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decided: November 27, 1968.


Appeal from order of Superior Court, Oct. T., 1967, No. 667, affirming order of Court of Common Pleas No. 9 of Philadelphia County, June T., 1965, No. 6888, in case of Commonwealth ex rel. William Cabey v. Alfred T. Rundle, Superintendent.


Sara Duffy, for appellant.

Welsh S. White, Assistant District Attorney, with him Michael J. Rotko, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Musmanno did not participate in the decision of this case. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this dissent.

Author: Eagen

[ 432 Pa. Page 468]

Appellant was indicted on charges of aggravated robbery, burglary, conspiracy, and committing a crime of violence when armed. Appellant's first two trials resulted in hung juries. At the third trial, appellant's gun was admitted into evidence over objection that it was the product of an unlawful search and seizure.*fn1 Appellant was found guilty on all charges, and the Superior Court affirmed. This Court denied allocatur and the Supreme Court of the United States denied certiorari. 380 U.S. 926, 85 S. Ct. 902 (1965). Appellant's subsequent petition for a writ of habeas corpus was dismissed, the Superior Court affirmed, but we granted allocatur and remanded to the trial court for consideration of appellant's claim that evidence was admitted in violation of the rule of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961). After full hearing, Judge Spaeth denied appellant's petition for a writ of habeas corpus. The Superior Court again affirmed and we granted allocatur.

Appellant was arrested on April 13, 1961, the day after the commission of the offenses charged. The police searched appellant and took from him, among other things, a key ring. Because of the illness of appellant's wife, appellant had been staying with his wife at the home of his in-laws. As a result, appellant had leased from his employer two garages to be used for storage. The key to the garages was on appellant's key ring.

[ 432 Pa. Page 469]

The trial court found as a fact that the rental agreement was only between appellant and his employer. The court further found that the only key to the garages was the one on appellant's key ring. It also found, however, that the garages were used to store property belonging both to appellant and his wife, and that appellant had no intention of excluding his wife from the garages or from the property therein.

After searching appellant's automobile, the police gave the key ring, including the garage key, to appellant's wife. Subsequently, a different detective went to the home of appellant's in-laws and asked his wife if appellant had a gun. She replied that she did not know, but that if he did it would not be at her parent's home. When asked where appellant's and her belongings were, she told the detective about the garage and gave him permission to search there, offering the key. The detective asked appellant's wife if a search warrant was necessary and she replied that it was not.

Appellant now claims that the search of the garage and the seizure of the gun without a search warrant violated his rights under the Fourth Amendment to the Constitution of the United States. The Commonwealth maintains that the uncoerced, knowing and intelligent consent of appellant's wife immunizes the search and seizure from constitutional attack.

From the very start of this discussion, we wish to emphasize vigorously that an individual's constitutionally ordained rights are personal to him, and cannot be forfeited or waived by any other person, acting without his authority or consent. Mindful of that premise, we meet the jugular issue in this appeal: Was this search and seizure a direct result of an unconstitutional waiver of the appellant's rights by his wife?

The trial court sustained the constitutionality of the search by focusing upon the independent right of

[ 432 Pa. Page 470]

    the wife to exercise control over the garages, and her incidental right to delegate intelligently that right to the police.

We hold that the search and seizure were constitutionally permissible. In so deciding, we comport with the realities of the situation, realizing that only by the use of a legal fiction could we find a waiver under the facts of this case.

In admitting the police to the garages, the appellant's wife did not claim authority from the appellant to admit them; she acted not as a servant, but as a master, empowered with all incidents of control over property, -- the right to admit and the power to deny entrance. She offered the key to the garages to the police officer; the key, not just a symbolic expression of permission to enter, but the actual power to enter. And the bestowal of this means of access was not reluctant. It came not in response to ...

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