APPEAL from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Champaign
County; the Hon. FREDERICK S. GREEN, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
The defendant was charged with the unlawful possession of narcotics, hypodermic needles and syringes on the basis of certain items of physical evidence seized during a search of his locked quarters, consisting of a bedroom and adjoining kitchenette, accessible only therefrom, without a search warrant and without his consent. The search was consented to by his mother, in whose house the bedroom and kitchenette were located. The circuit court of Champaign County granted the defendant's motion to suppress this physical evidence. The appellate court affirmed (7 Ill. App.3d 601), and we allowed the petition for leave to appeal at the January 1973 term.
The following facts have been stipulated to:
"On May 17, 1971, a hearing was held before the Honorable Frederick S. Green of the Circuit Court of the Sixth Judicial Circuit, Champaign County, Urbana, Illinois, on a motion to suppress certain evidence which was seized during the search on March 9, 1971, of the premises at 714 South State Street, Champaign, Illinois, the home of Mrs. Rose A. Nunn, mother of Defendant-Appellee.
On March 9, 1971, the date of the search, Defendant was nineteen years of age and had lived in Mrs. Nunn's home. During the time Defendant lived in Mrs. Nunn's house, there were no restrictions on her access to his room and no conversation whether police could enter therein. Mrs. Nunn's only activity in Defendant's room was to clean it, to make his bed and to change the linen. Defendant paid no rent, but gave Mrs. Nunn five to ten dollars a week intermittently. Defendant could not recall the date he last worked prior to March 9, 1971.
Mrs. Nunn became concerned about the activity in her home during her absence when she returned once and found a marble top table broken. She discussed her concern with her former husband, the father of Defendant. Mr. Nunn unofficially tried to effect a search of Defendant's room by the police. Police declined unless Mrs. Nunn gave written consent. She went to the police station and gave written consent. She accompanied police officers to her home and was present during the search thereof. Police utilized their pass key to facilitate entry to Defendant's room.
The evidence, which was the subject of the motion to suppress, was seized from a waste basket and a cabinet over the sink both located in the kitchen. This kitchen was accessible only from Defendant's room.
Approximately ten to fourteen days next preceding the search, Defendant `moved out', locked the door to his room and told Mrs. Nunn to allow no one to enter.
The Court found: that the area in which the suppressed articles were found had been set aside by the mother of the Defendant for his exclusive use, subject to her using the area for maintenance purposes and for caring for his personal effects, and that said mother had no authority to consent to the search. The Court allowed the motion to suppress."
The Federal and State courts, on varying factual circumstances, have not always been consistent in their conclusions in regard to the fourth-amendment rights of the party searched, where a co-occupant, third-party, has consented to a search and seizure.
The problem is not a new one in Illinois. Generally stated, we have followed the rationale that an equal or greater right to the use or occupancy of premises gives such co-occupant the right to consent to a search of the premises, and that any evidence found therein is admissible against a non-consenting co-occupant. People v. Koshiol (1970), 45 Ill.2d 573; People v. Haskell (1968), 41 Ill.2d 25; People v. Palmer (1964), 31 Ill.2d 58; People v. Palmer (1962), 26 Ill.2d 464; People v. Stacey (1962), 25 Ill.2d 258; People v. Speice (1961), 23 Ill.2d 40; People v. Perroni (1958), 14 Ill.2d 581; People v. Shambley (1954), 4 Ill.2d 38.
The theory underlying these cases was not that the co-occupant was waiving another's right, but that he was exercising his own rights in consenting to the search. The questions of waiver, agency, apparent authority, and the like, were not reached under this theory.
In Katz v. United States (1967), 389 U.S. 347, 353, 19 L.Ed.2d 576, 583, 88 S.Ct. 507, the court, in considering third-party searches and seizures, did not deem it important that the consent comes from one who has an equal or greater right to occupancy or use of the premises. The Katz test is based on the rationale that "the Fourth Amendment protects people and not simply `areas' against unreasonable searches and seizures * * *." It provides that a search will be reasonable only where there is probable cause for the search, and that a warrant may be issued only upon a showing of this probable cause. There are exceptions to this warrant requirement in cases of "hot pursuit" and in connection with searches made "incidental to arrest," and where the party searched gives his consent.
The United States Supreme Court has consistently held that the fourth and fifth amendments overlap in restricting the power of the States (Boyd v. United States (1886), 116 U.S. 616, 29 L.Ed. 746), since they have the same basic purpose of maintaining inviolate large areas of personal liberty. ...