State v. McCarthy

• Decision Date: 28 April 1971
• Docket Number: No. 70-167,70-167
• Citation: 26 Ohio St.2d 87,55 O.O.2d 161,269 N.E.2d 424
• Parties: , 55 O.O.2d 161 The STATE of Ohio, Appellee, v. McCARTHY, Appellant.
• Court: Ohio Supreme Court

Page 87

26 Ohio St.2d 87

269 N.E.2d 424, 55 O.O.2d 161

The STATE of Ohio, Appellee, v. McCARTHY, Appellant.

No. 70-167.

Supreme Court of Ohio.

April 28, 1971.

Syllabus by the Court

The Fourth Amendment to the Constitution of the United States interdicts only those searches and seizures which are unreasonable, and a wife's voluntary consent to a search of her and her husband's mutual residence is sufficient to constitutionally permit an otherwise reasonable search of the common areas thereof.

At about 5:00 p.m. on December 28, 1966, Max Fischer was fatally shot in his Cleveland barber shop. On the same evening, Christopher McCarthy, appellant herein, surrendered himself to the Cleveland police with respect to an unrelated charge of assault and battery. The police had been given a description of the man who shot Fischer by two witnesses. On witness had seen a man enter the barber shop just prior to the shooting. The other witness had heard the shots, had seen a man leaving the barber shop immediately after the shooting, had followed him down the street and had seen him with a gun. At trial, both witnesses identified the appellant as that man.

The appellant did not become a suspect until the morning of December 30, 1966, when the police were informed that appellant may have been involved in the Fischer killing and that some potentially incriminating evidence might be found in the basement of appellant's home. This information was given to the police by one Thomas Shaughnessy, who was a neighbor of the McCarthys and represented Mrs. McCarthy as her attorney.

Appellant was formally charged with the murder of Max Fischer, and on November 24, 1967 a pretrial hearing was held on appellant's motion to suppress evidente which was seized at his home. At the hearing, evidence was adduced that the first of two visits by detectives to appellant's residence occurred on the evening of December 30, 1966. At that time, the detectives spoke with Mrs. McCarthy relative to their examination of the family automobile. At trial, it was stipulated that the car was registered in the name of appellant's wife and that appellant used the car. Mrs. McCarthy invited the officers in and stated that she wished to call her attorney. When she returned from making the call, she gave her permission for the police to tow the car away for examination. A search of the car revealed some .38 caliber bullets in the glove compartment.

There was conflicting evidence as to why Mrs. McCarthy consented to the search of her automobile. She testified that she had pleaded guilty to a felony and was, at the time of the consent, awaiting a probation report. She stated further that a detective brought up the subject of the probation report and urged her to cooperate. This was denied by the detective, who testified that the only reference to the prebation report was made by Mrs. McCarthy herself when she stated that she blamed her husband for her felony charge.

On January 1, 1967, Mrs. McCarthy went to Central Police Station to pick up her car. She testified that while there, she was accused by a detective of being uncooperative and was threatened regarding her pending probation report. The detective involved denied that any discussion about her probation status took place.

On January 2, four detectives visited appellant's residence. The police introuduced themselves, and one of them stated that they wanted to come in, with her permission, and search the home for a gun and some pellets that were supposed to be in the basement. Mrs. McCarthy invited them in, and again informed them that she would first have to discuss their request with her attorney. After making a phone call, she returned and told the police that she would cooperate. She advised the police that the basement was dark and they would probably need a flashlight. She went down to the basement and directed two of the officers to a fruit cellar door. The officers found a pellet in the door and also searched some of the beams and other areas of the basement. Mrs. McCarthy provided the police with a wood chisel for removing the pellet, and helped care for one of the detectives when he injured himself with the chisel.

The trial court overruled the pre-trial motion to suppress the evidence seized at appellant's home, finding that appellant's wife had the right to consent to the search and that her consent was voluntarily given. Appellant was tried and convicted of first degree murder, with a recommendation of mercy. The Court of Appeals affirmed the judgment of conviction, 20 Ohio App.2d 275, 253 N.E.2d 789.

