State v. Swenningson, Cr. N

• Decision Date: 06 October 1980
• Docket Number: Cr. N
• Citation: 297 N.W.2d 405
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Gerald LeRoy SWENNINGSON, Defendant and Appellant. o. 709.
• Court: North Dakota Supreme Court

Page 405

297 N.W.2d 405

STATE of North Dakota, Plaintiff and Appellee, v. Gerald LeRoy SWENNINGSON, Defendant and Appellant.

Cr. No. 709.

Supreme Court of North Dakota.

Oct. 6, 1980.

Rolf Sletten, Asst. State's Atty., Bismarck, for plaintiff and appellee.

Ralph Vinje, Bismarck, for defendant and appellant.

ERICKSTAD, Chief Justice.

The defendant, Gerald Swenningson, appeals from a jury conviction of burglary, rendered on December 18, 1979, in Burleigh County District Court. Gerald specifically alleges that the trial court erred by failing to suppress evidence which was obtained in a third-party consent search. We affirm.

In January of 1979 a Bismarck home was burglarized. Jewelry and silverware, among other items, were reported missing. During the course of the investigation, a juvenile was questioned in connection with the burglary. He informed police that he and Gerald had committed the burglary. He also indicated he believed some of the stolen property was still in Gerald's possession. After obtaining this information, the police went to Gerald's place of residence, which was his father's home. At the home, Gerald's sister informed the police that she could not give permission to search the house but suggested they contact her father, Richard.

Gerald's father, Richard, gave the police written permission to search his home. A search of the home was conducted which revealed silverware and jewelry which were identified as those which had been stolen. These items were found in Gerald's bedroom in his father's house.

Prior to trial, Gerald moved to suppress the evidence and subsequent statements which were made by him. The basis of the motion was that the consent by the father to a search of the son's bedroom was inadequate to waive the son's Fourth Amendment rights. The motion was heard on March 27, 1979, by a county court judge. The testimony at the hearing established that Gerald was emancipated and 19 years old. Gerald had lived away from home and had asked his father to be allowed to return home. The father told Gerald to come home anytime. Gerald returned home for three days and then left again. He subsequently returned and began residing in his father's home in January of 1979. Gerald and his father informally agreed that Gerald should pay rent as soon as he was able. The understanding did not specify an amount to be paid as rent.

Gerald was arrested on March 27, prior to paying any rent. He subsequently paid rent for March, after he received his second check from the job which he had worked at for one month. Prior to this time he contends he did not have sufficient money to pay any rent.

Further testimony by Gerald revealed that his father could enter his bedroom uninvited anytime, but never had. Additionally, Gerald's sister entered Gerald's room at will, even when he was not present.

The specific issue on appeal is: Did the trial court err in denying defendant's motion for suppression of the evidence obtained in a search of his bedroom consented to by his father.

The Fourth Amendment of the Constitution of the United States provides:

"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

This amendment prohibits only unreasonable searches. It has been determined that a reasonable search requires a search warrant prior to the search. This requirement is subject to certain exceptions.

In State v. Matthews, 216 N.W.2d 90, 99 (N.D.1974), this court set out three basic premises in determining the constitutionality of a search as follows:

"One, as stated in State v. Gagnon, 207 N.W.2d 260, 263 (N.D.1973), 'All searches made without a valid search warrant are unreasonable unless they are shown to come within one of the exceptions to the rule that a search must be made upon a valid search warrant. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).' To the same effect, Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

"Two, where a violation of the Fourth Amendment provision as to search and seizure is asserted, the burden of proof on a motion to suppress is on the State. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).

"Three, ever since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), evidence obtained by search and seizure violative of the Fourth Amendment is, by virtue of the Due Process Clause of the Fourteenth Amendment, inadmissible in State courts. State v. Manning, 134 N.W. 2d 91 (N.D.1965)."

As we stated in Matthews, the burden of proof is upon the State to show that the evidence was not obtained in violation of the defendant's Fourth Amendment rights. While this burden rests upon the State, it is not necessary for the State to negate every conceivable action which could possibly have infringed upon Gerald's rights. Rather, the person who alleges that his rights have been violated must present some specific evidence demonstrating taint. Alderman v. United States, 399 U.S. 165, 183, 89 S.Ct. 961, 972, 22 L.Ed.2d 76 (1969).

In this case the allegation was that the search, pursuant to Gerald's father's consent, was not a valid consent search. One of the exceptions to the warrant requirement is when an appropriate person consents to such a search. This does not require that the person against whom the evidence is used must consent to the search. It is sufficient and reasonable if consent is given by a third party who possesses common authority over, or other sufficient relationship to, the premises. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). This third-party consent is valid because when two or more people have common authority over certain premises, it is reasonable to assume that the parties realize that one of them may consent to a search of the area over which all have common authority and none have exclusive authority.

In United States v. Matlock, supra, 415 U.S. at 171, 94 S.Ct. at 993, the United States Supreme Court stated the requirement to uphold a third-party consent as follows:

"These cases at least make clear that when 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. 7 ...

In Matlock the consent was given by a woman with whom the defendant shared the bedroom which was searched. The third-party consent was upheld on the ground that she possessed common authority over the premises. The court, in footnote 7, stated that this was because the defendant had "assumed the risk" that his co-occupant would consent to a search. Therefore it was not unreasonable. Another explanation for permitting a search under such circumstances might be that, when there are co-occupants, each has a right to allow a search of the premises over which he shares authority.

Some cases have emphasized the expectation of privacy distinction. People v. Nunn, 55 Ill.2d 344, 304 N.E.2d 81 (1973), cert. denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 108 (1974); United States v. Block, 590 F.2d 535 (4th Cir.1978). The expectation-of-privacy standard was rejected in People v. Stacey, 58 Ill.2d 83, 317 N.E.2d 24 (1974), on the basis of the "common authority" test of Matlock. People v. Stacey, supra, 317 N.E.2d at 27. This indicates that the authority to allow a search lies within a third party's own right to allow a search of the area or property over which he has common authority. This view is supported by cases which allow a third party with common authority to consent to a search even when the defendant is present and objects. United States v. Hendrix, 595 F.2d 883 (D.C.Cir.1979); United States v. Sumlin, 567 F.2d 684 (6th Cir.1977).

The authority of a third party to consent extends only to those areas and objects over which that person has common authority. Such authority does not extend to those areas or effects which are exclusively those of the subject of the search. United States v. Block, 590 F.2d 535 (4th Cir.1978); In Re Scott K., 24 Cal.3d 263, 155 Cal.Rptr. 671, 595 P.2d 105 (1979). In both of the above cases it was held that a parent could consent to a search of the child's room since a parent had common authority but could not consent to a search of a footlocker or tool chest which was exclusively the child's. In Block the child was an adult and in In Re Scott K. the child was a minor.

From these cases it is apparent that a third party may not consent to a search of the premises or effects under another person's exclusive control. But a third party may consent, in his own right, to the search of an area or effects over which parties have common authority. As was stated in Matlock, this authority does not rest on any proprietary interest, rather solely upon common authority. United States...