People v. Superior Court

• Decision Date: 20 January 1970
• Citation: 83 Cal.Rptr. 732,3 Cal.App.3d 648
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Linda Fay YORK and Dale Kent York, Real Parties in Interest. Civ. 34858.

Page 732

83 Cal.Rptr. 732

3 Cal.App.3d 648

PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent;

Linda Fay YORK and Dale Kent York, Real Parties in Interest.

Civ. 34858.

Court of Appeal, Second District, Division 2, California.

Jan. 20, 1970.

Hearing Denied March 19, 1970.

[3 Cal.App.3d 650] Evelle J. Younger, Dist. Atty., Harry Wood, Head, Appellate Div., and Harry B. Sondheim, Deputy Dist. Atty., for petitioner.

No appearance for respondent.

Richard S. Buckley, Public Defender, and James L. McCormick, Deputy Public Defender for real party in interest, Linda Fay York.

Sorrell Trope, Los Angeles, for real party in interest, Dale Kent York.

ALARCON, Associate Justice pro tem. ^*

The People seek a writ of mandate to require the respondent Superior Court of Los Angeles County to vacate its order made pursuant to Penal Code, section 1538.5 granting the motion of the real parties in interest (hereinafter referred to as defendants) to suppress evidence identified at the preliminary hearing as People's exhibits 1 through 5.

FACTS

On November 7, 1968, Police Officer Neal Porter of the Covina Police Department received a telephone call from the landlord of an apartment building located on West Front Street in the City of Covina. In response to the call the officer went to the office of Linda Wilson the apartment manager. Mrs. Wilson told him that 'they were evicting Mr. and Mrs. York from their apartment for being one and a half months late on their rent * * * while they were evicting--while they were moving the property out, they had found a bowl containing what she thought was marijuana, * * *'

Mrs. Wilson invited the officer to enter the apartment 'to take a look.' Acting upon the apartment manager's express invitation, Officer Porter entered the apartment with Mrs. Wilson. Inside an open hall cupboard Officer Porter saw a bowl containing 27 plastic bags of green leafy material resembling marijuana. In addition Officer Porter observed a water pipe used for smoking, a sifter sitting on top of a glass bowl, a bag containing rubber bands, an empty bag, a packet of brown material, and some green tablets. These items were seized.

At the time Officer Porter entered the apartment all the furniture and furnishings had been removed except for a television set and a figurine which belonged to Mr. and Mrs. York. The bedroom closet was full of clothes. Apartment 17 was rented to Linda York and Dale York on June 20, 1968 on a month to month basis starting June 21, 1968, at the rate of $135 a month. The last payment was made in September. No payment was received for the month of October or the first seven days of November. The apartment was rented as a furnished apartment. Mrs. Wilson moved the furniture out of apartment 17 because it was needed for one of the other apartments which had been rented as furnished.

Mrs. Wilson testified that an 'eviction' notice was given to Mr. and Mrs. York. The district attorney attempted to elicit further testimony concerning the nature of the 'eviction' notice. However upon objection by counsel 'to this line of questioning' on the grounds that 'All this information about notice to pay rent or quit is pretty immaterial,' the magistrate precluded Prior to entering the apartment Officer Porter was not shown a 'right of possession' nor any 'legal papers.'

further questioning concerning the nature of the document served on Mr. and Mrs. York. ¹

In granting the motion to suppress the respondent court found as a matter of law that the apartment manager did not have lawful authority to consent to the entry of Officer Porter into the apartment. In addition, the respondent court found that 'reliance upon apparent authority is lacking here' because of the fact that 'this field is well known * * * I fail to see where officers would not know of the regular process of evicting tenants.'

The respondent court's decision to grant the motion to suppress was based on its determination of the existing law and not the 'credibility of witnesses.' ²

PEOPLE'S CONTENTIONS

1. The People contend that the respondent court's holding that Officer Porter had actual knowledge that the landlord had no actual or apparent authority to consent to an entry to look because the officer knew that the tenancy had been illegally terminated is unsupported by the evidence.

