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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF MONO, Respondent; Donald J. ZOLNAY and Gunter E. Voelpel, Real Parties in Interest.

Civ. 15005.

Decided: April 29, 1975

Evelle J. Younger, Atty. Gen., by Peter J. McBrien, Deputy Atty. Gen., Sacramento, for petitioner. Don L. Chapman, Bishop, for real parties in interest.

The People petition for writ of mandate directing that respondent court annul its order suppressing oral and written admissions and confessions made by the real parties in interest, Zolnay and Voelpel (hereinafter defendants), and annul its order suppressing all evidence of contraband seized by sheriff's officers after the making of the incriminating statements. The order of suppression was made under the authority of section 1538.5 of the Penal Code.

The defendants in this proceeding are charged in separate indictments with burglary. The motion to suppress was submitted to the respondent court on the reporter's transcripts of the preliminary examination and the grand jury hearing as well as on evidence produced at the hearing on the motion. There does not appear to be any conflict in the evidence. So far as here relevant, it appears that a cabin at a ranch resort in Mono County, closed for the winter, was burglarized during a three-day period ending on the morning of March 17, 1973. Physical investigation in the area of the burglary by Deputy Sheriff Wilmot disclosed tracks of a ski-boose snowmobile towing a toboggan in the snow. The tracks led from the ranch to an old pump house near the Owens River and from there to a canyon. Deputy Wilmot was joined by Deputy Strong in the investigation. A game warden in the area advised Wilmot that he had seen a ski-boose with a toboggan in it parked at the pump house on March 16. A snowmobile dealer in Mammoth Lakes advised the deputies that defendant Voelpel owned a ski-boose and that both defendants had been seen riding on it in the general area of the ranch on March 16. Deputy Strong interviewed defendant Voelpel on March 18 at the motel where Voelpel resided. Voelpel admitted owning a snowmobile, that he and defendant Zolnay had been riding on it in the Owens River area on March 16 and that they had stopped at the pump house on that date to pick up gas cans. On March 18, both deputies went to Voelpel's motel and found both defendants in the garage area. Deputy Wilmot informed the defendants that they were investigating the burglary of the ranch resort and wished to talk to them about their having been in the area at the time of the burglary. Voelpel, in response to questions, acknowledged ownership of the ski-boose and that he and Zolnay had been riding it in the vicinity of the burglarized ranch but denied any complicity in the burglary. Both defendants, however, denied owning a toboggan. Following their initial contact, the deputies and the defendants went to the motel lobby where Deputy Wilmot informed each of them of their Miranda rights.1 Deputy Strong asked the defendants whether they were positive that they understood each of the rights and received an affirmative response. Each defendant indicated he wished to discuss the matter further with the deputies. The defendants described to the deputies the route they had followed on the ski-boose to the pump house in the nearby canyon on March 16 and indicated that they had been within 200 yards of the ranch lodge but denied having gone to the lodge itself. They again denied owning a toboggan. Deputy Wilmot asked both defendants to come to the sheriff's substation for fingerprinting. It was agreed that each defendant would do so the next morning, March 19, at 10:00 o'clock.

After the interrogation at the motel, Deputy Wilmot interviewed a witness who had seen a person matching Zolnay's description on a ski-boose with a toboggan in the Owens River area on March 16.

Upon arrival at the sheriff's substation on March 19, the deputies spent an hour and a half fingerprinting and interrogating the defendants separately. The defendants were not again advised of any Miranda rights at that time. During the interviews, Deputy Wilmot stated to each defendant he thought they were guilty, and that they had taken a toboggan with them on the March 16 ride. Defendant Zolnay made no response to the statement, and Voelpel denied their guilt. After the separate interviews, the deputy brought the defendants into the same room, accused them jointly of guilt, and confronted them for the first time with the report of the game warden and the witness who had seen the ski-boose, the toboggan, and a person matching Zolnay's description. The officers indicated the defendants should make a voluntary statement and admit their guilt.

