People v. Linke

• Decision Date: 26 April 1968
• Docket Number: Cr. 6091
• Citation: 68 Cal.Rptr. 71
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Norman LINKE, Defendant and Appellant.

Page 71

68 Cal.Rptr. 71

PEOPLE of the State of California, Plaintiff and Respondent, v. Norman LINKE, Defendant and Appellant.

Cr. 6091.

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

April 26, 1968.

Hearing Granted and Retransferred to Court of Appeal June 19, 1968.

For Opinion on Remand, see 71 Cal.Rptr. 371.

Paul K. Robertson, & Hand, San Jose for appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant has appealed from an order granting him probation following his conviction for possession of marijuana in violation of the provisions of section 11530 of the Health and Safety Code, following a trial by the court. He claims that the contraband, admittedly found in his possession, was discovered only as the result of an illegal search of the premises he occupied jointly with others.

Defendant has attacked, unsuccessfully, the use of the seized evidence by motion to dismiss the indictment under the provisions of section 995 of the Penal Code, by application for a writ of prohibition to the Court of Appeal (1 Civ. 23679, Division Three) and Supreme Court, by motion to suppress evidence, and also in the trial on the merits, which was held by stipulation on the evidence adduced at the preliminary hearing and at the hearing on the motion to suppress evidence.

He presently asserts that there was no probable cause for the officers, who were armed with a warrant of arrest for a third party, to search the residence of the defendant. The officers had been advised by an unknown informant, who identified herself only as a waitress in a coffee shop, that a fugitive from justice whom sought might be found at the address which proved to be the defendant's residence. The prosecution does not attempt to justify the search on an attempted execution of the warrant of arrest, but contends that consent was given for a search of the premises. Defendant in turn alleges that any purported consent was invalid because (1) if followed an illegal entry in the premises, (2) it was the result of confusion and intimidation by the police authorities, (3) it was not preceded by advice that the consent could be refused, (4) the prosecution failed to prove that the convention persons has authority so to do, and (5) the consent in any event did not embrace the right to search a locked inner bathroom without the express consent of the defendant as the occupant of that room.

An examination of the record in the light of the applicable principles of law indicates that there is sufficient evidence to sustain the implied finding of the trial court that there was consent for the search which revealed the inculpatory evidence. The judgment must be affirmed.

The Facts

On February 4, 1966, at 4:15 p. m., San Mateo County Deputy Sheriff Gladysz received a telephone call from a woman who identified herself as a coffee shop waitress in Skylonda. She provided information suggesting that Ken Kesey, a fugitive, might be found at 18000 Skyline Boulevard. Gladysz relayed this intelligence to Deputy Sheriff Crossfield. After ascertaining that there was an outstanding arrest warrant for Kesey, Crossfield dispatched Deputies, Ganley andDoran to the Skyline address, with instructions to look through the house, if permitted to do so.

Ganley and Doran met Deputy Schofield, and the there officers proceeded to 18000 Skyline in two vehicles, arriving at dusk, about 6:10 p. m. Schofield remained in position to observe the rear of the residence. Deputies Ganley and Doran approached the front door. Both were uniformed and armed. Ganley carried a shotgun, held by the stock, in barrel-down position.

Deputy Doran testified, that After they knocked once, defendant Norman Linke opened the door, saw the officers, and, without comment, disappeared into the house leaving door open. Thirty seconds later defendant's wife and a Miss Robinson appeared at the door

Doran stated that during this interval he and Ganley waited outside the front door. Deputy Ganley recalled recalled that he waited on the threshold or in the door frame, and that he would 'have had to move somebody to close and lock the door.' Doran probably remained behind him.

Ganley testified that he informed the two ladies that the police believed that the fugitive Kesey might be within the premises. Doran indicated that Ganley toed the women he had a warrant for Kesey's arrest. Ganley did not recall so informing the women. Ganley then asked the women for their permission to search the dwelling. Mrs. Linke replied, 'Come right ahead.' The ladies were friendly and cooperative.

The officers indicated they had never told the women that the arrest warrant gave the right to search the premises, or that if permission was refused they would enter anyway. The officers did not advise the occupants that they did not have to consent to their entry. Ganley testified that no one asked for a search warrant. Doran did not think that Mrs. Linke denied Kesey was present.

At the hearing on the motion to suppress evidence, the defendant countered with with the testimony of his wife and Miss Robinson. They were then codefendants, although the charge against them was subsequently dismissed.

