Russi v. Superior Court

• Decision Date: 29 June 1973
• Citation: 108 Cal.Rptr. 716,33 Cal.App.3d 160
• Court: California Court of Appeals Court of Appeals
• Parties: Alfredo RUSSI, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF NAPA, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 32382.

Page 716

108 Cal.Rptr. 716

33 Cal.App.3d 160

Alfredo RUSSI, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF NAPA, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 32382.

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

June 29, 1973.

Hearing Denied Aug. 22, 1973.

Geoffrey B. Stearns, St. Helena, for petitioner.

Evelle J. Younger, Atty. Gen. of Cal., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Robert R. Granucci, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for real party in interest.

BRAY ^*, Associate Justice.

Petition for writ of mandate to order the Napa County Superior Court to suppress certain evidence.

Questions Presented

1. The entry and search of Miss Reed's premises were legal.

2. There was sufficient evidence of petitioner's knowledge, possession and control of the contraband.

Criminal complaints were filed in the Napa County Superior Court against petitioner and his codefendant, Linda Reed, charging them jointly with violating Health and Safety Code section 11500 (possession of heroin), section 11530 (possession of marijuana), and section 11555 (possession of narcotics paraphernalia). At the preliminary hearing both were held to answer. ¹ Petitioner's motion to suppress evidence was denied after a hearing. Petitioner now seeks a writ of mandate to command the trial court to suppress evidence which he contends was illegally seized.

Facts

Some time prior to September 10, 1972, Linda Reed had pleaded guilty to a charge of possession of marijuana and had been placed on probation. The pertinent terms of that probation agreement were 'That (she) submit to search and seizure of (her) person and property at any time of the day or night by any law enforcement officer with or without a warrant . . .' The word 'property' clearly covers her lease or rental of her apartment. Her right to the occupancy of the apartment is a property right.

Shortly before 11:00 on the evening of September 10 (a Sunday), officers (two in plain clothes and one in uniform) gathered at the residence of Linda Reed for the sole purpose of conducting a search of the premises pursuant to that condition. Although this information was not necessary to justify the search, they had received word from a Napa County deputy sheriff that he had been informed that Linda probably was using narcotics there. At this time one of the participating officers, Sergeant Harold Snook, was aware that the petitioner, Alfred Russi, was living with Miss Reed.

Napa County District Attorney's Investigator Lee Chouinard knocked on the front door. Petitioner opened the door. Chouinard asked, 'Is Linda here?' Petitioner stepped back and motioned toward the interior of the room. Interpreting this gesture as consent to enter, Chouinard then walked into the living room where he saw a number of people. Among these wre Linda Reed, who was sitting on the couch, Catherine Flanary, the petitioner's sister Monica Russi, and Andy Sorres.

Because Officer Chouinard was well acquainted with Miss Reed, he dispensed with the necessity of identification. However, he did inform Miss Reed of the purpose of their visit--to conduct a search pursuant to the terms of her probation. At this time petitioner asked one of the officers present if he had a search warrant. The officer thereupon, correctly, replied, 'No, we don't need one.' The search was then initiated.

Officer Chouinard proceeded to the back bedroom of the house along with Sergeant Snook. That bedroom had been identified by Miss Reed as her own. In this bedroom, as in the other bedroom, the officers saw a few garments which could be described as male clothing. They consisted of some trousers and shirts (ownership not identified). More importantly, the officers discovered a usable quanityt of heroin in a jewel box which had been placed 'in the top' of a dresser, and a hypodermic kit which was contained in a leather pouch lying on the floor in a corner of the bedroom near its entrance. Amounts of marijuana were also found in a stationery box inside a drawer in the living room. Some papers, including a pawn ticket bearing petitioner's name, were also discovered in a desk in that room.

After proper admonition, Miss Reed admitted ownership of the marijuana, but denied knowledge of the heroin. Petitioner made no statement at this time, but subsequently stated that he stayed at the house on weekends. Thereupon, petitioner and Linda Reed wre arrested for the illegal possession of heroin, marijuana and nacotics paraphernalia.

