State v. Cole, 13766

• Decision Date: 18 March 1986
• Docket Number: No. 13766,13766
• Citation: 706 S.W.2d 917
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ken COLE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 917

706 S.W.2d 917

STATE of Missouri, Plaintiff-Respondent, v. Ken COLE, Defendant-Appellant.

No. 13766.

Missouri Court of Appeals,

Southern District,

Division Two.

March 18, 1986.

William L. Webster, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

James D. McNabb, Asst. Public Defender, Springfield, for defendant-appellant.

PREWITT, Chief Judge.

Defendant was convicted, following nonjury trial, of the class C felony of stealing. See § 570.030, RSMo Supp.1984 (now amended). He contends that the trial court erred in overruling his motion to suppress evidence that two guns were found in an "apartment" he occupied. The state contends that our review is limited to "plain error" because no motion for new trial was filed. That contention is erroneous. In cases tried without a jury a motion for new trial is not necessary to preserve contentions for appellate review. Rule 29.11(e)(2)(A); State v. Turnbough, 604 S.W.2d 742, 745 (Mo.App.1980).

Before relating the specifics of defendant's contentions, certain facts relevant to the issues will be set forth. Suspecting that defendant had stolen two guns, law enforcement officers went to the home of defendant's mother, Harriet Cummings. The officers did not have a warrant. Defendant, age 22 years, resided in his mother's home. Neither defendant nor his mother were present when the officers arrived. Jack Cummings, the mother's ex-husband, who lived at the house, answered the door. Apparently Mr. and Ms. Cummings were living together as if they were husband and wife, although the residence was owned by Ms. Cummings. Jack Cummings told the officers there were some guns in defendant's room in the basement. He took the officers downstairs, took a key from his front pocket, unlocked the door to defendant's room, and allowed the officers to enter. The guns were visible in the room.

The officers then went outside to wait for defendant's return. When he returned, the officers tried to stop him for questioning. Defendant went into the house. The officers followed and arrested him in the basement room. After the arrest, defendant's mother signed a consent for the officers to search defendant's room. The officers then seized the guns. At trial, over defendant's objection, the trial judge allowed the two guns to be introduced into evidence.

Defendant contends that the trial court erred in overruling his motion to suppress because neither his mother nor Jack Cummings had authority to grant a search of defendant's "apartment" as they did not have joint access or control of those premises.

Searches without a valid search warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant; the burden is upon the state to show that the search comes within such an exception. State v. Olds, 603 S.W.2d 501, 506 (Mo. banc 1980).

A search conducted pursuant to valid consent is constitutionally permitted. State v. Berry, 526 S.W.2d 92, 98 (Mo.App.1975). In order to establish consent, the state must prove by a preponderance of the evidence that the person giving the consent did so voluntarily and had the authority to do so. State v. Peterson, 525 S.W.2d 599, 608-609 (Mo.App.1975).

A third party with joint access or control of the premises sought to be searched has authority to consent to a search. State v. Blair, 638 S.W.2d 739, 750 (Mo. banc 1982), cert. denied 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1030 (1983). "[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared." State v. Johns, 679 S.W.2d 253, 262 (Mo. banc 1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985). In United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974), in footnote 7, the Court stated:

The authority which justifies the third-party consent does not rest upon the law of property, ... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Defendant relies principally upon State v. Peterson, 525 S.W.2d 599 (Mo.App.1975). In Peterson, the only evidence regarding access to the area in question was that the defendant's basement "room" was "exclusively" the defendant's "area" and "no one else had a right to be there". 525 S.W.2d at 608. In that case, the state conceded before trial that the defendant's evidence showed that he had exclusive possession of the area and made no attempt to show otherwise. In contrast, here, the state contended that Mr. and Ms. Cummings had sufficient access and control to give a valid consent.

There are several factual differences which convince us that Peterson is not controlling here. Defendant was not paying rent for the room at the time of the search as was the defendant in Peterson. Defendant was not carrying a key to the room, but...