Tidwell v. Superior Court

• Decision Date: 21 May 1971
• Citation: 17 Cal.App.3d 780,95 Cal.Rptr. 213
• Court: California Court of Appeals Court of Appeals
• Parties: William TIDWELL, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF HUMBOLDT, Respondent. PEOPLE of the State of California, Real Party in Interest. Civ. 29371.

Page 213

95 Cal.Rptr. 213

17 Cal.App.3d 780

William TIDWELL, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF HUMBOLDT, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 29371.

Court of Appeal, First District, Division 3, California.

May 21, 1971.

Rehearing Denied June 18, 1971.

Hearing Denied July 28, 1971.

Joseph B. Harvey, Susanville, and Mathews, Traverse & McKittrick, Eureka, for petitioner.

Evelle J. Younger, Atty. Gen. of State of California, Doris H. Maier, Asst. Atty. Gen., Jack R. Winkler, Deputy Atty. Gen., Sacramento, for real party in interest.

CALDECOTT, Associate Justice.

Petitioner William Tidwell seeks review by writ of mandate of the denial of Penal Code section 1538.5 motions to suppress. He and his brother Robert were indicted in September 1967 on three separate counts of murder. Petitioner was found guilty of each charge by a jury and was sentenced to death. The California Supreme Court reversed the judgments for refusal to grant the defense's motion for change of venue. (People v. Tidwell, 3 Cal.3d 62, 89 Cal.Rptr. 44, 473 P.2d 748.) Venue was then changed from Lassen County to Humboldt County.

On August 14, 1967 Deputy Sheriffs Lake and Austin went to the residence of William and Robert Tidwell to question them concerning certain activities. No one was at home, so they talked briefly to the occupant of the adjoining apartment. She informed them that petitioner's apartment was unusually furnished for two young men, and that they slept a great deal during the day and were out during the night. The officers testified that they had occasion to observe the residence during the following two days and, seeing no car in the driveway, made no effort to call at the residence. On August 17 a car was seen in the driveway and in the late afternoon of that day, Officers Lake and Austin again called at the apartment. Officer Lake knocked at the door. It was answered by Robert Tidwell. The officers identified themselves as police officers, asked if William and Robert Tidwell lived there, and the reply was 'yes.' There is conflict in the testimony as to the next question and answer. It appears, though, that Officer Lake asked if they could come in and talk to the brothers, and the reply was 'We'll come out.' Officer Lake then said 'It's awfully hot, can we come in?' at which point Robert turned slightly, as though speaking to someone in the room. He turned back toward the door, opened it wider and 'stepped back.' There were no spoken words at this point. The officers entered and talked to defendant and his brother about a prowling report and other matters including possession of guns. In the course of the discussion of guns one or both of the brothers went into a bedroom where they were followed by the officers, who were shown certain guns. After further conversation William indicated that he did not think the officers should proceed without a search warrant, and should not come back without a warrant. Both officers then left.

Having observed the furnishings of the apartment, they returned to their office and checked burglary records, which confirmed, so far as the officers were concerned, that the furniture was from a burglarized building. They then proceeded to give the information to the district attorney, who personally typed the affidavit and search warrant. These contained two errors which are discussed below. By the time the affidavit and warrant were taken to the magistrate, who signed the warrant, it was 'after dark.' The officers drove back to the jail and picked up petitioner, who along with Robert had been arrested on the burglary charge, then proceeded to the apartment for the search.

In the course of the search other articles were seen (some of them were in plain sight and had, in fact, been seen during the earlier visit of August 17). Some of these seemed to match items listed as missing, or possibly missing, in homicides which had occurred in Lassen County earlier in the month. Another search warrant was obtained and the apartment was again searched at around 4:30 a.m. on August 19, and those items taken as a result of the second search.

On August 20 Officer Hoke of the Butte County Sheriff's Office was in Shasta County and was informed that they were looking for a gun and some boots as possible evidence in the Lassen County homicide. He was informed also that the Tidwell brothers were suspects and were then in custody. Officer Hoke knew petitioner's mother lived in Butte County and that, in fact, a younger brother (Delbert) was then in the Butte County Juvenile Hall on some other charge. Officer Hoke talked to Delbert in the Juvenile Hall and, accompanied by him, went to the residence of Mrs. McGee (petitioner's mother). Upon arriving at her residence, he identified himself and informed her that petitioner and his brother, Robert, were suspects in the homicide and that he was searching for a weapon or weapons. He asked if he could come in and look for them. He testified that Mrs. McGee replied, 'certainly.'

