IN RE: SCOTT WILLIAM K.

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Court of Appeal, Second District, Division 4, California.

IN RE: SCOTT WILLIAM K., a person coming under the juvenile court law, Appellant, v. Kenneth F. FARE, Respondent.

Cr. 30369.

Decided: November 17, 1977

Wilbur F. Littlefield, Public Defender, Harold E. Shabo, Kenneth I. Clayman, Michael Allensworth, Albert J. Menaster, Deputy Public Defenders, for appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Roy C. Preminger, Deputy Attys. Gen., for respondent.

A minor appeals from an order finding him to be a person coming under section 602 of the Welfare and Institutions Code, adjudicating him a ward of the court, and placing him on probation. We affirm the order.

The petition alleged that the minor came under section 602 in that he possessed marijuana for the purpose of sale, in violation of section 11359 of the Health and Safety Code. The evidence before the trial court showed the following:

Shortly prior to August 24, 1976, the minor's mother found in the minor's desk drawer a quantity of marijuana. She delivered that marijuana to the police, informing them that she feared her son was selling marijuana. On August 24, 1976, Officer Schian telephoned the minor's father to tell him that he was about to arrest the boy. The officer's testimony was as follows:

“In substance, I advised the father that I was in charge of the follow-up investigation of the marijuana that his wife had turned over to the police officer; that an arrest would result from this situation, arrest of the son; that I intended to come out and arrest his son if his son was home, and then I received the information that he was working on his motorcycle in the garage.

“And I asked him, ‘Is it all right with you then that I go to the garage and arrest your boy there and do you wish to join us out there then, or what shall we do to make it easy on maybe the rest of the family?’

“And he indicated, ‘Why don't you just come on inside after you have arrested him?’ ”

Pursuant to that telephone call, Officer Schian and two other officers went to the garage and arrested the minor. The minor immediately remarked, without questioning, “I guess you're arresting me because of my grass that my mother turned in to the police in the street.” The officer then took the minor into the house and received permission to search the minor's room. That search disclosed a locked toolbox. With the father's consent, using a key obtained from the minor, the officers opened the toolbox and found therein a quantity of marijuana. After that marijuana was found, the minor, after having been advised of his Miranda rights, said, “I bought a pound of marijuana. This is the first time I've ever been dealing.”

The trial court held that the arrest was illegal and suppressed the minor's inculpatory statements, but it denied a motion to suppress the marijuana found in the toolbox. We conclude that the trial court did not err in refusing to suppress the marijuana.

I

We need not, and do not, determine whether the trial court correctly determined that the arrest of the minor was illegal. The adjudication was based only on the evidence which the trial court did not suppress i. e., the marijuana found in the minor's toolbox. But the investigation that led to that discovery was not the fruit of the arrest but was the result of the mother's statements to the police and the father's willingness to permit the police follow-up investigation of that statement.

II

It is not contended that the entry into the house, after the arrest of the minor, was not with the full consent of the father nor that the search of the room was also with his consent. The contention here made is that the father had no right to consent to opening and searching the toolbox. We hold that that search was lawful and the marijuana therein discovered properly introduced in evidence.

It is now settled that, if the son had been an adult, the father would have had no right to consent to opening and searching the locked toolbox. (People v. Daniels (1971) 16 Cal.App.3d 36, 93 Cal.Rptr. 628.) The question before us is whether the constitutional right of a minor to privacy (Cal.Const., art. I, § 1), operates to give him a similar right to privacy as against his parents. We conclude that it does not.

