Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EDWARD E. PLUSDRAK, Judge, presiding. Judgment
of conviction reversed.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Pablo Rodriquez was found guilty of burglary in a non-jury trial and was sentenced to the penitentiary for a term of four to twelve years.
He contends that his conviction should be reversed because the trial court admitted into evidence items seized during an illegal search of his room, and that his confession should not have been received in evidence because it was made after the police confronted him with the illegally seized items. Subordinate contentions are that a defense witness was asked improper questions in an attempt to impeach her, and the trial court disregarded the same witness' unimpeached testimony absolving the defendant of any connection with the stolen property.
The apartment of Estelle Andrews in Chicago was burglarized on October 3, 1963. Among the objects taken from the apartment were cuff links, a cross and a wedding ring. The ring was inscribed "Eugene to Estelle." One week later another burglary was committed and police inquiry into it began. An automobile was found which was identified as the one used in the second burglary. The car was kept under surveillance, and when the defendant and a female companion entered it, he was arrested, accused of the second burglary and taken to the police station. Immediately thereafter two police officers went to his hotel room and searched it. Cuff links, a cross and a ring inscribed "Eugene to Estelle" were seized. The officers returned to the station and confronted the defendant with the articles found in his room. He first denied, then confessed taking the articles from the Andrews' apartment.
At the beginning of the trial the defendant presented a motion to suppress evidence allegedly seized illegally. The only witness called to testify by the defendant was a police officer who said on direct examination that the search was made without a warrant. On cross-examination he testified that the defendant denied knowing anything about the second burglary, claiming he was with his wife on the day of the burglary and she could support his alibi. He gave the police the address of his hotel and his room number. Accompanied by Sonya Rosa, the girl who was with the defendant when he was arrested, the police proceeded to his room. Sonya knocked on the door, identified herself and said that the police were with her. The door was opened and the police identified themselves and entered; they told the woman who opened the door that her husband had been arrested. She replied that she was living with the defendant but was not married to him and that her name was Antonia La Boy. They noticed a wedding band on her finger and asked if she received it from the defendant. She answered that a friend of the defendant named Santiago gave it to her and she allowed the police to examine it. They saw the inscription "Eugene to Estelle" and realized that the ring was the one taken from the Andrews' apartment. They asked Antonia if they could look through the room and she consented. The cuff links were found on top of a dresser and the cross was found in a table drawer. The officer also testified that he saw women's clothing in the room. The motion to suppress was denied.
The defendant had the burden of proving that the search and seizure were unlawful. Ill Rev Stats, 1963, c 38, § 114-12(b). However, the evidence presented by him on his motion to suppress confirmed the right of Antonia La Boy to permit the police to search the room. He referred to the woman in his room as his wife; he directed the police to go to his room and speak to her; the woman who answered the door said she lived there and feminine clothing was in the room. Although she said she was not married to the defendant she was wearing a wedding ring and the defendant had said they were married. These facts, instead of proving the illegality of the search, as was the defendant's burden, were sufficient to establish the woman's right to the use and occupation of the room and her authority to consent to the search. Under these circumstances, the search was not unreasonable and the trial court did not err in denying the motion to suppress.
During the trial in chief more evidence pertaining to the validity of the search was brought out much of it by the State through cross-examination of Antonia La Boy, who turned out to be an eighteen-year-old girl. Her direct examination as a defense witness was mainly about her acquisition of the wedding ring from the defendant's friend, Santiago. On cross-examination the State, over objection, was allowed to ask a wide range of questions about her background, morals and her relationship with the defendant. It was disclosed that by "living with the defendant" she meant sleeping with him at night, that she and a child she had borne by another man lived with her mother, that her clothes were kept at her mother's home not the hotel and that, although she worked, she did not pay any portion of the rent for the hotel room.
The defendant testified in his own behalf and denied participating in the Andrews' burglary. He said he had seen the ring on Antonia La Boy's finger but that he had never seen the cuff links or cross. Under the cross-examination of the State the relationship between him and Antonia La Boy was again explored. He testified that he paid the hotel rent, denied that he supported her, said she was only his girl friend and that he took her out now and then, and admitted that she stayed with him every night for two months.
