People v. Challoner

• Decision Date: 21 October 1982
• Docket Number: Cr. 41042
• Citation: 136 Cal.App.3d 779,186 Cal.Rptr. 458
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kenneth William CHALLONER, Defendant and Appellant.

Page 458

186 Cal.Rptr. 458

136 Cal.App.3d 779

The PEOPLE, Plaintiff and Respondent, v. Kenneth William CHALLONER, Defendant and Appellant.

Cr. 41042.

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

Oct. 21, 1982.

Dissenting Opinion As Modified Oct. 27, 1982.

Hearing Denied December 15, 1982.

Steven Zwick, Santa Ana, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Carol Wendelin Pollack and Christine C. Franklin, Deputy Attys. Gen., for plaintiff and respondent.

DALSIMER, Associate Justice.

Kenneth William Challoner appeals from the judgment of conviction entered following his guilty plea before Judge Miller to possession of cocaine for sale (Health & Saf.Code, § 11351). Appellant challenges the trial court's denial of his motion to suppress made before Judge McVittie, contending that the warrantless search of his residence was unreasonable under the Fourth Amendment to the United States Constitution and article I, section 13, of the California Constitution because the consent to search was involuntary.

We view the facts in the light most favorable to the trial court's ruling. (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410, 530 P.2d 585.) On May 20, 1980, at approximately 5 p. m., four sheriff's officers arrived by van at defendant's house after being informed that a narcotics sale was occurring there. With guns drawn, they quickly got out of the van. Soon thereafter, officers in three other police vehicles arrived at the scene. Defendant ran toward the house, but stopped abruptly when ordered to do so. Defendant and several other persons were placed under arrest.

Sergeant Barrier rapidly went to the front porch. The front door was open, but the screen door remained closed. Sergeant Barrier saw two women standing approximately 15 feet away from the door. Without knocking on the door, Sergeant Barrier proceeded to address the women. Still displaying his gun, Barrier said in a loud, clear voice that he was a sheriff's officer and was conducting a narcotics investigation. He asked the women if either of them lived there. Vivian Eiseman, defendant's common law wife, said that she lived there. Sergeant Barrier told her that he had made some narcotics arrests outside and said that he wanted to enter the house to search for other suspects and for narcotics. When Sergeant Barrier made this statement, his gun was drawn, pointed at the ground, and Officer Flynn, who was approaching the house, was close behind him. The two women remained approximately 15 feet from the door. Ms. Eiseman answered, "Sure," and Sergeant Barrier searched each room for other suspects. In one of the bedrooms, he found cocaine. The officers did not have a search warrant. When the cocaine was found, Sergeant Barrier requested permission to perform a more thorough search. Ms. Eiseman then said, "sure, search it all, he's been selling cocaine and marijuana and screwing up for a long time, go ahead." When a further search was conducted, additional drugs were found.

When the government relies on consent to justify a warrantless search, it must establish by substantial evidence that the consent was voluntarily given. (People v. McKelvy (1972) 23 Cal.App.3d 1027, 1033, 100 Cal.Rptr. 661.) Mere acquiescence to a claim of authority will not suffice. (Ibid.) "The People must show that consent was 'uncontaminated by any duress or coercion, actual or implied.' [Citations.]" (Ibid.)

In McKelvy, a police spotlight was placed on defendant at 3 a. m. and four officers, each carrying a shotgun or carbine, moved "into position" around defendant. (Id., at p. 1032, 100 Cal.Rptr. 661.) Defendant complied with an officer's request to hand over an item he had placed in his pocket. Observing that "where the undisputed facts clearly reveal that an apparent consent was not freely and voluntarily given but was in submission to an assertion of authority, a reviewing court is not bound by [the trial court's] finding of consent ... [citations]," (id., at pp. 1033-1034, 100 Cal.Rptr. 661), the court held that there was insufficient evidence to support the trial court's finding of consent. (Id., at p. 1034, 100 Cal.Rptr. 661.) The McKelvy court stated, "[N]o matter how politely the officer may have phrased his request for the object, it is apparent that defendant's compliance was under compulsion of a direct command by the officer. [Citations.] The evidence established 'no more than mere acquiescence to a claim of lawful authority.' "

