The opinion
Day, J.,
dissenting. I dissent. I would reverse and remand for a new trial.
The basis of dissent is the denial of the motion to suppress the allegedly corroborating evidence obtained when the defendant’s estranged wife permitted the police to search their home without a warrant while he was away. Apparently the underlying basis for denying the motion was the wife’s consent. The question of consent is compli
*287
cated “slightly” by the fact that the wife of the defendant in this case suspected him of extensive extra-marital adventures and blamed him for her involvement in a criminal charge to which she had pleaded guilty and was awaiting sentence. She testified she was not unaware of the possible relation of her co-operation with the police to her chances for probation. Obviously these are conditions not necessarily supporting an inference that she was sensitive to her husband’s interest,
1
and a finding of consent in such circumstances may be “unfounded in reason.” Cf.
Herter
v.
United, States
(C. C. A. 9, 1928), 27 F. 2d 521 . With that bit of litotes out of the way, it is appropriate to turn to the applicable law.
First, the waiver of constitutional rights is not favor
*288
ed. Indeed, we must indulge every reasonable presumption against it, and the intelligence of the waiver in each case depends upon the particular facts and circumstances “surrounding that case.” Cf.
Johnson
v.
Zerbst
(1938), 304 U. S. 458, 464 . And, where a warrantless search is claimed to be redeemed by consent or waiver, the burden of proof by clear and positive evidence has been held to be on the proponent.
Judd
v.
United States
(1951), 190 F. 2d 649, 651 .
Second, while consent is one method for waiving the right against searches and seizures otherwise proscribed by the Fourth and Fourteenth Amendments to the United States Constitution, more than mere consent is involved in the instant case. For the question here is one of consent by agency. In fine, the query is whether a wife, in the absence of express authority, is qualified to consent to a search of the home to be carried out in pursuit of evidence against her husband, thus waiving his right for him. Stated another way, the question is whether the waiver of the husband’s constitutional rights is personal to him. On the personal nature of such waiver, cf.
Henry
v.
Mississippi
(1965), 379 U. S. 443, 446 , where the court remanded for a hearing on the question whether a defendant represented by counsel had “knowingly waived decision of his federal claim” when his lawyer failed to make timely objection to illegally seized evidence.
The Supreme Court of Ohio has never passed on this question in its pristine form. However, in a case whose thrust on the point was slowed by other considerations.
2
the court said:
“Since the constitutional barrier to unreasonable searches and seizures is in the nature
of a personal priv
ilege, it is questionable if it may be waived
by anyone
except the person
whose rights are invaded.
* * (Emphasis added.)
(State
v.
Lindway
[1936], 131 Ohio St. 166, 171 .)
3
*289
The Supreme Court of Ohio went on to note that the weight of authority is against waiver made by a wife in her husband’s absence.
Id.
at 171 .
4
See also,
United States
v.
Rykowski
(D. C., S. D., Ohio, 1920), 267 F. 866, 871 ;
State
v.
Hall
(1965), 264 N. C. 559, 563 , 142 S. E. 2d 177 ;
State
v.
Wilkerson
(1942), 349 Mo. 205, 212 , 159 S. W. 2d 794, 799 ;
Maupin
v.
State
(1927), 38 Okla. Cr. 241, 242 , 260 P. 92, 92-93 ;
Dalton
v.
State
(1952), 230 Ind. 626, 631 , 105 N. E. 2d 509, 511-512 ; and cf.
Henry
v.
Mississippi
(1963), 154 So. 2d 289, 296 (Advance Sheet).
5
Obviously, the rule to which the Supreme Court of Ohio ascribes the weight of authority is more consistent with the presumption against waivers announced in
Johnson
v.
Zerbst
(1938), 304 U. S. 458 , than is the opposing view allowing vicarious spousal consent.
The Supreme Court of the United States has not ruled on the question whether a wife may waive a husband’s right against a warrantless search. The issue was presented in
Amos
v.
United States
(1921), 255 U. S. 313, 317 , but a resolution of the question was unnecessary to decision. In that case a demand by government officers to search the defendant’s store and house without a warrant was held sufficient to present a case of implied coercion and to negate waiver. What the
Amos
court would have done on the facts in the present case is a matter of conjecture. It is well established, however, that the law does not glad
*290
ly suffer the waiver of constitutional rights. See
Johnson
v.
