State v. Curley

Decision Date07 January 1970
Docket NumberNo. 19002,19002
Citation171 S.E.2d 699,253 S.C. 513
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. Vance Alexander CURLEY and James Pearson, Appellants.

Dusenbury & Dusenbury, Florence, for appellants.

Daniel R. McLeod, Atty. Gen., Emmet H. Clair and Robert H. Hood, Asst. Attys. Gen., Columbia, T. Kenneth Summerford, Sol., Florence, for respondent.

BRAILSFORD, Justice.

During the night of October 18, 1967, a place of business in Mullins, South Carolina, was entered by force. The company safe was opened with tools and looted. Vance A. Curley, James Pearson and Ulysses Rattley were charged with the offense, put to their trial, and the two first named were convicted of safecracking. Rattley was acquitted. On this appeal by Curley and Pearson the point most urgently presented is the claim that the evidence against them was the product of a constitutionally inhibited search and seizure and should have been excluded under the rule announced in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

Between October 18 and October 25, 1967, the three defendants were seen several times in and near the Town of Mullins in an automobile bearing North Carolina license tags. Of the three, James Pearson was known to the law enforcement officers who were investigating the breakin, and they were looking for this car on the evening of October 25. The three men had been keeping company with three Mullins women, including Margaret Berry and Curley Mae Reeves, and were with them at the home of Margaret Berry on this evening. The automobile was registered in the name of Vance A. Curley. However, Ulysses Rattley customarily drove it and had possession of the keys. Curley Mae Reeves borrowed the automobile for the purpose of taking Margaret Berry, who was in pain, to the hospital. The keys to the ignition and trunk were delivered to her by Rattley in the presence of the registered owner, and no special instructions were given to her by either concerning the use, custody or return of the automobile. As Curley Mae drove rapidly away from the Berry home, she was followed by a deputy sheriff who had spotted the car a few seconds earlier. This officer, joined by another, pursued the car for some one-half mile through a residential area, at speeds in excess of 50 miles per hour, before Curley Mae pulled over and stopped. The two officers then walked up to the car and told the driver that they would have to make a case against her for speeding. She did not dispute that she had been driving at an excessive speed but explained that she was taking her companion to the hospital. The deputy then asked if he might look in the trunk of the car. While the testimony as to the details of what then took place is somewhat contradictory, there is substantial accord that Curley Mae assented to this request and either handed the key to the officer or used it to open the compartment for him. Upon looking into the trunk, the officers found a pair of tennis shoes and observed peculiar characteristics of one shoe which appeared to match distinctive footprints at the scene of the break-in, of which casts had been made. (That the characteristics of the shoe and prints were identical was later confirmed by an expert of the Federal Bureau of Investigation.) Acting on this lead, the officers went to the Berry home and arrested the three men. The officers testified that the tennis shoes fit the defendant Curley but did not fit either of the other defendants.

The defendants urge that the search of the car trunk and seizure of the tennis shoes were in violation of the Fourth Amendment to the United States Constitution which declared that '(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *.' Hence, the evidence relating to the discovery of the tennis shoes, and all other evidence derived therefrom, should have been excluded.

We have recognized our obligation to follow the decision of the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961), by which the Fourth Amendment was held applicable to the states and, with it, the federal doctrine forbidding the admission of evidence obtained by an unreasonable search and seizure. State v. Hamilton, 251 S.C. 1, 159 S.E.2d 607 (1968).

The State does not seek to justify the search as incident to a lawful arrest or upon probable cause. It does contend that the warrantless search was reasonable because consented to by the person to whom the owner had entrusted the custody and control of the automobile.

The issue naturally divides itself into two parts. (1) Does the search of an automobile by an officer at the invitation of or by the voluntary consent of a person to whom its custody and control have been surrendered by the owner, violate the owner's Fourth Amendment rights? If not, (2) did Curley Mae voluntarily consent to the search by which the tennis shoes were disclosed?

The first question is one of law and is of novel impression in this jurisdiction. We follow United States v. Eldridge, 302 F.2d 463 (4th Cir. 1962) to a negative answer. Upon analogous facts, the court of appeals held that the bailor's constitutional immunities were not violated in the search consented to by his bailee; in other words, 'the bailee's consent made this a reasonable search.' Id. at 466.

The Supreme Court of Ohio in State v. Bernius, 177 Ohio St. 155, 203 N.E.2d 241 (1964), felt impelled to the opposite view by the decision of the Supreme Court of the United States in Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). We do not agree that Stoner, or any other decision of the Supreme Court of the United States which has come to our attention, is controlling against the conclusion which we reach. Instead, the recent decision in Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), appears to support the view which we adopt. In that case, petitioner allowed his cousin Rawls to share the use of his duffel bag and left the bag at Rawls' house. The Court approved disallowance of petitioner's motion to suppress evidence discovered by the investigating officers in a search of the bag with Rawls' consent. 'Since Rawls was a joint user of the bag, he clearly had authority to consent to its search. The officers therefore found evidence against petitioner while in the course of an otherwise lawful search. * * * Petitioner, in allowing Rawls to use the bag and in leaving it in his house, must be taken to have assumed the risk that Rawls would allow someone else to look inside. We find no valid search and seizure claim in this case.' 394 U.S. at 740, 89 S.Ct. at 1425. By parity of reasoning the defendant Curley, by allowing another to use his car and, without prohibitory instructions, entrusting her with the key to the trunk, must be taken to have assumed the risk that she would accede to the request of an officer to look inside. Having to this extent surrendered his right to privacy as to the contents of the trunk, he is in no position to maintain that the shoes were discovered in derogation of it.

The second question was one of fact for the trial judge. His conclusion that the driver's consent to the search was voluntary is amply supported by...

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9 cases
  • State v. Charping
    • United States
    • South Carolina Supreme Court
    • December 7, 1992
    ...of whether the defendant's confession was voluntary), cert. denied, 420 U.S. 981, 95 S.Ct. 1411, 43 L.Ed.2d 663 (1975); State v. Curley, 253 S.C. 513, 171 S.E.2d 699 (wherein the court, because the trial judge failed to make an independent determination of whether the warnings required by M......
  • State v. Brockman
    • United States
    • South Carolina Court of Appeals
    • October 8, 1997
    ...all of the above cited cases, the locked container here essentially was in Peak's possession as a gratuitous bailee. Cf. State v. Curley, 253 S.C. 513, 171 S.E.2d 699, cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970); 8 Am.Jur.2d Bailments § 294 B. Bailee Consent We are thus fa......
  • State v. Isaacs
    • United States
    • Ohio Court of Appeals
    • December 16, 1970
    ...as error a right which another may have had to counsel at an inquisition proceeding constituted obiter dictum. In State v. Curley (1970), 253 S.C. 513, 171 S.E.2d 699, the Supreme Court of South Carolina held as to defendant Pearson, charged with safecracking, that testimony that Pearson ha......
  • State v. Bailey
    • United States
    • South Carolina Supreme Court
    • February 4, 1981
    ...fact for the trial judge and his conclusion is supported by the evidence. As such, we will not disturb it on appeal. State v. Curley, 253 S.C. 513, 171 S.E.2d 699 (1970); cert. den., 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 Though the consent given by Moore was voluntary, we must next deter......
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