Robert W. Duggan, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellant.
John J. Dean, Stephen P. Swem, Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
Appellee, Larry White, was convicted by a jury on May 12, 1972, of second degree murder for the shooting death of Joseph E. Erwin. Prior to the trial, appellee's motion to suppress various items of personal property seized as the result of a police search of his mother's residence was denied. Appellee renewed his objection to the admission of the fruits of this allegedly illegal search in his post-verdict motions. On February 28, 1973, the trial court reversed its prior decision and ordered that the items of personal property seized pursuant to an illegal search warrant be suppressed and that a new trial be granted. The prosecution now appeals from that order.
The prosecution does not contest the trial court's conclusion that the search warrant was defective. It raises, however, the following two issues. The first is whether the search and seizure pursuant to an invalid warrant was legally justified in that the appellee's mother voluntarily consented to the search. The second issue is whether the appellee, a temporary resident in his mother's home, had standing to question the validity of the search of that home and the seizure of his personal property.
The factual context in which appellee's mother consented to a search of her home is strikingly similar to that in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In Bumper, the defendant was convicted of rape based partially upon evidence obtained from a police search of the home where defendant and his 66-year-old grandmother lived. Two days after
the alleged rape, four police officers went to the home and were met at the front door by the grandmother. One of the officers stated "I have a search warrant to search your house." To this, the defendant's grandmother replied "Go ahead," and opened the door. A rifle was then discovered in the kitchen which was later introduced into evidence at trial. Bumper held that under those circumstances there was no voluntary consent to the search. Bumper said:
"When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or facts to show that there was, in fact, any warrant at all.
When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion -- albeit colorably lawful ...