People v. MacIntosh

• Decision Date: 05 August 1968
• Docket Number: Cr. 4642
• Citation: 264 Cal.App.2d 701,70 Cal.Rptr. 667
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Julia Catherine MacINTOSH, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 667

70 Cal.Rptr. 667

264 Cal.App.2d 701

The PEOPLE of the State of California, Plaintiff and Respondent, v. Julia Catherine MacINTOSH, Defendant and Appellant.

Cr. 4642.

Court of Appeal, Third District, California.

Aug. 5, 1968.

Thomas C. Lynch, Atty. Gen., by Daniel J. Kremer and Gordon F. Bowley, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

Stanley J. Gale, Sacramento, for defendant-appellant.

PIERCE, Presiding Justice.

Defendant Julia MacIntosh and a non-appealing co-defendant, Joyce Mills, were convicted of violation of Health and Safety Code section 11530 (possession of marijuana). Julia appeals from the order granting her probation.

The two defendants were occupants of the same five-room apartment. The apartment was so arranged that entry into Joyce's bedroom was through Julia's bedroom. Julia has two young children who also resided in the apartment with the two women.

At approximately 9:30 p.m. September 4, 1966, two Sacramento policemen assigned to the child neglect detail visited the apartment house for the purpose of investigating a complaint regarding the possible neglect of a child. They knocked at the door of the apartment occupied by Joyce and Julia and by Julia's two children. At the time the officers knew who the occupants were but they did not know whether the children were Joyce's or Julia's.

Joyce admitted the two officers when they identified themselves. She alone was in the apartment at the time. The part of the apartment which the officers could observe when they were admitted was messy and filthy. One of the officers, Sergeant Dart had suspected from its odor that the brown carpet stain was marijuana. He scraped up the residue and took possession of it. At the trial, testimony of a chemical analysis confirmed the officer's suspicion.

Dart, was a prosecution witness. According to his testimony the following transpired: The officers told Joyce they wanted to talk with her. One of them did so. The other, Sergeant Dart, asked permission to examine the apartment. Joyce gave him permission. In the middle bedroom, which was Julia's, Dart observed what he believed to be marijuana on the floor. He decided to explore further. He found that he described later as a 'brown stain or residue' on the carpet alongside the head portion of the bed. Thereafter on the floor at the other side and under the bed a corner of a shoe box top protruded. In the box top were a cellophane bag and a tea tin, which contained material later proved at the trial to be marijuana and marijuana seeds.

Joyce was arrested and marijuana was found among her effects when she was booked. After the officers had learned that the middle bedroom was occupied by Julia, she, too, was arrested.

Each woman testified in her own behalf. Neither denied possession of marijuana. The sole issue raised was the validity of the search. Joyce denied categorically that she had given the officers consent to search the premises, although she admitted she had given permission to them to enter for the purpose of talking with her about the child neglect complaint. In the first two contentions discussed below we will assume that consent by Joyce was given as shown by the testimony of Sergeant Dart.

VALIDITY OF COTENANT JOYCE'S CONSENT TO THE SEARCH

'When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.' (Bumper v. State of North Carolina (1968) 391 U.S. 543, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797, 802.)

Consent to a search by an Absent cotenant but without defendant's consent has been held insufficient. (People v. Shelton (1964) 60 Cal.2d 740, 745, 36 Cal.Rptr. 433, 388 P.2d 665; Tompkins v. Superior Court etc. (1963) 59 Cal.2d 65, 69, 27 Cal.Rptr. 889, 378 P.2d 113.) Both of those cases involved consents given by absent cotenants to search premises on which the defendant sought to be charged and who did not consent was Present at the time of the search. People v. Frank (1964) 225 Cal.App.2d 339, 37 Cal.Rptr. 202, held ineffective a consent by the landlady of a defendant Present at the time of the search who refused consent. People v. Cruz (1964) 61 Cal.2d 861, 866--867, 40 Cal.Rptr. 841, 395 P.2d 889, involved the search of an apartment in which defendant and a woman, Ann, were staying as guests of two other women. At the time of the search of the apartment (without a warrant) defendant Cruz and Ann, and Susan, one of the tenants, were present. The officer asked if they minded if he looked around. The two women said, 'No. Go ahead.' Defendant remained silent. Defendant's suitcase was searched and the contraband found therein. It was held that since defendant had given no consent, express or implied, to a search of his personal belongings, the search was invalid. The cases referred to above are cited by appellant as authority for her argument that the consent here was invalid.

