Lane v. Superior Court In and For San Bernardino County

• Decision Date: 14 April 1969
• Citation: 76 Cal.Rptr. 895,271 Cal.App.2d 821
• Court: California Court of Appeals Court of Appeals
• Parties: Shirley Maxine LANE, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN BERNARDINO, Respondent; Lowell E. LATHROP, District Attorney of the County of San Bernardino, Real Party in Interest. Civ. 9450.

Page 895

76 Cal.Rptr. 895

271 Cal.App.2d 821

Shirley Maxine LANE, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN BERNARDINO, Respondent Lowell E. LATHROP, District Attorney of the County of San Bernardino, Real Party in Interest.

Civ. 9450.

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

April 14, 1969.

[271 Cal.App.2d 822] Charles E. Ward, Public Defender, and Robert J. Webb, Deputy Public Defender, for petitioner.

Lowell E. Lathrop, Dist. Atty., and David H. Armstrong, Deputy Dist. Atty., for respondent.

OPINION

TAMURA, Associate Justice.

Defendant was charged by information with possession of marijuana. Her motion to dismiss the information pursuant to section 995 of the Penal Code was denied, she entered a not guilty plea, and a trial date was fixed. Prior to trial she made a special motion under section 1538.5 of the Penal Code to suppress as evidence certain articles taken from her handbag. The motion was denied and by the present petition for writ of prohibition she seeks a review of the order denying the motion to suppress.

The evidence adduced at the motion to suppress hearing may be summarized as follows:

About 1:15 a.m. on April 26 an unidentified informant told Officer Hinton of the Barstow Police Department that he (the informant) had been with defendant and one Charlence Cross earlier that evening and 'that he knew that (they) * * * had in their presence at this time either marijuana or bennies.' Officer Hinton knew Charlence Cross and had seen defendant on several previous occasions.

Officer Hinton discussed the matter with a detective on the police force and a deputy district attorney. They advised him that the only way that he would be able to 'check this subject' was through a 'consent search.' Thereafter, Officer Hinton and a fellow officer, both of whom were in uniform, checked several bars until they found defendant and Charlence Cross. Officer Hinton requested both girls to step outside and they complied. Officer Hinton asked defendant whether her name was Shirley Lane and upon receiving an affirmative reply, asked permission to 'look in her purse.' She answered, 'No,' asked 'Do you have a search warrant?' and said 'You have to have one to look in my purse.' He replied, 'Yes, that's correct, I do have to have one.' Officer Hinton again asked permission to look in her purse. At this point defendant said, 'Yes,' handed her handbag to the officer and at the same time turned to her companion and said, 'Call my mother and tell her I am in jail.' Officer Hinton searched the purse and found what he determined to be marijuana.

Defendant's testimony concerning the search was substantially the same as that of Officer Hinton except that she testified that the officer made two or three requests for permission to search before she said, 'Yes,' and that prior to her consent she overheard a comment made by one of the officers to the other to the effect that '(I)f they didn't search now, they would search it later.' She testified that she ultimately gave the purse to the officer because 'In all due respect to the law, I thought I had to.'

The prosecution conceded that the officer did not have a search warrant, an arrest warrant or probable cause to arrest. The search was sought to be justified solely on voluntary consent.

Defendant urges that the search was invalid because (1) the officer had no right to detain her for questioning and (2) the consent to search was given in submission to an assertion of authority.

Circumstances short of probable cause to arrest may justify an officer's action in stopping and temporarily detaining a motorist or pedestrian for questioning. However, there must be some suspicious or unusual circumstances to authorize even this limited invasion of a citizen's privacy. (People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 95--96, 41 Cal.Rptr. 290, 396 P.2d 706; People v. Henze, 253 Cal.App.2d 986, 988, 61 Cal.Rptr. 545; People v. Perez, 243 Cal.App.2d 528, 531, 52 Cal.Rptr. 514.) The test is whether the circumstances are such as to indicate to a reasonable man in a like position that such a course is necessary to the proper discharge of the officer's duties. People v. One 1960 Cadillac, Supra; People v. Stephenson, 268 A.C.A. 989, 991--992, 74 Cal.Rptr. 504; People v. Perez, Supra.) However, to justify temporary detention the information upon which the officer relied need not be of the quality required for probable cause to arrest; it need not be established that the source was of proven reliability. (People v. Stephenson, Supra, 268 A.C.A. 989, 992--993, 74 Cal.Rptr. 504.) In the present case the officer acted on a tip from an informant who stated that he had been with the defendant earlier in the evening and that he knew that she had marijuana or 'bennies' on her person. It cannot be said that the officer acted unreasonably in seeking to question defendant and her companion.

Turning to the issue of consent, it is settled that once it is established that the search was made without a warrant, the burden is on the prosecution to show proper justification. (People v. Marshall, 69 A.C. 46, 51, 69 Cal.Rptr. 585, 442 P.2d 665; People v. Henry, 65 Cal.2d 842, 845, 56 Cal.Rptr. 485, 423 P.2d 557; People v. Haven, 59 Cal.2d 713, 717, 31 Cal.Rptr. 47, 381 P.2d 927.) Where the prosecution relies upon consent to justify the lawfulness of the search, it has the 'burden of proving that the consent was, in fact, freely and voluntarily given.' (Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797.) The burden has been characterized as a heavy one (Parrish v. Civil Service Commission, 66 Cal.2d 260, 270, 57 Cal.Rptr. 623, 425 P.2d 223) placing upon the prosecution the burden of presenting 'substantial evidence of consent to the search' (Castaneda v. Superior Court, 59 Cal.2d 439, 444, 30 Cal.Rptr. 1, 4, 380 P.2d 641, 644). "The Government must show a consent that is ...