Vandenberg v. Superior Court

• Decision Date: 23 June 1970
• Court: California Court of Appeals Court of Appeals
• Parties: Randy William VANDENBERG, Petitioner, v. The SUPERIOR COURT, Respondent; The PEOPLE, Real Party in Interest. Civ. 35665.

Page 876

87 Cal.Rptr. 876

8 Cal.App.3d 1048

Randy William VANDENBERG, Petitioner, v. The SUPERIOR COURT, Respondent;

The PEOPLE, Real Party in Interest.

Civ. 35665.

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

June 23, 1970.

Kurilich, Slack, Ballard, Batchelor, Maher & Ricks, and Richard E. Maher, Fullerton, for petitioner.

Evelle J. Younger, Dist. Atty., Harry Wood, Head, Appellate Division, and Harry B. Sondheim, Deputy Dist. Atty., for real party in interest.

No appearance for respondent court.

ALARCON, ^* Associate Justice Pro Tem.

The petitioner seeks a 'writ of prohibition and/or mandate' to nullify the effect of the court's order denying his motion to suppress evidence seized on a search of his residence.

FACTUAL BACKGROUND

Los Angeles County Deputy Sheriff John Rodriguez was the only witness concerning the reasonableness of the challenged search and seizure. In the course of an investigation of 25 persons for smuggling marijuana into the United States he several times observed a vehicle at the residence of one of the suspected smugglers. A check through the records of the Department of Motor Vehicles revealed that the vehicle was registered to Andrew William Vandenberg whose address was 17545 Ryon Street, Bellflower, California.

Deputy Rodriguez was advised by another officer that a person named Randy William Vandenberg was a user of narcotics and drugs and lived at the same address on Ryon Street. Acting on this information Officer Rodriguez went to 17545 Ryon Street on January 31, 1969 to investigate the possible illegal use or possession of narcotics or drugs at that location by Randy William Vandenber (hereinafter referred to as the petitioner). Deputy Rodriguez knocked on the door and it was answered by Andrew Vandenberg, Sr., the petitioner's father ¹ (hereinafter referred to as Mr. Vandenberg).

Deputy Rodriguez advised Mr. Vandenberg that he was conducting a narcotics investigation. He requested and was granted permission to enter the residence. The petitioner came into the section of the house where the officer and Mr. Vandenberg were conversing. Deputy Rodriguez observed puncture wounds on the petitioner's arm.

Mr. Andrew Vandenberg, Sr., denied that he used narcotics. Officer Rodriguez asked if he could look at Mr. Vandenberg's arms. Mr. Vanderberg showed his arms. The officer then stated to Mr. Vandenberg, 'Would you look at your son's arms. To me it appeared he has puncture wounds on his arms.' The officer then approached the petitioner, who had his arms folded with his palms covering the elbow part of his arms. The officer asked the petitioner, 'Can I see your arms?' and Mr. Vandenberg stated 'You have nothing to hide, show the man your arms.' The petitioner extended his arms and Deputy Rodriguez pointed out the puncture wounds to Mr. Vandenberg. Deputy Rodriguez asked Mr. Vandenberg if there were any narcotics at the location. Mr. Vandenberg replied, 'No, go ahead and look I want you to look everywhere.' The officer requeted permission to search the house for narcotics. Mr. Vandenberg stated, 'Go ahead, if he is involved in anything I want to clear it all up. Search everywhere.' The petitioner stated, 'Don't let them look, they don't have a search warrant.' The trial court found that the petitioner's statement was directed to his father, and not to the officer. Mr. Vandenberg did not reply. Acting upon the permission to search thus granted by Mr. Vandenberg, the house was searched.

Officer Rodriguez was told that Mr. Vandenberg and his son shared the same bedroom. In searching this bedroom the officers found 18 multicolored balloons, all empty but containing a powdery residue, some needles, a yellow paper containing a substance resembling heroin secreted between towels stacked in a towel rack. At this time the petitioner was placed under arrest. After the petitioner's arrest the search was continued.

In the bottom drawer of the bedroom closet the officers found four wax bags containing marijuana. In the same bedroom closet the officer found a leather jacket containing approximately 13 capsules, some 7 resembling Seconal and some resembling Tuinal. After the jacket was searched and the 13 capsules were seized, Mr. Vandenberg was asked if the leather jacket belonged to him. Mr. Vandenberg replied, 'It is not mine'. Prior to searching the jacket the officer thought the jacket might belong to the petitioner.

At the time of the challenged searches and seizures the officers did not have an arrest nor a search warrant. An information was filed charging the petitioner: Count I, possession of heroin, Count II, possession of marijuana, and Count III, possession of dangerous drugs.

PROBLEM

The petitioner contends that his Fourth Amendment rights were violated because the officers searched the premises without probable cause for his arrest, without an arrest or search warrant and despite his objection to a search in the absence of a warrant.

The People argue that the search of the premises was reasonable because of the father's consent.

DISCUSSION

The evidence is not sufficient to establish probable cause for the arrest of the petitioner Prior to the entry of his residence. Therefore, the entry and initial search of the bedroom which resulted in the seizure of the heroin can only be justified if the consent granted by Mr. Vandenberg was effective over the objections of his son, the petitioner herein.

Justification for the Search and Seizure of the Heroin. It has long been established that a search and seizure of evidence is reasonable in the absence of a search warrant where the sole occupant of the premises has given his consent. (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.) It is also clear that, where premises are occupied by more than one person, a search of those portions of the premises jointly possessed is reasonable where consent has been granted by one of the joint occupants who is present at the time of the search. (People v. McGrew, 1 Cal.3d 404, 412--413, 82 Cal.Rptr. 473, 462 P.2d 1; People v. Hill, 69 Cal.2d 550, 554--555, 72 Cal.Rptr. 641, 446 P.2d 521; People v. Smith, 63 Cal.2d 779, 799, 48 Cal.Rptr. 382, 409 P.2d 222; People v. Caritativo, 46 Cal.2d 68, 72--73, 292 P.2d 513.)

In the instant case Mr. Vandenberg gave permission to search 'everywhere' including the bedroom he shared with his son. Since the bedroom was not a portion of the house which was set aside as the exclusive domain of the petitioner, Mr. Vandenberg had the authority to permit the officers to enter and search. (See People v. Linke, 265 Cal.App.2d 297, 316--317, 71 Cal.Rptr. 371.)

The petitioner contends that the rule enunciated in Tompkins v. Superior Court, 59 Cal.2d 65, 27 Cal.Rptr. 889, 378 P.2d 113, is controlling under the facts before us. In Tompkins the court stated, at page 69, 27 Cal.Rptr. at page 892, 378 P.2d at page 116:

'(O)ne 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.'

In the matter before us the officers searched the bedroom despite the request by the petitioner To his father that he deny permission to search because the officers did not possess a warrant.

The only common element between the facts presented in the Tompkins decision and the facts of the present case is that an objection to search without a warrant was raised by one occupant who was present on the premises after consent was granted by another occupant. There are many factors which distinguish the instant case from Tompkins.

In Tompkins the following facts were before the court: (1) each occupant shared possession of the premises; (2) the consenting occupant was not present; (3) the officer failed to disclose his purpose to the occupant who was present; (4) the occupant who was present was not told that consent to enter had been granted by the absent occupant.

In the present case the following distinguishing factors are present: (1) there is no evidence that the petitioner had any legal right to possession of the premises--the trial court found that the petitioner was a tenant 'in sufferance'...