State v. McCarthy

Decision Date04 December 1969
Citation253 N.E.2d 789,20 Ohio App.2d 275
Parties, 49 O.O.2d 364 The STATE of Ohio, Appellee, v. McCARTHY, Appellant.
CourtOhio Court of Appeals

Syllabus by the Court

1. Where motor vehicle is in a wife's name but is used jointly by both spouses, the wife may permit a warrantless search of it by police officers without the husband's permission.

2. A wife, by virtue of her status as a joint occupant and joint controller of the family dwelling, may, in the absence of the husband, allow a warrantless search of the family abode by the police. However, such search should be restricted to the common areas of the home so that the sanctity of the personal effects of the husband will be preserved. A bullet embedded in the wall of a basement is not a personal effect.

3. If the consent of a wife in allowing a warrantless search is procured with coercion, the search must fail. The burden is on the state to prove that consent was freely and intelligently given.

4. Where the evidence indicates that a wife was not pressured by the police and that she acted in her own interest in consenting to a search, the search will be upheld.

5. On factual situation may give rise to two or more separate inferences. McDougall v. Glenn Cartage Co. (1959), 169 Ohio St. 522, 160 N.E.2d 266.

John T. Corrigan, Pros. Atty., and William J. Coyne, Cleveland, for appellee.

James J. Carroll, Cleveland, for appellant.

SILBERT, Chief Justice.

This is an appeal on questions of law from a judgment of the Common Pleas Court rendered upon a guilty verdict which was returned against defendant, appellant herein, on a charge of first degree murder. The defendant, Christopher F. McCarthy, on January 3, 1967, was charged with the murder of Max Fischer. Fischer had been killed in the living quarters behind his barbershop on the west side of Cleveland in the late afternoon of December 28, 1966.

Defendant urges seven assignments of error. We discuss only the second and third assignments, since we have carefully examined the other assignments of error urged by defense counsel and find none prejudicial to the substantial rights of the defendant, and they are, therefore, overruled.

Assignment of error number two reads as follows:

'The court erred in overruling the defendant's motion for the suppression of certain physical evidence and all testimony relating thereto, such evidence having been seized in the course of a warrantless search of his home in contravention of his rights under the Constitution of the United States and the Constitution of the state of Ohio.'

Assignment of error number three reads as follows:

'The court erred in admitting into evidence the pellet which had been seized in appellant's basement, together with the testimony relating thereto, by reason of the fact that same could only be utilized by the jury as a basis upon which to predicate inference upon inference.'

On November 22, 1967, there was a hearing on defendant's motion to suppress evidence seized at his home. The evidence shows that on December 30, 1966, Detectives Murphey and Pawloski proceeded to defendant's home without a search warrant and proceeded to have the family car towed to the police station. In this car a box of .38 caliber shells was found. These shells were later introduced into evidence. At the time of this visit, the detectives were told that the automobile was listed under Mrs. McCarthy's name but that her husband used it. It was later stipulated at the trial that the car was owned by Mrs. McCarthy but jointly used by her busband.

Before the first warrantless search, Mrs. McCarthy called her attorney, Mr. Thomas Shaughnessy, and subsequently she returned with a pen and paper with which to take noted of this search. At this point there was conflicting evidence why Mrs. McCarthy allowed her car to be towed away. Mrs. McCarthy claimed that an impending report was brought up by Detective Murphey. The following occurred on direct examination of Mrs. McCarthy:

'Q. What did he say regarding your pending case? A. He said, 'I understand you have a case pending before Judge McMahon in which you are awaiting a probation report.'

'Q. Did he way anything further? A. He said, 'If you will co-operate, it will help you.''

This was specifically denied by Detective Murphey. He stated that the only reference to the pending probation report was made by Mrs. McCarthy, in which she blamed her husband for the charge.

On January 1, 1967, Mrs. McCarthy went to Central Police Station to retrieve her car. She met her attorney there. She, her attorney, and Detective Roberts conversed. There were conflicting views as to what transpired at this meeting. Mrs. McCarthy claimed Detective Roberts threatened her with a bad probation report because she was un-cooperative. However, both Detective Roberts and Mr. Shaughnessy denied that this discussion dealt with her probation status; rather, it dealt with the return of Mrs. McCarthy's car.

The evidence showed that on January 2, 1967, four detectives-Fischbach, Pawloski, Murphey and Kaminski-proceeded to the McCarthy house and removed a pellet from the basement wall. Detective Murphey testified that Mrs. McCarthy called her attorney before she allowed the police to search the basement. It was brought out that her attorney had been the person who had first brought her husband's name to the police as a suspect in the murder of Max Fischer. Also, Mr. Shaughnessy had a suit in court to stay execution of a promissory note owed to Mr. McCarthy. In addition Mr. McCarthy had just pleaded guilty to a charge of assaulting Mr. Shaughnessy's wife.

