People v. Cunningham, Cr. 7406

• Decision Date: 27 January 1961
• Docket Number: Cr. 7406
• Citation: 10 Cal.Rptr. 604,188 Cal.App.2d 606
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. William CUNNINGHAM, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 604

10 Cal.Rptr. 604

188 Cal.App.2d 606

PEOPLE of the State of California, Plaintiff and Respondent, v. William CUNNINGHAM, Defendant and Appellant.

Cr. 7406.

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

Jan. 27, 1961.

Hearing Denied March 22, 1961.

Gerald Levie, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., Doris H. Maier, Raymond M. Momboisse, Deputies Atty. Gen., for respondent.

FOX, Presiding Justice.

Defendant was convicted on seven counts of possession of a narcotic in violation of section 11500, Health and Safety Code. It was also determined that defendant had suffered two prior felony convictions, one of which was for possession of narcotics. He has appealed from the judgment.

At approximately 2:00 p. m. on May 5, 1960, Officer Buckner, of the Los Angeles Police Department, Narcotic Division, went to a house at 841 West 75 th Street with two other officers. Officer Buckner testified that when he stepped upon the porch and knocked he observed a woman, whom he later identified as Mrs. Rene Schmidt, sitting in a chair in the front room facing him. The door was open but where was a screen door that was hooked. Mrs. Schmidt inquired, 'Who is it?' The officer replied that he was a police officer making a narcotic investigation and would like to talk to her. She stated that 'she did not feel very well.' The officer then told her he would appreciate talking to her for just a few minutes. The officer testified that 'at that time she got up and came over to the front door and unhooked the screen door and invited us into the front room.' When the door was opened Mrs. Schmidt's little dog ran out of the house. Buckner's partner retrieved the dog and brought it back into the house. 'After letting us in,' according to Buckner's testimony, he and Mrs. Schmidt had a conversation in which he asked her who she was living with, and 'she stated she was living with William * * *' (Cunningham). Buckner then 'asked her if she knew that William Cunningham was on parole' and she replied, 'Yes.' She explained, however, that he had told her he 'wasn't fooling around with any narcotics now. * * *' She also informed the officer that he occupied the back bedroom. Buckner then said, 'You don't mind if we look around?' She replied, 'No.' About five minutes later Mrs. Schmidt went to the entrance of the kitchen from the front room and said to the officer, 'Aren't you supposed to have a search warrant?' The officer responded, 'Normally, yes, but you recall you gave us permission to search.' She then went back and sat down and did not say anything. Approximately three minutes later Buckner was called to defendant's bedroom by his partner, who had found three shoe boxes in a space above the closet, each of which contained a large quantity of each of the drugs named in the information. The officers then waited until defendant arrived, at approximately 4:00 p. m., at which time he was arrested. Officer Buckner then showed defendant the narcotics that had been found in his room and asked him whether they belonged to him, and he answered 'Yes.' In response to an inquiry as to where he obtained the narcotics defendant stated that he had 'pulled a burglary' in East Los Angeles of a pharmacy and had taken them from it the night before. He stated he brought the narcotics home and put them up in the closet during the early morning hours. The officer observed numerous marks on defendant's arms indicating he was a user. He told the officer he was using narcotics costing in excess of $100 a day.

Defendant's counsel made appropriate objections to the introduction in evidence of the contraband on the ground that it was the product of an illegal search and seizure, and to the receipt in evidence of defendant's admissions on the ground that the corpus delicti had not been sufficiently established. The court overruled the objections and received the proffered evidence.

Mrs. Schmidt testified that the police informed her that they wanted to talk to her but did not mention narcotics; that she did not feel well, and did not feel like talking to anyone. She denied that she opened the screen door or invited the officers in. Instead, according to her, the police pulled the door ajar just enough to allow her little dog to escape from the house; that the police retrieved the dog and brought him back inside to her. She further related that after the officers entered the living room they inquired who lived there besides herself, and when she informed them that the defendant lived there, they further inquired where his room was, and when she pointed to the rear bedroom, they started toward it. According to her story, it was at this time that she asked them: 'Do you have a search warrant?' She says that one of the officers replied: 'We don't need one, we are already in.' Mrs. Schmidt then sat down without saying or doing anything further to indicate disapproval of the search. She denied, however, that she had said to the police at any time that she did not object to their looking around.

In seeking a reversal defendant makes two basic contentions: (1) that the officers were guilty of an unlawful search and seizure, hence the contraband they found was inadmissible in evidence; and (2) that the corpus delicti was not established independently of defendant's alleged admissions. The People, on the contrary, contend (1) that the police had proper authority to enter and search the premises in question, and (2) that the corpus delicti was sufficiently established to justify the admission in evidence of the incriminating statements that defendant made immediately following his arrest. We are persuaded that the position of the People is correct.

The question as to whether officers have consent to enter and search premises is one of fact (People v. Gorg, 45 Cal.2d 776, 782, 783, 291 P.2d 469; People v. Neal, 181 Cal.App.2d 304, 5 Cal.Rptr. 241) as is also the question as to whether that consent was voluntarily given or was in submission to an express or implied assertion of authority, and such question of fact is to be...