Anderson v. Superior Court

• Decision Date: 08 December 1988
• Docket Number: No. E005343,E005343
• Citation: 206 Cal.App.3d 533,253 Cal.Rptr. 651
• Court: California Court of Appeals Court of Appeals
• Parties: Nicke ANDERSON, Petitioner, v. SUPERIOR COURT of the State of California for the County of San Bernardino, Respondent, PEOPLE of the State of California, Real Party in Interest.

Page 651

253 Cal.Rptr. 651

206 Cal.App.3d 533

Nicke ANDERSON, Petitioner, v. SUPERIOR COURT of the State of California for the County of San Bernardino, Respondent PEOPLE of the State of California, Real Party in Interest.

No. E005343.

Court of Appeal, Fourth District, Division 2, California.

Dec. 8, 1988.

Review Denied March 16, 1989.

David L. McKenna, Public Defender and C. Christian Cruz, Deputy Public Defender, for petitioner.

Dennis Kottmeier, Dist. Atty. and Joseph A. Burns, Deputy Dist. Atty., for real party in interest.

No appearance for respondent.

OPINION

DABNEY, Associate Justice.

Petitioner Nicke Anderson was charged in an information with one felony count: possessing cocaine (Health & Saf. Code, § 11350, subd. (a)), and two misdemeanor counts: possessing an injection device (Health & Saf.Code, § 11364) and giving false information to the police (Pen. Code, § 148.9, subd. (a)). Anderson has applied to this court for an order directing the superior court to hold a hearing on her motions to suppress evidence and to dismiss pursuant to Penal Code section 995 and enter an order granting those motions. ¹

FACTS

At Anderson's preliminary hearing, Officer Hopley of the Ontario Police Department testified that he and another officer from the narcotics task force knocked on the door of Anderson's apartment. The officers did not have a warrant. Anderson, who was alone with a small child, opened the door. Officer Hopley told Anderson he had heard that she or someone else staying there was possibly dealing cocaine and heroin, and he would like to question her about it. Anderson responded that nobody there was dealing anything and the officers could come in and look around all they wanted to. Officer Hopley repeated "several different times [that the officers wished to search her home], fully explained to her so that there was no doubt in her mind as to what was happening." Anderson repeated that she had nothing to hide and the officers could continue to look around. The officers found three syringes and a paper bindle containing white powder which resembled cocaine. A criminalist testified that the bindle contained a fifth of a gram of cocaine. The prosecutor introduced the cocaine into evidence; Anderson's counsel did not object.

Anderson at first told the officers her name was Sherry Brown. After Anderson was arrested, she told them her name was Ruth White. Anderson also used the name Joann.

Anderson testified on her own behalf. She stated that three uniformed police officers knocked on her door in the evening. When she opened the door, they said they believed she was dealing drugs. She said that no drugs were dealt there, and the police walked right in. One officer took her to the bathroom and searched her. He then told her to sit down. Two of the officers searched the house while the third stood at the door. None of the officers asked permission to come in.

Officer Hopley further testified that he had watched Anderson's apartment several hours the day before the arrest. He saw several people knock on the door and saw the door opened three or four times, but could not see if any narcotics transactions took place.

The court then asked for motions and argument. The prosecutor moved to hold Anderson to answer, summarized the evidence in support of the charges, and submitted. Anderson's counsel then stated: "I'm not sure if the People are arguing that there was a false name and that therefore that has some indication of dealing narcotics, but the testimony of the officer was that she informed him her name was Joann, and then they had an extensive conversation at that point. Later on she may have given some other names, but I'm not sure that initially she gave a false name or that the officer was even aware of what her name was.

"As to the corpus itself, it has not been shown that she was in possession of the property or of the drugs itself, and one of the elements of this case is possession.

"Consent is an issue, and I will test that later on. At this point I will submit it to the Court."

The court then stated, "Well, this is the time to--." Anderson's counsel interjected, "I will reserve the 1538.5 matter for the Superior Court."

The court responded "Surely." The court then ruled: "The only matter that is at issue is the question of consent to search the premises, and it is a question of credibility; that is, which of the witnesses the Court is to believe. And what the Court has before it is testimony uncontradicted that the defendant gave several names and also made the assertion at one point that there were no drugs there. It's obvious that there was certainly the bindle.

"The Court is persuaded that of the two witnesses the officer is the more credible in his testimony concerning the entry and the consent to search, and the Court is persuaded that there is probable cause to believe that the defendant was in knowing possession of cocaine, a number of hypodermic needles, and did give false information to a police officer.

