People v. Schomer

• Decision Date: 10 May 1971
• Docket Number: Cr. 18822
• Citation: 95 Cal.Rptr. 125,17 Cal.App.3d 427
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William Joseph SCHOMER, Defendant and Appellant.

Page 125

95 Cal.Rptr. 125

17 Cal.App.3d 427

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Joseph SCHOMER, Defendant and Appellant.

Cr. 18822.

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

May 10, 1971.

Walshin & LaRocca and Phillip LaRocca, Los Angeles, for defendant-appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Maury W. Corn, Deputy Atty. Gen., for plaintiff-respondent.

LILLIE, Associate Justice.

After submission of the cause on the transcript of the testimony taken at the preliminary hearing and hearing on motion under section 1538.5, Penal Code, and the exhibits, defendant was found guilty of unlawful possession of marijuana (§ 11530, Health & Saf. Code) and restricted dangerous drugs (§ 11911, Health & Saf. Code). He appeals from the judgment (order granting probation).

Around 10:30 p.m. on January 16, 1969, Officer Loder received information from his station regarding Jean Lindstrom, 14 years of age, a runaway juvenile; a signed missing person report was on file; her mother had advised police that the girl might be at 7818 1/2 Gilliland, that one or two hours before she had been allowed to search those premises for her daughter but had not found her, that to the best of her knowledge her daughter was on the premises and that she had not made a complete search when she went there.

In company with Deputy Witt and his partner, Officers Loder and McArthur went to the premises; the officers told Deputy Witt there was a possible runaway juvenile named Jean Lindstrom, 14 years old, at 7818 1/2 Gilliland, the owner of the apartment was an adult and there was a possibility of narcotics there. As Deputy Witt and his partner walked to the rear they met defendant walking toward them; he told defendant they were looking for a missing juvenile by name of Lindstrom and asked his name and where he lived; defendant supplied the information and said he lived at 7818 1/2 Gilliland. Deputy Witt asked him if he knew Jean Lindstrom; defendant said he did, he had met her and another girl the previous evening while they were hitchhiking, the two girls had been in his apartment all night and Jean had left in the morning. The deputy accompanied defendant back to his apartment; the apartment door was ajar when they arrived. Deputy Witt informed defendant that because of the age of the Lindstrom girl and the possibility she was still hiding in his apartment it would be necessary to conduct a search; defendant said 'go ahead.' The deputy entered accompanied by defendant. He looked in the living room, then in the bedroom in which was a walk-in type closet with sliding door; he looked at the closet but defendant told him the girl was not there and (defendant) pulled the door open; the deputy saw what he thought to be female clothing and asked to whom it belonged; defendant replied it was his; defendant then pushed the clothes aside at which time the deputy saw a box 2 2 2 in the bottom of the closet, the sole contents of which were two plastic bags containing marijuana (52 grams). Defendant was placed under arrest. The deputy continued to search for the juvenile but was unable to find her, then searched for additional contraband; he found more marijuana and a large quantity of various restricted dangerous drugs.

Defendant testified he had been in bed, heard a noise outside 'like several cars,' got up and went out closing but not locking the door; he met four uniformed armed officers; even though he said Jean had not been there since the night before, Deputy Witt, after searching him, took him by the arm to the door; defendant accompanied him because he thought it would be advisable to do so considering that he was armed with a deadly weapon; there were two officers standing by the half open door although he had left the door securely closed; the deputy told him that due to the age of the person who was missing it would be necessary to search the apartment; he did not say anything and the deputy just walked into the apartment and he followed; once inside the officers searched the living room and when they searched behind couches, underneath the sofa and in small drawers, he asked them what they were looking for and the officer replied he was looking for a juvenile; he told the officers to leave the apartment because he believed the search was illegal; again he repeated the demand but they continued to search; Deputy Witt directed him to the bedroom, opened the closet door and looked inside; the deputy asked if the clothes were his and he said they were, then started looking through the closet; the clothes cleared the floor by about three feet and almost the entire closet was visible and anyone standing therein would have been seen; the deputy shined his flashlight into the corner and saw a box in which he found two plastic bags of marijuana; meanwhile a search was being made of other parts of the apartment where some more marijuana and restricted drugs were found. The court then questioned the defendant; his answers disclosed that defendant had no objection to the search by Jean's mother and gave her permission; that he had no objection to the officers' search of the apartment for the minor 20 minutes later and objected 'only after they got inside the apartment and began searching in the manner that they did.'

Appellant raises two issues, (1) Deputy Witt had no probable cause to believe the minor was on the premises and whatever information he had came to him through 'unreliable channels or persons' and (2) there was no valid consent to enter and search the premises. We deal first with the matter of consent, and our conclusion on this issue based on the record before us is dispositive of the appeal.

A search without a warrant is lawful if made with the valid consent of the party whose person or property is the subject of the search. (People v. Smith, 63 Cal.2d 779, 798, 48 Cal.Rptr. 382, 409 P.2d 222; People v. Burke, 47 Cal.2d 45, 49, 301 P.2d 241.) Appellant predicates his argument that there was no valid consent for the officer to enter and search, on the premise that when Deputy Witt, who was armed and in uniform, told him that because of the age of the Lindstrom girl and the possibility she was still in his apartment it would be necessary to conduct a search, his response, 'go ahead,' was a submission to authority and not freely and voluntarily given. Without more, under language found in Parrish v. Civil Service Commission, 66 Cal.2d 260, 269, 57 Cal.Rptr. 623, 425 P.2d 223, a serious question might arise concerning whether consent given under such circumstance was the result of a peaceful submission to a law enforcement officer; however, defendant himself convinced the trial judge that in fact it was not. On the witness stand the judge asked defendant several questions which establish first, that 20 minutes before the deputies arrived Jean's mother searched his apartment to which he had no objection and 'gave her permission, yes, sir'; and second, that when the deputy told him it would be necessary to conduct a search and he answered, 'go ahead,' in fact he had no objection and gave his voluntary permission thereto, and it was only later in the process of the search when it became obvious they were about to discover the contraband that he objected. ¹

Defendant consented to a search of his apartment and the judge so found: 'I be lieve he did (give consent). I believe his testimony is that he had no objection.' The testimony of Deputy Witt differs slightly from that of defendant in this connection. When the deputy told defendant that because of the age of the Lindstrom girl and the possibility she was still hiding in his apartment it would be necessary to conduct a search, Deputy Witt testified defendant an...