People v. Harrington

• Decision Date: 30 July 1970
• Docket Number: Cr. 14090
• Citation: 2 Cal.3d 991,471 P.2d 961,88 Cal.Rptr. 161
• Court: California Supreme Court
• Parties: , 471 P.2d 961 The PEOPLE, Plaintiff and Respondent, v. Bobbie HARRINGTON and Marcie Harrington, Defendants and Appellants.

Page 161

88 Cal.Rptr. 161

2 Cal.3d 991, 471 P.2d 961

The PEOPLE, Plaintiff and Respondent, v. Bobbie HARRINGTON and Marcie Harrington, Defendants and Appellants.

Cr. 14090.

Supreme Court of California In Bank.

July 30, 1970.

Rehearing Denied Aug. 26, 1970.

Morris Lavine, Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., Elizabeth Miller and Robert F. Katz, Deputy Attys. Gen., for plaintiff and respondent.

McCOMB, Justice.

Defendants were charged by information with possession of marijuana for sale (Health & Sef.Code, § 11530.5). They appeal from judgments of conviction of the lesser included offense of possession of marijuana (Health & Saf.Code, § 11530) entered after a trial before a judge without a jury. Defendant Bobbie Harrington was sentenced to state prison, and defendant Marcie Harrington was granted probation.

Facts: On October 7, 1967, about 2:15 p.m., Deputy Sheriff Winkler went to the apartment occupied by defendants. He was in uniform and travelled on a department motorcycle. He went to the apartment, because he had received information by telephone from Deputy Sheriff Iavelli, a fellow officer, that a runaway juvenile was believed to be there and that there might also be narcotics on the premises. The only information Winkler and regarding the juvenile was that she was a girl named Sharon, 16 years old, 5 feet 9, with blonde hair. He had no arrest warrants for Sharon or defendants and had no search warrant for the premises.

Defendant Bobbie Harrington partially opened the door when Winkler knocked, and, upon being asked his name, identified himself. Winkler told Bobbie that he was looking for a missing juvenile named Sharon. Bobbie said that she had been there but was not there at that time. He then began to walk onto the porch, and Winkler asked if they could go inside and discuss the matter instead of remaining on the porch. Bobbie made no verbal response, but he stepped aside and made a gesture, which consisted of his extending his left hand about two feet out from his left leg.

At the preliminary hearing, Winkler imitated the gesture, and the magistrate ruled that it indicated Bobbie wanted Winkler to come inside. In the living room, in plain sight, marijuana was found. Defendants were arrested, and additional marijuana was found in the apartment.

Prior to trial, defendants moved to suppress the evidence under section 1538.5 of the Penal Code, and it was stipulated that the motion be submitted on the transcript of the preliminary hearing. The motion was denied. The following day, at the commencement of their trial, defendants moved again to exclude the evidence, but the trial judge denied the motion.

Questions: First. Was the superior court judge at the hearing on defendants' motion under section 1538.5 of the Penal Code entitled to rely on the magistrate's interpretation of the meaning of defendant Bobbie Harrington's gesture as an invitation to enter the apartment?

Yes. As indicated above, at the preliminary hearing Winkler demonstrated the type of gesture Bobbie made; ¹ the magistrate ruled it indicated Bobbie wanted the officers to come inside. Contrary to defendants' contention, a consent to enter may be expressed by actions as well as words. (People v. Baca (1961) 198 Cal.App.2d 391, 396, 17 Cal.Rptr. 779; People v. Yancy (1961) 196 Cal.App.2d 665, 667, 16 Cal.Rptr. 766.)

Defendants also argue that the superior court failed to afford them a trial de novo on the issue of consent, as required by Penal Code section 1538.5. That section provides in part that: 'the defendant shall have the right to litigate the validity of the search or seizure De novo on the basis of the evidence presented at a special hearing.' We have therefore reviewed the transcript of the 1538.5 hearing to determine whether defendants received a de novo determination. ²

By their stipulation to submit the matter on the preliminary hearing transcript, the parties deprived the superior court of the opportunity to observe the alleged gesture. Under this circumstance, the court was understandably influenced by the interpretation placed on that gesture by the magistrate. The superior court, however, did not treat the magistrate's ruling as conclusive, nor give it presumptive effect. It noted that defendants did not deny that a gesture was made, nor suggest that it had some other significance than the apparent one of ushering in the officer. We conclude that the superior court did not merely review the finding of the municipal court, but made a de novo determination as required by section 1538.5.