The contention of an illegal search, however, under facts indistinguishably analogous to the case before us has been rejected. In People v. Smith (1966) 63 Cal.2d 779, 799, 48 Cal.Rptr. 382, 409 P.2d 222, a cotenant (Mrs. Walker) who was also a codefendant gave a voluntary consent to the officers to search a home occupied jointly by her paramour (defendant Smith) and herself. The search made pursuant thereto in Smith's absence was upheld and the consent given was held valid. Under Reasonability of the search under the facts of the case before us and reasonability of belief by the officers in the authority to Joyce to give consent under the circumstances described above (particularly when one considers the purpose for which the search was being made) is manifest.

the circumstances described the court observed (on p. 799 of 63 Cal.2d, on p. 395 of 48 Cal.Rptr., on p. 235 of 409 P.2d): 'In these circumstances there is no impediment to invoking the rule that a search is not unreasonable if made with the consent of an occupant of the premises who, by virtue of his relationship or other factors, the officers reasonably and in good faith believe has authority to consent to their entry. (Citations.)' The Shelton and Tompkins cases, supra, are cited and distinguished. The basis of distinction is stated (also on p. 799, on p. 395 of 48 Cal.Rptr. on p. 235 of 409 P.2d): '(T)hey dealt with situations in which one joint occupant, Away from the premises, purported to authorize police officers to enter and search the premises over the express objection of another joint occupant Who was actually in the premises at the time.' (Italics ours.) (See also: People v. La Peluso (1966) 239 Cal.App.2d 715, 729, 49 Cal.Rptr. 85.) Other cases could be cited; reference thereto is unnecessary.

THE QUESTION OF THE CONSENT HAVING BEEN 'UNINFORMED.'

Defendant contends Joyce's consent was ineffective because she was not first advised she had the right to withhold consent. A federal court case, Cipres v. United States (1965) 9 Cir., 343 F.2d 95, 97--98, is cited. It holds that for a waiver of a right to search to be effective it must reflect an 'understanding, uncoerced, and unequivocal election to grant the officers a license which the person knows may be freely and effectively withheld.' The views of this court have been expressed in People v. Roberts (1966) 246 Cal.App.2d 715, 728--729, 55 Cal.Rptr. 62 (hg. denied). Therein we agreed that a consent must be free and uncoerced, that a failure of the officers to advise the person giving the consent of his right to withhold consent is a factor to be taken into consideration by the trial court in making its determination whether a free consent was given.

When permission is sought from a person of ordinary intelligence the very fact that consent is given, however, carries the implication that the alternative of a refusal existed. (Here Joyce seems to have been a person of ordinary intelligence.) We asserted in Roberts we were not convinced that a warning was indispensable. We declared the rules of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, to be inapplicable. We have not changed our views. Warnings given before an extrajudicial admission or confession, and warnings given before accepting a consent to a search search purposes and fulfill policies of the law which are not identical. (See also People v. Chaddock (1967) 249 Cal.App.2d 483, 57 Cal.Rptr. 582.)

Moreover, the conditions of the Escobedo-Dorado-Miranda rule were not here present. Defendant was not in custody. It was not contemplated when permission was sought that either Julia or Joyce would necessarily be taken into custody. Lastly, the search was not being made for contraband. Officers of the law had gained lawful admission to an apartment on a legitimate errand. They were investigating a child neglect complaint. One element of such an investigation is the condition of the premises in which the child is required to live. The officers upon their admittedly lawful entry had observed messiness and dirt. It was natural that they should ask leave to examine the rest of the premises, in fact, it was their duty to make the request. At the time they didn't even know that Joyce was not the mother of the allegedly neglected child. The fact that contraband was discovered was happenstance. The case is indistinguishable from one in which possession of contraband might be discovered in any other innocent

manner, e.g., while agents of a fire marshal were, with the consent of a householder, inspecting premises for the possible presence of fire hazards.

CONSENT AS A JURY QUESTION

Sergeant Dart testified positively Joyce had given the officers permission to inspect the apartment. Joyce unequivocally denied she had given that consent. Practically considered, once...