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PEOPLE STATE NEW YORK v. ROBERT K. AVERY (02/20/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


February 20, 1969

THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,
v.
ROBERT K. AVERY, WILLIAM E. BLOCKER, AND DONALD A. BASSETT, RESPONDENTS

Appeal from order of Onondaga County Court, suppressing use of evidence.

Goldman, P. J., Gabrielli, Moule, Bastow and Henry, JJ.

Memorandum: While there was a search of Robert Avery's car by a private individual, there was not a seizure of the articles found. The search and seizure subsequently made by the police was with the consent of Avery's mother, but since Robert Avery owned and had exclusive use and control of the car searched, his mother had no interest therein that empowered her to give consent to its being searched. The evidence found should be suppressed so far as Avery is concerned but not as against the defendants, Bassett and Blocker. They had no standing to make a motion to suppress. (People v. Cefaro, 21 N.Y.2d 252, revd. on other grounds, 23 N.Y.2d 283.) Donald Bassett waived his constitutional right against an unreasonable search and seizure by consenting to the search of his car. While he was not advised of his right to refuse to consent to the search, there is no requirement for giving such a warning. Miranda v. Arizona (384 U.S. 436) dealt with warnings necessary before in-custody police interrogation and not with consent to search.

Disposition

Order unanimously modified in accordance with the Memorandum herein, and as so modified affirmed.

19690220

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