Defendants contend, in effect, that Winkler's announced purpose in coming to their residence to look for a missing juvenile was a mere pretext and that such alleged misrepresentation vitiated any consent to his entry. While it is true that an entry obtained by trickery, stealth, or subterfuge renders a search and seizure invalid (People v. Roberts, 47 Cal.2d 374, 378, 303 P.2d 721; People v. Neal, 181 Cal.App.2d 304, 307, 5 Cal.Rptr. 241), there is no question here but that a teen-age girl named Sharon had been at defendants' apartment; according to Marcie's testimony, she had been staying in the apartment for about a week. In addition, Winkler testified, without contradiction, that he came to the apartment looking for a missing juvenile named Sharon, and he told Bobbie so on the porch; that Bobbie told him Sharon had been there but was not there then; and that after they entered the living room, he and Bobbie had a further conversation regarding Sharon and her whereabouts before the noticed any of the contraband. Under the circumstances, the issue was one of fact and of the credibility of witnesses, a matter for the trier of fact. (People v. Kemp, 55 Cal.2d 458, 471(3), 11 Cal.Rptr. 361, 359 P.2d 913; People v. De Paula, 43 Cal.2d 643, 649(9), 276 P.2d 600.)

Defendants also contend that the fact Winkler was in uniform and had a gun, combined with his representation that he was searching for a missing juvenile, constituted coercion under the color of authority and implied that the occupants had no right to resist his entry. There is nothing to show, however, that Winkler ever unholstered his gun or engaged in any other potentially coercive or threatening action. Furthermore, neither defendant was under arrest at the time the consent was given; Winkler was merely interviewing Bobbie on the porch. There was, therefore, less of a coercive or compulsive nature to Bobbie's status when he gave the consent than there would have been had he been under arrest. (Cf. People v. Stephenson, 268 Cal.App.2d 908, 910--912, 74 Cal.Rptr. 504 (less information required to support temporary detention than to establish probable cause for arrest); see also People v. Jolke, 242 Cal.App.2d 132, 147--149, 51 Cal.Rptr. 171.)

Second. Were defendants entitled to raise the issue of the illegality of the search and seizure at their trial, after denial of their motion to suppress under section 1538.5 of the Penal Code?

No. Section 1538.5, subdivision (m), of the Penal Code provides: 'The proceedings provided for in this section, Section 995, Section 1238, and Section 1466 shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him. * * *' (See People v. O'Brien, 71 A.C. 791, 794(8), 79 Cal.Rptr. 313, 456 P.2d 969.) This provision, enacted after our decision in People v. Berger, 44 Cal.2d 459, 282 P.2d 509, was clearly designed to change the rule laid down in that case.

Third. Was the evidence sufficient to support the conviction of defendant Marcie Harrington?

Yes. Proof of opportunity of access to a place where narcotics are found will not, without more, support a finding of unlawful possession. (People v. Redrick, 55 Cal.2d 282, 285(2), 10 Cal.Rptr. 823, 359 P.2d 255.) But the necessary elements (that the accused exercised dominion and control over the drug with knowledge of both its presence and its narcotic character) may be established by circumstantial evidence and any reasonable inferences drawn from such evidence; and neither exclusive possession of the premises nor physical possession of the drug is required. (People v. Roberts, 228 Cal.App.2d 722, 726--727, 39 Cal.Rptr. 843; see also People v. Prochnau, 251 Cal.App.2d 22, 30(4a), 59 Cal.Rptr. 265.)

Here, Marcie was shown to be a permanent occupant of a relatively small apartment in which a large quantity of marijuana was found in places she ordinarily could be expected to frequent. Winkler first became aware of marijuana in the apartment when, as he was talking with Bobbie, he glanced around the living room and saw on the top of a desk, only four or five feet away, a large scale, the disk of which contained marijuana. A closer look revealed, just to the right of the scale, a clear glass jar containing hand-rolled cigarettes. A later search of the apartment revealed a plastic, sandwich-type bag containing marijuana stems and seeds in a file box on top of the desk; a carton containing 24 packets of cigarette papers on the desk near the scale; a metal container containing marijuana in the drawer of the scale; a red paper package containing 895 grams of marijuana in a paper bag on top of the cupboard; and a screen device with particles of marijuana caught in the screen in a low cupboard near the sink.

The two occupants of the apartment, which had only one bedroom, were husband and wife; and Marcie admitted having lived there about a year. When Winkler first walked into the living room, she was standing in the doorway between the kitchen and the living room. From the above evidence, it was reasonable for the trial judge to conclude that Marcie shared the knowledge and possession of the...