State v. Hacker

• Decision Date: 19 November 1974
• Docket Number: No. 13465,13465
• Citation: 209 S.E.2d 569,158 W.Va. 182
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. William Bernard HACKER.

Page 569

209 S.E.2d 569

158 W.Va. 182

STATE of West Virginia v. William Bernard HACKER.

No. 13465.

Supreme Court of Appeals of West Virginia.

Nov. 19, 1974.

Syllabus by the Court

Where the defendant in a criminal case makes a timely objection to the introduction of evidence seized during a warrantless search, it is incumbent upon the state to prove by a preponderance of evidence that the search was legal.

Clyde M. See, Jr., James E. Ansel, Moorefield, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., E. Leslie Hoffman, III, Betty L. Caplan, Asst. Attys. Gen., Charleston, for defendant in error.

NEELY, Justice:

This Court granted this appeal to determine the validity of a warrantless search under the Fourth Amendment to the Constitution of the United States as applied to the states by the Fourteenth Amendment. As the Court finds that the prosecution failed to demonstrate by a preponderance of evidence that voluntary consent was obtained for the search the judgment of the Circuit Court of Pendleton County is reversed and the case is remanded for a new trial. ¹

Defendant, William Bernard Hacker, was indicted on February 18, 1971 in the Circuit Court of Pendleton County and was convicted on March 23, 1971 of murder in the first degree. The evidence at the trial indicated that on December 21, 1970 the defendant left his home in Baltimore, Maryland to visit in Moundsville, West Virginia, where he arrived on the morning of December 22, 1970. The next day defendant called one Betty Snyder, a long-standing friend, who had been spending time with one Herbert Corbin. Mr. Corbin answered Mrs. Snyder's telephone and invited the defendant to the Snyder home. There all three began to drink intoxicating beverages and later proceeded to a bar in Moundsville. About midnight, the defendant and Mr. Corbin took Mrs. Snyder home, but the two men went to another bar to play pool and drink more liquor. They left the second club when it closed, drove around Moundsville for a time and then left together for Petersburg, in Grant County, West Virginia, arriving there in the early morning of December 24, 1970.

It appears from the evidence that Mr. Corbin was shot and killed in the Petersburg area of West Virginia on December 24, 1970. His body was discovered on a farm located on the Grant-Pendleton County line. At the trial defendant admitted shooting the decedent; however, the evidence is in conflict regarding the circumstances surrounding the shooting. The defendant maintained that the two men fought over a gun in the front seat of the car and the gun accidentally discharged.

The defendant returned to his home in Baltimore, Maryland on Friday morning, December 25, 1970. At approximately 11:00 a.m. on that day defendant was taken into custody by Maryland and West Virginia authorities pursuant to a homicide warrant.

The issue on this appeal concerns the propriety of a search of the defendant's room in Baltimore, Maryland. ²

It appears from the evidence that defendant lived at the residence of a Mrs. Novak in Baltimore. The evidence is silent concerning the relationship between Mrs. Novak and the defendant and with regard to whether Mrs. Novak operated a rooming house, rented a room to the defendant, or merely allowed the defendant to live in the house free of charge. ³

The search in question occurred in two phases, two and four days after the defendant was arrested. On each occasion, the police first interviewed Mrs. Novak and each time she gave the police permission to search the premises. On the second occasion, a gun, the alleged murder weapon, was found under the pillow on the bed that Mrs. Novak identified as the one in which the defendant slept.

The defendant made a timely motion during trial to exclude the revolver from evidence as fruit of an illegal warrantless search. Under the recent case of United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), a valid search may be conducted without a warrant if consent to search is given by a person who possesses common authority over premises as against an absent, non-consenting person with whom that authority is shared. See also: Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).

It was incumbent upon the State to prove by a preponderance of evidence, that at the time of the search, the consenting third party, Mrs. Novak, was a joint occupant of the premises with common authority over the specific bedroom from which the pistol was taken. As the Supreme Court said in Matlock, supra:

'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, see Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (landlord could not validly consent to the search of a house he had rented to another); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (night hotel clerk could not validly consent to search of customer's room) 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 coinhabitants 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.'

Having conducted a warrantless search, the burden rested upon the State to demonstrate the legality of that search. While the search of the house in the case at bar may have been valid had Mrs. Novak possessed common authority with the defendant over the defendant's living quarters, the State failed to prove the existence of common authority and, therefore, the legality of Mrs. Novak's consent remains in question. The State failed to sustain its burden, and accordingly the judgment of the Circuit Court of Pendleton County is reversed and the case is remanded for a new trial.

Reversed and remanded.

1 This Court has also considered the defendant's other assignments of error, namely that:

(1) the verdict is contrary to the law and the evidence; (2) the court erred in failing to grant defendant's motion for a directed verdict; (3) the court erred in failing to sustain defendant's motion to dismiss for lack of venue; (4) the court erred in failing to sustain defendant's motion to exclude photographs of the decedent's body and severed head; (5) the court erred in failing to sustain defendant's motion for a mistrial for improper conduct by the prosecuting attorney; (6) the court erred in granting certain of the state's instructions, and in refusing to grant certain of the defendant's instructions; and, (7) the court erred in resentencing the defendant. The...