*1 Dist., Second Div. Four. Sept. No. 50766. 1977.] [Civ. PEOPLE, Petitioner,
THE v. COUNTY, THE SUPERIOR COURT OF LOS ANGELES Respondent; KENNER,
CHRISTOPHER GILL Real in Interest. Party Dist., No. 50988. Second Div. Four. Sept. [Civ. 1977.] PEOPLE, Petitioner,
THE COUNTY, THE SUPERIOR COURT OF LOS ANGELES Respondent; BROOKS,
MARVIN DWIGHT Real in Interest. Party *3 Counsel
John K. Van de District Donald J. B. Kamp, Attorney, Kaplan, Harry Leonard, Sondheim Roderick W. District for Deputy Attorneys, Petitioners.
No appearance Respondent. Wilbur F. Littlefield, Defender, Public Shabo, Harold E. Clark E. Shacklett, Bernard J. Rosen and Dennis Fischer, A. Public Deputy Defenders, for Real Parties in Interest.
Opinion
KINGSLEY, P. J . We Acting have consolidated these two cases for and decision because law, contain a hearing common they question one of them also (Kenner) involves an additional issue. although cases, In both the real stand with offenses in parties charged felony court —Kenner with respondent in violation of 10851 section joyriding Code, the Vehicle Brooks with in violation of section 459 of the burglary Penal Code. In both cases the had reasonable cause to arrest the police cases, real In both went to the home of the real parties. police party to arrest him based on the information theretofore obtained. intending have, In neither secure, case did the or a warrant either attempt of arrest or for search. In neither case it claimed that there existed any of a warrant emergency making securing impracticable. Brooks, enter,
In a consent to received stating expressly their was to arrest Brooks. The of that consent is not validity here found Brooks seated in the front room. Brooks questioned. They made an unsolicited statement himself. The incriminating respondent court, on (1976) Cal.3d 263 relying
629, 545 P.2d motion 1333], statement and granted suppress evidence a result secured as of that The statement. physical (under Code) subd. 1538.5 of the Pen. We (o) followed. § petition issued our alternative writ and the case has been In the Brooks argued. case we and order the writ. petition grant peremptory home, Kenner, at Kenner’s were met his police, arriving brother does (whose record) from the to enter asked age appear evidence, “to talk to” Kenner. According accepted court, trial brother mother and called his entry gave who, turn, conversation, called Kenner. Without the police Brooks, arrested Kenner. As in a motion to statements made suppress *4 our after was and this followed. We issued arrest granted petition a we the and alternative writ. In the Kenner case petition deny deny writ. peremptory
I motions cases, court the In both the granted suppression respondent We conclude arrest was void under on the the Ramey. solely ground and in the cases on In that that of is erroneous. Ramey, reading the relies, a and which it was issue of consensual there no entry. Ramey, arrest, cases, to effect an other with entries were concerned only of The decisions exercise the authority. accomplished police solely by In all of be the those courts. must read in the of problems facing light of them, the home —the the courts the need insure the sanctity express thafconcem, all which underlies entry man’s “castle” But concept. cases, search, search arrest or has in the whether the be to entry cited in as to consensual the cases (See cases so far void entries. gone Evidence, Witkin, 73-74.) The effect of valid consent Cal. § pp. itself, where, Court, Ramey opinion recognized by Supreme “But in absence of (at said 275) its the court holding, p. summarizing enter, action in a bona or consent fide seizing emergency, of an authorization home must be individual judicial preceded by (Italics added.) arrest warrant.” to, situation enter is or a is if consent to an
It true from, a substantial the courts will be faced with Ramey, distinguishable all is true of But that factual determinations. number of difficult equally on to validate consent relied cases which an alleged Constitution, Amendment, the California The Fourth and action. If, in a balance and seizures. unreasonable searches striking prohibit only home, law between effective enforcement and the of sanctity are consensual entries to be there exists decision prohibited, policy an intermediate beyond court. proper scope appellate It follows that the in Brooks should be petition People’s granted writ issued to direct the denial Brook’s motion to peremptory suppress evidence.
