*1 Apr. [Crim. No. 16914. In Bank. 1974.] PEOPLE,
THE Plaintiff and Respondent, WETZEL,
SHERRIE JEAN Defendant and Appellant.
Counsel Levin, Court, Richard H. under by and Kathleen appointment Supreme Kirkland, J. under the Court of appointment by for Defendant Appeal, and Appellant. Jr., Hinz, General, J. Attorney
Evelle Edward A. Younger, Chief Assistant General, James, General, E. William Assistant Attorney Attorney Norman Sokolow, Millar, Jr., Falk, H. Frederick and K. R. At- Beverly Deputy General, for and torneys Plaintiff Respondent.
Opinion WRIGHT, appeals judgment (order grant C. J. Defendant from a seconal, a entered of of of a ing guilty probation) upon plea possession (Health Code, restricted & contends 11910.) Saf. She dangerous drug. § that she was arrested for an officer in the unlawfully obstructing perform Code, ance of (Pen. 148) his duties a when she asserted com passively § stitutional and that contraband discovered a of right, search her during to the arrest was person received in evidence. We pursuant unlawfully with defendant’s contentions. As contraband was the sole evi agree dence of defendant’s must guilt be reversed.1 judgment
At 4 a.m. on a in date officers re- approximately May 1971 police to a in sponded burglary alarm the of defendant’s vicinity They apartment. references, indicated, 1All statutory unless otherwise are sections of the Penal Code. preserved Defendant has her issue appeal presented on the notwith- standing 1237, 1237.5, 1538.5, guilty plea. (m).) her §§ subd. was ini- She tially charged of Safety with violations section 148 and and Health Code section pleas. 11910 and not guilty pursuant entered Her for motion dismissal section denied, 995 was and pursuant her for of suppression motion evidence section 1538.5, hearing transcript proceedings on the of preliminary submitted had at the testimony, plea and additional was likewise denied. Thereafter she withdrew guilty charge guilty obstructing to the possession plea. of as entered a and charge justice, proceedings suspended was dismissed in the interest of were placed probation period years. appeal defendant was on for a This followed. five that he had observed the neighborhood a citizen in informed were a store the window had smashed after they of three flight juveniles lot, to a nearby had parking the juveniles gone One of building. at the lot. a suspect the officers apprehended a second that that he was of the opinion
The citizen informer reported went to Two officers apartment defendant’s entered apartment. suspect inside. door, observed several and, asleep persons through open partially cir- door, defendant, her of the advised knocked on the awoke An officer and search to enter the cumstances requested permission out of here if the officers to “Get the hell for the Defendant told suspect. did not damn officer don’t have a warrant.” An explained circumstances, continued in but defendant nevertheless need a warrant *4 de- the course of the conversation to refuse to enter. During permission fendant, clothed, bed the interior who was off the onto fully stepped threshold of the was next threatened with arrest for She doorway. open duties, an officer in out his but she remained adamant obstructing carrying defendant, in the absence of a An officer then seized turned her warrant. around and handcuffs on her. The officers then entered and a search put of the failed to reveal the apartment suspect.2
At no time events did defendant in during foregoing any way physi- officers, confront cally to verbal abuse and limiting objections in the ex- protests standing verbal passively doorway during change.3 She offered no resistance either her arrest or the physical officers’ the arrest entry. she was removed to a Following station police where a search of her disclosed the contraband. booking person challenged
The crux of defendant’s contention is that her acts were more nothing suspect 2The was not found in apartment apprehended but was later in the vicinity immediate position thereof. From their at the door the officers could observe the whole of the interior of the apartment except one-room for the bathroom. foregoing is, The account leading of events to defendant’s arrest as it must be review, for purposes appellate testimony of People’s consistent with the witnesses. Defendant’s version is somewhat different. She testified that when door, was aroused sleep already apartment from her officers were in the retiring, open. which she had closed was did explain before The officers their being burglary. for presence placed other than advise that she was under arrest connection, hearing preliminary arresting In this at the officer testified that “get here if don’t have” a defendant’s statement him was the hell out of (Italics added.) warrant. section hearing suppress under 3Testimony upon elicited at the the motion 35 defendant was the two officers who confronted 1538.5 disclosed that one of was age, weighed pounds. The other officer 6 feet 2 inches tall and 217 years years of weighed was 22 age, pounds. 