People v. Superior Court (Kenner)

• Decision Date: 01 September 1977
• Citation: 139 Cal.Rptr. 343,73 Cal.App.3d 65
• Parties: The PEOPLE, Petitioner, v. SUPERIOR COURT, Respondent; Christopher Gill KENNER, Real Party in Interest. The PEOPLE, Petitioner, v. SUPERIOR COURT, Respondent; Marvin Dwight BROOKS, Real Party in Interest. Civ. 50766 and Civ. 50988.
• Court: California Court of Appeals Court of Appeals

Page 343

139 Cal.Rptr. 343

73 Cal.App.3d 65

The PEOPLE, Petitioner, v. SUPERIOR COURT, Respondent;

Christopher Gill KENNER, Real Party in Interest.

The PEOPLE, Petitioner, v. SUPERIOR COURT, Respondent;

Marvin Dwight BROOKS, Real Party in Interest.

Civ. 50766 and Civ. 50988.

Court of Appeal, Second District, Division 4, California.

Sept. 1, 1977.

Rehearing Denied Sept. 19, 1977.

John K. Van De Kamp, Dist. Atty., Donald J. Kaplan and Roderick W. Leonard, Deputy Dist. Attys., for petitioners.

Wilbur F. Littlefield, Public Defender, Harold E. Shabo, Clark E. Shacklett, Dennis A. Fischer and Bernard J. Rosen, Deputy Public Defenders, for real parties in interest.

No appearance for respondent Court.

KINGSLEY, Associate Justice.

We have consolidated these two cases for hearing and decision because they contain a common question of law, although one of them (Kenner) also involves an additional issue.

In both cases, the real parties stand charged with felony offenses in respondent court--Kenner with joyriding in violation of section 10851 of the Vehicle Code, Brooks with burglary in violation of section 459 of the Penal Code. In both cases the police had reasonable cause to arrest the real parties. In both cases, the police went to the home of the real party intending to arrest him based on the information theretofore obtained. In neither case did the police have, or attempt to secure, a warrant either of arrest or for search. In neither case is it claimed that there existed any emergency making the securing of a warrant impracticable.

In Brooks, the police received a consent to enter, expressly standing that their purpose was to arrest Brooks. The validity of that consent is not here questioned. They found Brooks seated in the front room. Brooks made an unsolicited statement incriminating himself. The respondent court, relying on People v. Ramey (1976), 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, granted a motion to suppress the statement and physical evidence secured as a result of that statement. The present petition (under subdivision (o) of section 1538.5 of the Penal Code) followed. We issued our alternative writ and the case has been argued. In the Brooks case we grant the petition and order the peremptory writ.

In Kenner, the police, arriving at Kenner's home, were met by his brother (whose age does not appear from the record) and asked to enter 'to talk to' Kenner. According to the police evidence, accepted by the trial court, the brother gave consent to the entry and called his mother who, in turn, called Kenner. Without any conversation, the police arrested Kenner. As in Brooks, a motion to suppress statements made after arrest was granted and this petition followed. We issued our alternative writ. In the Kenner case we deny the petition and deny a peremptory writ.

I

In both cases, the respondent court granted the suppression motions solely on the ground that the arrest was void under Ramey. We conclude that that reading of Ramey is erroneous. In Ramey, and in the cases on which it relies, there was no issue of a consensual entry. Ramey, and the other cases, were concerned only with entries to effect an arrest, accomplished solely by the exercise of police authority. The decisions must be read in the light of the problems facing those courts. In all of them, the courts express the need to issure the sanctity of the home--the man's 'castle' concept. But that concern, which underlies all police entry cases, whether the entry be to arrest or to search, has not in the search cases gone so far as to void consensual entries (See the cases cited in Witkin, Cal. Evidence, § 77, pp. 73--74.) The effect of a valid consent was recognized by the Supreme Court, itself, in the Ramey opinion where, summarizing its holding, the court said (at page 275, 127 Cal.Rptr. at page 636, 545 P.2d at page 1340) 'But in the absence of a bona fide emergency, Or consent to enter, police action in seizing the individual in the home must be preceded by judicial authorization of an arrest warrant.' (Emphasis added.)

It is true that, if consent to enter is an exception to, or a situation distinguishable from, Ramey, the courts will be faced with a substantial number of difficult factual determinations. But that is equally true of all cases in which an alleged consent is relied on to validate police action. The Fourth Amendment, and the California Constitution, prohibit only Unreasonable searches and seizures. If, in striking a balance between effective law enforcement and the sanctity of the home, consensual entries are to be prohibited, there exists a policy decision beyond the proper scope of authority in an intermediate appellate court.