II Kenner, however, an additional presents problem. Although not, court found that there was a consensual it did respondent entry, not, and on record before it could find that that consent validated the arrest which followed. (1970) 10 (Arketa) Court Superior Cal.App.3d 316], the court held that a consent to enter was anot consent to
search; the officer’s limited the consent rights being scope given. Before an can be said to be apparent given voluntarily an consentor be must aware knowingly, alleged *5 and a consent or requested entry obtained renders by trickery subterfuge a search and seizure invalid. Section 844 of the Penal subsequent Code a officer not requires to demand but admittance to have only the for which admittance “explained purpose is desired.” Kenner, In the fact, was to “talk to” Kenner. In the as record request clear, makes the officers had no intention of to Kenner at all. talking When he arrested, he was appeared without immediately any prior A interrogation. to admit person may officers for willingly the discussion, with the thus opportunity, suggested, but not explaining be to away any suspicions, willing permit warrantless and that affords him no nonemergent entry right or explanation justification. Kenner,
It in follows the trial court was in although wrong that dictated of the to motion trial believing grant suppress, the correct did court reached result because the “consent” purported authorize arrest that followed the immediately entry. issue,
In Civil No. Let a writ petition granted. peremptory court, A-611,801, in its case No. to vacate that directing respondent 24, 1977, the motion of its order of March which portion granted and different a new evidence to enter Brooks defendant suppress such motion. order denying writ is
In Civil No. the alternative petition discharged; mandate is denied. writ of
Dunn, J., concurred. (Bernard), JEFFERSON concur in J . I and dissent part part. I with the the Kenner result reached case in agree majority that the was the trial motion granted holding suppress properly home was an because warrantless arrest Kenner invalid judge However, I arrest. with the Brooks case holding majority’s disagree was that the trial order of of evidence invalid judge’s suppression valid, Brooks in home was because warrantless arrest of the Kennedy a consent effectuate arrest. based to enter and upon of the of a In both of these cases the issue is that validity presented had arrest made in a home. both cases the officers warrantless It is also conceded or to make a arrest. reasonable cause felony probable was time and the circumstances were such there ample for, obtain, for the a warrant arrest. officers to apply opportunity is it there or In neither case claimed that emergency to a for a circumstances the officers from preclude judge applying search warrant before homes effect an respective proceeding arrest of Brooks and Kenner. *6 the
The reaches its result in Brooks case that there by holding majority a consent for the to enter the home where Brooks was was valid police that, arrest, the his and under located for such effecting circumstances, the an arrest are not to obtain warrant pólice required there is that there the even no was though showing any justification the an arrest failure of obtain warrant. the states the of the consent to enter home
The that validity majority I in this before us. and arrest Brooks is matter do not questioned writ, in In the the alternative the record this fashion. return to interpret a he makes two-fold in interest makes it clear that real Brooks quite party first, his and He that arrest the of his arrest. attack argues upon validity the invalid because of of evidence are the search and seizure resulting home, even a in his arrest of though that a warrantless suspect principle cause, is invalid in the absence of based exigent upon probable Brooks It is the contention of in the absence of circumstances. circumstances, a a consent to search cannot confer validity upon exigent home. in the probable-cause-warrantless-arrest
But Brooks also advances the contention that the to enter and consent Brooks, the arrest of the given occupant premises, Carolyn Kennedy, a in the was consent submission to officer’s assertion of given and, hence, to enter the to arrest Brooks premises an invalid if the created arrest search even rule of involuntary is to law the effect a consent to enter validates a voluntary made the home. probable-cause-warrantless-arrest It clear the trial court granted evidence-suppression motions, Kenner, made Brooks and on the that the warrant- ground arrest in the less home of each defendant was void under the respective California Court case of (1976) Cal.3d 263 Supreme Ramey 629, 545 P.2d Ramey, police, having 1333]. defendant, reasonable cause to arrest into his home after he barged knock, the door in officers’ defendant response opened placed arrest, under and searched the The court held that even premises. Ramey cause, based a warrantless within though arrest the home upon probable is unreasonable se unless there are circumstances per exigent with the warrant requirement. justify dispensing
The reads as that a warrantless arrest of a holding majority home is violation of the constitutional suspect suspect’s rights under Fourth Amendment to the United States Constitution and I, under article Constitution, section of the California unless there is (1) either circumstances arrest (2) warrantless or justify enter to the warrantless arrest. justify For this relies teaching Ramey, sentence majority upon single The sentence from the opinion. reads: “But in plucked opinion absence a bona fide enter, or consent to action in emergency, individual the home must be seizing preceded by judicial *7 authorization of an 263, arrest warrant.” 16 Cal.3d (Ramey, 275.) supra, (Italics added.)