Mrs. Linke stated that about 6 p. m., Mr. Frazer, another occupant of the promises, entered the kitchen and said there were two policemen outside front door. She encountered the officers one and one-half feet inside the foyer. They informed her that they had a bench warrant for Kesey, who they believed might be in the house. Mrs. Linke asked if they had a search warrant. The deputies responded that they did not need one. Defendant's wife then returned to the kitchen to adjust her stove.

Mrs. Linke said that she told the sheriff's men that Kesey was not on the premises. She also testified that Frazer instructed the deputies not to search without a search warrant. She flatly denied granting permission for a search. she further testified that she never gave any 'implied consent.'

Miss Robinson testified that Ganley was a foot inside the door, and that Doran was in front of Ganley, when she came to the front door. She stated that prior to Mrs. Linke's arrival the officers asked her, 'Who was that guy, and which way did he go.' She responded she did not know. The officers then asked about Kesey, and at about this time, Mrs. Linke arrived at the door with Miss Berkun. She indicated that Mrs. Linke left to attend to her cooking, and some four minutes of dialogue ensued with the police, after which she turned around, and 'said something to the effect to heck with it, and left, and they followed' her into the kitchen.

Ganley testified he proceeded into the house accompanied by Miss Robinson. After an unproductive tour of several rooms, he thanked the occupants for permitting the search. Mrs. Linke testified that she observed the deputies in the pantry with Misses Robinson and Berkun. Noticing Ganley's 'rifle,' she directed him to remove it from the house. She stated that Ganley replied he needed the gun to apprehend a criminal. The conversation then apparently returned to the topic of Kesey's presence, and Mrs. Links did not indicate she repeated her request. Ganley testified that he was not requested to take his weapon from the house.

Doran tesified that accompanied by Mrs. Linke he looked through another part of the house. After opining two doors to closets, he upon a locked door. Doran knocked twice, and then Mrs. Linke said, 'Norman, come on out.' Doran heard the toilet flush immediately before before defendant emerged from what proved to be a lavatory and walked to the kitchen. The deputy entered the bathroom, where he observed marijuana in the toilet bowl and about an open window. He then closed the door and summoned Ganley.

Miss Adrienne Berkun, a good friend of the Linkes, stated that Doran, after knocking on the bathroom door, asked who was within and demanded that the occupant come out. After defendant announced 'It's me,' Miss Berkun said, 'Norman, come on out.' Doran could not recall demanding that the person behind the locked door--whom he thought might be Kesey--come out.

Mrs. Linke offered a new version of the bathroom incident. She pictured Doran knocking 'furiously' on the bathroom door, attempting to pull the door open, and demanding to know who was inside. She admitted tolling her husband to come out, but only simultaneously with a like demand by Doran.

After Ganley observed the marijuana found by his partner, the occupants, the Linkes, Misses Robinson and Berkun, and Mr. Frazer, were placed under arrest and advised of their constitutional rights.

Since the search was made without a search warrant, the burden was on the prosecution to show proper justification. (People v. Shelton (1964) 60 Cal.2d 740, 744, 36 Cal.Rptr. 433, 388 P.2d 665; People v. Haven (1963) 59 Cal.2d 713, 717, 31 Cal.Rptr. 47, 381 P.2d 927; Tompkins v. Superior Court (1963) 59 Cal.2d 65, 67, 27 Cal.Rptr. 889, 378 P.2d 113; People v. Roberts (1956) 47 Cal.2d 374, 377, 303 P.2d 721; People v. Gorg (1955) 45 Cal.2d 776, 782, 291 P.2d 467; People v. Jolke (1966) 242 Cal.App.2d 132, 147, 51 Cal.Rptr. 171; People v. White (1964) 231 Cal.App.2d 82, 87, 41 Cal.Rptr. 604; People v. Contreras (1963) 211 Cal.App.2d 641, 645, 27 Cal.Rptr. 619.) 'Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances.' (People v. Michael (1955) 45 Cal.2d 751, 753, 290 P.2d 852, 854. Accord: People v. Sheltom, supra, 60 Cal.2d at p. 746, 36 Cal.Rptr. 433, 388 P.2d 665; Castaneda v. Superior Court (1963) 59 Cal.2d 439, 442, 30 Cal.Rptr. 1, 380 P.2d 641; People v. Fischer (1957) 49 Cal.2d 442, 448, 317 P.2d; People v. Gorg, supra, 59 Cal.2d at p. 782, 27 Cal.Rptr. 889, 378 P.2d 113; ...