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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Norman LINKE, Defendant and Appellant.

Cr. 6091.

Decided: April 26, 1968

Paul K. Robertson, & Hand, San Jose for appellant. Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for respondent.

Defendant has appealed from an order granting him probation following his conviction for possession of marijuana in violation of the provisions of section 11530 of the Health and Safety Code, following a trial by the court. He claims that the contraband, admittedly found in his possession, was discovered only as the result of an illegal search of the premises he occupied jointly with others.

Defendant has attacked, unsuccessfully, the use of the seized evidence by motion to dismiss the indictment under the provisions of section 995 of the Penal Code, by application for a writ of prohibition to the Court of Appeal (1 Civ. 23679, Division Three) and Supreme Court, by motion to suppress evidence, and also in the trial on the merits, which was held by stipulation on the evidence adduced at the preliminary hearing and at the hearing on the motion to suppress evidence.

He presently asserts that there was no probable cause for the officers, who were armed with a warrant of arrest for a third party, to search the residence of the defendant. The officers had been advised by an unknown informant, who identified herself only as a waitress in a coffee shop, that a fugitive from justice whom sought might be found at the address which proved to be the defendant's residence. The prosecution does not attempt to justify the search on an attempted execution of the warrant of arrest, but contends that consent was given for a search of the premises. Defendant in turn alleges that any purported consent was invalid because (1) if followed an illegal entry in the premises, (2) it was the result of confusion and intimidation by the police authorities, (3) it was not preceded by advice that the consent could be refused, (4) the prosecution failed to prove that the convention persons has authority so to do, and (5) the consent in any event did not embrace the right to search a locked inner bathroom without the express consent of the defendant as the occupant of that room.

An examination of the record in the light of the applicable principles of law indicates that there is sufficient evidence to sustain the implied finding of the trial court that there was consent for the search which revealed the inculpatory evidence. The judgment must be affirmed.

The Facts

On February 4, 1966, at 4:15 p. m., San Mateo County Deputy Sheriff Gladysz received a telephone call from a woman who identified herself as a coffee shop waitress in Skylonda. She provided information suggesting that Ken Kesey, a fugitive, might be found at 18000 Skyline Boulevard. Gladysz relayed this intelligence to Deputy Sheriff Crossfield. After ascertaining that there was an outstanding arrest warrant for Kesey, Crossfield dispatched Deputies, Ganley andDoran to the Skyline address, with instructions to look through the house, if permitted to do so.

Ganley and Doran met Deputy Schofield, and the there officers proceeded to 18000 Skyline in two vehicles, arriving at dusk, about 6:10 p. m. Schofield remained in position to observe the rear of the residence. Deputies Ganley and Doran approached the front door. Both were uniformed and armed. Ganley carried a shotgun, held by the stock, in barrel-down position.

Deputy Doran testified, that After they knocked once, defendant Norman Linke opened the door, saw the officers, and, without comment, disappeared into the house leaving door open. Thirty seconds later defendant's wife and a Miss Robinson appeared at the door

Doran stated that during this interval he and Ganley waited outside the front door. Deputy Ganley recalled recalled that he waited on the threshold or in the door frame, and that he would ‘have had to move somebody to close and lock the door.’ Doran probably remained behind him.

Ganley testified that he informed the two ladies that the police believed that the fugitive Kesey might be within the premises. Doran indicated that Ganley toed the women he had a warrant for Kesey's arrest. Ganley did not recall so informing the women. Ganley then asked the women for their permission to search the dwelling. Mrs. Linke replied, ‘Come right ahead.’ The ladies were friendly and cooperative.

The officers indicated they had never told the women that the arrest warrant gave the right to search the premises, or that if permission was refused they would enter anyway. The officers did not advise the occupants that they did not have to consent to their entry. Ganley testified that no one asked for a search warrant. Doran did not think that Mrs. Linke denied Kesey was present.

At the hearing on the motion to suppress evidence, the defendant countered with with the testimony of his wife and Miss Robinson. They were then codefendants, although the charge against them was subsequently dismissed.

