Summary
In Gonzalez, the Court of Appeals ruled that the sister of a friend of defendant could not consent to the search of defendant's zipped duffel bag stored under the mattress of a bed that was used by defendant when he stayed overnight in her brother's room.
Summary of this case from People v. JacksonOpinion
May 11, 1966
Appeal from the Criminal Court of the City of New York, County of Kings, ABRAHAM M. ROTH, J., BENJAMIN H. SCHOR, J.
Anthony F. Marra and Kalman Finkel for appellant.
Aaron E. Koota, District Attorney ( Michael Schwartz of counsel), for respondent.
The search of the defendant's dwelling for contraband, without a warrant, cannot be sustained upon this record ( Jones v. United States, 357 U.S. 493; Johnson v. United States, 333 U.S. 10; Taylor v. United States, 286 U.S. 1; Agnello v. United States, 269 U.S. 20). While the original entry was with the permission of defendant's wife, she could not validly consent to a search of his personal effects which were not exposed to open view ( State v. Evans, 45 Haw. 622; cf. Roberts v. United States, 332 F.2d 892, cert. den. 380 U.S. 980). Since consent is the weakest possible basis for a search and must be shown to have been freely and voluntarily given ( Pekar v. United States, 315 F.2d 319; Hall v. Warden, 313 F.2d 483; United States v. Viale, 312 F.2d 595; United States v. Smith, 308 F.2d 657), it is even less persuasive when given by one's wife to effect a waiver of his constitutional right against unreasonable search. Consequently the motion to suppress should have been granted and the complaint must be dismissed for lack of the required proof of guilt.
The judgment of conviction and order denying motion to suppress evidence should be reversed on the law and facts, motion granted and complaint dismissed.
MARGETT and BRENNER, JJ., concur; OLLIFFE, J., deceased.
Judgment of conviction and order reversed, etc.