I don’t think that stands for the there are two Ramey proposition to the rule that a home, warrantless arrest within the exceptions general cause, even based is unreasonable se. I read though probable per upon one to that there is only exception for as standing proposition Ramey home; in a a warrantless arrest of invalidity the legal principle circumstances— of an or is that this one exigent emergency exception cases. of the instant not be described which need purposes was not intended “consent to enter” It is clear to me that the exception cases. in future be which would binding to constitute holding by Ramey dictum enter” is in to “consent to clearly This one reference Ramey us. Neither reason, it statement. For this binding upon obviously of its casual in view should it be considered as persuasive there was of the fact that and in view Ramey placement opinion, rationale for discussion in the with to the no creating respect opinion circumstances to the “consent to enter” in addition exigent exception, unreasonable to the constitutional against exception, prohibition searches and seizures.
It is to be noted in this one casual reference of Ramey, following enter,” a “consent to there follows a full discussion of the meaning of the circumstances rule of general import exigent se. In the the sentence invalidity opinion, immediately per which to enter” reads as the sentence refers to “consent following of article “For the reasons we hold that the follows: protection foregoing I, and the Fourth Amendment of the California Constitution section of the to violation of the of the federal Constitution people right against seizures and houses unreasonable in their be secure persons against home, arrests within the and that warrantless to arrests within applies circumstances.” are se unreasonable in absence home per exigent 263, 275-276; fn. omitted.) (Italics added.) Cal.3d (Ramey, supra, arrest within warrantless terms of a the issue After solely stating circum- se, absence of exigent unreasonable home per being discuss, issue as stances, remaining court the Ramey proceeds circumstances whether there were it, before question the situation warrantless arrest in presented justify to mean “an circumstances” court defined The Ramey “exigent Ramey. swift imminent situation action danger requiring prevent emergency or to the imminent forestall to life or serious damage escape property, 16 Cal.3d or destruction of evidence.” of a (Ramey, suspect supra, 276.)
The court then out none of the Ramey proceeded point elements of circumstances was in the situation which exigent officers faced in arresting Ramey.
That the real in related of emphasis Ramey only exception circumstances is also revealed in the court’s statement contained exigent ain footnote as follows: “We that numerous decisions of recognize prior this court and the California Courts of have assumed the Appeal legality of a warrantless a into home to make a arrest in the absence entry felony circumstances, there is cause. exigent providing probable Accordingly, of bar, as to the defendant in the case at the rule we now will except adopt to arrests made after this becomes final.” only apply opinion (Ramey, 263, 276, 16 Cal.3d fn. 7.) (Italics supra, added.)
The in the case at bench takes the majority that whether a position “consent to enter” to the rule exception probable- cause-warrantless-arrest within the unreasonable, home is se should per created, be constitutes a decision policy beyond proper scope of an intermediate authority court. appellate Apparently majority takes this because of the one position reference to a “consent to Ramey enter” as of the law exception being of warrantless arrests in part home. I do not share the view of the that the issue majority presented before us constitutes a decision that is policy of our beyond scope to make.