After Mrs. McCarthy was advised by Mr. Shaughnessy that if she had nothing to hide she might as well cooperate, Mrs. McCarthy was extremely cooperative during this search. She warned the policemen that they might need flashlights; she showed them the area in which the pellet was lodged; she provided them with a wood chisel to extract the pellet; and she helped care for Detective Fischbach when he injured himself with the chisel.

Mrs. McCarthy claimed that Detective Murphey, at the time of this visit, stated that he would talk to Detective Roberts concerning her co-operation. Detective Murphey flatly denied this assertion.

In connection with that alleged statement of Detective Murphey, Mrs. McCarthy's response to a question propounded by the court is very interesting.

'The Court: When, on that particular day did he make this promise to you, that he would talk to Judge McMahon and assist you in getting probation?

'The Witness: On the way out of the door.

'The Court: This was after they made the search and were in the house originally?

'The Witness: Yes, sir, and after I told him how Detective Roberts treated me.'

While Mrs. McCarthy indicated she thought Mr. McCarthy had had extra-marital relationships, she indicated that she still loved him. She was quite bitter about not receiving probation.

Weighing these factors, the court denied the motion to suppress the evidence with the following remarks:

'I find that persons other than the defendant such as another occupant in the defendant's home may have given a valid consent to enter and search.

'Making this finding the court's next concern was whether or not the consent was voluntarily given.

'The court attempted to examine what we knew from the testimony; that the police went to the home of the defendant; there, they met the wife and had conversation with her; that she called her lawyer and immediately upon her return, the evidence is crystal clear, she stated she would cooperate and tell the truth; * * * and it was testified to by the police officers at the second visit that she again called her lawyer, and the lawyer testified she called, and she did not recall in her testimony calling the lawyer but did not deny that she did not call him.

'* * * the court finds beyond a reasonable doubt that consent was voluntarily given and therefore the motion to suppress is herewith denied.'

At the trial, the ballistics expert, Detective Roubal, asserted that this pellet was fired from the same gun that killed Max Fischer. The pellet was admitted into evidence.

The jury returned a verdict of guilty of murder in the first degree with a recommendation of mercy. Defendant was sentenced to the Ohio State Penitentiary according to law.

In response to assignment of error number two, we must examine the right of one spouse to be able to permit a warrantless search of the home in the absence of the other spouse. In considering this issue, it must be recognized that "courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and * * * 'do not presume acquiescence in the loss of fundamental rights." Johnson v. Zerbst (1938), 304 U.S. 458 at 464, 58 S.Ct. 1019 at 1023, 82 L.Ed. 1461.

The earlier decisions, and perhaps still the majority, stress agency. In those cases, the efficacy of allowing the wife's consent to bind the husband in a warrantless search of the premises depends on whether she has express or implied authority to permit the search. This rationale was explained in Humes v. Taber (1850), 1 R.I. 464 at 473, where the court states:

'* * * Undoubtedly, the wife's authority extends to rendering the ordinary civilities of life. If she invite a neighbor, friend, or even a stranger, to enter the house in the way of hospitality, such invitation would, under ordinary circumstances, be a valid license so to do.

'But to imply an authority to the extent contended for by the defendant in the present case, would be dangerous. An artful man might impose on the wife in the absence of the husband, and thus, for malicious and unlawful purposes, obtain from her a license to search the desk and private papers of her husband.'

This fear of an unwarranted invasion of one's property was heeded in many instances. In an era that frowned upon the rights of the married woman, it...

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  • Lewis v. Cardwell
    • United States
    • U.S. District Court — Southern District of Ohio
    • May 19, 1972
    ...v. United States, 310 F.2d 680, 684 (10th Cir. 1962); United States v. Page, 302 F.2d 81, 83 (9th Cir. 1962); State v. McCarthy, 20 Ohio App. 2d 275, 284-285, 253 N.E.2d 789 (Cuyahoga 2. The prosecution must demonstrate that the consent is uncontaminated by any duress or coercion, either ex......
  • Marganet v. State
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    • March 31, 2006
    ...To allow a search of his personal effects would unduly destroy the husband's rights against unreasonable searches.' State v. McCarthy, 20 Ohio App.2d 275, 49 Ohio Ops.2d 364, 253 N.E.2d 789, 795 (1969), aff'd. 269 N.E.2d 424 * * * It should have been apparent to the police officers that the......
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    • March 1, 2018
    ...("As a consequence of [ Mapp ], the rule of State v. Lindway * * * no longer prevails in this state"); State v. McCarthy , 20 Ohio App.2d 275, 281, 253 N.E.2d 789 (8th Dist. 1969). Even this court has set forth that " Lindway has been * * * overruled * * * by implication for violations of t......
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