People v. Veiga

• Decision Date: 11 October 1989
• Docket Number: Nos. F010691,F010836,s. F010691
• Citation: 262 Cal.Rptr. 919,214 Cal.App.3d 817
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Richard VEIGA, Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. Michael Wallace KEELING, Defendant and Appellant.

Page 919

262 Cal.Rptr. 919

214 Cal.App.3d 817

The PEOPLE, Plaintiff and Respondent, v. James Richard VEIGA, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Michael Wallace KEELING, Defendant and Appellant.

Nos. F010691, F010836.

Court of Appeal, Fifth District, California.

Oct. 11, 1989.

Certified For Partial Publication ^*.

Review Denied Dec. 21, 1989.

[214 Cal.App.3d 819] Bruce Hudson Towne, Davis, for defendant and appellant James Richard Veiga.

Carlo Andreani, San Francisco, for defendant and appellant Michael Wallace Keeling.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., Roger E. Venturi and Anthony L. Dicce, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

DIBIASO, Associate Justice.

After the trial court denied their PENAL CODE SECTION 995¹ motions to set aside the information, defendants Keeling and Veiga pled guilty, respectively, to violations of Health and Safety Code sections 11366 and 11353. On their consolidated appeals from orders granting probation, they contend the court erred in denying their section 995 motions. In the published portion of this opinion, we will hold that police entry onto the premises of which the defendants were co-occupants was validated by the consent of an absent co-occupant, notwithstanding the lack of express consent from defendants themselves. Thus, the court properly denied the section 995 motions.

Between 7 and 8 p.m., July 22, 1986, Cynthia Graham arrived home to discover that her brother, Keeling, was holding a party at the Sonora house in which they resided with their grandmother. Graham and the grandmother paid the rent. Keeling had been living there for nine to ten months; Veiga had been staying there as Keeling's guest for the past two days, with Graham's permission.

On entry, Graham saw beer in the living room and drug paraphernalia in Keeling's bedroom. The paraphernalia included a mirror with white dust, a razor, and a straw. Veiga invited Graham to "do a line." She refused, left the residence, and drove to her uncle's house, where she called the police. At about 9 p.m., she spoke by phone to Officer Mathis.

Mathis drove by the house several times. The front door was on Poplar Street. A group of people were in the living room. The front door area was dark and situated so that the living room occupants could see anyone who approached that door. At about 10 p.m., Mathis spoke again by phone with Graham, who told him that the party involved drinking and "coke" use. She instructed him to "put a stop to" the party. He interpreted this as authorizing him to "do whatever was necessary," but not that he could search the house.

After complying with knock-notice requirements, Mathis entered the house and saw certain contraband items in plain view. Other officers arrived and assisted in the search of the house and its occupants. The officers made other plain-view observations.

DISCUSSION

I. SEARCH AND SEIZURE ISSUES ²

A. Standard of Review

Upon review of the denial of a section 995 motion, we must "disregard[ ] the ruling of the superior court" and assess directly the magistrate's decision holding the defendants to answer. (People v. Laiwa (1983) 34 Cal.3d 711, 718, 195 Cal.Rptr. 503, 669 P.2d 1278.) In so doing, we "must draw every legitimate inference in favor of the information, and cannot substitute [our] judgment as to the credibility or weight of the evidence for that of the magistrate." (Ibid.; see also People v. Hall (1971) 3 Cal.3d 992, 996, 92 Cal.Rptr. 304, 479 P.2d 664; People v. Maltz (1971) 14 Cal.App.3d 381, 389, 92 Cal.Rptr. 216.) However, "it is the ultimate responsibility of [the] court to measure the facts as found by the trier [of fact] against constitutional standards" of reasonableness. (People v. Aldridge (1984) 35 Cal.3d 473, 477, 198 Cal.Rptr. 538, 674 P.2d 240.) In so doing, we do not defer to the magistrate's or the trial court's conclusions of law, but instead exercise our independent judgment concerning the pertinent legal issues. (People v. Leyba (1981) 29 Cal.3d 591, 597, 174 Cal.Rptr. 867, 629 P.2d 961; People v. Laiwa, supra, 34 Cal.3d at p. 718, 195 Cal.Rptr. 503, 669 P.2d 1278; People v. Ramsey (1988) 203 Cal.App.3d 671, 679, 250 Cal.Rptr. 309.)

