA 1966). And hotel clerks may not consent for a guest. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).

The justification for allowing any person to consent to a search which may result in the seizure of evidence against another is the authority that person has by virtue of his sharing dominion and control over the premises. The law is clear that if the person whose possessions are the object of a search is absent from the premises, another having joint control may validly consent to the search.

The question of the validity of a warrantless search when two parties having joint dominion and control are present, and one consents but the other objects, has been given very little consideration. Some cases dealing with consent to search in joint control situations emphasize that the party whose possessions were the object of the search was absent. Padron v. State, supra, at 271. The major United States Supreme Court cases on searches of jointly controlled property all involve fact situations in which the evidence was used against a party who was absent when consent to search was given. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); and Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).

One federal case deals with a present, objecting party having joint control of searched premises. The other party, her brother Frank, had consented to the search. The circuit court stated:

'Assuming that Frank gave his own consent for search of the apartment, his authority, if any, to act for his sister was rescinded by her expressed protest and her demand for a search warrant.' Lucero v. Donovan, 354 F.2d 16 (9th Cir. 1965) at 21.

The United States Court of Appeal for the 7th Circuit emphasized the importance of the absence of the...