People v. Superior Court

• Decision Date: 16 January 1974
• Citation: 10 Cal.3d 645,111 Cal.Rptr. 565,517 P.2d 829
• Court: California Supreme Court
• Parties: , 517 P.2d 829 The PEOPLE, Petitioner, v. The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; Gary Lennie PECK, Real Party in Interest. L.A. 30143.

Page 565

111 Cal.Rptr. 565

10 Cal.3d 645, 517 P.2d 829

The PEOPLE, Petitioner, v. The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent Gary Lennie PECK, Real Party in Interest.

L.A. 30143.

Supreme Court of California In Bank.

Jan. 16, 1974.

Lowell E. Lathrop, Dist. Atty., and David L. Pancer, Deputy Dist. Atty., for petitioner.

No Appearance for respondent.

Charles E. Ward, Public Defender, and Gerald Farber, Deputy Public Defender, for real party in interest.

CLARK, Justice.

The People seek review by writ of mandate (Pen.Code, § 1538.5, subd. (o)) of the superior court's order suppressing evidence in a prosecution for possession of marijuana (former Health & Saf.Code, § 11530). Because the trial court's order is supported by substantial evidence, the writ plainly must be denied.

During the evening a tenant noticed three men standing in the shadows of an apartment complex. One appeared to enter the apartment through a rear window because the tenant next observed someone inside closing the window while another outside replaced the screen. The tenant called the San Bernardino County Sheriff's Department and reported a possible burglary, explaining he did not know whether the suspects lived there.

When a deputy arrived to investigate, the manager led him to the apartment reportedly entered. With his pistol drawn, the uniformed officer knocked and yelled, 'sheriff's department.' Defendant opened the door, stepping onto the porch. In response to the officer, defendant said he lived there; this was confirmed by the manager. The officer asked if there was a burglar in the apartment, and defendant assured him there was not, explaining he had entered through a rear window after his wife left with the key following an argument. The officer then stepped past defendant into the living room.

On the coffee table he saw two bottles containing what appeared to be marijuana seeds. From the kitchen doorway his flashlight revealed a box on the floor containing a green leafy material the officer recognized as marijuana. In one bedroom the officer discovered a water pipe filled with more green leafy material, and in another a 'baggie' on a dresser containing the same substance. Returning to the living room, he arrested defendant.

1] Evidence in plain view of an officer who has reached his vantage point properly is subject to seizure. (See Harris v. United States (1968) 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067; People v. Block (1971) 6 Cal.3d 239, 243, 103 Cal.Rptr. 281, 499 P.2d 961; Mozzetti v. Superior Court (1970) 4 Cal.3d 699, 707, 94 Cal.Rptr. 412, 484 P.2d 84.) At least some of the evidence found in defendant's apartment would have been in plain view of an officer searching for a burglar. ¹ Therefore we must ask if the search was proper despite defendant's assurance it was unnecessary. The People contend the officer's conduct was justified on each of the following three grounds.

1. Implied Consent

The officer testified defendant stepped back and opened the door wider when he asked, 'Can I take a look?' Had the People--rather than defendant--prevailed below, the officer's testimony would provide substantial evidence to support a finding of implied consent to enter. (See People v. Harrington (1970) 2 Cal.3d 991, 995, 88 Cal.Rptr. 161, 471 P.2d 961.)

,3] Whether defendant's consent was voluntary rather than in submission to an express or implied assertion of authority is a question of fact to be decided in light of all the facts and circumstances. (People v. Smith (1966) 63 Cal.2d 779, 798, 48 Cal.Rptr. 382, 409 P.2d 222; People v. Michael (1955) 45 Cal.2d 751, 753, 290 P.2d 852; People v. Campuzano (1967) 254 Cal.App.2d 52, 57, 61 Cal.Rptr. 695.) Questions asked of the prosecution by the court during argument strongly suggest the evidence was suppressed on the ground defendant's consent was given in submission to an implied assertion of authority. ² Because the conduct attributed to defendant did not unambiguously express consent and might well have been mere deference to an apparent assertion of authority, the trial court's implied finding is supported by substantial evidence.

Moreover, the trial court's rejection of the implied consent argument is also supported by defendant's testimony that he simply did not engage in the conduct allegedly construed as manifesting consent. Whereas the officer testified defendant opened the door wider and stepped back when the officer asked permission to look inside, defendant testified the officer entered without asking permission.

",5] A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the superior court sitting as a finder of fact.' (People v. Heard (1968) 266 Cal.App.2d 747, 749, 72 Cal.Rptr. 374, 375.) As the trier of fact, the superior court adjudges the credibility of the witnesses. (See Witkin, Cal.Criminal Procedure (1963) § 683.)' (People v. West (1970) 3 Cal.3d 595, 602, 91 Cal.Rptr. 385, 388, 477 P.2d 409, 412.) By granting the motion to supress, the superior court impliedly resolved the conflict of testimony in defendant's favor and found he did not engage in the conduct in question. (Evid.Code, § 402, subd. (c); People v. West, Supra.)

2. Duty to Check Premises

The People contend the officer had a duty to search the apartment for burglars, even though defendant did not consent, on any one of three theories: (1) Defendant himself might have been a burglar; (2) there might have been a burglar in the apartment of whom defendant was unaware; or (3) there might have been a burglar who was keeping defendant hostage. None of these theories withstands scrutiny when the evidence is viewed in the light most favorable to the trial court's ruling--again, as it must be.

6] First, suspicion defendant was a burglar should have been dispelled when the manager confirmed defendant lived in the apartment.

7] Second, the only reason for believing a burglar was in defendant's apartment was the report an unidentified man had entered a rear window. When defendant explained it had been he, there was no longer cause for believing another might be...