*1 Dist., 41042. Sеcond Div. One. Oct. No. 1982.] [Crim. PEOPLE, Plaintiff and
THE Respondent, CHALLONER, KENNETH WILLIAM Defendant and Appellant. *2 Counsel
Steven Zwick for Defendant and Appellant. General, Philibosian, H. Attorney Robert Chief
George Deukmejian, Moore, General, General, S. Clark Assistant Attorney Assistant Attorney Franklin, Pollack, Carol Christine Wendelin Robert R. Anderson and C. Generаl, for Plaintiff and Deputy Attorneys Respondent.
Opinion
DALSIMER, Kenneth WilliamChalloner from appeals the judgment J. before guilty entered Miller to following plea of conviction Judge Code, (Health 11351). & sale Saf. Appellant § possession trial court’s denial his motion to made before challenges McVittie, that the warrantless search contending Judge his residence Fourth unreasonable under the Amendment United States I, and article section the California Constitution Constitution because involuntary. search was *3 We view facts in the most to the trial court’s light ruling. favorable Superior (Keithley) (1975) Court 585].) On at approximatеly officers arrived van at defendant’s by four sheriffs house after p.m., being drawn, a narcotics sale there. With occurring informed that they thereafter, out of the van. Soon three other quickly got house, at the Defendant ran arrived scene. toward vehicles but stopped ordered to do so. Defendant several when and other abruptly persons arrest. under placed Barrier went The
Sergeant rapidly porch. front front door was but the screen door remained closed. Sergeant Barrier saw open, two women fifteen feet from standing approximately away the door. Withоut door, Barrier knocking Sergeant proceeded address the women. loud, said Still his Barrier in a clear gun, voice that he a displaying and a conducting sheriffs officer narcotics He investigation. asked the there. women if either of them lived defendant’s common wife, law that she lived there. said Barrier told her he Sergeant narcotics outside and that he made some arrests said wanted enter for other and for house to search narcotics. When suspects Barrier Sergeant statement, drawn, his at the made this and ground, house, who was was close Flynn, behind him. The two approaching women remained fifteen feet approximately from door. Ms. Eiseman answered, “Sure,” and Barrier each searched room for other Sergeant bedrooms, one of the he In found cocaine. The officers did not suspects. found, warrant. the cocaine have a search When Barrier Sergeant a more search. perform thorough Ms. Eiseman requested permission “Sure, all, said, search it he’s been then and selling marijuana time, for a ahead.” When a long go further search was screwing up conducted, were found. additional drugs
When the relies on government justify a warrantless search, substantial it must establish evidence McKelvy (1972) voluntarily given. 661].) Mere claim authority to a will not “The show (Ibid.)
suffice.
must
that consent was ‘uncontaminated
coercion,
or
{Ibid.)
actual
duress
by any
implied.’ [Citations.]”
on defendant at
McKelvy,
placed
In
3 a.m. and
police spotlight
carbine,
officers,
shotgun
eaсh
moved “into
carrying
four
position”
1032.)
p.
complied
around defendant.
an officer’s
an
his
hand over
item had
pocket.
request
Observing
clearly
facts
reveal that an apparent
“where the
consent was not
undisputed
but was
submission
voluntarily given
to an
freely
assertion of
court is
bound
reviewing
trial
authority,
finding of
[the
court’s]
[citations],” (id.,
1033-1034),
. .
pp.
consent .
court held that
was insufficient evidence to
trial court’s
support
finding
stated,
court
consent.
how
“[N]o
for the
it
phrased
object,
politely
was under
compliance
of a
compulsion
direct
apparent
the officer.
commаnd
established ‘no more
*4
to claim lawful authority.’” (Ibid.)
mere
than
search
in
to a
given
response
an armed
request
Consent
is drawn is
Such consent
well be
gun
suspect.
whose
obtained
voluntary.
and hence not
so confronted
person
might
coercion
was
free to
believe that he
not
refuse thе permission sought.
reasonably
Thus,
v. James
People
court in
HANSON I would I respectfully dissent. affirm the J. (order judgment granting probation).1
As noted
“A
majority
under
opinion:
proceeding
seсtion 1538.5 to
a full
evidence is
on the
issues before the
court
superior
(Peck)
as finder
fact.
sitting
Superior Court
(Keithley) also, James see the evidence somewhat repetitious, presented being
At the expense (hereinafter William Kenneth Challoner’s defendant on the to Penal Challoner) motion to and/or defendant 1538.5) was as (hereinafter substantially section 1538.5 section Code follows: four with their рolice before p.m.