6 feet tall and 220 Defendant years of weighed height pounds. 2 inches in age, feet than a assertion of a constitutional passive and that such acts can- right not form the basis for criminal conduct. If her conduct did not constitute grounds then, for her arrest course, the search of her was an person invasion of her Fourth Amendment and the evidence seized should rights have been (Wong Sun v. suppressed. United States 371 U.S. 487-488 441, 455-456, L.Ed.2d 407].) [9 83 S.Ct. it should be stated that the officers were correct
Preliminarily clearly did not need a search in their assertion that warrant in order to enter informant in hot of a criminal The citizen pursuit suspect. had them with fresh information which had been already provided proved Hayden (1967) to be Warden v. reliable. 387 U.S. L.Ed. 298 [18 782, 787, 1642]; 2d People 87 S.Ct. v. Gilbert issue, however, The critical is whether the officers were in fact obstructed in out their carrying enter with out a warrant. take the that because the trial court found on sub- position
stantial evidence that there was cause to arrest defendant for probable a violation of section the issue of the of her arrest is fore- propriety closed. They argue defendant’s obstruction of the officers consisted of the mere act of in an standing in such a manner that open *5 she would have had to be aside in order that the officers pushed might have made an entry. concede that defendant had the People right to consent, refuse her but claim that her actions “went a mere beyond refusal to consent and resistance, amounted to a deliberate actually delay and obstruction” because the officers once determined that their “having reinforcements were in . . . had to position move before they [defendant] could enter.”4 no that defendant
There can be could have exercised her question right officers, of refusal to a and the entry by so concede. Ac requested People to the witnesses she was to cording People’s repeatedly requested give and, her consent to the as a reason entry consent, she should such why give it was to her that the officers could nevertheless effect argued an entry without that consent. But at no time to defendant’s arrest prior did the officers or state that actually intended to make attempt they such Nor is there substantial entry. any evidence which would a con- support 4Although might properly officers have pursuit suspect entered in hot of the it appears they elected to do so and continued to seek defendant’s consent to entry up very During their to the period moment of her arrest. of confrontation positions ground-level other officers took outside the they might where entry suspect should the cause to apprehend attempt him to flee the vicinity.
109 to exercise their to enter the officers right that had attempted elusion would have resisted.5 were in hot defendant because pursuit physically consent, refusal of course of conduct was directed to Defendant’s entire door- she had herself in the more. nothing Although positioned open she could assume while con- it to be way, appeared position with the officers.6 Had she with the officer’s versing complied requests have, stood back from under the circum- this in itself would stances, constituted the consent which she was not to very give. required (See People 699, Cressey v. Cal.3d Cal.Rptr. [87 law, P.2d We conclude and as a matter of that defend- accordingly, total ant’s conduct cannot be characterized other than a refusal to consent to a to enter her Such conduct request cannot constitute apartment. grounds for a lawful arrest or search and seizure. subsequent
In
v. Cressey, supra,