He entered, searched, and found no guns. It was his testimony that Mrs. McGee and Delbert aided in the search. He then asked Mrs. McGee if she had any of petitioner's clothes. She indicated that she did have some boots, and sent one of the children to get them. She gave them to the officer, who gave her a receipt and kept the boots. Delbert testified that neither he nor his mother cooperated in the search, and that the officer found the boots.

Captain McCarthy, of the Shasta County Sheriff's Office, testified that on August 25 he was asked by Robert Tidwell to pack in boxes the things still in the apartment and give them to Mrs. McGee. At that time he told Robert that he would do this, but that he would be checking for stolen property, to which Robert replied, there was no more stolen property. Although Robert was represented by counsel at the time, counsel was not notified of the conversation.

McCarthy proceeded to the apartment and packed the belongings of Robert and petitioner. In the course of packing, a pair of socks, some shorts, an undershirt and a picture were found and retained which could aid in connecting the brothers to the homicides. The rest of the property was given to Mrs. McGee.

Captain McCarthy testified further that on September 1 he asked petitioner, who was in the Shasta County jail, if he could search petitioner's car which had been impounded. Petitioner allegedly said 'Go ahead and search. You will not find any evidence.' A search uncovered several other items useful in the homicide trial. The trial court found that at this time defendant was represented by an attorney in relation to the burglary charge, but he was not notified and was not present at the time of the request for permission to search or at the search.

The August 17 Search Without a Warrant

Petitioner argues the state has not sustained its burden of proving that his brother, Robert, knowingly and voluntarily consented to the entrance of the officers without a warrant on August 17. Mere submission to authority is not a valid consent.

The question of consent is one of fact. (People v. Smith, 63 Cal.2d 779, 798, 48 Cal.Rptr. 382, 409 P.2d 222.) The trial court found that the evidence showed consent even though it was not indicated with words. This finding is amply supported. Robert knew his right to refuse entry. At first he did so refuse; when asked again he seemed to speak with someone in the room. His subsequent consent, therefore, was not a mere involuntary reaction, but rather a considered decision. Also, petitioner was present and it is clear he knew his right to refuse since he later halted the investigation due to the lack of a search warrant.

The initial refusal did not vitiate the subsequent consent. After the refusal the officers gave reason for their desire to come inside--the heat. The trial court noted that this reason was not a ruse for entry. The circumstances indicate the subsequent consent was not the result of undue pressure.

The August 17 Search Pursuant to a Warrant

A Night Search

Petitioner contends the search was invalid because conducted at night without authorization. It is not clear from the evidence whether the search was conducted at night. Sergeant Lake testified that he believed the officers arrived at the residence at 8 o'clock or 8:30 p.m. He testified that at the time they got the warrant it was 'after dark.' However, the trial judge took judicial notice in his written ruling on the motion that the time of sunset on that day was 8:12 p.m., and therefore he concluded the search was during the day. Even if the search were at night it would not be illegal.

The search warrant stated: 'You are therefore commanded, in the daytime (or at any time of the day or night) to make immediate search of the premises. * * *' Penal Code section 1533 states: 'On a showing of good cause therefor, the magistrate may, in his discretion, insert a direction in the warrant that it may be served at any time of the day or night; in the absence of such a direction, the warrant may be served only in the daytime.' The magistrate made no indication of the exercise of his discretion. Petitioner asserts this failure precluded lawful execution of the warrant at night, citing Powelson v. Superior Court, 9 Cal.App.3d 357, 88 Cal.Rptr. 8; Call v. Superior Court, 266 Cal.App.2d 163, 71 Cal.Rptr. 546, and People v. Mills, 251 Cal.App.2d 420, 59 Cal.Rptr. 489. As stated in United States v. Ravich, 2 Cir., 421 F.2d 1196 at 1201: 'The purpose of the requirement of a search warrant, as the Supreme Court has repeatedly reminded us, is to 'assure that the judgment of a disinterested judicial officer will interpose itself between the police and the citizenry,' Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 * * * and (the judge) * * * accomplished this purpose in full measure. The reason for...