People v. Harwood

Decision Date28 October 1977
Docket NumberCr. 30129
Citation74 Cal.App.3d 460,141 Cal.Rptr. 519
PartiesThe PEOPLE, Plaintiff and Respondent, v. Paul Noel HARWOOD, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Karen R. Smith and Paul D. Fogel, Deputy State Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Susan L. Frierson, Deputy Attys. Gen., for plaintiff and respondent.

JEFFERSON, Associate Justice.

By information, defendant Harwood was charged with offering to sell, on July 22, 1976, cocaine, a controlled substance, in violation of Health and Safety Code section 11352, subdivision (a).

Defendant entered a plea of not guilty. His motion to suppress evidence, made pursuant to Penal Code section 1538.5, was denied. Thereafter, defendant withdrew his plea of not guilty and entered a plea of guilty as charged.

Criminal proceedings were suspended; defendant was granted probation for five years, on condition (among others) that he serve six months in the county jail and pay a fine of $1,000. Defendant was declared ineligible for county parole.

Defendant has appealed from the judgment of conviction. We reverse.

On July 22, 1976, at approximately 8 p. m., one Roger Brown was arrested a block from his residence, 383 Gladys, No. B, Long Beach, for selling cocaine. Shortly thereafter Judith Marshall approached several police officers standing near the Gladys residence. After conversation, it was determined that Judith was sharing the Gladys apartment with Roger Brown.

Police Officer Donald Smith, one of the officers in conversation with Judith, told her that there might be cocaine or money from a previous cocaine sale by Brown located in the apartment on Gladys. When Brown was apprehended he had no cocaine on his person. Smith asked Judith for consent to search the apartment for cocaine and money; he further advised her that she did not have to give permission for the search, but that if she did not, an attempt would be made to secure a search warrant.

Judith Marshall was on probation at this time for selling marijuana. She knew that she had a small stash of marijuana in the Gladys apartment, but was fairly certain a search would not turn up cocaine. She was primarily intent on concluding her contact with the officers so that she could address herself to securing Brown's release on bail. Judith told the assembled officers about the marijuana, and was assured there would be no difficulty about that. She orally consented to the search.

Judith permitted the officers to use her key and five police officers were admitted to the small one-bedroom apartment. Judith testified that the telephone rang; that she reached to answer it, but was stopped from doing so by Officer Smith, who picked up the phone. Officer Smith testified that he could not recall how many telephone calls were received before he intercepted calls from Paul Harwood, the present defendant. Judith testified that she objected to the interception of phone calls to the premises. But, Officer Smith, when asked whether Judith in any manner objected to his answering the telephone, stated that "(s)he made no statements to any objection that I know of."

While the record is not entirely clear, it appears that at least two incoming telephone calls were answered by the officers after entrance into the apartment, and before Judith signed the written consent form for the search. The document entitled "Consent to Search" was handed to Judith by Officer Smith. That document, which Judith read before signing, provided for "a complete search of the premises or vehicle under my control" and was duly executed by Judith.

About 9 p. m. the phone rang again. By this time the search of the apartment was completed, and had revealed no cocaine. Officer Smith answered the phone, for the purpose, he testified, of ensuring the safety of the searching officers. Smith then believed that Roger Brown had been selling cocaine and that the telephone caller might be involved in a transaction with Brown. In the ensuing conversation, Smith identified himself as a friend of Roger's, and ascertained that he was speaking to someone named Paul (the present defendant, Harwood), who told him he had a pound of something to sell. Paul stated that he would have to determine whether the substance he had in mind was still available, and that he would call back in 10 minutes. Paul did call again, and said he would be by the Gladys address in 15 or 20 minutes. Later, defendant Harwood appeared at the apartment, and after discussing price and amount, handed Officer Smith an envelope containing what Smith believed was cocaine. Defendant was then arrested; this was about 11 p. m.

Defendant makes three contentions on this appeal.

The first relates to defendant's "standing" to make a constitutionally-based objection to Officer Smith's seizure of incoming telephone calls to the Brown-Marshall apartment on Gladys.

