State v. Folkens

Decision Date27 June 1979
Docket NumberNo. 62334,62334
Citation281 N.W.2d 1
PartiesSTATE of Iowa, Appellee, v. Pete FOLKENS, Appellant.
CourtIowa Supreme Court

Thomas O. Albers of Fisher, DeWaay & Albers, Rock Rapids, for appellant.

Thomas J. Miller, Atty. Gen., and Faison T. Sessoms, Jr., Asst. Atty. Gen., for appellee.

Considered by REYNOLDSON, C. J., and UHLENHOPP, McCORMICK, McGIVERIN and LARSON, JJ.

LARSON, Justice.

This defendant appeals from his conviction of assault with intent to commit rape, in violation of section 698.4, The Code. The issues raised are (1) the legality of the search for and seizure of certain evidence; (2) admissibility of evidence of other similar acts by defendant; (3) whether defendant was denied his right of confrontation as to one witness; (4) whether the court erred in refusing to order the return of a witness for additional testimony; (5) whether the failure of the prosecution to disclose exculpatory evidence until the day of trial deprived him of due process; and (6) whether the court erred in refusing defendant's request to be sentenced under the provisions of the 1977 supplement to The Code. We affirm the trial court on each of the issues raised.

Janine Sprock, the victim, was the daughter of a woman who was living with the defendant. On June 17, her mother was confined to a hospital in Iowa City. While her mother was hospitalized, Janine was required to sleep downstairs in order that she could hear the alarm and wake Folkens for work. Janine slept in what was usually her mother's and Folkens' bed. In the beginning, Folkens slept on the couch. About a week later, he began sleeping in the same bed with Janine and making advances toward her. According to the state's evidence, on July 3 Folkens attempted to have sexual intercourse with Janine but could not penetrate her; on July 4 he penetrated her but did not complete the intercourse; and on July 5 he succeeded in having intercourse with Janine.

I. The search and seizure. On July 6, Janine informed her older sister what had transpired. They reported the events to the police chief who then arrested the defendant. The chief accompanied Janine and her older sister to the house where she pointed out to him certain evidence of the crime. He then obtained a warrant and returned to search the house and seize certain of the items of evidence, including bedding and clothing. The state does not dispute the fact the first visit in the house constituted a search. An illegal warrantless search will vitiate the legality of a subsequent seizure pursuant to a warrant if the initial entry influenced the obtaining of the warrant. State v. Smith, 178 N.W.2d 329, 333 (Iowa 1970); State v. Hagen, 258 Iowa 196, 205, 137 N.W.2d 895, 900 (1965). See also Zacek v. Brewer, 241 N.W.2d 41 (Iowa 1976). To establish this influence, Folkens notes that the police chief mentioned several of the items that he saw during the visit in his affidavit to secure the search warrant. Since none of the items are mentioned in Janine's written statement, it is argued that knowledge of their existence could only have come from the visit. The state contends, however, that even though the first visit to the home was in fact a warrantless search, it was made legal by Janine's consent.

In analyzing the validity of a consent search, two questions must be addressed: first, did Janine have authority to consent; second, was her consent voluntary? Bettuo v. Pelton, 260 N.W.2d 423, 425 (Iowa 1977). Because we are dealing with a right of constitutional dimension, "(o)ur review is de novo consisting of an independent evaluation of the relevant circumstances in their entirety." State v. Jones, 274 N.W.2d 273, 275 (Iowa 1979) (the "totality of the circumstances" test); Bettuo, 260 N.W.2d at 425.

The validity of consent searches stems from the fact that the protection of the Fourth Amendment only extends to the "right . . . to be secure . . . against Unreasonable searches and seizures . . . ." Warrantless searches are per se unreasonable unless one of three exceptions are present: (1) the search is incident to an arrest; (2) the search is consented to; or (3) exigent circumstances require an immediate search. Bettuo, 260 N.W.2d at 425, citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967).