Mrs. Linke stated that about 6 p. m., Mr. Frazer, another occupant of the promises, entered the kitchen and said there were two policemen outside front door. She encountered the officers one and one-half feet inside the foyer. They informed her that they had a bench warrant for Kesey, who they believed might be in the house. Mrs. Linke asked if they had a search warrant. The deputies responded that they did not need one. Defendant's wife then returned to the kitchen to adjust her stove.

Mrs. Linke said that she told the sheriff's men that Kesey was not on the premises. She also testified that Frazer instructed the deputies not to search without a search warrant. She flatly denied granting permission for a search. she further testified that she never gave any ‘implied consent.’

Miss Robinson testified that Ganley was a foot inside the door, and that Doran was in front of Ganley, when she came to the front door. She stated that prior to Mrs. Linke's arrival the officers asked her, ‘Who was that guy, and which way did he go.’ She responded she did not know. The officers then asked about Kesey, and at about this time, Mrs. Linke arrived at the door with Miss Berkun. She indicated that Mrs. Linke left to attend to her cooking, and some four minutes of dialogue ensued with the police, after which she turned around, and ‘said something to the effect to heck with it, and left, and they followed’ her into the kitchen.

Ganley testified he proceeded into the house accompanied by Miss Robinson. After an unproductive tour of several rooms, he thanked the occupants for permitting the search. Mrs. Linke testified that she observed the deputies in the pantry with Misses Robinson and Berkun. Noticing Ganley's ‘rifle,’ she directed him to remove it from the house. She stated that Ganley replied he needed the gun to apprehend a criminal. The conversation then apparently returned to the topic of Kesey's presence, and Mrs. Links did not indicate she repeated her request. Ganley testified that he was not requested to take his weapon from the house.

Doran tesified that accompanied by Mrs. Linke he looked through another part of the house. After opining two doors to closets, he upon a locked door. Doran knocked twice, and then Mrs. Linke said, ‘Norman, come on out.’ Doran heard the toilet flush immediately before before defendant emerged from what proved to be a lavatory and walked to the kitchen. The deputy entered the bathroom, where he observed marijuana in the toilet bowl and about an open window. He then closed the door and summoned Ganley.

Miss Adrienne Berkun, a good friend of the Linkes, stated that Doran, after knocking on the bathroom door, asked who was within and demanded that the occupant come out. After defendant announced ‘It's me,’ Miss Berkun said, ‘Norman, come on out.’ Doran could not recall demanding that the person behind the locked door—whom he thought might be Kesey—come out.

Mrs. Linke offered a new version of the bathroom incident. She pictured Doran knocking ‘furiously’ on the bathroom door, attempting to pull the door open, and demanding to know who was inside. She admitted tolling her husband to come out, but only simultaneously with a like demand by Doran.

After Ganley observed the marijuana found by his partner, the occupants, the Linkes, Misses Robinson and Berkun, and Mr. Frazer, were placed under arrest and advised of their constitutional rights.

Since the search was made without a search warrant, the burden was on the prosecution to show proper justification. (People v. Shelton (1964) 60 Cal.2d 740, 744, 36 Cal.Rptr. 433, 388 P.2d 665; People v. Haven (1963) 59 Cal.2d 713, 717, 31 Cal.Rptr. 47, 381 P.2d 927; Tompkins v. Superior Court (1963) 59 Cal.2d 65, 67, 27 Cal.Rptr. 889, 378 P.2d 113; People v. Roberts (1956) 47 Cal.2d 374, 377, 303 P.2d 721; People v. Gorg (1955) 45 Cal.2d 776, 782, 291 P.2d 467; People v. Jolke (1966) 242 Cal.App.2d 132, 147, 51 Cal.Rptr. 171; People v. White (1964) 231 Cal.App.2d 82, 87, 41 Cal.Rptr. 604; People v. Contreras (1963) 211 Cal.App.2d 641, 645, 27 Cal.Rptr. 619.) ‘Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances.’ (People v. Michael (1955) 45 Cal.2d 751, 753, 290 P.2d 852, 854. Accord: People v. Sheltom, supra, 60 Cal.2d at p. 746, 36 Cal.Rptr. 433, 388 P.2d 665; Castaneda v. Superior Court (1963) 59 Cal.2d 439, 442, 30 Cal.Rptr. 1, 380 P.2d 641; People v. Fischer (1957) 49 Cal.2d 442, 448, 317 P.2d; People v. Gorg, supra, 59 Cal.2d at p. 782, 27 Cal.Rptr. 889, 378 P.2d 113; People v. Dahlke (1967) 257 A.C.A. 95, 100–101, 64 Cal.Rptr. 599; People v. Campuzano (1967) 254 A.C.A. 60, 64, 61 Cal.Rptr. 695; People v. Jolke, supra, 242 Cal.App.2d at pp. 148–149, 51 Cal.Rptr. 171; People v. La Peluso (1966) 239 Cal.App.2d 715, 728, 49 Cal.Rptr. 85; People v. Banks (1965) 238 Cal.App.2d 43, 45, 47 Cal.Rptr. 499; People v. Contreras, supra, 211 Cal.App.2d at p. 646, 27 Cal.Rptr. 619; People v. Elliott (1960) 186 Cal.App.2d 178, 182, 8 Cal.Rptr. 795.)