The right to privacy is not absolute; it yields in cases where some other public policy requires an invasion. Thus, in cases where the right of privacy was invoked to bar a legitimate publication of facts of public interest, the right has been held not to permit an action against a publisher (Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328; Briscoe v. Reader's Digest Assn., Inc. (1971) 4 Cal.3d 529, 541, 93 Cal.Rptr. 866, 483 P.2d 34.) There is a strong public policy protecting the interest of a parent in the care, discipline and control of a minor child. A parent who, as in this case, has reasonable grounds to believe that a minor child is engaged in serious criminal activity, must be allowed to investigate that belief, in order to determine the proper discipline and corrective action to be taken. If that investigation involves the search, with or without the minor's consent, of locked items, the search is justified as conduct in aid of the parental power of care and discipline. It follows that, if the father in this case had himself opened the toolbox, or if the father, exerting his parental authority, had secured the key from the minor and then opened the box, the search would have been lawful. That conclusion is supported by the cases involving searches of locked containers by school authorities. (In re Christopher W. (1973) 29 Cal.App.3d 777, 105 Cal.Rptr. 775; In re Fred C. (1972) 26 Cal.App.3d 320, 102 Cal.Rptr. 682; In re Donaldson (1969) 269 Cal.App.2d 509, 75 Cal.Rptr. 220.) If the loco parentis status of a school official permits a search of a locked container in order to protect against and prevent violations of the criminal laws, a fortiori, a parent himself has an equal right.

The minor argues, however, that if the father, instead of securing the key himself and using it himself, involves a police officer in the process, the search thereby becomes tainted. We reject that theory. The material fact is not who actually secured the key and used it, but under whose authority the key was obtained and used. The record before us makes it clear that the authority here was that of the father. The police made it clear that they would not search the box unless the father consented; they acted only on that consent. What the father could do himself, he could do by an agent, whether that agent be a locksmith or a policeman. A valid citizen's arrest is not rendered unlawful because the citizen enlists the aid of a police officer (who could not himself arrest) in order to subdue the arrestee. (People v. Campbell (1972) 27 Cal.App.3d 849, 853-854, 104 Cal.Rptr. 118.) The same principle applies here.

The order is affirmed.

I dissent.

The majority holds that it did not need to concern itself with the question of whether the trial court correctly determined that the arrest of the minor was illegal since the trial court suppressed the minor's inculpatory statements and made its adjudication only on the evidence which it did not suppress, to wit, the marijuana found in the locked toolbox in the minor's bedroom. The majority then determines that the investigation that led to the discovery of this marijuana was not the fruit of the arrest but the result of the mother's statements to the police and the father's consent to the search.

I do not agree that the issue of the legality of the arrest can be sidestepped so neatly or easily. The discovery of the marijuana in the minor's locked toolbox is clearly the fruit of the minor's arrest. Since that arrest was illegal as correctly determined by the juvenile court, the subsequent search and seizure of the marijuana found in the toolbox must fall as the fruit of the poisonous tree. I therefore consider that the trial court erred in refusing to suppress the marijuana found in the toolbox. Thus, the minor's motion to suppress evidence, made pursuant to Penal Code section 1538.5, should have been granted in its entirety.

Since the minor's arrest and the subsequent search of the toolbox were made without an arrest warrant or a search warrant, the burden was upon the prosecution to establish the legality of the arrest and the legality of the search. In this case it is the contention of the People that the warrantless arrest of the minor was based upon reasonable or probable cause and that the warrantless search of the toolbox was a valid search based upon a consent to search given by the minor's father.

I

The Minor's Warrantless Arrest Was Illegal since the Arresting Officer Was Relying on Information from Another Officer not Produced as a Witness at the Suppression-of-Evidence Hearing

Only two witnesses testified at the suppression-of-evidence hearing: Police Officer Sig Schian, produced by the prosecution, and William, the minor's father, called as a witness by the minor. It was conceded by the prosecution that Officer Schian effected the arrest of the minor without a warrant and, without a search warrant, made a search of the toolbox where marijuana was found. Officer Schian testified that he went to the minor's home and arrested the minor based upon information he had obtained from an evidence report. The evidence report was a written report which Officer Schian obtained from his superior in the police department. The written report set forth that the mother of the minor had contacted an off-duty police officer and had given to this officer a small amount of marijuana which the mother said she had removed from her son's desk drawer in his room; that she had had conversations with other parents in the neighborhood, and that such conversations led her to believe that her son might be involved in marijuana dealing. Officer Schian testified that after receiving the written report from his superior officer, he made a telephone call to the father of the minor and advised that he was coming to the home to arrest the minor; that the father told him that the minor was working on his motorcycle in the garage and that the officer could go to the garage to effectuate the arrest and should then bring the minor into the home.