Zerbst
(1938), 304 U. S. 458 .
The presence of advising counsel does not save the situation. The lawyer was not the defendant’s lawyer. The consequences for the defendant in this case obviously were not the lawyer’s concern. Moreover, the record shows the advice he gave defendant’s wife was clearly designed to elicit conduct on her part to protect her interests not her husband’s. Indeed, the record reflects such occasion for personal bitterness between the wife’s counsel and the defendant that it is permissible to wonder whether it would not have been better for him to disqualify himself from advice to her on matters touching the husband’s interest.
With deference, I suggest that
Johnson
v.
Zerbst
(1938), 304 U. S. 458 , provides firmer ground for a projection of what the Supreme Court of the United States might hold on the question of vicarious consent to search than does
Frasier
v.
Cupp
(1969), 394 U. S. 731 , on which the majority places some reliance. In the
Cupp case,
the court made short shrift of a defendant’s contention that the trial court erred in permitting the yield of a search of a duffel bag stored with the defendant’s cousin to be admitted into evidence. The court said that as a joint user the cousin had clear authority to consent to the search.
However, in defining a proper application of the probable cause standards necessary to justify a search without a warrant,
6
the cases have long observed a distinction between movable objects, see
Brinegar
v.
United States
(1949), 338 U. S. 160 ; and
Carroll
v.
United States
(1925), 267 U. 8. 132,
7
and homes with their special claims to privacy, cf.
McDonald
v.
United States
(1948), 335 U. S. 451 (defendant’s room in a rooming house);
Johnson
v.
United
*291
States
(1948), 333 U. S. 10, 12-15 (hotel room-living quarters of the defendant);
Chapman
v.
United States
(1961), 365 U. S. 610 (rented house).
9
Cf.
Camara
v.
Municipal Court
(1967), 387 U. S. 523, 532-533 (warrantless inspection of private home by building inspector prohibited); and
See
v.
Seattle
(1967), 387 U. S. 541, 542-543, 545-546 (warrantless inspection of commercial warehouse by fire department prohibited). In the
See case
the court said of its decision in
Camara
v.
Municipal Court :
“* * * Aswe explained in
Camara ,
a search of private houses is presumptively unreasonable if conducted without a warrant. # *
By analogy, because a home is involved here, there is an obvious reason for requiring a stronger proof of waiver than in the case of a movable object with the debased privacy of a duffel bag.
However, it is unnecessary to rely upon the analogy. The day the policy of the law expresses as much concern for the preservation of cousinly rapport as it does for the conjugal relation, equates the privacy of a duffel bag with the privacy of a home, and holds that constitutional rights are no longer personal, will be time enough for finding that the
Frasier case
is dispositive of the issues here. I am not prepared to assume that the Supreme Court of the United States has gone so far in the absence of a specific holding.
In connection with another aspect of the search and seizure problem, Judge Learned Hand once remarked that it was:
*292
"* * * smap consolation to know that one’s papers are safe only so long as one is not at home. * * *”
United States
v.
Kirschenblatt
(C. C. A. 2, 1926), 16 F. 2d 202, 203 .
9
It is comparable consolation to the defendant in this case to know that his right to be protected against unconstitutional searches is safe only when his angry wife is not at home.
Angry or not, no spouse should be held vicar for the other in the important matter of the waiver of the constitutional right against a warrantless search of the home unless there is a specific, intelligent, intentional grant of authority to perform such agency.
10
1
There are several other factors reflected in the record which have a direct bearing on the voluntary aspect of the consent. For example, the wife testified that her attorney advised cooperation with the police. His objectivity, pertinent here only on the issue of the effect of his advice on the wife’s “consential” action, is subject to reservations. At the time the advice was given, the defendant in this case was serving time in the workhouse for having beaten the lawyer’s wife and was the defendant in two civil suits filed by the lawyer — one for damages for the assault and battery and one to restrain collection on a note written by the lawyer in the defendant’s favor for $2,500. The lawyer also worked part-time as a reporter for a suburban newspaper. As a journalist he chronicled under his own by-line his part in turning in the defendant. The majority notes her protestation of continuing love for the defendant and, therefore, must be deemed to draw comfort from the protest for a conclusion of untainted voluntary wifely consent. "With deference, I suggest that if her actions in this case manifest both
knowledge
and love, her hate could be catastrophic. See
Kelley
v.