The cause is before this court as an appeal as of right and pursuant to the allowance of a motion for leave to appeal.

James J. Carroll, Cleveland, for appellant.

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

HERBERT, Justice.

The basic question presented is whether a wife, by virtue of her status as a joint resident of premises with her husband, may give valid consent to a warrantless search thereof by the police.

At the outset, it should be noted that we harbor doubts as to whether the police activity at appellant's residence on January 2, 1967, was a 'search and seizure' within the contemplation of the Fourth Amendment. It has been stated that a search ordinarily implies a quest by an officer of the law, a prying into hidden places for that which is concealed; and that a seizure connotes a forcible dispossession of the owner. See Weeks v. United States (1914), 232 U.S. 383, 397, 34 S.Ct. 341, 58 L.Ed. 652. Since the record supports a conclusion that Mrs. McCarthy voluntarily directed the officers to the fruit cellar door, wherein the pellet in question was found, it is arguable that the traditional aspects of a search and seizure are not presented. The police did, however, examine the basement ceiling beams and other areas of the basement, and stated at the outset of their visit that they were looking for a gun and some pellets. Thus, in view of the scope of police activity and the posture of the case as briefed and argued by the parties, we will review the cause upon the premise asserted.

The question of inter-spousal consent to a search of the marital residence has engendered a sharp conflict among the courts which have considered it, and two opposite views of authority have emerged. See 47 American Jurisprudence, Searches and Seizures, Section 72; 79 C.J.S. Searches and Seizures § 62; annotation 31 A.L.R.2d 1078, and supplement. See, also, Mascolo, Inter-Spousal Consent to Unreasonable Searches and Seizures: A Constitutional Approach, 40 Conn.Bar.J. 351; 69 Dickenson L.Rev. 69; 79 Harv.L.Rev. 1513; 33 Chicago L.Rev. 797.

One line of authority, emphasizing agency concepts and the personal nature of Fourth Amendment rights, has uniformly denied the efficacy of a wife's consent to a search of the home, absent the husband's authorization. E.g. Veal v. Commonwealth (1923), 199 Ky. 634, 251 S.W.2d 648; State v. Wilkerson (1942), 349 Mo. 205, 159 S.W.2d 794; Maupin v. State (1927) 38 Okl.Cr. 241, 260 P. 92; State v. Hall (1965), 264 N.C. 559, 142 S.E.2d 177.

Those courts which have upheld the validity of spousal consent eschew the agency analysis, reasoning that the question is not one of authority to waive the husband's rights, but rather is one turning upon the wife's own right to authorize a search of the resident premises over which she exercises joint control. E.g., People v. Palmer (1964),31 Ill.2d 58, 198 N.E.2d 839; Bellam v. State (1963), 233 Md. 368, 196 A.2d 891; Commonwealth v. Martin (Mass.1970), 264 N.E.2d 366; State v. Coolidge (1969), 109 N.H. 403, 260 A.2d 547; ^* State v. Kennedy (1969), 80 N.M. 152, 452 P.2d 486; Commonwealth ex rel. Cabey v. Rundle (1968), 432 Pa. 466, 248 A.2d 197; State v. Cairo (1948), 74 R.I. 377, 60 A.2d 841. From the rationale of the joint-control approach, it follows that the scope of spousal consent should be limited to a search of areas of the abode under common control, as distinguished from a search directed toward the personal effects of the absent spouse. See, e.g. People v. Carter (1957), 48 Cal.2d 737, 312 P.2d 665; State v. Evans (1962), 45 Hawaii 622, 373 P.2d 365.

Appellant contends that this court has already decided, in principle at least, that a wife may not consent to a search of the home without her husband's authorization, and cites State v. Lindway (1936), 131 Ohio St. 166, 2 N.E.2d 490, and State v. Bernius (1964), 177 Ohio St. 155, 203 N.E.2d 241.

In State v. Lindway, supra, 131 Ohio St. at page 171, 2 N.E.2d at page 493, Judge...