Sometime residence, of his front defendant Challoner arrested drawn transaction with a informer. police drug having just completed defendant additional officers arrived soon thereafter. cars containing Three police front of the residence. Through Bаrrier proceeded Robert two women inside door he saw approximately closed screen as a He identified himself conducting away. fifteen feet woman, who resided there. A and asked young investigation narcotics asked, there. stated that she resided When she gave for narcotics or to enter residence search Barrier had his but At that time Officer drawn suspects. additional One other officer was close to hear the ground. enough toward ” as amiable. “very which he described conversation defendant, with the Eiseman shared Officer Barrier Inside a bedroom “narcotics, cocaine” and on a shelf in an marijuana open discovered room, could asked if the officers search the thoroughly When closet. all, “sure, stated, it he’s been selling Eiseman time, go ahead. More narcotics screwing up long marijuana *6 room. Barrier testified Officer that Eisemаn were discovered calm, to be a little at the very appeared angry to be “appeared defendant. the officers the residence and assisted in the through them She accompanied search. testified that entered the her Eiseman residence without police at а girl their her and friend and searched the pointed
permission,
mother,
her consent. Frances
Vivian’s
asking
house without
searched defendant’s
although
police
that
bedroom and
testified
them consent to
gave
she
house.
marijuana,
discovered
that Vivian
Challoner contends
Eiseman’s consеnt to enter
as a matter
law
the residence was invalid
of
because it was a
and search
whose guns
of officers
were drawn. I
authority
disagree.
to
submission
that while this matter
decision the
pending
I note
Proposition
(eff.
1982),
on June
June
initiative was
and that the
passed
Court held
initiative
constitutional
v.
fаcially
Brosnahan
Supreme
(1982)
Brown
Accordingly in the deciding, person shoes no standing contest Fourth longer Amendment issues However, which did not involve his own expectation of privacy. I need not the issue address of vicarious in the present case since the Pеople did not raise it in the trial court and v. Steagald United States U.S. 204 L.Ed.2d 101 S.Ct. it was not and cannot be raised for the first time appeal. have the of “burden proving [by preponderance that the defendant’s manifestation of consent was the product
evidence] will his free and not mere submission to an express implied assertion of voluntariness of consent is in authority. case ‘a every be fact determined in question light the circumstances.’ James, 19 Cal.3d supra, [Citations.]” 106.] 106, 107.) the court
Here credited the expressly testimony officers. gun The fact Officer Barrier’s was drawn and pointed the ground automаtically does not establish as a matter law that Eiseman’s consent obtained. Williams improperly 114 Cal.App.3d 70-72 Barrier stood at Eiseman’s front door with his out of the holster but at the ground. Although other were in the one officer yard, only accompanied him the door. Officer Barrier did not door cross thе open threshold until he Eiseman received spoke enter. Eiseman was calm her conversation with the officer was throughout, “amiable” and she the search permitted because she was apparently angry the defendant. facts, Under I of these cannot as a totality say law that the was a mere submission to authority. *7 *Reporter’s Hearing granted, Note: Supreme opinion Court see Cal.3d 777 [195 expressly 2Indeed trial court in case at bench found that the consent to the search voluntary “beyond-the-reasonable-doubt” apparently under the standard effort in an reviewing strength tо insure that a court be of the finding. aware of its factual Clarify 22, 1981, minute order entitled “Memorandum to May the Record” defendant, defendant There the distinguishable. by factually cited imposed an a curfew had been detained at 3 a.m. in area where had been had over the front lawns of riot. He been walking race because an in his Four object pocket. and was observed secrete residences carbine, officers, either a “moved ‘into shotgun position’ each carrying 1032.) unit and each other.” cover the in when one of the officers asked a police spotlight surrounded an in his object to “hand over” pocket, the defendant “ concluded: . . .In these The court circumstances complied. defendant for the how phrased no matter politely that defendant’s fact under compliance it is object, apparent command the officer. The evidеnce by of direct compulsion to a claim of authority.’ ‘no more than ...” established at p. course,
Such, in the case bench. One is not the situation early in her home in the hours. evening Vivian Eiseman His approached to the holster but Eiseman was ground. was out its as Under the I cannot totality-of-cirсumstances, say calm and helpful. record, law, review of on an independent matter of based court’s or that trial support findings insufficient evidence involuntarily given. 1982. Hanson petition for a was denied November rehearing J., (Thaxton), be granted. was of the that the should opinion petition for a Court was denied Appellant’s petition hearing Supreme December 1982. provides: having for dismissal to Section 1538.5 of the Penal “The defendant moved Code, having argued testimony having presented, been the matter been and thereafter clarify this denied on Court desires Memorandum to been subsequent аppeal. of a in the event record proof as people argued legality that their burden of the war- “Although the evidence,’ weighing ‘preponderance met with a rantless search ‘beyond a the Court was convinced reasonable doubt’ that consent parties presented voluntarily freely given evidentiary and that the stricter question the search Jimenez, Cal.3d 595 met. set forth requirements by contacting may request a further this the Clerk in party “Either EAL.”
Department