Beach v. Superior Court

• Decision Date: 06 October 1970
• Citation: 90 Cal.Rptr. 200,11 Cal.App.3d 1032
• Court: California Court of Appeals Court of Appeals
• Parties: Howard L. BEACH et al., Petitioners, v. The SUPERIOR COURT OF the State of California, COUNTY OF SAN DIEGO, Respondent. The PEOPLE of the State of California, Real Party in Interest. Civ. 10320.

Page 200

90 Cal.Rptr. 200

11 Cal.App.3d 1032

Howard L. BEACH et al., Petitioners, v. The SUPERIOR COURT OF the State of California, COUNTY OF SAN DIEGO, Respondent The PEOPLE of the State of California, Real Party in Interest.

Civ. 10320.

Court of Appeal, Fourth District, Division 1, California.

Oct. 6, 1970.

Rehearing Denied Oct. 21, 1970.

Hearing Denied Dec. 3, 1970.

John G. Emerson, San Diego, under appointment by the Court of Appeal, for petitioners.

James Don Keller, Dist. Atty., Richard H. Bein and Terry J. Knoepp, Deputy Dist. Attys., for respondent and real party in interest.

OPINION

GERALD BROWN, Presiding Justice.

The Beach brothers, Howard and John, charged with possessing marijuana (Health & Saf.Code § 11530), possessing marijuana for sale (Health & Saf.Code § 11530.5), and possessing restricted dangerous drugs (Health & Saf.Code § 11910), are entitled to a writ of mandate requiring the superior court to suppress evidence illegally found by officers in their closet and bedroom. Their petition for writ to prohibit the trial should be denied, there being sufficient admissible evidence, seized elsewhere, to proceed to trial.

The preliminary hearing transcript shows on April 30, 1969, an anonymous informant telephoned Escondido Police Officer William Cecil saying a large quantity of narcotics was at a Tulip Steet address. Officers Cecil, Brown and Jackson went to the address, an apartment, to investigate. Officer Brown knocked and identified himself to Mrs. Nichols who invited the officers into the apartment. They entered the front entry-way. Mrs. Nichols said she lived in the apartment with her brothers Howard and John Beach and Gail Gaskins.

Officer Brown told her the police had received information concerning narcotics in the apartment, and asked if he and the other officers could look around. Mrs. Nichols said they could look anywhere they wanted.

The officers and Mrs. Nichols then went into a bedroom which she explained was used by her two brothers and Gail Gaskins. Through the partially open closet door, Officer Brown saw a large paper bag on a shelf, took it down, looked in and found 17 packages of marijuana. A grey metal box revealed numerous personal papers of John and Howard Beach. In a nightstand, the officers found a white box containing a hypodermic needle and syringe, cotton and two spoons. Dark green vegetable debris was on one spoon.

The officers then searched other areas of the apartment, finding green vegetable material, smoking paraphernalia and pills containing LSD in the kitchen and living room.

The morning after the search, Officer Brown saw Howard and John Beach at the Escondido Police Department, advised them of their Miranda rights and asked if they lived in the apartment. John Beach answered he lived there with his brother, sister and Gail Gaskins.

The Beach brothers moved to set aside the complaint on the ground they were committed without probable cause (Pen.Code § 995); They also sought to suppress certain evidence as illegally obtained (Pen.Code § 1538.5).

There was sufficient evidence to commit petitioners for trial, but the evidence seized in searching the closet and bedroom was the product of an illegal search.

Contrary to the Beach brothers' first contention, the officers were not required to advise Mrs. Nichols of her Miranda rights before requesting consent to search. The request to search was made during the investigatory stage: the accusatory stage had not been reached (Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 1629, 1630, 16 L.Ed.2d 694; People v. Nelson, 233 Cal.App.2d 440, 443--444, 43 Cal.Rptr. 626).

The illegality lies in the search of the Beach brothers' bedroom and personal property when the officers knew it was their bedroom. Mrs. Nichols' authority to consent to search did not extend to the bedroom. Although Mrs. Nichols consented generally to a search of the entire apartment, the police knew the bedroom they were searching was not occupied by her, but by her brothers and Gail Gaskins. The police could not reasonably believe Mrs. Nichols had authority to permit a search of the room and personal property of third persons. They did not inquire further (People v. Cruz, 61 Cal.2d 861, 867, 40 Cal.Rptr. 841, 395 P.2d 889).

Mrs. Nichols' consent to search, being in lieu of a warrant or probable cause, extended only to...