When consent is relied upon as an exception to the warrant requirement, we have said it must be established by clear and convincing evidence. See, e.g., State v. Ahern, 227 N.W.2d 164, 166 (Iowa 1975) and cases cited. Subsequent to Ahern the United States Supreme Court held that exceptions to the requirement of a search warrant require only a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 n. 14, 94 S.Ct. 988, 996, 39 L.Ed.2d 242, 253 (1974), and we followed that case in Bettuo, 260 N.W.2d at 425. Despite the language of our earlier cases imposing the higher standard of proof, we hold that a preponderance of the evidence by the state is sufficient to establish exceptions, including consent, to the "per se unreasonable" status of a warrantless search.

We conclude the evidence in this case did show valid consent to the search by a preponderance of the evidence.

Defendant contends Janine, who was 14 years old at the time, lacked authority to consent to the search. Matlock discussed consents to search given by third parties, stating that

the 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. . . . (W)hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.

415 U.S. at 170-171, 94 S.Ct. at 993, 39 L.Ed.2d at 249. A footnote to that statement said:

Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, . . . 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.

The defendant contends the consent here "waived" defendant's right to be secure from unreasonable searches. The issue, however, is not waiver of another's rights, but whether the consenting person had authority to grant consent in his own right. As stated in Commonwealth v. Rhoads, 225 Pa.Super. 208, 212, 310 A.2d 406, 409 (Pa.Super.Ct.1973):

In determining whether evidence obtained from a search consented to by one person can be used against another, the question is whether the person granting the consent had sufficient control over the premises to grant consent in his own right. The question is not whether the consenting person had the power to waive another's constitutional rights. Commonwealth ex rel. Cabey v. Rundle, 432 Pa. 466, 248 A.2d 197 (1968).

The issue here is whether fourteen-year old Janine had common authority over the premises searched to allow a search in her own right. As a resident of the house, she had a certain amount of authority over the premises. Further, in her mother's absence she was given a key to the house and was expected to do the shopping, cooking and laundry. The area searched was the bedroom which she had been using for the past several weeks. This gave her sufficient authority to consent to a search of it. Sharing a bedroom has been grounds for denying many defendants' assertions that a third party did not have authority to consent to a search of the bedroom. See e.g., People v. Wood, 31 N.Y.2d 975, 976, 341 N.Y.S.2d 310, 311, 293 N.E.2d 559, 560, (1973); People v. Daniels, 16 Cal.App.3d 36, 44, 93 Cal.Rptr. 876, 878 (Ct.App.1970).

The minority of the consenting party does not in itself vitiate the consent, but does bear on the voluntariness of it. In Gregoire v. Henderson, 302 F.Supp. 1402, 1407 (E.D.La.1969), the court said:

counsel relied entirely upon the allegation that he (William) was too young to give legal consent. Search as we may, we are unable to find any authority to support the proposition that a seventeen year old boy cannot, as a matter of law, give consent for a search of the premises in which he lives with his family. The age of the boy should, of course, be considered by the trier of fact to be one factor in determining whether or not consent was freely given.

See also Blincoe v. People, 178 Colo. 34, 494 P.2d 1285, 1286-1287 (1972). In Davis v. United States, 327 F.2d 301, 302 (9th Cir. 1964), the court discussed a factual setting in which three narcotics officers knocked at defendant's door. An eight-year old daughter admitted them to the home. The court noted, as to her authority to consent to the search:

When the defendant was on the stand, he made no claim that Pamela's actions in opening the door or inviting the men in was in any way unusual or unauthorized, nor did Pamela testify that the opening of the door or telling the officers to come in was against the instructions of either of her parents. From all the evidence before it, the trial court was entitled to conclude then that her opening the door and invitation to enter were not unusual or unexpected or unauthorized acts.

Defendant also claims Janine was not aware that she could refuse to allow a search. Such lack of knowledge, however, is not a prerequisite to establishing a voluntary consent; it is merely a factor in determining its voluntariness....

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