¶1dissenting:
¶2The conclusions reached upon the facts in the principal opinion are not persuasive. Defendant’s argument itself is not persuasive that the intermittent gift of some five or ten dollars elevated him into the status of a tenant so as to bring this case within the rule of Chapman v. United States, 365 U.S. 610, 5 L.Ed.2d 828, 81 S.Ct. 776. The stipulation first states that the mother suffered no restriction upon her access to the rooms. Then the defendant “moved out” — an affirmative, volitional act. If anything, such action negates the claim of a tenancy. The locking of the door was a unilateral act that cannot reasonably be said to negate or reduce the mother’s right of access or of occupancy in the entire premises.
¶3One is constrained to note that Mancusi v. DeForte, 392 U.S. 364, 20 L.Ed.2d 1154, 88 S.Ct. 2120; Combs v. United States, (U.S.), 33 L.Ed.2d 308, 92 S.Ct, and Jones v. United States, 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725, do not approach the issue of a consent to search by a parent householder. In Jones, the issue was “standing” to move to suppress and it was held that one legitimately on the premises had such standing. The actual tenant was not present and there was no issue of consent by the occupant having control of the premises. In Mancusi, the issue again was standing to suppress. Defendant had custody of the papers seized in the office occupied by several persons, although such papers were not his private property. This was said to give him standing to suppress, but the opinion explicitly recognizes that defendant’s superiors could have given consent, although consent was not at issue. In Combs, the defendant had stored stolen whiskey in a shed on his father’s farm. The issue was standing to suppress. There was no issue concerning consent to search by the father. Nor can it be said that Katz v. United States, 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507, is relevant as authority upon these issues. As a paying user of the telephone booth subject to electronic surveillance, the statute of Katz was more akin to that of a tenant or of a person entitled to the sole use of the premises.
¶4The cases are not such authority as to overcome a substantial number of cases which have determined that one entitled to the use and occupancy may give a valid consent to a search of the premises.
¶5In United States v. Stone, 401 F.2d 32, a step-mother gave consent to search the home, including a specific area in the basement where defendant stored personal belongings. The consent was held valid as she had immediate control and occupancy of the premises. In Bumper v. North Carolina, 391 U.S. 543, 20 L.Ed.2d 797, 88 S.Ct. 1788, it was determined that a grandmother’s consent was coerced by the apparent authority of a search warrant, but the opinion supports the inference that but for such fact the consent would otherwise be valid. In People v. Koshiol, 45 Ill.2d 573, 262 N.E.2d 446, a husband’s consent to search was authorized by his right to possession of the premises. There was also involved, as is perhaps the case here, a right to protect himself from his wife’s poisonous actions. See also People v. Haskell, 41 Ill.2d 25, 241 N.E.2d 430.
¶6In State v. Kinderman (Minn.), 136 N.W.2d 577, defendant resided in the home of his father. The latter consented to a search by police, which included defendant’s bedroom closet and other parts of the house. It was held that the parental consent to the search was valid. In Mears v. State, 52 Wis.2d 435, 190 N.W.2d 184, the mother found stolen furs in her son’s closet. Her consent to a police search was held to be valid upon her right to use and occupancy. In State v. Vidor, 75 Wash.2d 607, 452 Pac. 961, the son was visiting at his mother’s home. The mother’s consent to a police search was upheld upon the basis of her control and possession of the premises. This rule had been followed in Illinois. People v. Thomas, 120 Ill.App.2d 219, 256 N.E.2d 870.
¶7In Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022, the wife produced her husband’s guns and clothes from a closet and turned them over to the police. The issue was whether the conduct of the police was such as to subject the items to the exclusionary rule. The court pointed out that the wife could have taken the items to the police and that such would not have been subject to the Fourth Amendment policy of exclusion. We suggest that such statement is equally applicable to this case.
¶8In People v. Stanbeary, 126 Ill.App.2d 244, 261 N.E.2d 765, the police were invited into the home by the mother. The tennis shoes which became items of evidence were in plain view upon the floor. Here, the items were in a waste basket and upon a shelf. There is substantial basis for saying that nothing stipulated suggests that the mother was excluded from her use and occupancy of the entire house.
¶9Finally, in Abel v. United States, 362 U.S. 217, 4 L.Ed.2d 668, 80 S.Ct. 683, it was held that the matters found in the waste basket of a hotel room after the defendant had moved out were considered in the light of abandoned property and not subject to exclusion. Such view is applicable here.
¶10In the several aspects suggested, the trial court erred in excluding the evidence.