‘Where substantial evidence supports a preliminary finding by the trial court and the implied ultimate finding * * * that a voluntary consent has been given, a reviewing court must accept consent freely given as a fact proven. (People v. Bilderbach, 62 Cal.2d 757, 762–763, 44 Cal.Rptr. 313, 401 P.2d 921; People v. Jackson, 191 Cal.App.2d 296, 300, 12 Cal.Rptr. 748.)’ (People v. Roberts (1966) 246 Cal.App.2d 715, 727, 55 Cal.Rptr. 62, 69. In addition to cases cited, see People v. Carrillo (1966) 64 Cal.2d 387, 390–391 and 392–393, 50 Cal.Rptr. 185, 412 P.2d 377; People v. Dahlke, supra, 257 A.C.A. 95, 100, 64 Cal.Rptr. 500; People v. Campuzano, supra, 254 A.C.A. 60, 65, 61 Cal.Rptr. 695; People v. Jolke, supra, 242 Cal.App.2d 132, 149, 51 Cal.Rptr. 171; People v. La Peluso, supra, 239 Cal.App.2d 715, 728, 49 Cal.Rptr. 85; People v. Banks, supra, 238 Cal.App.2d 43, 45, 47 Cal.Rptr. 499; People v. Sullivan (1963) 214 Cal.App.2d 404, 410, 29 Cal.Rptr. 515; People v. Contreras, supra, 211 Cal.App.2d 641, 645, 27 Cal.Rptr. 619; People v. Ortiz (1962) 210 Cal.App.2d 489, 498–499, 26 Cal.Rptr. 677; People v. Kinard (1962) 210 Cal.App.2d 85, 87, 26 Cal.Rptr. 377; People v. Rogers (1962) 207 Cal.App.2d 254, 259, 24 Cal.Rptr. 324; People v. Elliott, supra, 186 Cal.App.2d 178, 182, 8 Cal.Rptr. 795.)

The officers' testimony that the defendant's wife stated ‘come right ahead’ sustains the implied finding of the trial court that the search of the premises was conducted with the consent of an occupant of the premises. (See People v. Carrillo, supra, 64 Cal.2d 387, 393, 50 Cal.Rptr. 185, 412 P.2d 377; People v. Davis (1966) 240 Cal.App.2d 496, 498, 49 Cal.Rptr. 663; and People v. Sullivan, supra, 214 Cal.App.2d 404, 410, 29 Cal.Rptr. 515.)

