Valenzuela v. State

Decision Date12 January 1981
Docket NumberNo. 60584,60584
Citation157 Ga.App. 247,277 S.E.2d 56
PartiesVALENZUELA et al. v. The STATE.
CourtGeorgia Court of Appeals

Ken Gordon, La Grange, for appellants.

Arthur E. Mallory, III, Dist. Atty., Gerald S. Stovall, Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Appellants Eduardo and Paula Valenzuela appeal their convictions for burglary, enumerating as error below the refusal to suppress the evidence; the sufficiency of the evidence to prove defendants were in actual or constructive possession of the stolen goods; the denial of a mistrial based on the district attorney's statements in argument that defendants, who presented no evidence, had given no explanation of their recent possession of stolen goods; and the insufficiency of the evidence positively identifying the stolen goods. Held:

1. The trial court's refusal to suppress the evidence in this case was not error. The evidence shows that following a series of burglaries in the community, the police had information from a reliable source that at least some items stolen in a particular burglary could be found at a certain house. The officers knew who owned, or rented, the house; they went to the location intending to inquire about a certain antique clock and other items and to stake out the premises and keep them under surveillance if they were unsuccessful in gaining consent or grounds to search. Appellant Eduardo Valenzuela met the officers at the door. They told him they had heard he had an antique clock and some silver for sale, and when he answered that he did not, the officer asked Valenzuela whether he minded if they looked around. He then advised them it would "be alright" if they did so. The officers went into the house and back to the kitchen, where they saw on the floor two pillowcases seemingly stuffed with silver and other bulky items (pillowcases had been among some of the items stolen). The officers immediately emptied the pillowcases, which did contain numerous items, including silver, guns, jewelry and rings, which were consistent with the type items stolen in recent burglaries and some of which the officer believed belonged to at least one of the burglary victims. At this point the officers arrested appellant Eduardo Valenzuela. Thereafter the police proceeded to make a thorough search of the entire house; they found in the closet of a basement bedroom two ski-suits, and found certain liquor bottles in the kitchen, the theft of which items, the appellants were convicted in this case.

Appellants contend the evidence should be suppressed because the officers requested and received permission only to "look around" and did not specifically ask consent to "search"; because the officers expanded the scope of the search beyond what was permissible; and because Eduardo Valenzuela did not have the requisite authority to consent to a warrantless search since he and his wife were only visiting while his sister, the lessee, was in Florida. None of these arguments have merit. Appellant contends that asking permission to look around for an antique clock is not the same as asking to search an entire house. We will not agree that when appellant told the police officers they could "look" around the house he could not have known they would perform a search. This is not a case where the officers got specific consent to do one particular thing but instead did another or made an additional search (see, e. g., Love v. State, 144 Ga.App. 728, 242 S.E.2d 278). The officers asked to "look" and this is what they did. After being advised they could "look," it was not unreasonable for the police to look thoroughly, and calling this a search does not inject impropriety into police actions that is not there when they merely look thoroughly. The appellant's consent to policemen to "look," must reasonably be construed to be consent to search, since it is not reasonable to imagine that the police intended any less; nor, therefore, when the police did thoroughly search or look can it be inferred that they improperly expanded the scope of the search. Finally, we do not agree that Valenzuela did not have the requisite authority to consent to a warrantless search. This is not a case involving an "absent target" and a consenting third party. (See similarly, Fears v. State, 152 Ga.App. 817, 818-819, 264 S.E.2d 284). In such cases, where the target and consenter have common authority over and use of the premises, the principle applies that the consenting third party has the right to permit inspection in his own right and the "target" assumes such risk (United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242); Barrow v. State, 235 Ga. 635, 637, 221 S.E.2d 416; and see Fears, supra); but where the "target" has a reasonable expectation of privacy in the searched premises, i. e., there is no common authority to and mutual use of the searched premises, then the "target" does not assume the risk that the other will permit a search. United States v. Block, 4 Cir., 590 F.2d 535, 539; Fears, supra. We have neither situation in this case. The "targets" in this case were the appellant husband and wife; it is the appellant-husband who gave consent to search. We do not see how the defendant, or "target" who himself consented to the search can object to his own authority to give consent, especially where there is no evidence that he did not have authority to do so, United States v. Matlock, supra; nor especially how he can contend that he had a legitimate expectation of privacy in the places searched (Fears, supra, 152 Ga.App. p. 818, 264 S.E.2d 284; United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538), when he himself gave permission for the search.

2. Appellant contends there was insufficient evidence to convict, in that the state failed to prove they were in actual or constructive possession of the snowsuits. We disagree. At the trial of the case one of the officers testified that in his...

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13 cases
  • Martinez v. State
    • United States
    • Georgia Court of Appeals
    • 19 Octubre 2018
    ...did thoroughly search or look can it be inferred that they improperly expanded the scope of the search." Valenzuela v. State , 157 Ga. App. 247, 248-249 (1), 277 S.E.2d 56 (1981). See also McGaughey v. State , 222 Ga. App. 477, 479-480, 474 S.E.2d 676 (1996) (finding search of medicine bott......
  • McNeese v. State
    • United States
    • Georgia Court of Appeals
    • 5 Marzo 1984
    ...S.E.2d 916; Snell v. State, 246 Ga. 648, 272 S.E.2d 348; Caffo v. State, 247 Ga. 751, 754(1), 279 S.E.2d 678; Valenzuela v. State, 157 Ga.App. 247, 249-250(2), 277 S.E.2d 56; Castleberry v. State, 152 Ga.App. 769, 770, 264 S.E.2d 2. We next consider whether the trial court erred in overruli......
  • Law v. State
    • United States
    • Georgia Court of Appeals
    • 8 Febrero 1983
    ...possibility of the defendant's innocence." Castleberry v. State, 152 Ga.App. 769, 770, 264 S.E.2d 239 (1979). See Valenzuela v. State, 157 Ga.App. 247(2), 277 S.E.2d 56 (1981). The evidence in this case was sufficient to support the verdict, and the state proved appellants' possession of th......
  • State v. Randolph
    • United States
    • Georgia Supreme Court
    • 8 Noviembre 2004
    ...Smith v. State, 264 Ga. 87(2), 441 S.E.2d 241 (1994); Walsh v. State, 236 Ga.App. 558(2), 512 S.E.2d 408 (1999); Valenzuela v. State, 157 Ga.App. 247(1), 277 S.E.2d 56 (1981). The basis for the decisions in these cases was the recognition that "any of the co-inhabitants has the right to per......
  • Request a trial to view additional results

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