B. Consent

The core issue, about which the parties disagree, is whether Graham effectively consented to Mathis' initial entry. The People argue that the consent was operative because Graham was a co-occupant in joint possession of the house. Defendants counter that her consent was invalid because 1) she was away from the home when Mathis entered, and 2) he failed to secure their own express consent as co-occupants present on the premises. As noted, we will hold the permission was valid, notwithstanding Graham's absence from the property when Mathis entered and the lack of express consent from defendants. ³

A valid consent to enter and search eliminates the need for either a warrant or probable cause. (People v. Reed (1967) 252 Cal.App.2d 994, 995, 61 Cal.Rptr. 60; People v. Wilcox (1969) 276 Cal.App.2d 414, 416, 81 Cal.Rptr. 60; Vandenberg v. Superior Court (1970) 8 Cal.App.3d 1048, 1053, 87 Cal.Rptr. 876.) A search based upon consent is lawful if, from the facts presented to the officer, he reasonably believed the occupant of the premises had authority to and did in fact, consent to the entry and search. ⁴ (People v. Reed, supra, 252 Cal.App.2d at p. 996, 61 Cal.Rptr. 60; United States v. Hamilton (1986) 792 F.2d 837, 842.)

This case raises the issue of consent to enter, not the issue of consent to enter and search or the scope of any consent to search. However, because police entry into a residence raises Fourth Amendment concerns (Steagald v. United States (1981) 451 U.S. 204, 212, 214, 101 S.Ct. 1642, 1647, 1649, 68 L.Ed.2d 38), cases which involve third-party consents to enter and search are relevant. Adherence to the policy underlying the Fourth Amendment, that is, the protection of the privacy of the individual against unreasonable governmental intrusion (Katz v. United States (1987) 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576; United States v. Ciraolo (1986) 476 U.S. 207, 220, 106 S.Ct. 1809, 1816, 90 L.Ed.2d 210), is compelled in both situations.

Until recently, the watershed California case was Tompkins v. Superior Court (1963) 59 Cal.2d 65, 27 Cal.Rptr. 889, 378 P.2d 113. There, a third party, arrested away from his residence, gave the police the keys to his apartment so that they might confirm his denial that contraband was located there. The police proceeded to the apartment and, as they were attempting to use the keys, the defendant opened the door, which was still latched by a chain. When the police identified themselves, the defendant made a motion with his arm and slammed the door shut. The police kicked in the door, entered and saw a narcotic substance. A later, further search turned up more contraband, and the defendant was arrested. Upon defendant's motion to suppress, the prosecutor contended that the third party co-occupant, previously arrested at another locale, had authorized the entry.

The Supreme Court decided the evidence should have been suppressed. Noting that a joint occupant's right of privacy in his home is not completely at the mercy of another with whom he shares legal possession, the court held:

"[T]hat one joint occupant who is away from the premises may not authorize police officers to enter and search the premises over the objection of another joint occupant who is present at the time, at least where as in this case no prior warning is given, no emergency exists and the officer fails even to disclose his purpose to the occupant who is present or to inform him that he has the consent of the absent occupant to enter." (Tompkins v. Superior Court, supra, 59 Cal.2d at p. 69, 27 Cal.Rptr. 889, 378 P.2d 113.)

After Tompkins came People v. Shelton (1964) 60 Cal.2d 740, 36 Cal.Rptr. 433, 388 P.2d 665. The consenting cotenant (a codefendant) was arrested away from his apartment. When asked by the officers if they could "take a look" in his residence for narcotics, he said "All right, go ahead." The officers took him to the apartment, knocked on the door, identified themselves as police officers, and demanded entry. When the codefendant opened the door the police entered and arrested her. A subsequent search netted narcotics. The Supreme Court held that "[t]he search cannot be justified on the ground that [the co-occupant] consented to it," (id. at p. 745, 36 Cal.Rptr. 433, 388 P.2d 665), and citing Tompkins said:

"[E]ven if Shelton had voluntarily consented to the search, his consent could not justify the invasion of his joint occupant's privacy that occurred when the officer demanded that the door be opened." (Ibid.)

Shelton was followed by People v. Smith (1966) 63 Cal.2d 779, 48 Cal.Rptr. 382, 409 P.2d 222, where the cotenant who authorized the entry and search was away from the premises at the time of the police entry. The defendant co-occupant was also absent. Upholding the search the court distinguished cases such as Tompkins because:

"they dealt with situations in which one joint occupant, away from the premises, purported to authorize police officers to enter and search the premises over the express objection of another joint occupant who was actually on the premises at the time." (Id. at p. 799, 48 Cal.Rptr. 382, 409 P.2d 222.) ⁵

In Duke v. Superior Court (1969) 1 Cal.3d 314, 82 Cal.Rptr. 348, 461 P.2d 628, the defendant's wife, who told the police the defendant had beaten her and had a bottle of red pills in the bathroom, gave the police permission to enter her home. She did not accompany the officers to the house. The police knocked on the front door, but did not identify themselves and did not verbally demand admittance. After waiting about 30 seconds with no response, they opened the closed but unlocked...