Defendant Voelpel then said, ‘I guess we need a lawyer’ and asked Deputy Wilmot, ‘Do you think we need an attorney?’ Deputy Wilmot responded affirmatively that defendants did, in fact, need an attorney and reminded the defendants they had been advised the day before that they had a right to an attorney. Deputy Wilmot was asked whether he could recommend an attorney for the defendants to contact. Wilmot responded in the negative, but advised them there were numerous local attorneys in the telephone directory, and they could make a call and select any one of them. A telephone book and a telephone were provided the defendants in the interrogation room. The officers told the defendants they would leave the room, and further advised them to talk the matter over between themselves and come to a decision. As the deputies were leaving, Deputy Strong remarked to the defendants that he thought they were guilty and the investigation would continue until the facts had been determined. It was indicated that the defendants could make the officers' task ‘easy’ or ‘tough,’ depending on whether or not they wished to make admissions. The deputies departed, closed the door, and left the defendants alone in the interrogation room for five or ten minutes. The deputies reentered the room and asked if the suspects had made any decision. Zolnay said, ‘well, I cannot speak for Mr. Voelpel but as for myself I would like to get this off of my conscience and that we did in fact commit the burglary . . ..’ Zolnay stated that he had been unable to sleep, was upset by the situation, and had discussed it with his wife the night before. Zolnay further stated that he had discussed with Voelpel returning the property. Zolnay described in detail how the crime occurred. During Zolnay's recitation of the events at the time of the burglary, Voelpel contributed details omitted by Zolnay. Defendants did not refuse to talk nor did they request an attorney be present.

On the following day, on the basis of the information provided by the confessions and admissions, the sheriff's deputies, accompanied by defendants Zolnay and Voelpel, recovered the stolen items from their cache in the snow where they had been hidden.


The defendants moved under the provisions of section 1538.5 to suppress the recovered property as evidence and their admissions and confessions of guilt to the burglary. The respondent court granted the motion and suppressed the admissions and confessions on the ground they had been obtained in violation of Miranda (People v. Randall (1970) 1 Cal.3d 948, 958, 83 Cal.Rptr. 658, 464 P.2d 114; People v. Ireland (1969) 70 Cal.2d 522, 537, 75 Cal.Rptr. 188, 450 P.2d 580; People v. Fioritto (1968) 68 Cal.2d 714, 719, 68 Cal.Rptr. 817, 441 P.2d 625), and also suppressed all physical evidence seized as a result of the inculpatory statements. (People v. Superior Court (1970) 3 Cal.App.3d 476, 483–484, 83 Cal.Rptr. 771.) Petitioner makes no contention that the defendants were not subjected to a custodial interrogation at the sheriff's substation (Miranda v. Arizona, supra; People v. Fioritto, supra), nor is it asserted by defendants that the Miranda warnings given on the day prior to the making of the confession and admission, and the adknowledgement by defendants that they understood the rights were no longer operative. (People v. Schenk (1972) 24 Cal.App.3d 233, 236, 101 Cal.Rptr. 75; People v. Brockman (1969) 2 Cal.App.3d 1002, 1006, 83 Cal.Rptr. 70.) It is the contention of the petitioner, however, that a violation of Miranda was not shown, that defendants neither demanded nor requested that an attorney be present, nor did they indicate they wished to remain silent. The court in Miranda said, ‘Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; . . . If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.’ (Fn. omitted.)

The court in People v. Burton (1971) 6 Cal.3d 375, at 381–382, 99 Cal.Rptr. 1, at 5, 491 P.2d 793, at 797 stated: ‘In cases where the suspect makes no express assertion, the crucial question is what behavior is necessary to constitute an invocation of the Fifth Amendment privilege. We have stated several times that no particular form of words or conduct is necessary to constitute such an invocation. ‘A suspect may indicate such a wish in many ways.’ [Citation.] ‘To strictly limit the manner in which a suspect may assert the privilege, or to demand that it be invoked with unmistakable clarity (resolving any ambiguity against the defendant) would subvert Miranda's prophylactic intent.’ [Citation.] [¶] Any words or conduct which ‘reasonably appears [sic] inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time . . .’ [citation] must be held to amount to an invocation of the Fifth Amendment privilege.' (Emphasis in original and emphasis added.)

While this court must view the evidence on a 1538.5 motion in the light most favorable to the trial court's order, we also cannot ignore the well-established rule that our function is to determine whether substantial evidence supports it. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 636, 108 Cal.Rptr. 585, 511 P.2d 33.)

