Appeal from the Circuit Court of Cook County; the Hon. JAMES
J. MEJDA, Judge, presiding. Order affirmed.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.
The defendant, Irwinna Weinstein, was indicted for the murder of her husband, Harvey Weinstein. The defendant made a motion to suppress certain physical evidence on the ground that this evidence was obtained as a result of illegal search and seizure. The court granted defendant's motion to suppress this evidence, and the State appeals from that order. The State contends that the searches and seizures were valid, and that the court erred in allowing the motion to suppress. The State is also appealing an order which suppressed certain statements made by defendant to the police. For our opinion concerning that appeal, see People v. Weinstein, ___ Ill App.2d ___, ___ N.E.2d ___, 1968.
Defendant was previously convicted for the murder of her husband. This court affirmed the conviction, People v. Weinstein, 66 Ill. App.2d 78, 213 N.E.2d 115 (1965), but the Supreme Court reversed the judgment of conviction and remanded the cause for a new trial. People v. Weinstein, 35 Ill.2d 467, 220 N.E.2d 432 (1966). After the State's motion to reinstate the cause was granted, the following facts were elicited at the hearing on defendant's motion to suppress certain physical evidence. Lieutenant John Cartan of the Chicago Police Department took Irwinna Weinstein into custody on September 30, 1963. She was questioned and released later that evening. She was arrested on October 4 and remained in custody until released on bond October 8. On October 5, while defendant was in custody, Commander Francis Flanagan, Lieutenant Cartan and another police officer went to the Weinstein premises located at 9716 South Van Vlissingen Street, Chicago. Defendant and the deceased owned these premises in joint tenancy and resided there with two minor children. At the home, the officers were admitted to the premises by Meyer Weinstein, father of the victim and father-in-law of the defendant. On that visit the officers removed a bottle of bleach and a dog's brush.
On October 7, letters of administration were issued by the Probate Court of Cook County appointing Meyer Weinstein administrator of the estate of Harvey Weinstein. On the same date an order was entered by the Probate judge which barred the defendant and her family and representatives from entering the Weinstein home without the approval of the administrator, and which also ordered defendant and her family to turn over the keys to the home to the administrator.
On the same day, October 7, Meyer Weinstein again met Lieutenant Cartan at the premises, showed him the orders of the Probate Court and said that he would leave the key with a neighbor so that the police could enter the home whenever they wished. On October 7, Lieutenant Cartan removed two children's books, two dolls, a man's shirt and a towel. On three subsequent visits, he removed a bottle of gin, a sponge, a scrub brush, a polish applier, a broom, a rubber pad, a pink throw rug (taken from a storage room attached to the house), a section of the living room carpet and finally a certain musical instrument. The police did not have defendant's permission to enter the home at any time, nor did they ever obtain a search warrant.
Meyer Weinstein testified that he always had a key to the home prior to his son's death. He further testified that defendant or her parents changed the locks to the home on September 30, but that after he was appointed administrator, he again changed the locks. He testified that he did not give notice to the defendant of the probate proceedings because he did not know where she was. He also stated that he obtained the order from the Probate Court because personal property was being taken from the home. He believed that the court order gave him the authority to authorize a search of the premises.
Defendant testified that she saw Meyer Weinstein on October 4 when he served her with a document pertaining to her two children. She was taken into custody on that day and released on bond on October 8, but could not enter her home because the locks were changed.
The State contends that Meyer Weinstein had the authority to lawfully consent to a search of the premises: first, because of his familial relationship and possession of a house key prior to his son's death; and secondly, because by order of the Probate Court he was administrator of the estate of Harvey Weinstein and was given supervisory control of the Weinstein home.
At the trial court, before any evidence was heard on the motion to suppress the evidence, the State announced that it would not introduce into evidence at trial articles taken from defendant's home on October 5. The following colloquy then occurred:
THE COURT: "The State is in effect conceding anything on the 5th should not be received in evidence and the petitioner's position is well taken as to that evidence."
Despite that statement to the trial court, the State now argues that the search made by the police on October 5 and the subsequent searches were lawful because Meyer Weinstein by virtue of his familial relationship and possession of the house key had the authority to consent to the search.
The Illinois courts in the past several years have ruled on the issue of who, other than a defendant, may lawfully consent to a search and seizure. In People v. Shambley, 4 Ill.2d 38, 122 N.E.2d 172 (1954), the defendant was convicted of assaulting his wife with a gun. The defendant lived with his wife, who consented to a search by the police and seizure of the gun by which she was assaulted. The court held at page 42 that ". . . Where two persons have equal rights to the use or occupation of premises, either may give consent to a search and the evidence thus disclosed can be used against either." In that case, the wife ". . . was not acting as agent for her husband but was acting in her own right as occupant of the premises." At page 43. See People v. Perroni, 14 Ill.2d 581, 153 N.E.2d 578 (1958); People v. Speice, 23 Ill.2d 40, 177 N.E.2d 233 (1961). In People v. Palmer, 26 Ill.2d 464, 187 N.E.2d 236 (1962), the court held that the consent of the defendant's tenant will validate a search of the common rooms of defendant's house. In People v. Walker, 34 Ill.2d 23, 213 N.E.2d 552 (1966), defendant lived with his mother and sister. The police searched his home after getting the sister's consent, and the court upheld the search since the sister had equal rights to the use and possession of the premises.
In People v. Voleta, 57 Ill. App.2d 279, 206 N.E.2d 737 (1965), defendant frequently stayed at his brother's apartment. The brother consented to a search of his apartment, and the court upheld the validity of that consent. However, in People v. Rodriquez, 79 Ill. App.2d 26, 223 N.E.2d 414 (1967), the court held that the consent of an 18-year-old girl friend who stayed in defendant's room was insufficient, since ...