People v. Michael

• Decision Date: 09 December 1955
• Docket Number: Cr. 5764
• Citation: 45 Cal.2d 751,290 P.2d 852
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Beverly MICHAEL, Defendant and Respondent.

Page 852

290 P.2d 852

45 Cal.2d 751

The PEOPLE of the State of California, Plaintiff and Appellant, v. Beverly MICHAEL, Defendant and Respondent.

Cr. 5764.

Supreme Court of California, In Bank.

Dec. 9, 1955.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., S. Ernest Roll, Dist. Atty., Jere J. Sullivan and Lewis Watnick, Deputy Dist. Attys., Los Angeles, for appellant.

Forno & Umann and Harry M. Umann, Los Angeles, for respondent.

A. L. Wirin and Fred Okrand, Los Angeles, as amici curiae on behalf of respondent.

TRAYNOR, Justice.

By information defendant was charged with four counts of possessing narcotics in violation of Health and Safety Code section 11500 and one prior felony conviction of violating the same section. Her motion to set the information aside (see Penal Code § 995) was granted on the ground that all of the evidence against her had been obtained by an illegal search and seizure in violation of her constitutional rights. The People appeal.

At the time of her arrest defendant was living at her mother's home. Two state narcotics inspectors, an investigator from the Los Angeles District Attorney's office, and a Los Angeles police officer went to defendant's residence. They knocked on the door, identified themselves as officers, and were admitted by defendant's mother. They did not have a search warrant. One of the officers identified himself to defendant and asked her if she had any narcotics in the house. Defendant's mother then left the room and returned with a bottle containing a narcotic, which the officer took from her. She told the officers that 'This is all she has.' Defendant told the officer she knew the bottle contained a narcotic, and on being asked whether she had any more narcotics, she produced a box from her bedroom containing other narcotics and hypodermic equipment, which she handed to the officer. Defendant was arrested, the evidence was taken to police headquarters and analyzed, and four narcotics were identified.

The Attorney General contends that the evidence in this case was voluntarily produced by defendant and her mother and was therefore not illegally obtained. Defendant, on the other hand, contends that the admission of the officers into her home and the production of the narcotics were in submission to authority and without effective consent. Accordingly, she contends that anything the officers heard and any physical evidence they obtained after the entry without a warrant was inadmissible.

To protect his right to object to an unreasonable search or seizure a defendant need not forcibly resist an officer's assertion of authority to enter his home or search it or his person, United States v. Di Re, 332 U.S. 581, 594, 68 S.Ct. 222, 92 L.Ed. 210; Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 65 L.Ed. 654, but if he freely consents to an entry or search, or voluntarily produces evidence against himself, his constitutional rights are not violated and any search or taking of evidence pursuant to his consent is not unreasonable. Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 90 L.Ed. 1477; Davis v. United States, 328 U.S. 582, 593-594, 66 S.Ct. 1256, 90 L.Ed. 1453; In re Dixon, 41 Cal.2d 756, 761, 264 P.2d 513. Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances. Since the cases that have determined this question under varying factual circumstances are difficult if not impossible to reconcile (compare e. g., Davis v. United States, supra, 328 U.S. 582, 593-594, 66 S.Ct. 1256, with Johnson v. United States, 333 U.S. 10, 12-13, 68 S.Ct. 367, 92 L.Ed. 436; Waxman v. United States, 9 Cir., 12 F.2d 775, with Pritchett v. State, 78 Okl.Cr. 67, 143 P.2d 622, 623-625; Smuk v. People, 72 Colo. 97, 209 P. 636, 637, with Salata v. United States, 6 Cir., 286 F. 125, 127, and may reflect imperfectly the factual situations before the courts that decided them, they point to no compelling solution in the present case. On the record before us, we have concluded that the officer's testimony before the magistrate constituted sufficient evidence that the entry into the house and subsequent discoveries were made with the consent of defendant and her mother to justify the admission and use of the evidence at the preliminary hearing to establish probable cause for holding defendant to answer.

This is not a case in which entry was made pursuant to the supposed authority of an invalid search warrant. (See, United States v. Kelih, D.C., 272 F. 484, 490; Salata v. United States, supra, 286 F. 125, 127; Hernandez v. State, 137 Tex.Cr.R. 343, 129 S.W.2d 301, 305.) Nor is it a case in which the officers entered without the permission or knowledge of the occupants (see Dukes v. United States, 4 Cir., 275 F. 142, 144-145; Farris v. United States, 9 Cir., 24 F.2d 639, 639-640), or demanded the right to search without a warrant. (See, Amos v. United States, supra, 255 U.S. 313, 317, 41 S.Ct. 266; United States v. Slusser,...