We conclude that defendant Voelpel's inquiry of Deputy Wilmot, ‘Do you think we need an attorney’ cannot be construed as an invocation of a demand for an attorney and of the Fifth Amendment right to be silent. Such request is not inconsistent with a present willingness on the part of defendants to freely and fully discuss the case with the deputy. (People v. Burton, supra, 6 Cal.3d at p. 382, 99 Cal.Rptr. at p. 5, 491 P.2d at p. 797) Neither Miranda nor Burton holds that a suspect manifests the desire to remain silent when he seeks information to aid him in deciding whether to remain silent. This court in People v. Watkins (1970) 6 Cal.App.3d 119, 122, 85 Cal.Rptr. 621, 622, held that where the defendant asks the interrogating officer ‘how he could get an attorney’ was not a demand that the questioning cease and that he be permitted to remain silent. It is without question that if the individual states that he wants an attorney, the interrogation must cease until an attorney is present. (Miranda v. Arizona, supra.) The duty to cease questioning only commences, however, upon an indication from the defendant that he wishes to invoke his Fifth Amendment privileges. If the defendant is willing to discuss his case fully with police officers after having been taken into custody and advised of his rights, Miranda imposes no constitutional inhibition to continued questioning. Defendant Voelpel attempted to convince the court that his statement that he ‘guessed’ they needed a lawyer was an invocation of the right to remain silent. We hold to the contrary. This was a mere verbalization of the defendant's effort to make up his mind on whether or not to secure an attorney to remain silent. We find no assertion by the defendants of a desire to invoke their Firth Amendment privilege, to consult with counsel prior to or during questioning. There is not evidence that the defendants desired custodial interrogation cease nor did they request an attorney be present prior to further interrogation. The record reflects only the query from the defendant to the officers, ‘Do you think we need an attorney?’ We cannot hold this sufficient to invoke the Miranda inhibition against continued questioning or the Fifth Amendment privilege to remain silent.

Although not directly asserted by the defendants, it is noted by the court that the Miranda warning was given once on March 18, and no subsequent warning or readvisement made to the defendants. The law does not require that a defendant be readvised of his rights prior to each separate interrogation. (People v. Brockman, supra, 2 Cal.App.3d 1002, 1006, 83 Cal.Rptr. 70; People v. Long (1970) 6 Cal.App.3d 741, 86 Cal.Rptr. 227.)

A confession or statement is voluntary when it is the product of a rational intellect and a free will. (Davis v. North Carolina (1966) 384 U.S. 737, 739, 86 S.Ct. 1761, 16 L.Ed.2d 895.) In inquiring into the voluntariness of a defendant's confession or admission, the court must examine the totality of circumstances surrounding the state's conduct. Factors such as the length of questioning, the nature of the questions, the conduct of the authority, as well as the conduct of the defendants, are all relevant in determining whether the accused's free will was overborne. (People v. Stewart (1965) 62 Cal.2d 571, 579, 43 Cal.Rptr. 201, 400 P.2d 97.)

Defendant Zolnay's comments that ‘I would like to get this off of my conscience and that we did in fact commit the burglary . . .’ and that he had been unable to sleep, was upset by the situation, and had discussed the matter with his wife the night previously indicate strong motivation for the statement and support our conclusion that the confessions and admissions were voluntarily given. We conclude there was no Miranda violation.

Petitioner has also contended that although California decisional law permits common law pretrial motions to suppress admissions and confessions allegedly although in violation of Miranda (Griffin v. Superior Court (1972) 26 Cal.App.3d 672, 696, 103 Cal.Rptr. 379; Saidi-Tabatabai v. Superior Court (1967) 233 Cal.App.2d 257, 61 Cal.Rptr. 510), the 1538.5 motion made by defendants was not a proper remedy for suppression of the statements. (People v. Superior Court (1969) 275 Cal.App.2d 49, 79 Cal.Rptr. 704.) Petitioner further contends that respondent court erroneously suppressed evidence of the stolen goods recovered after defendants had confessed, inasmuch as the 1538.5 motion did not designate the items at the time the motion was made. The court, on its own initiative, amended the motion to include the stolen items after defense argument for such suppression was made in points and authorities filed after the evidentiary hearing. These additional questions need not be reached since our conclusion on petitioner's first contention (no Miranda violation) is dispositive of the petition.

Let a peremptory writ of mandate issue ordering the respondent, Superior Court of the State of California, in and for the County of Mono, to vacate its suppression order issued on December 11, 1974, in Mono County Superior Court actions No. 4911 (People v. Donald J. Zolnay) and No. 4912 (People v. Gunter E. Voelpel), and further directing respondent court to enter an order denying the joint motions to suppress. The temporary stay of trial of the actions is ordered terminated upon service of the peremptory writ.


1.  Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

EVANS, Associate Justice.

FRIEDMAN, Acting P. J., and REGAN, J., concur.

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