2. The owner of an apartment (or his agent) may consent to the entry of an apartment illegally repossessed by the owner.

DISCUSSION

The Evidence is Insufficient to Show That Officer Porter had Actual Knowledge That the Eviction was Unlawful

No evidence was presented from which an inference can be drawn that Officer Porter had actual knowledge or that he should have known of the unlawful nature of the eviction of Mr. and Mrs. York from their apartment. No questions were asked of Officer Porter as to his understanding of the law and the rights of a tenant faced with eviction for nonpayment of rent. Nor was it established by either side that Officer Porter did not believe that the landlord had the authority to grant consent to the entry of the apartment 'to take a look.' The only evidence presented to the respondent trial court concerning Officer Porter's knowledge of the eviction was the statement of Mrs. Wilson to Officer Porter that Mr. and Mrs. York were being evicted. From the facts before us, we can find no evidence of any statement to the officer from which he could draw an inference that the landlord had wrongfully evicted his tenants. Officer Porter was not given any information as to what legal steps, if any, had been completed by the landlord to effect a De jure eviction. Before he entered the apartment he had been made aware of facts which were the basis of a good faith and reasonable belief on the part of any prudent person that a De facto eviction had already occurred and possession of the vacated premises had been relinquished to the landlord. We have not been cited any case which requires the police to challenge the right of a person granting consent to enter or to conduct a record search to determine the extent of the property interest possessed by the person asserting a right to give consent to enter. 'Reason and common sense would indicate that if citizens are going to rely on police officers to protect their property, it is not necessary for the police to file a quiet title suit to ascertain ownership whenever a property owner calls police by telephone to check on his property. All that is required is a reasonable good faith belief that the caller had the authority to consent to enter.' (PEOPLE V. ORTIZ, 276 CAL.APP.2D ---, ---, 80 CAL.RPTR. 469, 472.)^A

Was the Landlord's Consent Effective Under Fourth Amendment Standards

The facts of this case present a unique problem in the law of consent searches.

The question raised by these facts may be phrased as follows: Is consent to the entry of a furnished apartment granted by the landlord thereof effective so as to make a search warrant unnecessary where the landlord has 'evicted' the tenant by removing the furniture in the absence of evidence that the landlord had first obtained a court order permitting the landlord to recover possession?

A search warrant is not required by the Fourth Amendment where voluntary consent to enter and search has been given to the police by a person who is in actual exclusive control of the premises. (Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 90 L.Ed. 1477; Davis v. United States, 328 U.S. 582, 593--594, 66 S.Ct. 1256, 90 L.Ed. 1453; People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852.) A person who has joint control of the premises may consent to an entry and search although the person whose property is seized and who also has joint control of the Premises is not asked for his consent. (See People v. McGrew, 1 Cal.3d 404, 413, 82 Cal.Rptr. 473, 462 P.2d 1; People v. Linke, 265 Cal.App.2d 297 315, 71 Cal.Rptr. 371; People v. Garner, 234 Cal.App.2d 212, 230, 44 Cal.Rptr. 217.) Where the person who purports to give consent to enter and search has retained only a limited right to enter for a specific purpose he cannot lawfully grant consent for purposes which go beyond his own limited rights. For example, hotel employees have the implied permission of a guest to enter a rented room for janitorial or maid services. (See United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59.) However, hotel employees cannot enter to search the personal effects of the tenant for contraband nor do they have the implied permission of the hotel guest to grant consent to the police to enter for such a search. (See People v. McGrew, 1 Cal.3d 404, 413, 82 Cal.Rptr. 473, 462 P.2d 1.)

Consent to search and enter may be sufficient to obviate the requirement of a search warrant in the absence of actual authority to grant consent based on exclusive or joint control of the premises where (a) the person purporting to grant consent to the police believes he has Unlimited exclusive or joint control Over the premises and (b) the police, under the circumstances, reasonably and in good faith believe that such person has the authority to consent to such entry and search. (People v. Burke, 208 Cal.App.2d 149, 159, 24 Cal.Rptr. 912; Bielicki v. Superior Court of Los Angeles County, 57 Cal.2d 602, 608, 21 Cal.Rptr. 552, 371 P.2d 288.)

Under the facts before us there was no proof of express or implied consent by the defendants to the police to enter and search. Nor was there any evidence that the defendants had expressly or impliedly granted permission to the landlord to enter and search the premises for contraband during the time the defendants had actual or constructive possession of the premises. Therefore we must decide whether the landlord had the authority to grant consent to the police to enter the apartment 'to take a look' in the absence of any express or implied permission from...