Consent to search given in response to a request by an armed officer whose gun is drawn is suspect. Such consent may well be obtained by coercion and hence not voluntary. A person so confronted might reasonably believe that he was not free to refuse the permission sought. Thus, the court in People v. James (1977) 19 Cal.3d 99, 137 Cal.Rptr. 447, 561 P.2d 1135, in upholding the trial court's determination that defendant's consent to search was voluntary, pointed out that although the officers were armed, the consent was not secured at gunpoint. (Id., at pp. 110-113, 137 Cal.Rptr. 447, 561 P.2d 1135.) It is noteworthy that James cites McKelvy with approval. In People v. Schomer (1971) 17 Cal.App.3d 427, 95 Cal.Rptr. 125, in explaining why substantial evidence supported the trial court's finding that the consent to search was voluntary even though the officers were armed, we emphasized that at no point had the deputies unholstered their guns. (Id., at p. 433, 95 Cal.Rptr. 125.) Again, in People v. Harrington (1970) 2 Cal.3d 991, 997, 471 P.2d 961, the court, in upholding the trial court's finding that consent to search was voluntary, carefully pointed out that although the officer was armed, there was nothing to indicate that he ever unholstered his gun or engaged in other coercive or threatening action.

In the case at bar, it is clear that under the totality of the circumstances Ms. Eiseman's consent was not given voluntarily. Evidence of the drawn gun is not itself sufficient to establish that her consent was the product of coercion, there was insufficient evidence to establish that Ms. Eiseman's consent was voluntary. The number of officers present, the arrest of her common law husband and the others at gunpoint just moments prior to the request for permission to search the house, the failure of Sergeant Barrier to knock before requesting permission to search, and Ms. Eiseman's distance from the door at the time that the request to search was made, together with the display of the weapon at the time Sergeant Barrier requested permission to search, establish as a matter of law that the consent was not " 'uncontaminated by ... coercion.' " (People v. McKelvy, supra, 23 Cal.App.3d 1027, 1033, 100 Cal.Rptr. 661.) The consent of Ms. Eiseman, having been obtained through coercion, was not voluntary. ¹ Since the consent of Ms. Eiseman was not voluntary, the conviction must be reversed.

The judgment is reversed.

SPENCER, P. J., concurs.

L. THAXTON HANSON, Associate Justice, dissenting.

I respectfully dissent. I would affirm the judgment (order granting probation). ¹ As noted in the majority opinion: "(2) A proceeding under section 1538.5 to suppress evidence is a full hearing on the issues before the superior court sitting as finder of fact. (People v. Superior Court (Peck) 10 Cal.3d 645 ; People v. West (1970) 3 Cal.3d 595, 602 .) (3) The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings--whether express or implied--must be upheld if supported by substantial evidence. (People v. Gale (1973) 9 Cal.3d 788, 792 ; People v. Lawler (1973) 9 Cal.3d 156, 160 .)" (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410, 530 P.2d 585; see also, People v. James (1977) 19 Cal.3d 99, 107, 137 Cal.Rptr. 447, 561 P.2d 1135.)

At the expense of being somewhat repetitious, the evidence presented at the hearing on defendant Kenneth William Challoner's (hereinafter defendant and/or Challoner) motion to suppress evidence pursuant to Penal Code section 1538.5 (hereinafter section 1538.5) was substantially as follows:

Sometime before 4 p. m. on May 20, 1980, four police officers with their guns drawn arrested defendant Challoner in the front of his residence, the defendant having just completed a drug transaction with a police informer. Three police cars containing additional officers arrived soon thereafter.

Officer Robert Barrier proceeded to the front of the residence. Through the closed screen door he saw two women standing inside approximately 15 feet away. He identified himself as a police officer conducting a narcotics investigation and asked who resided there. A young woman, Vivian Eiseman, stated that she resided there. When asked, she gave the officer permission to enter the residence to search for narcotics or additional suspects. At that time Officer Barrier had his gun drawn but pointed toward the ground. One other officer was close enough to hear the conversation which he described as "very amiable."

Inside a bedroom Eiseman shared with the defendant, Officer Barrier discovered "narcotics, marijuana and cocaine" on a shelf in an open closet. When asked if the officers could thoroughly search the room, Eiseman stated, "sure, search it all, he's been selling cocaine and marijuana and screwing up for a long time, go ahead." More narcotics were discovered in the room. Officer Barrier testified that Eiseman "appeared to be very calm, appeared to be a little angry at the defendant." She accompanied the officers through the residence and assisted them in the search.

Vivian Eiseman testified that the police entered the residence without her permission, pointed their guns at her and a girlfriend and searched the house without...