California Penal Code section 836 provides that a peace officer may, without a warrant, arrest a person whenever he has reasonable cause to believe that the person has committed a felony, whether or not a felony has in fact been committed.

“Reasonable cause” for arrest “exists when the facts known to the arresting officer ‘would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.’ [Citations.]” (People v. Harris (1975) 15 Cal.3d 384, 389, 124 Cal.Rptr. 536, 539, 540 P.2d 632, 635.)

But when the facts known to the arresting officer are based upon information received by him from another police officer, California law requires that the existence of reasonable cause to make a warrantless arrest must be based upon the presence of reasonable cause in the mind of the police officer-informant. The decisional law, and the underlying rationale for it, we find discussed in some detail in People v. Madden (1970) 2 Cal.3d 1017, 88 Cal.Rptr. 171, 471 P.2d 971. The Madden court relies upon People v. Lara (1967) 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202, which held that while an officer may make an arrest without a warrant based on information received from other police officers or through “official channels,” the prosecution is required to establish, as part of its burden of proof in a warrantless arrest case, that the officer who originally furnished the information to the arresting officer, had reasonable cause himself to believe that the suspect had committed a felony.

The Madden court also approved the discussion in Remers v. Superior Court (1970) 2 Cal.3d 659, 666, 87 Cal.Rptr. 202, 206, 470 P.2d 11, 15, where it was stated that “(i)t is well settled that while it may be perfectly reasonable for officers in the field to make arrests on the basis of information furnished to them by other officers, ‘when it comes to justifying the total police activity in a court, the People must prove that the source of the information is something other than the imagination of an officer who does not become a witness.’ [Citations.]” (Emphasis added.)

The Lara, Remers and Madden cases thus require that the prosecution, in establishing the validity of the warrantless arrest of a defendant, must prove, in court, at the suppression-of-evidence hearing at which the validity of the warrantless arrest is to be determined, that the police officer who provided the initial information that led to the arrest had reasonable cause to believe that defendant had committed a felony. This was not done by the prosecution in the case at bench. Testimony from the arresting officer, Sig Schian, was offered, but no testimony was produced from the off-duty officer who allegedly got marijuana from the minor's mother and relayed the information to a superior officer who then relayed it to Officer Schian.

Since the prosecution failed to sustain its burden of proving the lawfulness of the warrantless arrest of the minor, the consequences of that arrest must be reviewed in the context of an initial instance of illegal police activity. The rule of law is clear that evidence acquired as the result of illegal police activity is to be excluded. This rule of exclusion is aimed at deterrence of such police conduct. (Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.) It is true that not all such evidence is excludable per se, however. But “(o)nce a defendant establishes a relationship between evidence and unlawful police activity, the People must prove the taint (of illegality) was purged.” (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 411, 118 Cal.Rptr. 617, 620, 530 P.2d 585, 588.) There was no such proof by the People in the case at bench.

Proof that the information as to a suspect's involvement in criminal conduct was already in the possession of the police, or was acquired from an independent source, has supported a determination of the removal of the taint of illegality from the evidence. (Lockridge v. Superior Court (1970) 3 Cal.3d 166, 89 Cal.Rptr. 731, 474 P.2d 683.)