After the foregoing evidence the defendant rested his case; he did not renew his motion to suppress. However, his failure to do so does not foreclose a court of review from considering all the evidence presented during the trial. The general rule is that the failure of a defendant to make an appropriate motion in the trial court, thus not preserving the question for review, is deemed to be a waiver of the question. But in People v. Burson, 11 Ill.2d 360, 143 N.E.2d 239 (1957), the Supreme Court stated that "[T]his is a rule of administration and not of jurisdiction or power, and it will not operate to deprive an accused of his constitutional rights of due process." In People v. Weinstein, 35 Ill.2d 467, 220 N.E.2d 432 (1966), the court said: "This court . . . will consider errors not properly preserved in a criminal case . . . where their nature is such as to deprive an accused of his constitutional rights." The desirability of full and adequate review in criminal proceedings (evinced by the practice of the Supreme Court in cases such as Burson) was recognized by the legislature in the Code of Criminal Procedure: a defect affecting a substantial right may be noticed by a court of review although it was not brought to the attention of the trial court. Ill Rev Stats, c 38, § 121-9(a) (1963); SHA, § 121-9, Committee Comments. In the instant case the legislative and judicial interpretations of the exception to the waiver rule converge, for the substantial right which the defendant claims was violated is one protected by both the Federal and State Constitutions. Accordingly, we will weigh all the evidence relevant to a determination of the validity of the search.
Since the search was made with Antonia La Boy's consent and without the defendant's, its validity depends upon whether she had authority to consent to it. In evaluating her consent we are concerned with the articles found in the room not the article found on her. The ring can be divorced from the cuff links and cross. When she said she was unmarried, although she was wearing a wedding ring, the police, knowing that a wedding ring had been stolen, were understandably suspicious and it was reasonable for them to inspect it. Upon request she turned it over to them. The ring had been given to her, it was her possession and belonged to her at the time, and it was her personal privilege to retain or to yield it. Moreover, it was in plain view and its seizure involved no search. People v. O'Connell, 30 Ill.2d 603, 198 N.E.2d 834 (1964); People v. McCracken, 30 Ill.2d 425, 197 N.E.2d 35 (1964). If only the ring had been received in evidence and if only the ring had induced the confession we would not have the present problem. But the cuff links and the cross were also admitted in evidence and at the end of the trial the court indicated that the possession of these items in the room of the defendant was a factor in his finding of guilty. And the defendant was confronted with these two items before he confessed. The fruits of an illegal search are tainted with illegality (People v. Bankhead, 27 Ill.2d 18, 187 N.E.2d 705 (1963)), and if the confession was brought about in part by the result of an unreasonable search the confession should not have been used against the defendant.
A person other than a defendant may have authority to consent to a search of premises occupied jointly with a defendant and a search pursuant to that consent is not an unreasonable search constitutionally prohibited. People v. Perroni, 14 Ill.2d 581, 153 N.E.2d 578 (1958). A wife has authority to consent to a search of premises owned and occupied jointly by her and the defendant-husband. People v. Palmer, 31 Ill.2d 58, 198 N.E.2d 839 (1964); People v. Shambley, 4 Ill.2d 38, 122 N.E.2d 172 (1954). Persons other than wives have been held to have that authority in People v. Walker, 34 Ill.2d 23, 213 N.E.2d 552 (1966); People v. Palmer, 26 Ill.2d 464, 187 N.E.2d 236 (1963); Teasley v. U.S., 292 F.2d 460 (9th Cir 1961) and Nelson v. People of the State of California, 346 F.2d 73 (9th Cir 1965). An examination of these cases will be helpful in determining whether Antonia La Boy had that authority.
In the Walker case the defendant was arrested in connection with a rape and taken to the police station. Later the police went to his home, a house he shared with his mother and sister, and asked about a gun he had used. After some hesitancy the sister pointed out the location of the gun. The weapon was seized and subsequently introduced as evidence. The court stated that both the mother and sister lived in the house and that upon the record before the court they must be held to have had equal rights to the use and possession of the premises. The denial of the motion to suppress was held proper because the sister had authority to consent to the seizure.
In the Palmer case the defendant and Nathaniel Yancey committed a burglary and hid most of the loot in the living room of the defendant's apartment. Yancey, arrested with his share, took the police to the apartment. No one responded to their knock, but later one Twillie, a tenant of the defendant who shared the apartment with him, let the police into the apartment. The stolen property was discovered in the living room. The court stated that the living room was a room of common usage and held that the motion to suppress was properly denied, for when either of two people with equal rights to the use or occupation of premises consents to a search the evidence thus disclosed can be used against either.
In Teasley v. U.S. the defendant and one Skinner were convicted of narcotics offenses. Skinner, who had a key to the defendant's apartment, was arrested. The police accompanied him to the apartment, he opened the door, and the defendant was seen attempting to stuff something down into a couch. The police retrieved the narcotics and arrested the defendant. During the trial the defendant contended that the entry into the apartment was illegal. His testimony indicated that Skinner was his friend and spent much time in his apartment taking care of him while he was sick. Other testimony indicated that Skinner was living with him prior to the defendant's arrest. There was no testimony that Skinner obtained the key unlawfully or that the police forced him to admit them to the apartment. The court ...