People v. Munoz, Cr. 20999

• Decision Date: 14 April 1972
• Docket Number: Cr. 20999
• Citation: 101 Cal.Rptr. 265,24 Cal.App.3d 900
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Patrick MUNOZ and Lawrence Gregory Salas, Defendants and Respondents.

Page 265

101 Cal.Rptr. 265

24 Cal.App.3d 900

The PEOPLE of the State of California, Plaintiff and Appellant, v. Patrick MUNOZ and Lawrence Gregory Salas, Defendants and Respondents.

Cr. 20999.

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

April 14, 1972.

Hearing Denied June 7, 1972.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Joseph P. Busch, Dist. Atty., Harry Wood and Thomas J. Barnett, Deputy Dist. Attys., for appellant.

Alfred J. McEvilly and F. Hulland, West Covina, for respondent Patrick Munoz.

Richard S. Buckley, Public Defender, James L. McCormick, Henry A. Bastien and Harry W. Brainard, Deputy Public Defenders, for respondent Lawrence Gregory Salas.

LILLIE, Acting Presiding Justice.

Munoz and Salas were charged with possession of marijuana (§ 11530, Health & Saf. Code) and Munoz with possession of restricted dangerous drugs (§ 11910, Health & Saf. Code). The People appeal from order setting aside information.

During the afternoon of June 16, 1971, Officer Thoemmes received information that a Patrick Munoz was in possession of a large quantity of dangerous drugs estimated to be a thousand pills, and was selling them at a North Vincent Street address; he then ran a utility check of the premises and found electricity was being furnished to Munoz and the telephone was listed in his name. At 8 p.m. Officer Thoemmes and three officers went to the residence to investigate; he knocked on the front screen door and through the screen saw Munoz walk toward the door and heard him ask, 'Who is it?'; he responded by displaying his badge and stating he was Detective Thoemmes, West Covina Police; at that time he saw Salas, who appeared to be naked, stick his head out from a hallway and put on his pants; Munoz said, 'Just a minute please' and disappeared from sight; a minute later Munoz returned and said, 'The cops? You are kidding'; he said, 'No,' asked if he was Patrick Munoz, and told him he was there to investigate a complaint of possible narcotics sales; Munoz opened the screen door and said, 'Come on in.' The officers walked with Munoz into the kitchen where there were a female, he introduced as his wife but whose name was Miss Salas, Salas (her brother) and another female. Officer Thoemmes explained to them that he 'had received information that possible sales were taking place inside the location and that (he) had information that a large quantity of dangerous drugs were inside,' then asked Munoz 'if he minded if (they) searched the location'; Munoz asked if he had a search warrant and he replied he had not; Munoz turned to Miss Salas and said, 'Well, I don't know'; she responded, 'Go ahead,' and Munoz turned around and said, 'There is no dope in this house. Yeah, go ahead and search.'

The officers, Munoz and Salas proceeded to the southwest bedroom. Munoz told them 'he had to work very hard to make the payments on the house and asked that (they) not destroy anything because he had to pay a lot of money for his furniture.' Prior to entering the southwest bedroom Officer Thoemmes asked Salas if this was his room and he replied, 'This is my room. I sleep here'; a search thereof uncovered from under the mattress a baggy containing marijuana. They then proceeded to the southeast bedroom which Munoz and Miss Salas stated was their bedroom and found a small Kodak film can on top of the dresser containing a white powder and some pieces of amphetamine tablets, and in the top right hand dresser drawer, a piece of hashish.

In granting the 995 motion the trial judge found there was not 'an unequivocal, voluntary, lawful consent, but more a submission to authority' based upon these factors--Munoz' delay of at least a minute before opening the door, inquiry as to whether the officer had a search warrant and 'vacillation' before giving consent; that 'four officers go into the house and immediately confront the occupants in the kitchen'; the location of the contraband; and 'the officer (Thoemmes) who testified indicating that in his opinion they were there to investigate and this includes, as part of the investigation, a search.' He also found to be unlawful the search of Salas' room on the authority of Beach v. Superior Court, 11 Cal.App.3d 1032, 90 Cal.Rptr. 200.