Nothing offered by the prosecution in the case before us, however, leads to the conclusion that an “independent source” furnished evidence in this case; nor does the fact that the minor's father consented to the warrantless search of his home, after the minor's arrest, provide a sufficient basis for admission of the evidence obtained thereby the marijuana found in the minor's locked toolbox. “The rule is clearly established that consent induced by an illegal search or arrest is not voluntarily, and that if the accused consents immediately following an illegal entry or search, his assent is not voluntary because it is inseparable from the unlawful conduct of the officers. (Citations.)” (Burrows v. Superior Court (1974) 13 Cal.3d 238, 251, 118 Cal.Rptr. 166, 174, 529 P.2d 590, 598.) (Emphasis added.) The father's consent was induced by an illegal arrest of the minor to the same extent as if the consent had been that of the minor.

The failure of the prosecution to produce, at the suppression-of-evidence hearing held pursuant to Penal Code section 1538.5, the off-duty police officer who furnished information to a superior in the police department, who then provided the arresting officer with such information which furnished the basis of the minor's warrantless arrest, is fatal to the prosecution's burden of proving the validity of the minor's warrantless arrest and the subsequent warrantless search of his room and toolbox. Had the information-supplying officer been produced and given testimony at the suppression-of-evidence hearing, a result different from that which I reach herein might well have been mandated. But I consider that this court is compelled to follow the principles enunciated in Lara, Madden and Remers. Nor can the plain and explicit language of Penal Code section 1538.5, subdivision (i), which governs a suppression-of-evidence hearing conducted in the superior court on a defendant's motion, be ignored. That subdivision provides that “[t]he defendant shall have the right to litigate the validity of a search or seizure de novo on the basis of the evidence presented at a special hearing.” (Emphasis added.)

II

The Warrantless Arrest of the Minor Was Illegal Because Effected in a Garage of a Home Without Exigent Circumstances Being Present, Even Though the Minor's Father Gave to the Arresting Officer the Consent To Enter

The trial court was correct in holding that the police entry into the garage was illegal under People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333. The father's consent to the police entry into the garage, a part of the home, to effectuate a warrantless arrest is not sanctioned by Ramey. In my view the Ramey case holds that a warrantless arrest within the home is unreasonable per se unless there are exigent circumstances present to justify dispensing with the warrant requirement. It is urged, however, that Ramey also sanctions as valid a warrantless arrest in the home that is based upon a consent to enter. But the factual situation in Ramey was not one involving the question of a consent to enter; it involved solely the question of whether exigent circumstances were present to justify the warrantless arrest.

I recognize that Ramey contained a single reference to a “consent to enter” as an exception to the general rule of invalidity of a warrantless arrest made in a home. As a dictum statement, with no discussion, it should not be considered as persuasive authority. The constitutional mandate against unreasonable searches and seizures and unreasonable arrests within a person's home is designed to safeguard the right to privacy and individual liberty. Allegiance to this constitutional principle of protection to the individual demands that police action be preceded by judicial authorization of an arrest warrant in the absence of a genuine emergency. To equate a “consent-to-enter” concept as being synonymous with exigent circumstances constitutes an unwarranted weakening of the constitutional right of an individual to be free from an unreasonable arrest and an unreasonable search and seizure.

If the policy in favor of requiring the police to obtain arrest and search warrants is to be considered as the essential undergirding bulwark to the constitutional proscriptions against unreasonable searches and seizures, it will constitute a hollow and weak underpinning if a consent to effectuate a warrantless arrest in the home is recognized as a valid substitute for emergency circumstances or a warrant of arrest.

The facts in the instant case demonstrate the need for rejecting the view of making a consent to enter a valid means of upholding a warrantless arrest within a citizen's home. There was no emergency involved here. Officer Schian had no reason to avoid the route of obtaining judicial authorization for the arrest and search by obtaining an arrest and search warrant. If a consent-to-enter approach is upheld, the preferable procedure of obtaining an arrest warrant will become the exception rather than the general rule. In a case such as that presented before us, police officers should not be offered the option of seeking to obtain a consent to enter. Rather, they should be required to obtain a search warrant from the judicial branch of government.

