No. 993, October Term, 1979, APPEAL FROM THE JUDGMENT OF SENTENCE IMPOSED OF THE COURT OF COMMON PLEAS OF MONROE COUNTY, CRIMINAL DIVISION, No. 69-1978
Thomas A. Natishyn, Assistant Public Defender, Stroudsburg, for appellant.
Linda Miller, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.
Spaeth, Cavanaugh, and O'Kicki,*fn* JJ. Cavanaugh, J., concurs in the result.
[ 287 Pa. Super. Page 240]
This appeal arises from conviction and sentence of Gaston Wayne O'Neal for theft. Sentence was entered on May 3, 1979.
Three issues are present in the instant case: Does a lessee of a home have authority to consent on behalf of a house guest to a search of a bedroom used exclusively by the temporary gratuitous guest? If such a lessee has the authority, was his consent to search voluntarily given, and not the result of duress or coercion, express or implied? When a search is conducted pursuant to lessee's consent, is it necessary for the Commonwealth to establish that the police had probable cause?
Vincent Harrison (Harrison) was the lessee of a house in Stroudsburg, Monroe County, Pennsylvania. Gaston Wayne O'Neal and his wife were temporary guests in the Harrison home. O'Neal shared kitchen and bathroom facilities and paid no rent. Harrison received information from a "friend" that stolen goods were in his home. Acting on this information, Harrison went to the Stroudsburg Police Headquarters and asked an officer on duty at the time, "Is there any way that you could search my house?" The officer advised Harrison that he could sign a consent to search form, which Harrison signed. The officer accompanied Harrison to his house and a search was conducted. The search, apparently authorized for the entire premises, was limited to the bedroom which was exclusively occupied by Gaston and his wife. The door to Gaston's bedroom and the closet door in the bedroom were closed prior to the time of the search. Of the sixteen items seized by the officer, only one item, a spark-plug tester was found to be a stolen article. The spark-plug tester was found to be stolen only after the police contacted Gaston's employer, the manufacturer of the spark-plug tester. Prior to this time, neither the police nor the
[ 287 Pa. Super. Page 241]
manufacturer had any knowledge that the spark-plug tester was missing. Gaston was charged and convicted.
The paramount question in this case is whether a lessee of a home has the authority to consent to a search of a bedroom used exclusively by a temporary gratuitous guest in the home?
In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) Mr. Justice White wrote:
"In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Court reaffirmed the principle that the search of property, without warrant and without probable cause, but with proper consent voluntarily given, is valid under the Fourth Amendment. The question now before us is whether the . . . voluntary consent of a third party to search the living quarters of the respondent was ...