People v. Mazzulla ( 1976 )

R. M. Maher, P. J.

A jury found defendant guilty on two counts of possession of a controlled substance with intent to deliver. MCLA 335.341(1)(a), (b); MSA 18.1070(41)(a), (b). The court imposed concurrent sentences of 10 to 20 years and 4-1/2 to 7 years. Defendant appeals of right. We reverse his convictions.

Defendant raises several issues but disposition of his appeal only requires consideration of his claim that the controlled substances introduced at trial were obtained by an illegal search.

During the early morning hours of June 1, 1974, a police officer, observing defendant’s erratic driving, stopped him. Defendant could not produce a driver’s license, but did produce the automobile’s registration showing the automobile registered to a person named Jewel. The officer arrested defendant for drunken driving, and transported him to jail for Breathalyzer testing. The test indicated no alcohol in defendant’s blood, and the charge was changed to driving under the influence of narcotics. When the arresting officer returned to his police car he found a hypodermic needle in the backseat, the arresting officer then had the car defendant had been driving transported to the county jail.

Later in the day, the detective in charge of the case spoke with defendant’s mother-in-law, Mrs. Jewel. The automobile’s registration was in the name of Mrs. Jewel and her husband. Mrs. Jewel informed the officer that her daughter, defendant’s sister-in-law, had been given the automobile for her use. The officer requested that Mrs. Jewel and her daughter go to the jail and consent to a search of the automobile. Both women went to the jail and signed consent to search forms authorizing a search of the automobile.

The detective then proceeded to search the automobile in the presence of the two women and a deputy. He pointed out a gray metal box on the floor of the back seat and asked them who owned it. Each said it was not hers. The detective then opened the box and found a large quantity of tablets and pills inside. Lab tests showed some of them to be controlled substances and they were introduced in evidence at defendant’s trial.

The prosecution’s brief offers the consent of the owner and of the principal user of the automobile as justification for the warrantless search that produced evidence against defendant. Consent allows searches to be made without a warrant and yet not violate Fourth Amendment prohibitions. Schneckloth v Bustamonte, 412 US 218; 93 S Ct 2041; 36 L Ed 2d 854 (1973), People v Reed, 393 Mich 342; 224 NW2d 867 (1975). The consent given permitted the warrantless search of the automobile, but did not authorize the police to open the box and examine its contents.

It is not always required that the person against whom evidence is introduced give his consent to the search producing the evidence. Indeed, in many cases he will have no interest in the premises searched nor any standing to later complain that the search was not conducted pursuant to a warrant. It is "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.” United States v Matlock, 415 US 164, 171; 94 S Ct 988, 993; 39 L Ed 2d 242, 249-250 (1974). In Matlock, the woman who shared a bedroom with defendant gave police permission to search the room. Police found evidence, later introduced at defendant’s trial, in a diaper bag in the only closet in the room. The court refused to hold the search illegal.

But the situation presented in Matlock, like that in Frazier v Cupp, 394 US 731; 89 S Ct 1420; 22 L Ed 2d 684 (1969), and in People v Chism, 390 Mich 104; 211 NW2d 193 (1973), is not found here. In People v Flowers, 23 Mich App 523; 179 NW2d 56 (1970), the Court found invalid the search of defendant’s room in his father’s house, even though his father had consented to the search. In an earlier case, People v Overall, 7 Mich App 153; 151 NW2d 225 (1967), this Court held that a grandmother could not authorize the search of her grandson’s room. The situation now before the Court is analogous to that found in both Flowers and Overall, and, in fact, presents an even more compelling case for finding the evidence to be a product of an illegal search. Neither Mrs. Jewel nor her daughter had any interest in the box. Both prior to the search and at trial they denied any connection with it. The prosecution’s case was premised on defendant’s exclusive control of the box. Consent obtained from someone who does not "possess common authority over or other sufficient relationship to the * * * effects sought to be inspected” cannot validate a warrantless search.

No other possible basis for the warrantless search is apparent from the record. Defendant’s convictions are therefore reversed.