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District Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Billy Leo HARRIS and Geraldine Harris, Defendants and Appellants.

Cr. 9100.

Decided: October 23, 1964

Minsky, Garber & Rudof, Los Angeles, for appellants. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Lawrence R. Tapper, Deputy Atty. Gen., for respondent.

Appellants Billy Leo Harris and Geraldine Harris were convicted of violation of the Health and Safety Code, sections 11500.5 (possession for sale) and 11500 (possession), respectively. The question on appeal is whether there was probable cause for the arrest and search of the appellants essential to the admissibility of the evidence obtained by such searches.

The facts of the case as told by the officers are that narcotic officers were investigating a Mr. and Mrs. White, had searched their apartment in Hollywood, and placed them under arrest. During the course of this investigation Mrs. White agreed to ‘set up’ her connection for the officers so that they could apprehend him. Mrs. White made a couple of telephone calls which she stated to the officers made arrangements for her connection to make a delivery to her apartment that evening. At about 9:30 in the evening Mr. and Mrs. White and five police officers were waiting in the White apartment. At about 9:30 a car drove up and the appellant, Billy Leo Harris, alighted from it and came into the building. Mrs. White, looking out the window, said: ‘Here he is, this is him now.’ The police officers arranged themselves by the front door of the apartment and when there was a knock at the door they opened it and identified themselves as police officers. Appellant Billy Leo Harris made a motion towards his pants pocket and made this statement on his own, or in response to a question. ‘I have a knife here.’ The officers then grabbed the appellant and in the ensuing scuffle the officers and appellant fell to the ground. In the scuffle a rubber balloon fell from appellant's hand. One of the officers picked it up, examined it and saw it contained what he thought to be heroin. This belief was later verified by a police chemist. Two of the police officers then went down to the car in which Billy Leo Harris had driven up. In the car was appellant Geraldine Harris, the wife of Billy Leo Harris. She was holding a small child in her arms and there were two other children in the back seat of the car. The police officers questioned appellant Geraldine Harris as to what she was doing there and she stated she was waiting for her husband, and in response to the officers' questions, she described the person she was waiting for in such a way as to convince the officers she was waiting for the man they had just arrested. The officers then asked if they could search the car and Mrs. Harris consented to the search of the car. At this point one of the officers noticed there was a ‘bulge’ in the right pocket of the jacket Mrs. Harris was wearing. The officer asked her what she had in the pocket. In response to this she removed some Blue Chip stamps from her pocket and said: ‘Only Blue Chip stamps.’ As she was removing the stamps from her pocket the officers noticed a portion of a cellophane bag protruding from the pocket; he believed this to be a means commonly used for carrying narcotics. When he saw the plastic bag he said: ‘What is this?’ and reached over and removed it from Geraldine's pocket. It was a plastic bag containing a large quantity of heroin.

It is the contention of both appellants that the search and arrest of each of them was without probable cause and, therefore, the contraband was illegally seized and inadmissible in evidence.

Taking the arrests in the order in which they occurred, the arrest and search of appellant Billy Leo Harris was lawful and proper. This appears from the facts above stated which clearly established probable cause for the arrest and search. (People v. Torres, 56 Cal.2d 864, 17 Cal.Rptr. 495, 366 P.2d 823.)

Next we consider the search and arrest of appellant Geraldine. Billy White testified he had been paid $100 to deliver the heroin to the apartment building. At the conclusion of his testimony the following occurred: ‘MR. GARBER: Your Honor, do you deem it necessary to put the co-defendant Geraldine Harris on? THE COURT: It is up to you. I don't think it is necessary. MR. GARBER: I don't think so. I don't think the District Attorney does either. THE COURT: I don't think it would add anything. MR. GARBER: Insofar as she is concerned, there is a different situation. THE COURT: I think if his arrest was valie, so was hers. If his was not, hers probably was not. MR. GARBER: Well, of course, I don't feel that way, your Honor. THE COURT: You can put her on the stand if you wish. I don't care. If the officers are telling the truth about him, they certainly had every reason to go down and check her out. If they are not telling the truth about him and they were just fishing when they went down, that is something else again. MR. GARBER: That is the point, your Honor. From the officers own testimony, they observed nothing when they went downstairs and yet she was ordered out and they took the thing out of her pocket. I don't think even if they had a right, which I don't concede for a moment that they had the right to arrest Mr. Harris and I would think under any circumstances, the arrest of Mrs. Harris would be completely illegal. THE COURT: As I say, I will rule on it at the proper time. If you want to put her on, by all means do. I don't know what she would testify to. MR. GARBER: Mrs. Harris, take the witness stand.’ Mrs. Harris was called and testified that she was order out of the car by the officers, was ‘patted down,’ the plastic bag was taken from her pocket, her husband had handed it to her and she did not know it contained a narcotic.

With respect to the case of Geraldine the factual questions were (1) whether the officers conducted a search of her person, (2) if there was a search, whether she consented to it, and (3) if there was a search to which she did not consent, whether there existed, at the time of the search, cause for her arrest. These were the questions the trial court was required to answer.

The search: there can be no doubt that the questioning of Geraldine as to what she had in her pocket constituted a search of her person since she evidently understood it to be a demand that she disclose the contents. The purpose of the officers was to find out what was in her pocket and their questioning was, in effect, a command that she disclose the contents and, if so understood by her, was no less a search than would have been an inspection of the contents without previous interrogation.