III

The Warrantless Search of the Minor's Toolbox Was Invalid Because his Arrest Was Invalid and the Father's Consent Could not Override the Minor's Lack of Consent

The majority takes the view that the minor's father had the right to give consent to the arresting officer to open and search the toolbox which the father stated to the officer belonged to his son. The minor indicated unequivocally to his father and the officer that he did not give consent to the officer's request to search the locked toolbox. The majority refuses to recognize the minor's constitutional right to privacy and a constitutional right to be free from a warrantless search by a police officer of an item of personal property owned by the minor. The rationale of the majority is that a parent has the complete care, discipline and control of a minor child and the latter's personal property until that child reaches the magic age of adulthood now 18 years of age. I do not consider this to be the law although I recognize that the school authority cases such as In re Christopher W., In re Fred C., and In re Donaldson, cited supra, by the majority, would tend to support this all-embracing concept.

It is to be noted that in the case at bench we are dealing with a 17-year old minor who has practically reached adulthood; he was 8 months away from his 18th birthday. To hold that a toolbox, which the father recognized as the personal property of the minor, is subject to the control of the parents, insofar as recognizing the authority of the father to give the police the right to search such a box contrary to the minor's expressed lack of consent, is carrying the doctrine of parental control beyond the bounds of reason. Such a holding is contrary to the current trend in the law to recognize that minors have some fundamental constitutional rights which cannot be overridden by parents.

Thus, in In re Roger S. (1977) 19 Cal.3d 655, 141 Cal.Rptr. 298, 569 P.2d 1286, the court recognized the significant trend of giving minors constitutional rights which cannot be waived by their parents by enunciating a holding imposing a limitation upon the right of a parent to have a minor committed to a state hospital. The court stated: “We have concluded that although the personal liberty interest of a minor is less comprehensive than that of an adult, and a parent or guardian not only may but must curtail that interest in the proper exercise of his obligation to guide the child's development, in the area of admission to a state hospital a minor of 14 years or more possesses rights which may not be waived by the parent or guardian. Among these rights is the right guaranteed under the Fourteenth Amendment to the United States Constitution, and article I, section 7(a) of the California Constitution, to procedural due process in determining whether the minor is mentally ill or disordered, and whether, if the minor is not gravely disabled or dangerous to himself or others as a result of mental illness or disorder, the admission sought is likely to benefit him.” (In re Roger S., supra, 19 Cal.3d 655, 661, 141 Cal.Rptr. 298, 301, 569 P.2d 1286, 1289; fn. omitted.)

The Roger S. court also points out that the right of a minor to constitutional rights and protection, which necessarily affect parental control, has been reaffirmed by the United States Supreme Court. “Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” (Planned Parenthood of Missouri v. Danforth (1976) 428 U.S. 52, 74, 96 S.Ct. 2831, 2843, 49 L.Ed.2d 788.)

Irrespective of the right of control possessed by a parent with respect to a minor of a lesser age, certainly a 17-year-old minor with adulthood being established at 18 years of age, should have individual control over an item of personal property belonging to him such as a toolbox, to object to a warrantless search by a police officer. A 17-year-old minor's constitutional right to be free from a warrantless search by a police officer of an item of personal property located in the minor's bedroom, should not be subject to waiver by a consent to search, given by his parent, with full knowledge to the searching officer that the minor objects to the search.

In addition, the illegal warrantless arrest of the minor in his home vitiates the father's consent. The consent of the father under the circumstances here presented is as much the product of the illegal arrest as if the consent had been given by the minor. Any other result sanctions and encourages lawless activity on the part of the police in violation of the minor's constitutional right to be free from unlawful arrest, search and seizure.

IV

In View of Evidence that the Minor Was Married, the Prosecution Failed to Sustain its Burden of Proving that Minor's Father Had Capacity to Consent to a Warrantless Search of Minor's Toolbox

In the case at bench, even if we were to assume that a parent of a 17-year-old minor has the legal right to give consent to a police search of the minor's personal property, over the objection of the minor made known to the police officer, the prosecution failed to sustain its burden of proving that the father had the legal right to waive the minor's constitutional rights and give a valid consent to search.

