People v. Linke
| Decision Date | 28 August 1968 |
| Docket Number | Cr. 6091 |
| Citation | 71 Cal.Rptr. 371,265 Cal.App.2d 297 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Norman LINKE, Defendant and Appellant. |
Paul K. Robertson, Palo Alto, James H. Wolpman, San Francisco, for appellant.
Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for respondent.
In an opinion filed April 26, 1968 (261 A.C.A. 647, 68 Cal.Rptr. 71) this court affirmed an order admitting defendant to probation after his conviction by the court of possession of marijuana in violation of section 11530 of the Health and Safety Code. His conviction followed the denial of his motion to suppress evidence. Defendant's contention that the evidence used against him was the result of an unlawful search was rejected in the face of testimony that occupants of the residence in which defendant resided had consented to a search of the premises by offers who were seeking a fugitive from justice. The opinion upheld the implied finding of the trial court, on conflicting evidence, that consent was given to the officers' entry and overruled defendant's assertions that the consent was invalid because '(1) it 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 consent persons had 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.'
On June 3, 1968 the United States Supreme Court filed its opinion in Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797. In response to defendant's petition for a hearing filed June 5, 1968 in the Supreme Court of this state, that court on June 19, 1968 granted the hearing and remanded the case to this court for reconsideration in the light of the opinion in Bumper. The parties were solicited to, and did furnish written comment on the question posed by the order for reconsideration, and the case was resubmitted. For the reasons which follow it is concluded that the principle enunciated in Bumper does not, as a matter of law, nullify the consent which was manifested in this case. This court adhered to its opinion previously filed and adopts it, together with this addendum, as the opinion of the court.
In this case, as in Bumper, there was no reliance on a search warrant. 1 In Bumper one of the officers announced, "I have a search warrant to search your house." (P. 546, 88 S.Ct. p. 1790.) The prosecution did not rely upon any warrant to justify the search, but relied upon the consent of the householder. The questions of the existence and the validity of the warrant were never determined in the state court. In Bumper, according to the majority opinion, following the announcement the householder responded, "Go ahead," and opened the door.
In this case the testimony has been carefully re-reviewed in the light of Bumper. Deputy Sheriff Crossfield who relayed the report to the investigating officer, testified that he advised Deputy Ganley that there was an outstanding warrant for Kesey, and that information had been received that he might be at the Skyline Boulevard address. He advised the deputies 'to check' at the address and ascertain if Kesey was there. He further testified, Deputy Ganley confirmed this conversation and added that he and his partner were instructed 'to proceed up there, meet another Deputy, and check the house out.' He stated that there was no discussion with Crossfield about search warrants, and that he was aware that in the absence of permission to search a dwelling house it would be necessary to get a search warrant. Deputy Doran also knew the difference between a search warrant and an arrest warrant.
The uniformed deputies approached the house in the manner stated in the original opinion. The confrontation with the defendant, and his immediate withdrawal did not give the officers an opportunity to either assert authority or otherwise explain their presence. 2 The deputies' testimony concerning the confrontation with the women is as follows: A period of time, which Ganley fixed at 'less than' or 'approximately a minute,' and which Doran originally estimated at 'no more than half a minute,' but acknowledged he 'could not be sure of,' expired before the women appeared at the door. Meanwhile Ganley, shotgun in hand, had advanced into the threshold, 'up on the door jamb,' and Doran was to his right a little behind him and outside. Ganley stated, 'I would have had to move for somebody to close and lock the door * * *.'
Doran testified On cross-examination he affirmed that Ganley told the ladies who came to the door that they were there looking for Kesey and that they had a warrant for his arrest, and asked them if the officers could come in and check the house for Mr. Kesey.
Ganley testified, 'I informed the ladies that we had reason to believe that Kenneth Kesey was there, on the premises, and I, with their permission, would like to search the house * * *.' Ganley denied that he then told them he had a warrant for Mr. Kesey's arrest. He stated it was brought up in the kitchen area during the course of the evening when the occupants acknowledged they knew Mr. Kesey. Ganley was unable to recollect that either he or Doran stated that they had a warrant for Mr. Kesey's arrest while they were at the front door; and he couldn't remember whether he had told any of the people that he did have a warrant for Mr. Kesey before Doran discussed the marijuana.
The women appeared to be acting normally and did not seem to be frightened by the presence of the officers. They were cooperative and did not dispute the officers' search of the house. According to Doran, Mrs. Linke said 'Come on in and check.' Doran was not sure that the women told the officers Kesey was not there. Ganley testified that they said he was not there, 'but if you want to search, go ahead.' Neither officer was asked to leave the house.
The officers did not tell the women that they did not have a search warrant. They did not tell them the distinction between a warrant for a person's arrest and a warrant to search the premises, nor did they advise the women that they had a right not to consent to a search of the house, and the right to refuse entry to them. According to both officers the question of a search warrant was not mentioned by any occupant until after the discovery of the contraband and the arrest of those present.
A determined effort was made on cross-examination to show that the officers had affirmatively asserted a right to enter, or that they intended to enter whether or not permission was granted. Doran testified that he did not tell the women that the officers had a right to look in the home for Kesey; and that he did not say, nor did he hear Ganley say, that they had a warrant for Kesey's arrest and that if they were not permitted to enter the officers would break down the door and come in anyway. Ganley's testimony was of similar import, and each insisted that permission had been requested and granted.
The general testimony elicited on the hearing on the motion to suppress from Mrs. Linke and Miss Robinson, who were both then codefendants, is set forth in the original opinion. Miss Robinson, who was the first to arrive at the door after Mrs. Linke, testified that the officers explained that they were there because they had received information that Kesey might be at that house. She acknowledged that the officers asked the three wome collectively, while they were in the hallway, whether it was all right if they searched the house for Kesey. She neither objected to nor assented to any search; and she generally confirmed Mrs. Linke's testimony. Mrs. Linke testified that the officers were polite and courteous; that they had requested permission to search, and that it was correct that Ganley said "Would it be all right if we checked the house for Ken Kesey." She testified, '* * * We asked--we asked them what they were doing here, and they said they were looking for Ken Kesey; that there was a bench warrant out for his arrest--did we know that, and we said yes, we'd heard it on the radio today, and, we asked them why they thought that he would be at our house, and they went on to say that they had information that he was at our premises, and we--well, a little confusion ensued after that, where we, you know, said that there would be no reason for him to be in our house, and why would they think that, and they said they couldn't reveal their sources of information. At that point I asked them if they had a search warrant, and they said that they didn't need a search warrant; that they had a bench warrant for his arrest. * * * Sergeant Ganley * * * was the one who told us they had a bench warrant for Ken Kesey. * * * I asked him if they had a search warrant when they asked again for permission * * * Sergeant Doran said: 'We don't need a search warrant; we have a bench warrant for his arrest.''
In Bumper the majority concluded as a matter of law...
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