Since the statement of this exception casual Ramey only reference and made without a full discussion of the basis for such an as contrasted with the full exception, discussion set forth with respect circumstances I do not consider that rule exception, stare decisis this intermediate court from precludes appellate exercising its of what constitutes a correct independent judgment interpretation the law of warrantless arrests made within the home —viewed in light the constitutional unreasonable searches and sei- against proscriptions zures set forth in the California Constitution and the Fourth Amendment to the United States Constitution. On the we should not shirk contrary, our the issue of the existence or nonexis- responsibility determining tence of a “consent to enter” squarely presented —which before us—and which was not at all before the court in presented Ramey. Thus, itself mandates an this be appropriate procedure. out the California cases had Ramey points prior Ramey, referred to the formula for warrantless frequently statutory making *9 74 but
arrests had not confronted the issue of the constitutional- realistically of warrantless arrests made in the home. In ity discussing language used in the Court case Privett (1961) prior Supreme “But the court remarked: 602], Cal.2d 698 361 P.2d dictum; this like that in and while it language, Coolidge, persuasive, does not resolve the constitutional question.” (Ramey, definitively supra, 16 Cal.3d 273.)
The constitutional mandate unreasonable searches and sei- against within an home is zures unreasonable arrests individual’s designed as well as to to individual’s operate safeguard personal property individual himself in the home. Basic of his this allegiance setting constitutional to the individual protection principle requires action be authorization of an arrest warrant. police preceded by judicial Judicial authorization for an arrest constitutes to the necessary protection individual action ill-advised against police. hasty, unnecessary Because there has to be an between accommodation competing policy law effective enforcement and of the principles sanctity preserving home, exist, the law that if the broad recognizes genuine emergencies constitutional mandate arrests within the home without arrest against warrants must of immediate action. give way necessity
There is reason for that no involved in eveiy holding public policy effective law enforcement the creation of a rule that a “consent supports to enter” is home, sufficient to a warrantless arrest in the even justify cause, based when no though circumstances are upon probable which demand immediate action The creation of a present police. “consent enter” to result in a substantial likely abrogation of the rale that should secure authoriza- salutary general judicial of an tion arrest warrant whenever such action is feasible. The policy favor of to obtain search warrants must be deemed the requiring police essential bulwark to the constitutional undergirding against proscriptions unreasonable searches and seizures.
The aof rule of consent-to-enter as a for a adoption justification in a home creates a substantial probable-cause-warrantless-arrest danger officers to to a home to effectuate encouraging police suspect’s proceed warrant, his arrest without effort to secure an arrest even making no circumstances are a failure to obtain though judicial justify authorization for an arrest warrant. The of a rule of consent- adoption to-enter cannot escape consequence lending encouragement officers to home and make the announce approach suspect’s arrest the and are are there to seeking that the ment suspect *10 constitutes a consent-to-enter, this with full policerthat knowledge warrant. an arrest to the trouble to avoid seeking way going good presented and ill the vice The factual situation in Brooks illustrates to enter” the “consent from the creation of that will flow effects home. Here the officers arrest for a warrantless the home to arrest had come to to they announced Kennedy Carolyn Is it for that a consent-to-enter logical Brooks and desired purpose. is a that followed consent-to-enter voluntary conclude Kennedy’s view, answer to this these circumstances? consent under my enter in A request permission clearly negative. question arrest to effect an at home an announced face of being to refuse the real the door who option does not opens person give request. here was clearly under the circumstances consent
Kennedy’s
invalid
and becomes
under submission
consent
given
rule that a
even if there existed the
voluntary
as an
consent
involuntary
an arrest warrant.
with the
“consent to enter”
requirement
dispenses
32, 520 P.2d
A was denied for a rehearing September petition in No. 50766 for a real in interest and parties petitioner petitions Court were denied October 1977. hearing Supreme