The failure of the prosecution to sustain its burden of proof is manifest because evidence was introduced at the suppression-of-evidence hearing that the minor was married. The record reflects that the minor called his father, William, to testify in his behalf. The father testified that the toolbox belonged to the minor and that it had been given to the minor as a gift by the minor's “father-in-law.” This testimony remains undisputed on the record. The only reasonable inference that can be drawn from such testimony is that the minor was married. Section 204 of the Civil Code provides, in pertinent part, that “[t]he authority of a parent ceases: . . . [¶] 2. Upon the marriage of the child; . . .” This section became a part of the Civil Code in 1872 and has not been amended. Section 204 has been interpreted as follows: “It is true that upon the marriage of a minor child, she is deemed to have been thereby emancipated from her parent's control, and that the parent's authority over her then ceases. [Citations.] It has been held that this is true even though a child under the age of statutory consent marries without the consent of her parents.” (Easterly v. Cook (1934) 140 Cal.App. 115, 121, 35 P.2d 164, 167.) In similar fashion, it recently has been said: “Marriage of a minor child results in emancipation. (Civ.Code, § 204, subd. 2.) Such emancipation is complete . . . .” (Bryant v. Swoap (1975) 48 Cal.App.3d 431, 435, 121 Cal.Rptr. 867, 871.) (Emphasis added.)

The law is well established that when a search is conducted without a warrant, the burden is on the People to establish justification under a recognized exception to the warrant requirement. (People v. Rios (1976) 16 Cal.3d 351, 355, 128 Cal.Rptr. 5, 546 P.2d 293.) A consent to search constitutes such an exception. (People v. James (1977) 19 Cal.3d 99, 106, 137 Cal.Rptr. 447, 561 P.2d 1135; People v. Michael (1955) 45 Cal.2d 751, 753, 290 P.2d 852.) Our high court has recently fixed this burden of proof as one to be established by a preponderance of the evidence. (James, supra, 19 Cal.3d 99, 106, fn. 4, 137 Cal.Rptr. 447, 561 P.2d 1135.)

It is significant that in fixing the burden of proof to be that of proof by a preponderance of the evidence, the James court made reference to the fact that in Blair v. Pitchess (1971) 5 Cal.3d 258, 274, 96 Cal.Rptr. 42, 486 P.2d 1242, the court had indicated that the People had to establish the fact of consent by “clear and positive evidence.” The James court stated that the Blair reference to “clear and positive” evidence was meant to emphasize the importance and distinctiveness of the burden of proving the fact of consent, even though that burden could be discharged by a preponderance of the evidence. (See James, supra, 19 Cal.3d 99, 106, fn. 4, 137 Cal.Rptr. 447, 561 P.2d 1135.)

In view of James, the conclusion is compelling and inescapable that the People did not sustain its burden of proving a valid consent to search to overcome the warrant requirement. Evidence that the minor's father gave consent to the officer to search the toolbox that was owned by the minor is insufficient under the circumstances presented in the case at bench. Once the minor had produced evidence that tended to establish that he was emancipated by marriage, pursuant to section 204 of the Civil Code, the People's burden could not be said to be established simply by proof that William was the father of the minor who was living at home and that William gave his consent to the police officer to search the minor's toolbox. The fact of the capacity and authority of the consenting person to give consent to a search is as much a part of the prosecution's burden of proof as is the prosecution's burden to establish that consent by one authorized to give consent was the product of free will and not a mere submission to an express or implied assertion of governmental authority. (See James, supra, 19 Cal.3d 99, 106, 137 Cal.Rptr. 447, 561 P.2d 1135; People v. Johnson (1968) 68 Cal.2d 629, 632, 68 Cal.Rptr. 441, 440 P.2d 921.)

I would reverse the trial court's order denying the minor's motion to suppress the marijuana found in the toolbox.

KINGSLEY, Associate Justice.

FILES, P. J., concurs.