"The motion to hold the defendant, ... to answer to those charges is granted...."

In superior court, Anderson filed a motion to suppress and motion to dismiss pursuant to Penal Code section 995 ² and the state and federal constitutions. The court denied the motions on the ground that the magistrate had ruled that the search was consensual, and the court was bound by the magistrate's finding. Anderson then filed this petition for extraordinary relief.

DISCUSSION

A defendant may move to suppress as evidence any items seized by the police on the ground that the search or seizure without a warrant was unreasonable. ( § 1538.5 subd. (a)(1).) "[T]he intent underlying [section 1538.5] was to reduce the unnecessary waste of judicial time and effort involved in the prior procedures, whereby search and seizure questions could be repeatedly raised in criminal proceedings." (People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 610, 94 Cal.Rptr. 250, 483 P.2d 1202.) Section 1538.5, subdivisions (f) ³ and (i) ⁴ provides that such a motion may be made either at the preliminary hearing or in the superior court.

Former section 1538.5, subdivision (i) (amended Stats. 1986, ch. 52, § 1) permitted the defendant to receive a de novo hearing in the superior court even if he moved at the preliminary hearing to suppress evidence. (See, e.g., People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.) However, effective January 1, 1987, the Legislature eliminated the right to a second full hearing. A defendant is now entitled to only one full hearing on his suppression motion ( § 1538.5, subd. (i).) When the motion is made at the preliminary hearing, the superior court merely reviews the transcript of that hearing and any evidence which the defendant could not reasonably have presented at that hearing. The magistrate's factual findings bind the superior court. (Ibid.)

Anderson claims that she did not make a section 1538.5 motion at her preliminary hearing and was entitled to fully litigate her Fourth Amendment contentions at a special hearing in the superior court. The prosecutor asserts that she did make a section 1538.5 motion at the preliminary hearing, and the superior court could only review the magistrate's findings, rather than conduct a de novo hearing.

Did Anderson make a section 1538.5 motion at the preliminary hearing?

The first question the petition presents is whether the record shows that Anderson made a motion under section 1538.5 at the preliminary hearing. A section 1538.5 motion, like any other motion, is "... an application to the court for an order." (Smith v. Superior Court (1978) 76 Cal.App.3d 731, 734, 143 Cal.Rptr. 109; see also Code Civ.Proc., § 1003; Pen.Code, § 1102.) However, courts have not required defendants to follow rigid procedures to bring section 1538.5 motions.

For instance, in People v. O'Brien (1969) 71 Cal.2d 394, 79 Cal.Rptr. 313, 456 P.2d 969, the court stated: "Although the statute contemplates that the issue will be raised by motion, a defendant who does so by the traditional procedure of objecting to the admission of the evidence on Fourth Amendment grounds should not be penalized merely for using the wrong words; such an objection, rather, should be construed whenever possible as a motion under subdivision (h)." (Id., at p. 403, fn. 5, 79 Cal.Rptr. 313, 456 P.2d 969.) The court in People v. Williams (1970) 9 Cal.App.3d 565, 88 Cal.Rptr. 349 also ruled that an objection to evidence was sufficient to challenge an illegal search and seizure, and added that the defendant need not ordinarily argue the objection as long as he states the grounds for it. (Id., at p. 569-570, 88 Cal.Rptr. 349.)

In People v. Gordon (1982) 136 Cal.App.3d 519, 186 Cal.Rptr. 373, the defendant objected to the admission of evidence on the ground " 'that was not one of the items that was mentioned as being an item that was subject to search.' " The court held "This language is clearly a motion to suppress pursuant to Penal Code section 1538.5, subdivision (a)(2)(ii)." (Id., at p. 526, 186 Cal.Rptr. 373.) The court explained that "counsel interposed an objection and made specific reference to Penal Code section 1538.5. The court's ruling was unambiguous. 'I'm not going to make any ruling as to the contents of the wallet other than I've suppressed it in this hearing.' The word 'suppress' in a criminal case is peculiar to a Penal Code section 1538.5 motion. The response by the People to the court's decision supports a finding they were aware a motion to suppress had been granted." (Gordon, supra, 136 Cal.App.3d at p. 527, 186 Cal.Rptr. 373.)

Likewise, in People v. Triggs (1973) 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232, (overruled on other grounds in People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 4, 150 Cal.Rptr. 910, 587 P.2d 706), the court "deem[ed] defendant's motion to strike [the arresting officer's] testimony at the preliminary...