It follows that the People's petition in Brooks should be granted and a peremptory writ issued to direct the denial of Brook's motion to suppress evidence.

II

Kenner, however, presents an additional problem. Although the respondent court found that there was a consensual entry, it did not, and on the record before it could not, find that that consent validated the arrest which followed.

In People v. Superior Court (Arketa) (1970), 10 Cal.App.3d 122, 127, 89 Cal.Rptr. 316, the court held that a consent to enter was not a consent to search; the officer's rights being limited to the scope of the consent given. Before an apparent consent can be said to be given voluntarily and knowingly, an alleged consentor must be aware of the purpose of the requested entry and a consent obtained by trickery or subterfuge renders a subsequent search and seizure invalid. Section 844 of the Penal Code requires a police officer not only to demand admittance but to have 'explained the purpose for which admittance is desired.'

In Kenner, the request was to 'talk to' Kenner. In fact, as the record makes clear, the officers had no intention of talking to Kenner at all. When he appeared he was immediately arrested, without any prior interrogation. A person may willingly consent to admit police officers for the purpose of discussion, with the opportunity, thus suggested, of explaining away any suspicions, but not be willing to permit a warrantless and nonemergent entry that affords him no right of explanation or justification.

It follows that, in Kenner, although the trial court was wrong in believing that Ramey dictated a grant of the motion to suppress the trial court reached the correct result because the purported 'consent' did not authorize the arrest that immediately followed the entry.

In Civ. No. 50988, the petition in granted. Let a peremptory writ issue, directing the respondent court, in its case No. A--611,801, to vacate that portion of its order of March 24, 1977, which granted the motion of defendant Brooks to suppress evidence and to enter a new and different order denying such motion.

In Civ. No. 50766, the alternative writ is discharged; the petition for a writ of mandate is denied.

DUNN, J., concurs.

JEFFERSON, Associate Justice, concurring and dissenting in part.

I concur in part and dissent in part.

I agree with the result reached by the majority in the Kenner case in holding that the motion to suppress was properly granted by the trial judge because the warrantless arrest in the Kenner home was an invalid arrest. However, I disagree with the majority's holding in the Brooks case that the trial judge's order of suppression of evidence was invalid because the warrantless arrest of Brooks in the Kennedy home was valid, based upon a consent to enter and effectuate the arrest.

In both of these cases the issue presented is that of the validity of a warrantless arrest made in a home. In both cases the police officers had reasonable or probable cause to make a felony arrest. It is also conceded that the circumstances were such that there was ample time and opportunity for the officers to apply for, and obtain, a warrant of arrest. In neither case is it claimed that there was any emergency or exigent circumstances to preclude the officers from applying to a judge for a search warrant before proceeding to the respective homes to effect an arrest of Brooks and Kenner.

The majority reaches its result in the Brooks case by holding that there was a valid consent for the police to enter the home where Brooks was located for the purpose of effecting his arrest, and that, under such circumstances, the police are not required to obtain an arrest warrant even though there is no showing that there was any justification for the failure of the police to obtain an arrest warrant.

The majority states that the validity of the consent to enter the home and arrest Brooks is not questioned in this matter before us. I do not interpret the record in this fashion. In the return to the alternative writ, real party in interest Brooks makes it quite clear that he makes a two-fold attack upon the validity of his arrest. He argues first, that his arrest and the resulting search and seizure of evidence are invalid because of the principle that a warrantless arrest of a suspect in his home, even though based upon probable cause, is invalid in the absence of exigent circumstances. It is the contention of Brooks that, in the absence of exigent circumstances, a consent to search cannot confer validity upon a probable-cause-warrantless-arrest in the home.

But Brooks also advances the contention that the consent to enter and arrest Brooks, given by the occupant of the premises, Carolyn Kennedy, was a consent given in submission to the police officer's assertion of authority to enter the premises to arrest Brooks and, hence, was involuntary and created an invalid arrest and search even if the rule of law is to the effect that a voluntary consent to enter validates a probable-cause-warrantless-arrest made in the home.

It is clear that the trial court granted the evidence-suppression motions, made by Brooks and Kenner, on the ground that the warrantless arrest in the home of each respective defendant was void...