State v. Charles William Howard, 84-LW-2193
| Decision Date | 10 September 1984 |
| Docket Number | 976,84-LW-2193 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. CHARLES WILLIAM HOWARD, Defendant-Appellant CASE |
| Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANT: James T. Boulger, 10-14 Foulke Block Chillicothe, Ohio.
COUNSEL FOR APPELLEE: Richard G. Ward, Prosecuting Attorney, 18 Foulke Block, Chillicothe, Ohio.
This is an appeal from a Ross County Common Pleas Court Breaking & Entering and Receiving Stolen Property conviction. When police responded to a burglary in progress call to the Eagles Hall in Chillicothe, Ohio, they found Appellant runing from the scene carrying a canvas bag and a crowbar. Appellant ran towards a car parked nearby in Sherman Park. Police arrested Appellant and obtained permission to search the parked car. The search revealed items stolen from a local restarant.
Appellant moved to suppress evidence seized as a result of the search. The Court overruled the motion. The jury found Appellant guilty and sentenced him to two to five years in the Ohio State Penitentiary on each count. We affirm.
The threshold question in exclusionary rule cases concerns whether or not the accused has standing to challenge the legality of the search or seizure. Fourth Amendment rights are personal rights, and evidence may only be excluded when seized in violation of the rights of the accused. Simmons v. U.S. (1968) 390.U.S. 377.
The Court below held Appellant had standing to challenge the legality of the search. Appellee, however, contends Appellant failed to prove his own rights were violated, and thus has no standing to request suppression of the evidence. We need not decide whether Appellant had standing because we find the search itself was lawful.
If a court finds an accused has standing to challenge the legality of the search, the court must proceed to examine the reasonableness of the search. In Schneckloth v. Bustamonte (1973) 412 U.S. 218 the Court wrote:
In the case at bar, a woman awoke from her sleep in the backseat of the car and consented to the search. Neither Appellant nor the woman own the car. Appellant contends the woman had no authority to consent to the search. Appellant cites State v. Bernius (1964) 177 0.St. 155 which found the consent of a casual borrower invalid as against the owner of the automobile. Bernius does not apply to the case at bar because Appellant didn't own the automobile. Further, Bernius has been distinguished in later cases. See State v. Scott (1980) 61 0.St. 2d 162; State v. McCartny (1971) 26 0.St. 2d 91.
In Schneckloth, supra, the Court held one in control of an automobile may consent to a search of the automobile. In that case, a passenger who claimed to be the brother of the owner consented to the search.
In Scott, supra, the Court held a wife may consent to a search of her husband's automobile. The Court noted the husband and wife share common access, control, and use of the automobile.
In the case at bar, the woman appeared to have access, control, and use of the automobile during an extended period of the night. The keys were in the automobile under her control. We believe the woman's consent sufficed to permit the search of the automobile.
Appellant's assignment of error is overruled.
JUDGMENT AFFIRMED.
I concur in the judgment insofar as it affirms the overruling of the motion to suppress and do so, irrespective of the validity of the consent, upon the basis of the automobile exception to the search warrant requirement as first enunciated in Carroll v U.S. (1925), 267 U.S. 132. See also Chambers v Maroney (1970) 399 U.S. 43 and State v kessler (1978), 53 Ohio St. 2d 201.
On the night of January 24, 1982, Chillicothe police officers responded to the sound of a burglar alarm indicating a...
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