As to consent: the burden was upon the People to prove Geraldine gave her consent, not upon her to prove she did not consent. It was said in Nelson v. United States, 93 U.S.App.D.C. 14, 208 F.2d 505, at 509, quoting from Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649: “Searches and seizures made without a proper warrant are generally to be regarded as unreasonable and violative of the Fourth Amendment. True, the obtaining of the warrant may on occasion be waived by the individual; he may give his consent to the search and seizure. But such a waiver of consent must be proved by clear and positive testimony, and it must be established that there was no duress or coercion, actual or implied. [1] The Government must show a consent that is ‘unequivocal and specific’ [2], ‘freely and intelligently given.’ [3] Thus ‘invitations' to enter one's house, extended to armed officers of the law who demand entrance, are usually to be considered as invitations secured by force. [4] A like view has been taken where an officer displays his badge and declares that he has come to make a search [5], even where the householder replies ‘All right.’ [6] A finding of consent in such circumstances has been held to be ‘unfounded in reason’. [7] Intimidation and duress are almost necessarily implicit in such situations; if the Government alleges their absence, it has the burden of convincing the court that they are in fact absent.”

It would have been a reasonable conclusion that Geraldine did not consent to the search. Officer McMillan testified that when he showed Geraldine the plastic bag and contents she admitted she knew it was wrong to be carrying the package. It would have been a reasonable inference that if she had believed she was carrying a narcotic she would not have produced it except under a demand of the officers that she do so. The fact that she did not hesitate to comply with the request of the officers that she show them what was in the pocket was some indication that she did not know she had a right to refuse. Although the interrogation of a suspect is lawful and proper, one who is being questioned by the police is not required to answer all questions asked or produce whatever he may be carrying in his clothing. We believe that when an officer in questioning a suspect asks what is being carried in a pocket or a purse or bag, and the suspect produces the contents, a question arises whether the compliance was voluntary, or an involuntary submission to authority, and that the trial court must answer that question.

As to probable cause for arrest: we have seen that the court could have determined that Geraldine did not voluntarily consent to the search. If the court had reached that conclusion it would have followed that the search was illegal unless probable cause for an arrest existed. It is well settled that, in the absence of a warrant, a search to which the suspect has not freely consented would be illegal unless the suspect was already subject to arrest, and, of course, the product of an illegal search could not justify a later arrest or be used as evidence. We do not doubt that the officers had ample cause to search the car, which obviously had been used to deliver the narcotic, but the fact that the husband had just been arrested furnished no cause for the arrest of the wife. The officers had no reason to believe that Geraldine had narcotics on her person and certainly no basis for an arrest or search of her person. (People v. Ross, 223 A.C.A. 215, 35 Cal.Rptr. 754.)

The trial court expressed the belief that ‘they (the officers) had every reason to go down and check her out.’ The quoted statements of the court should not be narrowly construed as indicating the court's belief that the apparent guilt of the husband was cause for the arrest of the wife, but rather that interrogation of the wife was justified. But neither in these remarks, nor in any statement or ruling does it appear in the record that the court at any time passed upon the legality of the search of the person of Mrs. Harris.

As previously stated, the crucial question with respect to the arrest of Mrs. Harris was whether the search of her person was lawfully conducted, since the answer to that question would determine whether the narcotic found upon her person was admissible in evidence. It cannot be ascertained from the record that the court determined the question whether Geraldine voluntarily consented to the search, or submitted to it in the belief that she had no right to resist it. As we said in People v. Frank, 225 A.C.A. 445, 448, 37 Cal.Rptr. 202, 204, ‘Where the trier of fact has not considered an issue upon which there is a substantial conflict in the evidence, this court cannot affirm the judgment upon the assumption that consideration thereof would have resulted in a finding in favor of the People. (See Healy v. Brewster, 59 Cal.2d 455, 464–465, 30 Cal.Rptr. 129, 380 P.2d 817; Kyne v. Kyne, 60 Cal.App.2d 326, 332, 140 P.2d 886, 141 P.2d 221.)’

Since the problem whether Geraldine voluntarily consented to the search of her person is not presented upon the present record as a matter of law the judgment as to Geraldine must be reversed for failure of the trial court to determine that issue. Other points treated in the briefs need not be discussed.

The judgment is affirmed as to appellant Billy Leo Harris and the judgment is reversed as it pertains to appellant Geraldine Harris. The orders denying motions for new trial not being appealable, the purported appeals therefrom are dismissed.

I concur in the affirmance as to Billy Leo Harris but dissent from the reversal in Geraldine's case. In my opinion the record supports the trial court's finding that before the officer reached for the plastic bag, he had an honest and strong suspicion that Geraldine was Billy's accomplice. (People v. Ingle, 53 Cal.2d 407, 412–414, 2 Cal.Rptr. 14, 348 P.2d 577.) The officer might have arrested her before pulling the bag out of her pocket, but his hesitancy is understandable. Since the officer had grounds for arrest before he searched, the search is not rendered unlawful merely because it precedes rather than follows the arrest. (People v. Torres, 56 Cal.2d 864, 866, 17 Cal.Rptr. 495, 366 P.2d 823; People v. Ingle, supra, 53 Cal.2d at p. 413, 2 Cal.Rptr. 14, 348 P.2d 577.)

SHINN, Presiding Justice.

FORD, J., concurs.