Defendant first contends that the consent so manifested was vitiated by the principle set forth in People v. Haven, supra, as follows: ‘Since the officers' presence in the house was unlawful, they could not rely on defendant's consent to search. Since he was suddenly confronted by five officers who had entered without right or permission, it was equivocal at best whether his apparent consent to being searched was voluntary. The substantial probability that the unlawful entry was essential to securing consent and the inescapable uncertainty whether the consent was voluntary preclude treating the consent as an independent valid basis for the ensuing search of defendant's person. Accordingly, the consent, the search, the finding of the key, and the resulting discovery of the marijuana in the hotel room were all products of the officers' unlawful entry and cannot be relied upon to sustain the judgment. [Citations.] * * * A search and seizure made pursuant to consent secured immediately following an illegal entry or arrest, however, is inextricably bound up with the illegal conduct and cannot be segregated therefrom.’ (59 Cal.2d at pp. 718 and 719, 31 Cal.Rptr. at p. 50, 381 P.2d at p. 930. Accord: People v. Di Blasi (1964) 228 Cal.App.2d 338, 342, 39 Cal.Rptr. 416; People v. Cedeno (1963) 218 Cal.App.2d 213, 227, 32 Cal.Rptr. 246; and see People v. Shelton, supra, 60 Cal.2d 740, 745 and 747, 36 Cal.Rptr. 433, 388 P.2d 665; People v. La Peluso, supra, 239 Cal.App.2d 715, 730, 49 Cal.Rptr. 85; and People v. Wilson (1956) 145 Cal.App.2d 1, 7, 301 P.2d 974.) He asserts that since one of the officers was already within the threshold there was an illegal entry in this case which precluded any subsequent effective consent to the search of the premises.

In the first place the defendant's action in opening the door and retreating into the house could be considered as a prior invitation to enter. In People v. Jolke, supra, this court ruled, ‘The circumstances here justify the trial court's finding that there was an implied invitation to the officers to enter which was imparted by defendant's conduct in leaving the door open and walking back into the room as though to receive and converse with his accusers. (People v. Cove, supra, 228 Cal.App.2d 466, 470, 39 Cal.Rptr. 535; People v. Baca (1961) 198 Cal.App.2d 391, 396, 17 Cal.Rptr. 779; People v. Smyre (1958) 164 Cal.App.2d 218, 224, 330 P.2d 489)’ (242 Cal.App.2d at pp. 149–150, 51 Cal.Rptr. at p. 183. See in addition to the cases cited, People v. Contreras, supra, 211 Cal.App.2d 641, 645–646, 27 Cal.Rptr. 619; People v. Elliott, supra, 186 Cal.App.2d 178, 182, 8 Cal.Rptr. 795; and People v. Holland (1957) 148 Cal.App.2d 933, 936, 307 P.2d 703; but cf. People v. White, supra, 231 Cal.App.2d 82, 87, 41 Cal.Rptr. 604; and Banks v. Pepersack (D.Md.1965) 244 F.Supp. 675, 680.)

In Haven the court stated, ‘The right to seek interviews with suspects or witnesses at their homes does not include the right to walk in uninvited merely because there is no response to a knock or a ring.’ (59 Cal.2d at p. 717, 31 Cal.Rptr. at p. 50, 381 P.2d at p. 930.) Here the officers did not walk in uninvited. At most they stood in the doorway waiting to secure consent, and did not even attempt to take advantage of any invitation to enter that could be implied from the defendant's actions. There was no conduct falling within that of the particular circumstances proscribed in People v. White, supra, 231 Cal.App.2d 82, 41 Cal.Rptr. 604, which involved a 2 a. m. entry into an apartment bedroom, or brushing by the silent occupant, as in Banks v. Pepersack, supra, 244 F.Supp. 675.

Defendant attempts to draw an analogy to the principle that ‘in order to commit a burglary, it is not necessary that the defendant's whole body enter the building.’ (People v. Massey (1961) 196 Cal.App. 230, 236, 16 Cal.Rptr. 402, 406.) The culprit, however, must have the felonious intent before the entry will sustain the charge. So here, the officers, by word or deed, must manifest an intent to enter and search regardless of consent, before his action can be deemed illegal. The evidence here, unlike Haven, does not compel such a finding as a matter of law.