State
(1946), 184 Tenn. 143, 146, 197 S. W. 2d 545, 546, where the right of an
angry
wife “to waive her husband’s protection against unreasonable searches and seizures * * *” was denied.
People
v.
Carter
(1957), 48 Cal. 2d 737, 746 , 312 P. 2d 665, 670 , conditioned its approval of spousal waiver upon “the usual amicable relations * * * between husband and wife.”
State
v.
Evans
(1962), 45 Haw. 622, 633 , 372 P. 2d 365 , cited by the majority, leaned heavily on
Carter
in concluding in a dictum that spousal waiver was permissible while declining to sanction a wife-approved search of the husband’s personal effects. However, none of these complications need be weighed if the wife was not qualified to consent for her husband as a matter of law.
2
That is, whether the wife’s assent lacked the spontaneity of an invitation when, “unexpectedly faced by the coercive influence of three law officers,” she allowed the search.
State
v.
Lindway, infra,
at 171.
3
Reversed
sub silentio
on the issue of the exclusion of illegally seized evidence by
Mapp
v.
Ohio
(1961), 367 U. S. 643 .
4
Ohio has never altered its stance on this question.
State
v.
Wigglesworth
(1969), 18 Ohio St. 2d 171, 174-175 , involved consent by the sole lessee of the apartment where the search took place. The consenting female (lessee) was, at very best,
not
the complaining defendant’s wife.
5
The Supreme Court of Mississippi held that a wife’s consent to a search of her husband’s car did not waive his constitutional rights. The opinion was later withdrawn and a different opinion filed by the Supreme Court of Mississippi after the state filed a Suggestion of Error on procedural grounds. The later opinion is reported in bound volumes of Southern 2d with the same volume and page number — 154 So. 2d 289 (1963). The Supreme Court of the United States remanded on grounds unrelated to the wife’s consent but in its opinion described the events related in this footnote.
Henry
v.
Mississippi
(1965), 379 U. S. 443, 444-446 .
6
For the general proposition that searches
with
warrants enjoy preferred status, see
United States
v.
Ventresea
(1965), 380 U. S. 102, 105-107 . The reverse implication is obvious.
7
It is significant that in
Brinegar,
338 U. S. at page 176 , this language appears:
“* * * No problem of searching the home or any other place of privacy was presented either in
Carroll
or here. Both cases involve freedom to use public highways in swiftly moving vehicles * *
9
In
Chapman
v.
United States
(1961), 365 U. S. 610, at 613 , the admission of the yield of a search of petitioner’s house, with his landlord’s consent but without a warrant, required a reversal. The Court said: “Until
Agnello
v.
United States,
269 U. S. 20 , this court had never directly decided, but had always assumed, ‘that one’s house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein’
(id.,
at 32), but that case explicitly decided that ‘Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are * * * unlawful notwithstanding fqpts unquestionably showing probable eausp.’
Id.,
at
33.”
9
Judge Hand was evaluating a general search incidental to an arrest at home by comparing it to an unconstitutional search under a general warrant. In his view the latter had an advantage for the citizen over the search incidental to arrest because the warrant, though general, presumably had a magistrate’s scrutiny before issuance.
10
The majority buttresses its contrary conclusion with the fact that female emancipation is relatively recent and also with the logic of
State
v.
Cairo
(1948), 74 R. I. 377, 60 A. 2d 841 . There is nothing about the emancipation of women that makes one spouse custodian of the constitutional rights of the other. The specious quality of the logic in the
Cairo ease
is apparent from the quotation repeated in the majority opinion. The court in that case said that if the wife were not “related to either defendant, no question as to her right would arise. In our opinion her
mere relationship
to one defendant as his wife would not * * * destroy that right which was personal to her.” (Emphasis supplied.) This delineation ignores the fact that, among other things, that
“mere
relationship” of husband and wife posits a testimonial immunity and a joint right in the home which are, in effect, weakened or destroyed if the wife may waive the husband’s
personal
constitutional protection.