State v. Kellam

269 S.E.2d 197 (1980) 48 N.C. App. 391

STATE of North Carolina
v.
William KELLAM.

No. 8017SC45.

Court of Appeals of North Carolina.

August 19, 1980.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Associate Atty. James C. Gulick, Raleigh, for the State.

Jerry Rutledge, Walnut Grove, for defendant-appellant.

CLARK, Judge.

Defendant presents two questions for review: (1) whether the trial court erred in denying the defendant's motion to suppress evidence seized during a warrantless search of the Anthony home on 16 January 1979; and (2) whether the trial court erred in denying the defendant's motion to suppress the statements made by the defendant to Officer Collins on three different occasions. We resolve both of these questions against the defendant.

The defendant's primary contention is that Mrs. Clark could not give any consent which would overcome the privacy rights of the defendant as occupant of the Anthony house. While we recognize that this case presents an extended application of the doctrine permitting certain third-party consents to warrantless searches without probable cause, we do not agree with defendant's position. In United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 249 (1974), it was stated by Mr. Justice White that, "the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared." The Matlock opinion, at id., fn. 4, also quoted with approval, United States v. Sferas, 210 F.2d 69, 74 (7th Cir., 1954), for the proposition "that where two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either." See also, Annot., 31 A.L.R. 2d 1078 § 6 (1953).

The critical facts are provided in the testimony of Mrs. Clark:

"Mr. & Mrs. Anthony [the owners of the searched house] gave me a key when they left to go to Hawaii last fall. They told me to look after their house. They told me that no one had permission to go into that house but me and my husband. On or about the 16th day of January, 1979, this officer [Bowman] . . . came and asked for the key to the house. He told me for what purpose. I gave him the key. He said he wanted to look in the house and see if anything was missing. I gave him the key.

* * * * * *

She [Mrs. Anthony] told me and my mother that we could stay there she wanted us to say over there. The first time we stayed over there was through the winter, the first year, and so the other time I just kept check on the house.

* * * * * *

I never raised a question or mentioned to him about his staying there. I just asked him how did he get in. He told me he had a key. . . .

* * * * * *

They [the owners] did not tell me that the defendant was going to stay in the house at any time. They never told me that the defendant had permission to go into the house. . . ."

Under the authority of Matlock we hold that Mrs. Clark's consent is effective against defendant's Fourth Amendment claim, for the evidence suggests that Mrs. Clark had equal, if not exclusive, rights to control, access and possession of the home. While not necessarily a controlling factor, it is significant that Mrs. Clark had been given the key to the Anthony home by the owners of the home. See, e. g., U. S. ex rel. Cabey v. Mazurkiewicz, 431 F.2d 839, 843-44 (3d Cir. 1970) (wife inadvertently given key held not sufficient consent); United States v. Harris, 534 F.2d 95 (7th Cir. 1976) (permission to use apartment but without key); United States v. Long, 524 F.2d 660 (9th Cir. 1975) (wife, who was joint owner and had joint control of house but who was not living in the house occupied by husband, could consent to entry even though husband had changed locks where wife had keys to house before locks were changed). It is also significant that defendant knew that Mrs. Clark "was supposed to be looking after the house," for his reasonable expectation of privacy was thereby diminished, especially since much, but not all, of the incriminating evidence was found in "common areas" of the house, i. e., the basement and linen closet. Matlock, supra, 415 U.S. at 171, n. 7, 94 S. Ct. at 993, n. 7. While it is true that Mrs. Clark did not occupy the Anthony home at the same time as the defendant, she, nevertheless, did not surrender her full possessory rights in the premises as might be true in the case of a hotel clerk who rents a hotel room to a guest, Stoner v. California, 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856, rehearing denied, 377 U.S. 940, 84 S. Ct. 1330, 12 L. Ed. 2d 303 (1964), or one who stands in the position of a landlord relative to a tenant's leased premises, Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961). Mrs. Clark at all times maintained "joint access and control for most purposes." Matlock, supra, 415 U.S. at 171, n. 7, 94 S. Ct. at 993, n. 7.

In addition to the above case law, N.C.Gen.Stat. § 15A-221 provides that a warrantless search and seizure may be conducted if consent to the search is given. Similarly, N.C.Gen.Stat. § 15A-222 provides in pertinent part that:

The consent needed to justify a search and seizure under G.S. 15A-221 must be given

* * * * * *

(3) By a person who by ownership or otherwise is reasonably apparently entitled to give or withhold consent to a search of premises." (Emphasis supplied.)

We hold that subsection (3) of N.C.Gen.Stat. § 15A-222 is consistent with the language in Matlock, supra, that permission may be "obtained from a third party who possessed common authority or other sufficient relationship to the premises or effects sought to be inspected." 415 U.S. at 171, 94 S.Ct. at 993 (emphasis added). Under the facts of this case, Mrs. Clark was "reasonably apparently entitled to give or withhold consent to a search of premises" within the meaning of N.C.Gen.Stat. § 15A-222.

We do not have to reach defendant's argument that his testimony was the "poisonous fruit" of the illegal search and should therefore be suppressed, because we have already held that the search of the Anthony home was not in violation of defendant's Fourth Amendment rights.

Affirmed.

MORRIS, C. J., and ERWIN, J., concur.