1. Entry and search were legal.

Petitioner contends that as to him the officers' entry and search of Miss Reed's premises becomes an unlawful violation of his Fourth Amendment rights because he did not give his consent thereto or waive his rights. The contention rests mainly upon the proposition that one cotenant 'may not authorize police officers to enter and search the (jointly occupied) premises over the objection of another joint occupant . . .' (Tompkins v. Superior Court (1963) 59 Cal.2d 65, 69, 27 Cal.Rptr. 889, 892, 378 P.2d 113, 116). In effect, he contends that his right of privacy is an absolute and cannot be limited in any degree by the terms of probation assented to by his cotenant, that his consent to the search or an express waiver of his constitutional right is essential to the validity of the police entry and search and that any contraband discovered therein that may implicate him in crime may not be used at his trial. We do not agree with his contentions for the following reasons:

When a convicted defendant in order to obtain probation specifically agrees to permit a warrantless search at any time of his person or property, he waives whatever claim of privacy he might otherwise have had and a search of his residence by police officers pursuant to such agreement is reasonable and proper. (People v. Mason (1971) 5 Cal.3d 759, 766, 97 Cal.Rptr. 302, 488 P.2d 630.) There can be no question but that the officers, by reason of Miss Reed's stipulation, with or without the report that Miss Reed was probably using narcotics there, could search her premises without a warrant and without proving probable cause. ² No question of subterfuge, coercion or harassment is present in the record before us. Nor were the officers required to announce that they were police officers when the door was opened by petitioner. They asked for Miss Reed and petitioner opened the door further and indicated that she was inside on a couch. At least one of the officers was personally known to Miss Reed as an officer, so it was unnecessary that he identify himself as such. However, he did announce the purpose of his visit. As we have noted above, it was at this point that petitioner inquired whether they had a search warrant. By reason of Miss Reed's agreement, the answer was a correct one and the officers had a right to be there. As stated in People v. De Santiago (1969) 71 Cal.2d 18, 29, 76 Cal.Rptr. 809, 453 P.2d 353, whether or not an unannounced police entry is justified depends upon the attendant circumstances. Nothing in the record before us makes the entry and search unjustifiable except the mere presence of petitioner.

Petitioner cites no authority holding that where, as here, officers have the right to enter and search a probationer's residence, they must first announce that they are police officers and must reinforce the probationer's preexisting consent with a renewal thereof and secure the additional consent of the nonprobationer cotenant as well. Because most of the cases dealing with entries grounded upon the consent of one joint occupant involve a factual situation wherein the consenting occupant is absent from the premises at the time consent is given and the other, present on the premises, refuses entry (e.g., Tompkins v. Superior Court, Supra, 59 Cal.2d 65, 27 Cal.Rptr. 889, 378 P.2d 113), while others turn upon the question of the actual or apparent authority of the person giving consent (e.g., People v. Gorg (1955) 45 Cal.2d 776, 291 P.2d 469), we are unable to find direct authority for the proposition that where both cotenants are present and valid consent of one of them exists nothing further is required. Witkin's California Evidence (2d ed.) at page 82, notes the existence of a 'superficial conflict' between the two lines of cases and its attempted resolution by People v. Smith (1966) 63 Cal.2d 779, 799, 48 Cal.Rptr. 382, 409 P.2d 222. But we see no reason why the probationer's consent must be treated as though it was that of an absent cotenant and deemed limited and partially invalidated by the existence and presence of a nonconsenting cotenant.

If the record showed that any of the containers searched belonged solely to the petitioner and not to Miss Reed or they disclosed some indication of that possibility and the officers should have been on notice that they were intruding into the property of some third person, there might then be a question of their good faith in opening them, were it not for the fact that some narcotics and paraphernalia were in plain sight and furnished probable cause for search even as to the third person. Similarly, if the record disclosed any inference that the purpose of the officers' intervention was to secure evidence that would implicate petitioner in crime, the posture of the search would be different and the antecedent probationer cotenant's consent might not then operate 'to allow the opening of Her personal receptacles somehow to produce evidence against' him, as is said in the dissenting opinion. But these factors are not present in the record.

Petitioner's contention that as to him (a probationer's cotenant) contraband that is discovered during an otherwise lawful search of jointly occupied premises must be excluded absent evidence of his express consent or proof of knowledge on his part of the terms of probation (an...