Cressey thus that the refusal a door on suggests open proper demand cannot constitute violation of section and it police requires no extension in to hold in the instant case that the refusal principle *6 stand aside and a even entry, Cressey when officers as in permit requested had a to force likewise right an cannot constitute a violation of entry, however, Cressey section 148. The that is be- People, argue inapplicable 5The exchange officer who carried on the verbal with defendant testified as follows: “Q. you you Whatever occurred and between at the door did not bar [defendant] making search; entry you making an you performed your from and bar from a duties you Yes, Q. any desired to I as indicating do them? did. . Did A. . . she make statements you you going way? that were of the have to move her out A. Not words, Q. just saying in those exact words. In other she was words to the effect earlier, going that she had said ‘You’re not here have a or in unless warrant’ Yes, maybe language a unladylike? little more A. sir.” left, immediately bed which to her and the door 6The from defendant arose was open position its the immediately right, in was on her faced the officers at as she doorway. could to remain and defendant was entitled in that case the passive cause take, action the demanded in cooperation be affirmative not compelled contend, did not case, defendant instant the the In the with police. and thus she herself in the doorway remain merely interposed passive; obstacle been when offi- created additional which had not an present arrived at the doorway. cers if, Cressey
The to the distinction of would be valid contrary People’s case, doorway facts this defendant had blocked in undisputed however, Here, an hot making officers in in entry pursuit. impeded the officers awoke from a and stood at the doorway defendant sound sleep while made of her. There is no evidence substantial repeated requests of in conclusion other than that came to the any support in to the officers’ discuss their response attempts question her consent. record entry give thus fails to persuade support the factual basis for Cressey,7 distinction of People’s
It is immaterial in the view we take case that defendant’s insistence on a was not warrant well founded. She had the to with and, hold consent to enter as as was not long other entry sought any on than with consent ground she committed no and certainly impropriety a violation of section 148. District Columbia v. Little U.S. 602-603, 5-6 L.Ed. 468]; S.Ct. Miller v. United (5th States 1956) 486, 487-488.) Cir. 230 F.2d unlawful,
Defendant’s arrest being search and seizure which followed were also unlawful and the contraband evidence should have been suppressed.
The judgment is reversed.
Tobriner, J., Mosk, J., Sullivan, J., concurred. CLARK, J.I dissent."The concedes majority doorway is blocking a violation of Penal Code section if an officer is thereby wilfully impeded from (Ante, in hot making entry 109-110.) pursuit. pp. Therefore, affirmed, defendant’s conviction should be because that is exactly what she did.1 fact, 7In it affirmatively appears delayed design that the entry by was and not *7 any volitional conduct of defendant. hearing One officer at the preliminary testified approximately
that 10 elapsed minutes he apartment from the arrived time at the he until arrested defendant. The delayed back-up officers until units were positioned and then opposition. entered without 1538.5, 1In an (m), under Penal Code section appeal subdivision the record must, course, be light viewed in the prevailing most to the party favorable below.
111 front in standing doorway by the blocked unquestionably Defendant 2 took defendant simply The contention to move.* refusing of it and the officers” with conversing while assume she could “the position several with them for that she the fact 109) is undercut by spoke (ante, p. Moreover, even assuming arguendo bed.3 out of without getting minutes officers, to the she to talk to stand in the that she did have to do so. when ordered have aside should stepped the officer’s requests with “Had she complied objects:
The majority
have,
the circum
itself would
under
this in
the doorway
stood back from
stances,
give.”
which she was
the
consent
very
required
constituted
in sub
not well founded. Consent
109.)
given
The
is
(Ante, p.
objection
effect.
without legal
is
involuntary
of authority
mission to an assertion
543,
L.Ed.
548-549
(1968)
Carolina
U.S.
(See Bumper
[20
v. North
391
740,
802-803,
1788];
(1964)
v.
60 Cal.2d
People
Shelton
797,
2d
88 S.Ct.
Cal.
665];
(1955) 45
433,
People v. Michael
388 P.2d
746
Cal.Rptr.
[36
consent
751,
852].)
a defendant’s
2d
P.2d
whether
753
question
[290
of all
decided in light
was coerced
a claim of
is to be
authority
779,
63 Cal.2d
798
People
(1966)
facts
v. Smith
and circumstances.
382,
222];
(1965) 62 Cal.2d
People
P.2d
v. Bilderbach
Cal.Rptr.
[48
757,
313,
921];
People v. West
762-763
401 P.2d
see also
Cal.Rptr.
[44
595,
385,
3 Cal.3d
The conviction should be affirmed.
McComb, J., Burke, J., concurred. Q. get How were able to your advising her way? out Upon A. numerous to, move, times move and she we advised refused her that if she didn’t placed interfering duty. would be under arrest performance for with us in of our began placed She failed to move. We then her under arrest and our search of suspect.” for the