The PEOPLE, Plaintiff and Respondent, v. Judi SENA, Defendant and Appellant.
At issue is whether a visitor consented to a warrantless police entry into an apartment. Defendant Judi Sena appeals from the judgment following her conviction by guilty pleas to possessing cocaine (Health & Saf.Code, § 11350, subd. (a)) and being under its influence (Health & Saf.Code, § 11550, subd. (a)) while released on bail or her own recognizance (Pen.Code, § 12022.1). Defendant seeks review of the denial of her motion to suppress evidence. (Pen.Code, § 1538.5, subd. (m).) Defendant made the motion in the superior court based on the preliminary hearing transcript and additional testimony by the arresting officer. (Pen.Code, § 1538.5, subd. (i).) For the reasons stated below, we will reverse the judgment.
On December 19, 1988, San Jose City Police Officer Glenn Harper knocked at the door of an apartment where, three months earlier, he had arrested defendant for possessing cocaine for sale. A woman answered the door. Harper assumed she was a visitor. He informed her he was investigating reported drug sales and asked whether defendant was there. The woman said, “sure,” stepped back from the door, and walked toward a bedroom. She appeared to be under the influence of cocaine. Harper entered the apartment and followed the woman into a bedroom. The woman watched him as he followed her. He found defendant in the bedroom in possession of cocaine.
3. Standard of review
The testimony of the arresting officer was undisputed and consistent. “Insofar as the evidence is uncontradicted, we do not engage in a substantial evidence review, but face pure questions of law. (Cf. People v. Aldridge (1984) 35 Cal.3d 473, 477 [198 Cal.Rptr. 538, 674 P.2d 240] ․; [citations].)” (People v. Long (1987) 189 Cal.App.3d 77, 82, 234 Cal.Rptr. 271.)
4. Was there consent to entry of the apartment?
In People v. Poole (1986) 182 Cal.App.3d 1004, 1011, 227 Cal.Rptr. 594, we quoted the following passage from Payton v. New York (1980) 445 U.S. 573, 589–590, 100 S.Ct. 1371, 1381–1382, 63 L.Ed.2d 639. “The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home—a zone that finds its roots in clear and specific constitutional terms: ‘The right of the people to be secure in their ․ houses ․ shall not be violated.’ That language unequivocally establishes the proposition that ‘[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ [Citation.] In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance of the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Another “of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854.)
In Poole, supra, 182 Cal.App.3d 1004, 1012, 227 Cal.Rptr. 594, we also quoted the following from Bumper v. North Carolina (1968) 391 U.S. 543, 548–549, 88 S.Ct. 1788, 1791–1792, 20 L.Ed.2d 797 (fn. omitted). “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.” (Accord, Schneckloth, supra, 412 U.S. at pp. 222, 248–249, 93 S.Ct. at pp. 2045, 2058–2059.) “[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. [Fn omitted.]” (United States v. Matlock (1974) 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242.)
Defendant acknowledges “a consent to enter may be expressed by actions as well as words” (People v. Harrington (1970) 2 Cal.3d 991, 995, 88 Cal.Rptr. 161, 471 P.2d 961), but contends the evidence here shows no consent.1
Here the officer informed an apparent visitor to an apartment that he was investigating reported drug sales. He did not ask to enter or to talk to defendant, but merely asked if she was there. The visitor made no inviting or pointing gesture, such as waving the officer in or even opening the door wider. She simply walked away as if to retrieve defendant. Under these circumstances, we consider it unreasonable as a matter of law for the officer to have inferred or assumed that the visitor had consented to his entry and observation of the bedroom, if it was even reasonable to assume he was invited to cross the threshold of the apartment. The visitor's awareness of his entry and lack of protest does not validate an unconstitutional entry. (United States v. Shaibu (9th Cir.1990) 895 F.2d 1291, 1295.) 2
5. New theory justifying entry
The People for the first time on appeal suggest the officer's entry into the apartment was to arrest the visitor who appeared to be drugged. This theory is waived by the People's failure to assert it in the trial court. Neither side had occasion to develop the facts on this new theory, so we may not fairly consider it. (People v. Wilkins (1986) 186 Cal.App.3d 804, 812, 231 Cal.Rptr. 1; see Green v. Superior Court (1985) 40 Cal.3d 126, 137–138, 219 Cal.Rptr. 186, 707 P.2d 248, and cases there cited.)
As defendant's suppression motion should have been granted, we reverse the judgment and remand the case to allow defendant to withdraw her guilty pleas in the trial court.
1. Compare cases finding no implicit consent (People v. White (1964) 231 Cal.App.2d 82, 87, 41 Cal.Rptr. 604; People v. Superior Court (1970) 10 Cal.App.3d 122, 127, 89 Cal.Rptr. 316; cf. People v. Haven (1963) 59 Cal.2d 713, 717–718, 31 Cal.Rptr. 47, 381 P.2d 927; see People v. Munoz (1972) 24 Cal.App.3d 900, 907, 101 Cal.Rptr. 265) with those finding implicit consent. (Harrington, supra, 2 Cal.3d 991, 995, 88 Cal.Rptr. 161, 471 P.2d 961; People v. Sproul (1969) 3 Cal.App.3d 154, 159, 83 Cal.Rptr. 55; People v. Superior Court (1973) 31 Cal.App.3d 788, 792, 801–802, 107 Cal.Rptr. 756; People v. Yancy (1961) 196 Cal.App.2d 665, 666–667, 16 Cal.Rptr. 766; People v. Quinn (1961) 194 Cal.App.2d 172, 176, 14 Cal.Rptr. 814; People v. Martino (1985) 166 Cal.App.3d 777, 791, 212 Cal.Rptr. 45; People v. Jolke (1966) 242 Cal.App.2d 132, 149, 51 Cal.Rptr. 171.)
2. Since this conclusion is dispositive, we need not resolve whether a visitor can consent to the entry of a residence (compare People v. Hopper (1969) 268 Cal.App.2d 774, 779, 75 Cal.Rptr. 253, and Riley v. Gray (6th Cir.1982) 674 F.2d 522, 528–529, with People v. Superior Court, supra, 31 Cal.App.3d at pp. 798, 801, 107 Cal.Rptr. 756, and United States v. Turbyfill (8th Cir.1975) 525 F.2d 57, 58–59).
AGLIANO, Presiding Justice.
CAPACCIOLI and BAMATTRE–MANOUKIAN, JJ., concur.