Secondly, defendant contends that there was such a show of force that Mrs. Linke's alleged consent must be deemed as a matter of law mere acquiescence compelled by the circumstances, and not a product of her volition. In People v. Michael, supra, the court noted, ‘that the appearance of four officers at the door may be a disturbing experience, and that a request to enter made to a distraught or timid woman might under certain circumstances carry with it an implied assertion of authority that the occupant should not be expected to resist.’ (45 Cal.2d at p. 754, 290 P.2d at p. 854. See also Johnson v. Zerbst (1938) 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461; Amos v. United States (1921) 255 U.S. 313, 317, 31 S.Ct. 266, 65 L.Ed. 654; Cipres v. United States (9th Cir. 1965) 343 F.2d 95, 97–98; Weed v. United States (10th Cir. 1965) 340 F.2d 827, 829; and see Lankford v. Schmidt (D.Md.1965) 240 F.Supp. 550, 557 [rev'd Lankford v. Gelston (1966) 364 F.2d 197].) On the conflicting evidence in this case the question of whether the consent was voluntarily given or whether it was granted in submission to an express or implied assertion of authority was a question of fact to be resolved by the trial court. (People v. Carrillo, supra, 64 Cal.2d 387, 392–393, 50 Cal.Rptr. 185, 412 P.2d 377.) ‘The fact that an officer of the law is the person seeking to search the premises does not, in and of itself, render such consent involuntary.’ (People v. Ortiz, supra, 210 Cal.App.2d 489, 498, 26 Cal.Rptr. 677, 683.)

Defendant further suggests that Mrs. Linke's consent was ineffective because the officers failed to advise her that she had a constitutional right to deny them entry. In People v. Wilson, supra, this court stated, ‘While the question of consent is one of fact [citation], it is obvious that a ‘permission’ granted after a person has been improperly arrested and searched, while he is still in custody, and without informing him of his legal right to refuse permission, is not a real or proper consent. The search of the car, under the circumstances, was clearly unreasonable.' (145 Cal.App.2d at p. 7, 301 P.2d at p. 978, emphasis added.) In Wilson, as distinguished from this case, the consenting party was in custody. Even under those circumstances, the courts have rejected the argument that consent will be ineffective in the absence of a warning to the person addressed of his rights under the Fourth Amendment. (People v. Dahlke, supra, 257 A.C.A. 95, 100, 64 Cal.Rptr. 599; People v. Campuzano, supra, 254 A.C.A. 60, 65, 61 Cal.Rptr. 695; People v. Chaddock (1967) 249 Cal.App.2d 483, 485–486, 57 Cal.Rptr. 582; People v. Roberts, supra, 246 Cal.App.2d 715, 728–729, 55 Cal.Rptr. 62; but cf. Kingsley, J., dissenting Campuzano, supra, 254 A.C.A. at pp. 67–70, 61 Cal.Rptr. 695.) Wilson is limited to the circumstances where the consent is the product of an improper arrest. (See People v. Burch (1961) 196 Cal.App.2d 754, 757, 17 Cal.Rptr. 102; and cf. Castaneda v. Superior Court, supra, 59 Cal.2d 439, 442–443, 30 Cal.Rptr. 1, 380 P.2d 641.)

Defendant alleges that the prosecution failed to establish that the officers ‘reasonably believed in good faith that [Mrs. Linke or Miss Robinson] had authority to consent’ to their entry and search (see People v. Roberts, supra, 47 Cal.2d 374, 377, 303 P.2d 721).

The record shows that defendant, after opening the front door left the scene, and that Mrs. Linke and Miss Robinson subsequently came to the door. Mrs. Linke not only purported to authorize the officers' entrance, but also personally guided Officer Doran through the house. Miss Robinson guided Officer Ganley. It was stipulated that the premises were jointly occupied by Mr. and Mrs. Linke, Miss Robinson and Mr. Frazer. The defendant's retreat from the scene, and consequent abdication of authority, when coupled with the foregoing evidence of ostensible and actual authority, furnish circumstances sustaining a finding that the officers reasonably and in good faith believed the women had authority to consent to their entry. (See People v. Smith (1966) 63 Cal.2d 779, 799, 48 Cal.Rptr. 382, 409 P.2d 222; People v. Ingle (1960) 53 Cal.2d 407, 415–416, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Banks, supra, 238 Cal.App.2d 43, 45, 47 Cal.Rptr. 499; People v. Amado (1962) 208 Cal.App.2d 780, 781–782, 25 Cal.Rptr. 539; People v. Hughes (1960) 183 Cal.App.2d 107, 113–115, 6 Cal.Rptr. 643; and People v. Howard (1958) 166 Cal.App.2d 638, 651, 334 P.2d 105. Cf. People v. Shelton, supra, 60 Cal.2d 740, 745–747, 36 Cal.Rptr. 433, 388 P.2d 665; Tompkins v. Superior Court, supra, 59 Cal.2d 65, 68–69, 27 Cal.Rptr. 889, 378 P.2d 113; and People v. La Peluso, supra, 239 Cal.App.2d 715, 729–730, 49 Cal.Rptr. 85.)