California long ago adopted the broad application of the exclusionary rule, allowing those affected by an allegedly unconstitutional search and seizure from a third person to challenge its legality in a court of law. (People v. Martin (1955) 45 Cal.2d 755, 290 P.2d 855.) Subsequent efforts to alter application of the vicarious exclusionary rule have been rejected. (Kaplan v. Superior Court (1971) 6 Cal.3d 150 98 Cal.Rptr. 649, 491 P.2d 1.) In Shuey v. Superior Court (1973) 30 Cal.App.3d 535, 542, 106 Cal.Rptr. 452, 457, it was explained that "in California we enforce the exclusionary rule for its deterrent effect, disregarding nice questions of standing with respect to the particular defendant who moves to suppress. Our view is not so much that we come to the aid of particular persons who are victimized by illegal law enforcement, but that the victim of the illegality is the judicial process itself."

The decisional law, therefore, compels the conclusion that defendant Harwood may challenge the legality of the police officer's interception of telephone calls made by him to the Brown-Marshall premises and his resultant conviction of selling cocaine.

Defendant's second contention relates to his assertion that the record of the suppression-of-evidence hearing, while concededly establishing that the initial search of the Gladys apartment was based on Judith Marshall's consent, also contains uncontroverted evidence that she communicated to the searching officers her objections to their answering her telephone, and that these objections constituted an effective withdrawal of the prior consent.

The record reveals somewhat conflicting evidence on this point. We cannot reweigh it. (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585.) By ruling that the search was conducted within the realm of constitutional permissibility, the trial court inferentially rejected Judith Marshall's version of events, including her claimed withdrawal of consent. We are bound by that determination. (People v. James (1977) 19 Cal.3d 99, 137 Cal.Rptr. 447, 561 P.2d 1135.) However, as the ensuing discussion will show, whether or not Judith made known to the searching officers her objection to their intercepting telephone calls to her apartment was immaterial under the circumstances presented here.

Defendant's primary contention is that the searching officers extended their intrusion at the Gladys apartment beyond the consent given, thereby violating defendant's right to be free from unreasonable search and seizure, guaranteed by the United States Constitution (Fourth Amendment) and the California Constitution (art. I, § 13).

While these constitutional guarantees preclude warrantless searches such as this one, there are recognized exceptions to the constitutional limitations, and a consensual search is one of them. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, People v. Leib (1976) 16 Cal.3d 869, 129 Cal.Rptr. 433, 548 P.2d 1105.) By consenting to a warrantless search, one waives a constitutionally protected right.

It was cogently stated in Blair v. Pitchess (1971) 5 Cal.3d 258, 274, 96 Cal.Rptr. 42, 486 P.2d 1242, that "one may waive his Fourth Amendment right to be free from unreasonable searches and seizures. (Citations.) However, it 'cannot be overly stressed that the protections embodied in the Fourth Amendment are so fundamental that they are to be jealously guarded and liberally construed.' (Citation.) 'It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights. " . . .' (Citation.)" Blair also tells us that "(w)here government officials rely on consent to justify the lawfulness of a search, the burden is on them to show by clear and positive evidence that the consent was freely, voluntarily and knowledgeably given. (Citations.)" (Blair, supra, 5 Cal.3d 258, 274, 96 Cal.Rptr. 42, 53, 486 P.2d 1242, 1253.) 1

Similarly, it is the government's burden to prove that a warrantless search was within the scope of the consent given. People v. Superior Court (Arketa) (1970) 10 Cal.App.3d 122, 127, 89 Cal.Rptr. 316, 319, states: "The authority to search pursuant to a consent must be limited to the scope of the consent." In People v. Cruz (1964) 61 Cal.2d 861, 866, 40 Cal.Rptr. 841, 395 P.2d 889, it was held that a general consent to search particular premises did not include consent to pry into particular items located on the premises but which belonged to third persons (suitcases and boxes).

Other instances where the scope of consent has been limited may be found in the decisional law. In People v. Bracamonte (1975) 15 Cal.3d 394, 124...

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  • People v. Ledesma
    • United States
    • California Supreme Court
    • January 2, 1987
    ...than they have been given by the consent." (2 LaFave, supra, § 8.1(c), p. 624, and authorities cited; accord, People v. Harwood (1977) 74 Cal.App.3d 460, 466, 141 Cal.Rptr. 519; People v. Superior Court (Arketa) (1970) 10 Cal.App.3d 122, 127, 89 Cal.Rptr. If the challenged police conduct is......
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    ...P.2d 1105.) By consenting to a warrantless search, one waives the right protected by the Fourth Amendment. ( People v. Harwood (1977) 74 Cal.App.3d 460, 465, 141 Cal.Rptr. 519; see also Blair v. Pitchess (1971) 5 Cal.3d 258, 274, 96 Cal.Rptr. 42, 486 P.2d 1242; United States v. Rubio (9th C......
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