State v. Crevina

• Decision Date: 28 May 1970
• Citation: 110 N.J.Super. 571,266 A.2d 319
• Parties: The STATE of New Jersey, Plaintiff, v. Donald CREVINA, Defendant. (Criminal)
• Court: New Jersey Superior Court

Page 571

110 N.J.Super. 571

266 A.2d 319

The STATE of New Jersey, Plaintiff, v. Donald CREVINA, Defendant.

Superior Court of New Jersey, Law Division (Criminal).

May 28, 1970.

Bernard B. Montalbano, Asst. Prosecutor, Passaic County, for the State (Joseph D. J. Gourley, Prosecutor, attorney).

Anthony R. La Duca, Paterson, for defendant.

JOELSON, J.S.C.

This matter comes before the court on defendant's motion to suppress evidence alleged to have been obtained as the result of an unlawful search and seizure.

The facts are not substantially in dispute as to the events leading up to defendant's arrest and his subsequent indictment on a charge of receiving stolen property in violation of N.J.S.A. 2A:139--1. On the morning of January 4, 1970 a call was received at Clifton police headquarters from a woman who identified herself as Mrs. Karen Crevina. She reported that her husband, the defendant, had been stealing merchandise from various stores over a period of several months. An appointment was made for her to come to the police station that afternoon. She arrived at the appointed hour with her mother. She was, in fact, defendant's wife.

After questioning she willingly signed a statement that her husband had been stealing merchandise from various stores since April 1969, and that on one occasion she had assisted him to do so. She further stated that the stolen merchandise was then in an apartment which she and her husband shared in Clifton, and that she wished to 'turn over' the stolen property to the police. After signing that statement she also signed a paper stating that she voluntarily came to the Clifton police headquarters 'with information concerning the stolen clothing which is now in my apartment,' and made 'a request that Detectives William Vander Brink and William De Vos remove the stolen clothing from my apartment.'

Thereupon the above-named detectives, without obtaining a search warrant, accompanied Mrs. Crevina and her mother to the apartment. Mrs. Crevina unlocked the door and they all went in together. She then led them to the bedroom where she took numerous items from the bedroom closet and placed them on the bed to display them to the police. Many of the items still retained their price tags and consisted chiefly of men's and women's wearing apparel.

Although a police witness testified that when defendant's wife came to police headquarters on January 4, 1970 she stated that she did so because her conscience had been bothering her to the extent that she could not sleep, her husband testified at the hearing on the motion to suppress that they had a heated argument at 2 A.M. on January 4, 1970 about an alleged serious marital offense on his part. At the request of defense counsel, and with the consent of both defendant and his wife, she was also allowed to testify at the hearing. She confirmed defendant's testimony and said that her purpose in going to the police was really 'to get even.'

Neither party has cited a New Jersey case directly on point, but defendant has cited several cases which appear to turn on the question of the motivation of the spouse who voluntarily consents to the search of an apartment occupied jointly by husband and wife. Thus, he emphasizes People v. Carter, 48 Cal.2d 737, 746, 312 P.2d 665, 670 (Sup.Ct.1957), in which the court stated:

When the usual amicable relations exist between husband and wife and property seized is of a kind over which the wife normally exercises as much control as the husband, it is reasonable to conclude that she is in a position to consent to search and seizure of property in their home.

Defendant also stressed In re Lessard, 62 Cal.2d 497, 42 Cal.Rptr. 583, 587, 399 P.2d 39, 43 (Sup.Ct.1965) where the court said:

In the husband's absence, the officers could reasonably conclude that the wife could properly consent to a search of the property in the home; petitioner's present allegation of an 'estrangement' between them does not destroy the consent. * * *

Defendant further points to Kelley v. State, 184 Tenn. 143, 197 S.W.2d 545, 546 (1946), in which the Supreme Court of Tennessee ruled that a wife who is angry at her husband and hostile in her attitude towards him does not have 'authority to waive rights.' Finally, defendant cites Cofer v. United States, 37 F.2d 677 (5 Cir.1930), which holds that a wife who allowed law enforcement officials to search the home of the wife and her husband was without authority to bind her absent husband by waiving a legal warrant or consenting to an unauthorized search.

It is interesting to note that most of those cases relied on by defendant, in addition to discussing the spouse's hostility, also refer to a waiver by a wife of her husband's rights or to a consent to a search and seizure by a wife in behalf of her husband arising out of such hostility. However, this court is of the opinion that we are not here dealing with such a waiver of another's rights or a consent in behalf of another, but rather with a written consent given in the wife's own behalf as an occupant of the apartment. In that consent the wife specifically requested the police to remove the alleged stolen articles from her apartment, and accompanied them there for that purpose.

Neither counsel has cited a New Jersey precedent on this subject, but the court is of the opinion that it should consider State v. Hagan, 99 N.J.Super. 249, 239 A.2d 262 (App.Div.1968). In that case it was held that when a 'co-owner' of premises consents to a search thereof, the fruits of the search are admissible in evidence in a criminal prosecution against his nonconsenting co-owner. Although that case did not involve a husband and wife, it must be considered as most persuasive since it dealt with a man and women living together in an apartment.

In a Rhode Island case, State v. Cairo, 74 R.I. 377, 60 A.2d 841...