'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, 45 Cal.2d 751, 753, 290 P.2d 852, 854; People v. Smith, 63 Cal.2d 779, 798, 48 Cal.Rptr. 382, 409 P.2d 222.) The committing magistrate found that Munoz had consented to the search; it is implicit in that finding that it was an effective consent. (People v. Carrillo, 64 Cal.2d 387, 392, 50 Cal.Rptr. 185, 412 P.2d 377.) 'Neither the trial court in a section 995 proceeding (citations) nor a reviewing court on appeal therefrom (citations) may substitute its judgment as to the weight of the evidence for that of the committing magistrate. 'Although the magistrate, in reaching his decision, may weigh the evidence, resolve conflicts, and give or withhold credence to witnesses, such a balancing of the evidence is not within the powers of a tribunal reviewing the magistrate's order.' (Citation.) Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. (Rideout v. Superior Court, Supra, 67 Cal.2d (471) 474, 62 Cal.Rptr. 581, 432 P.2d 197.)' (People v. Hall, 3 Cal.3d 992, 996, 92 Cal.Rptr. 304, 307, 479 P.2d 664, 667.) Applying the foregoing rules we conclude that the facts support the finding of the committing magistrate that Munoz voluntarily consented to a search of the premises; that there was reasonable or probable cause for the commitment and that the information should not have been set aside.

The delay of several minutes before Munoz opened the door does not necessarily show a reluctance to talk to the officers. The delay supports any number of reasonable inferences favorable to the information none of which has any connection with the matter at hand, the most reasonable of which under the facts is that when Munoz disappeared from sight he alerted the occupants and waited until Salas put on his pants before admitting anyone. Munoz' response 'just a minute please' implied a willingness to return and talk to the officers. The officer informed him he was there to investigate a complaint of possible narcotics sales. '. . . it is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes' (People v. Michael, 45 Cal.2d 751, 754, 290 P.2d 852, 854; People v. Martin, 45 Cal.2d 755, 761, 290 P.2d 855), and it matters little that in Officer Thoemmes' opinion the investigation included both asking questions as to drugs and a search. ¹ However, at the time the officer knocked nothing suggests that he intended to do anything other than question Munoz or that he asserted a right to enter or search the premises or even requested admittance. It was Munoz who initiated the invitation to the officers to step inside.

Upon entering the four officers went into the kitchen with Munoz where Salas, Miss Salas and a female were. The evidence does not reasonably support the inference that the officers 'confronted' the four occupants in the kitchen as that term was used by the trial judge nor does it lend itself to a finding that the subsequent consent to search was given in submission to an implied assertion on authority. The fact there were four officers does not in itself carry an implied assertion of authority that the occupants should not be expected to resist; in People v. Carrillo, 64 Cal.2d 387, 50 Cal.Rptr. 185, 412 P.2d 377, there were six officers who suddenly entered the kitchen where there were three occupants. Also there were in the kitchen four adults, two males, not the 'distraught or timid woman' in People v. Michael, 45 Cal.2d 751, 754, 290 P.2d 852. The officers did not suddenly materialize in the kitchen nor did they surprise either Munoz or the others. Munoz knew who they were when he invited them into his home. As for the other occupants, there is an inference in Munoz' delay in admitting the officers and his momentary disappearance from sight that he alerted them to the presence of police. Moreover, Munoz, the head of the household, accompanied the officers into the kitchen. No conduct of the officers supports a finding of implied assertion of authority. There was no illegal entry or illegal police conduct (People v. Haven, 59 Cal.2d 713, 719, 31 Cal.Rptr. 47, 381 P.2d 927), no assertion of a right to enter of search, and no demand or request to enter (Parrish v. Civil Service commission, 66 Cal.2d 260, 269, 57 Cal.Rptr. 623, 425 P.2d 223); the officers were not in uniform, ² and there was nothing to show that they unholstered guns or even carried any, or engaged in any potentially coercive or threatening conduct (People v. Harrington, 2 Cal.3d 991, 997, 88 Cal.Rptr. 161, 471 P.2d 961; People v. Brown, 19 Cal.App.3d 1013, 1018, 97 Cal.Rptr. 341; People v. Schomer, 17 Cal.App.3d 427, 434, 95 Cal.Rptr. 125). Finally, having accompanied the officers into the kitchen Munoz introduced Miss Salas to them as his wife. There is no evidence of 'confrontation' in the sense of challenge or resistance or of facing the occupants in defiance or opposition or of an encounter of resistance, threat or hostility, and no...