Lastly, defendant contends that it was unlawful to search the locked bathroom to which he had retreated, and in which the first evidence of contraband was found. In People v. Shelton, supra, the court observed, ‘Moreover, even if Shelton had voluntarily consented to the search, his consent could not justify the invasion of his joint occupant's privacy that occurred when the officer demanded that the door be opened. (Tompkins v. Superior Court, 59 Cal.2d 65, 69, 27 Cal.Rptr. 889, 378 P.2d 113.)’ (60 Cal.2d at pp. 745–746, 36 Cal.Rptr. at p. 436, 388 P.2d at p. 668.) In Tompkins, supra, the opinion contains the following recital, ‘A joint occupant's right of privacy in his home is not completely at the mercy of another with whom he shares legal possession. [Citations.]’ (59 Cal.2d at p. 67, 27 Cal.Rptr. at p. 892; and see People v. La Peluso, supra, 239 Cal.App.2d 715, 729–730, 49 Cal.Rptr. 85.)

The facts show, however, that there was no entry until defendant had vacated the room in question. Under these circumstances the general consent to search the premises would cover the particular room the use of which ostensibly was shared by all the occupants of the premises, including the consenting wife. (See People v. Amado, supra, 208 Cal.App.2d 780, 782, 25 Cal.Rptr. 539; and People v. Howard, supra, 166 Cal.App.2d 638, 651, 334 P.2d 105.)

The evidence permits the inference that the defendant vacated the bathroom at the request of his wife or Miss Berkun. Defendant, however, insists that this is a case of unwarranted intrusion and demand for entry by the authorities which precludes the evidential use of anything discovered as a result of the occupant's compliance with the improper demand. In People v. Shelton, supra, the court stated: ‘The search cannot be justified on the ground that Victorian voluntarily opened the door and thereby exposed evidence sufficient to justify her arrest and a search incident thereto. * * * There is no room for doubt in the present case, for the officer candidly testified that he demanded that Victorian ‘Open the door right now.’ When he made that demand he had no reasonable cause to arrest Victorian and no right to order the door opened. Since it was opened by virtue of the wrongful assertion of authority [citations], the officers could not rely on what they then saw to justify Victorian's arrest and the search incident thereto. [Citations.]' (60 Cal.2d at p. 746, 36 Cal.Rptr. at p. 436, 388 P.2d at p. 668.) In this case, however, the officer had secured consent to search for the fugitive. From all appearances the person sought might have been concealed behind the locked door, and the officer was warranted in demanding that the door be unlocked, and that the occupant come out.

It is unnecessary to determine whether one joint occupant of common premises may have such exclusive possession of a portion, that his co-occupant may not enter, or authorize another to enter, upon that part of the premises. (See People v. Frank (1964) 225 Cal.App.2d 339, 343, 37 Cal.Rptr. 202.) In a residence with four occupants a bathroom is not usually the exclusive domain of one to the exclusion of the others.

Similar considerations preclude defendant's reliance upon the principle that a joint occupant, or one entitled to the joint possession of premises may not consent to the search of the personal property of a co-occupant. (See People v. Cruz (1964) 61 Cal.2d 861, 866–867, 40 Cal.Rptr. 841, 395 P.2d 889; People v. Murillo (1966) 241 Cal.App.2d 173, 176–180, 50 Cal.Rptr. 290; Reeves v. Warden (4th Cir. 1965) 346 F.2d 915, 924–925; and Davis v. People of State of California (9th Cir. 1965) 341 F.2d 982, 985, fn. 8.) There is nothing to indicate that defendant was entitled to the exclusive possession of the bathroom for purposes and periods other than those for which it was designed and intended to be privately and exclusively used.

The order is affirmed.

SIMS, Associate Justice.

MOLINARI, P. J., and ELKINGTON, J., concur.