Raymond v. Superior Court

• Decision Date: 18 August 1971
• Citation: 96 Cal.Rptr. 678,19 Cal.App.3d 321
• Court: California Court of Appeals Court of Appeals
• Parties: Charles Richard RAYMOND, Petitioner, v. SUPERIOR COURT of the State of California, For the COUNTY OF SACRAMENTO, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 13064.

Page 678

96 Cal.Rptr. 678

19 Cal.App.3d 321

Charles Richard RAYMOND, Petitioner, v. SUPERIOR COURT of the State of California, For the COUNTY OF SACRAMENTO, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 13064.

Court of Appeal, Third District, California.

Aug. 18, 1971.

Hearing Denied Oct. 14, 1971.

Stuart A. Brody, Sacramento, for petitioner.

Evelle J. Younger, Atty. Gen. by Daniel J. Kremer and Nelson P. Kempsky, Deputy Attys. Gen., Sacramento, for real party in interest.

FRIEDMAN, Acting Presiding Justice.

Petitioner seeks a writ of prohibition to restrain the superior court from taking further proceedings on an information charging him with marijuana possession. His motion to suppress evidence under Penal Code section 1538.5 was denied by that court. His appropriate remedy is not prohibition, but a writ of mandate directing suppression. (Greven v. Superior Court, 71 Cal.2d 287, 295, 78 Cal.Rptr. 504, 455 P.2d 432; Ojeda v. Superior Court, 12 Cal.App.3d 909, 921, 91 Cal.Rptr. 145.) We so treat it.

Petitioner's 12-year-old-son, Bill, discovered marijuana in the dresser drawers of his father's bedroom. He telephoned the sheriff's office and arranged to meet a representative of the sheriff at his school. Accordingly, Bill and Sergeant Leeper of the sheriff's office conferred in the office of the vice principal of the junior high school attended by Bill. Some months previously, he told the officer, he had gone into his father's bedroom and found seeds and a leafy substance in a dresser drawer. He showed some of the substance to a deputy sheriff who lived nearby. The deputy told Bill that the material was marijuana and disposed of it. Since then, the boy narrated, he had looked into the dresser drawers many times and found hand-rolled cigarettes there along with plastic bags of marijuana. He further reported that his father kept ounce scales in the bedroom. The boy volunteered to get Sergeant Leeper a sample of marijuana from the bedroom but the officer declined until he could ascertain the validity of such a procedure.

The next morning, December 4, 1970, Sergeant Leeper met Bill again. He told Bill it would be legal to have him obtain some evidence. Bill expressed his willingness to get the officer a sample of marijuana from his father's dresser drawer. Bill told the sergeant that his residence was too far away to walk; that he could not get the sample if his mother were home; that she did not go to work until 4:00 in the afternoon, but might now be out having her hair done. Sergeant Leeper telephoned Bill's house. There was no answer. He then drove Bill to the house. En route the boy asked the sergeant how much he was to get and Leeper indicated an approximate quantity and suggested that he put the marijuana sample into one of his father's plastic bags. When they arrived at the house the officer waited in the car while Bill went inside. In a few moments he came out with a plastic bag containing marijuana seeds and a useable amount of marijuana leaf. Leeper took the boy back to school. He had the sample, analyzed by a criminalist, who confirmed its character. Later that day the sergeant signed an affidavit for a search warrant, which incorporated by reference his written report of the events. A warrant was obtained and executed that afternoon, and a quantity of marijuana and related paraphernalia were seized in petitioner's home.

At the hearing of the suppression motion Bill testified that he was not 'supposed' to enter his father's bedroom. He was not asked whether he told Sergeant Leeper of that restriction.

Petitioner's motion to suppress left some uncertainty as to the objective of his motion. Although, strictly speaking, his written motion sought suppression of marijuana taken 'by various levying officers,' his accompanying points and authorities made it quite plain that the motion sought suppression of the marijuana sample which Bill had delivered to the officer, as well as the contraband later seized under the search warrant.

By restricting government intrusion into the privacy of the family home, the Fourth Amendment conceivably incorporates some elements of the biblical Fifth Commandment. We need not embark on that inquiry because established Fourth Amendment standards adequately dispose of the case. The Fourth Amendment is violated by a warrantless police search of a dwelling when the search's only justification is probable cause to believe that contraband is there. (Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145; People v. Marshall, 69 Cal.2d 51, 69 Cal.Rptr. 585, 442 P.2d 665.) The constitutional guarantee is not violated by a private citizen's entry and search. Here, petitioner's 12-year-old son and the sheriff's sergeant participated in an expedition designed to acquire a sample of contraband from dresser drawers in petitioner's bedroom. Although the private person was the immediate actor, police participation in planning and implementation subjected the expedition and its product to Fourth Amendment demands. (Stapleton v. Superior Court, 70 Cal.2d 97, 100--102, 73 Cal.Rptr. 575, 447 P.2d 967; People v. Tarantino, 45 Cal.2d 590, 595, 290 P.2d 505; People v. Fierro, 236 Cal.App.2d 344, 347, 46 Cal.Rptr. 132.) The joint marijuana-sampling foray into petitioner's home was illegal and its product tainted will illegality.

The Attorney General relies upon the substantial evidence rule. He points to a trial court finding that the boy was not a police agent but a voluntary actor whose offer to fetch a sample of his father's contraband was accepted by the police. The deference owed to the trial court's factual finding gives way when the finding is entwined with a constitutionally inacceptable test. (Lustig v. United States, 338 U.S. 74, 77, 69 Cal.Rptr. 1372, 93 L.Ed. 1819.) The crux is not the citizen's eagerness but the policeman's involvement. Certainly the boy's activities were voluntary. He responded to his own wishes, however agonized, and not to police pressure. The decisive factor was the extent of official involvement in the total enterprise. (People v. Fierro, supra.) The sheriff's sergeant made inquiries which satisfied him of his action's propriety, ascertained that the time was ripe for surreptitious entry, supplied the transportation, described the quantity, waited for the purloined material and made it a basis for a search warrant application. Official participation in the foray was obvious, heavy and undebatable.

The Attorney General correctly abstains from arguing a consent theory. There are cases where a member of the family consents to a police search of jointly occupied premises. (See, e.g., ...