Yuma County Attorney v. McGuire , 111 Ariz. 437 ( 1975 )

HAYS, Justice.

The Yuma County Attorney filed a petition for special action and this court accepted jurisdiction. Petitioner contends that the respondent judge erred in suppressing evidence seized in a warrantless search. The simple issue as stated by the petitioner and concurred in by respondents is:

“May a spouse give consent to the search of their home when each spouse exercises control and dominion over the house ánd the other spouse is not present but is a suspect to a crime.”

It is difficult to fault the judge for ruling as he did for this question was answered negatively by the Supreme Court in State v. Pina, 94 Ariz. 243, 383 P.2d 167 (1963). Obviously we accepted jurisdic-' tion to take a second look at the problem.

The specific facts in this case concern the alleged burglary of the Venus Adult Theatre in Yuma, Arizona. The police suspected that Thomas Franklin Lutz had some connection with the burglary and two officers proceeded to his home. Lutz was not at home, but when Mrs. Lutz came to the door, she was advised that her husband was a suspect in a burglary. The officers asked if they could come in and search for some pornographic materials that had been' taken in the alleged burglary. Mrs. Lutz consented to the search and took them to a back bedroom closet where the materials were found. A pair of boots was also taken to be matched to boot prints at the scene of the alleged crime.

Was this search unreasonable or illegal? We are reluctant to overrule a case which has been the law in Arizona for over twelve years, State v. Pina, supra, but that case is overbroad in holding that “[ojbviously a third person cannot waive another’s basic constitutional rights against unlawful searches and seizures unless specifically authorized.” 94 Ariz. at 247, 383 P.2d at 169.

A quote from United States v. Wilson, 447 F.2d 1 (9th Cir. 1971), cert. denied sub nom. Polk v. United States, 404 U.S. 1053, 92 S.Ct. 723, 30 L.Ed.2d 742 (1972), sets forth the principle and numerous authorities on this point.

“It belabors the obvious to point out that in the parlance of the day, Dawson and Polk'were ‘living together’ in a common-law status. The record indicates that Dawson had unrestricted accessibility to the apartment. Indeed, the totality of this ‘arrangement’ is evidenced by Dawson having her ‘things’ at the apartment. Under such circumstances, Dawson had equal rights to the use and occupation of the premises at the time she consented to the search. It is well settled, one endowed with such rights may authorize a search of the premises, and the evidence thus disclosed can be used against his co-habitant. United States v. Wixom, 441 F.2d 623 (7th Cir. 1971); United States v. Hughes, 441 F.2d 12 (5th Cir. 1971); Pasterchik v. United States, 400 F.2d 696 (9th Cir. 1968), cert. denied, 395 U.S. 982, 89 S.Ct. 2142, 23 L.Ed.2d 770 (1969); Wright v. United States, 389 F.2d 996 (8th Cir. 1968). Accordingly, we are satisified that because of the nature of the rights which had accrued to Dawson by reason of her sharing an apartment with Polk, the search in issue is impervious to the claim that it is tainted by illegality. See United States v. Airdo, 380 F.2d 103 (7th Cir. 1967), cert. denied, 389 U.S. 913, 88 S. Ct. 238, 19 L.Ed.2d 260 (1967), where the court held that the defendant’s mistress with whom he shared an apartment acted with complete propriety when she consented to a search of the premises. Accord, Nelson v. People of State of California, 346 F.2d 73 (9th Cir. 1965), cert. denied, 382 U.S. 964, 86 S.Ct. 452, 15 L.Ed.2d 367 (1965).” 447 F.2d at 5-6.

The United States Supreme Court has considered this problem in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

We are aware that as to a marital relationship the argument may be used that to permit a spouse to consent to a search would be destructive of that relationship. We do not see the need to have a special rule of law here. Our position is well stated by the following quotation from Commonwealth v. Sebastian, 500 S.W.2d 417 (Ky.1973):

“We think the more acceptable position, especially in view of the modern trend toward equalization of the rights and obligations of men and women, is that a wife’s voluntary consent to a search of a home makes admissible as evidence against a husband the fruits of a search. An exception would be where, by agreement or understanding, the wife did not have access to a particular room or a particular container. In the present case the evidence was that the wife had as much right to the control of the house as did the husband. The stolen property was found in the utility room just off the kitchen, which certainly was not a room where the husband had exclusive domain.” 500 S.W.2d at 419.

The respondent Lutz’s motion to suppress having brought about the delay in the criminal proceedings, it is ordered that said period of delay is an excluded period. Rule 8, 1973 Arizona Rules of Criminal Procedure, 17 A.R.S.

The order granting the motion to suppress is vacated in Yuma County Criminal Action No. 7421, State of Arizona v. Thomas Franklin Lutz.

CAMERON, C. J., and HOLOHAN, J., concur.