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

PEOPLE of the State of California, Plaintiff and Appellant, v. Anthony M. COUEY, Defendant and Respondent.


Decided: September 15, 1986

John K. Van de Kamp, Atty. Gen., Ronald E. Niver, Don Jacobson, Deputy Attys. Gen., San Francisco, for plaintiff and appellant. James R. Jenner, Public Defender, Scott Spear, Asst. Public Defender, Oakland, for defendant and respondent.

An elderly man, Mr. Lincoln, had been robbed and killed in his home by a gunshot wound to the head.   Outside was found the manacled dead body of his grandson, Kevin, who had apparently died of numerous hatchet wounds of the face and head.   Defendant Anthony M. Couey (Couey), 17 years of age, was charged with the murders and accompanying robberies, Counts I, II, III and IV, as well as with other crimes.   He had been found in possession of a jacket of one of the murder victims, and upon his arrest he apparently confessed the murders.

Couey moved, under Penal Code section 1538.5, to suppress evidence of his confession because of a claimed preceding unlawful arrest, and of the jacket for lack of a valid consent to search his bedroom.   The motions to suppress were granted, and the People otherwise lacking sufficient evidence, the charges of Counts I, II, III and IV, were ordered dismissed.

The People have appealed from the order of dismissal.

The subject crimes of the dismissal order were perpetrated September 23, 1982, and after adoption by California's voters of the constitutional amendment, article I, section 28, commonly known as Proposition 8.

 The evidence before the superior court on Couey's Penal Code section 1538.5 motion to suppress appears uncontroverted.   In such a case, if appellate review be sought, it becomes “ ‘the ultimate responsibility of the appellate court to measure the facts ․ against the constitutional standard of reasonableness.’   ․ [I]n short, the appellate court exercises its independent judgment.”  (People v. Leyba (1981) 29 Cal.3d 591, 597, 174 Cal.Rptr. 867, 629 P.2d 961.)

In respect of Proposition 8, California's Supreme Court has said:

“The express intent of section 28(d) is to ensure that all relevant evidence be admitted.   That purpose cannot be effectuated if the judiciary is free to adopt exclusionary rules that are not authorized by statute or mandated by the [federal] Constitution․  We conclude that the amendments to section 1538.5 adopted by the Legislature in 1982 had neither the intent nor effect of reviving exclusionary rules abrogated by Proposition 8.   Therefore, although section 1538.5 continues to provide the exclusive procedure by which a defendant may seek suppression of evidence obtained in a search or seizure that violates ‘state constitutional standards,’ a court may exclude the evidence on that basis only if exclusion is also mandated by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment.”  (In re Lance W. (1985) 37 Cal.3d 873, 889, 896, 210 Cal.Rptr. 631, 694 P.2d 744;  our emphasis.)

Henceforth, as required by In re Lance W., in our consideration of the appeal's issues we place our reliance upon authority of the federal courts elaborating and implementing the United States Constitution.

We first consider the issue of the validity of Couey's arrest.

Uncontroverted evidence reveals the following.

The attorney for one Jones charged with crime, had telephoned a police officer, “pretty hysterical.”   She said that her client's sister had received a telephone call saying that Jones “had been kidnapped and there was a $500 ransom.”   The caller had said that “this $500 should be placed in a garbage bin at the ‘Shell station at 90th and Bancroft,’ ” and that if the money was not “dropped” within the next 20 minutes, Jones “was going to be killed.”   Police officers were unable to meet the deadline, but nevertheless hastily went to the designated place and positioned themselves unseen around the Shell station's garbage bin.   After about 45 minutes, officers observed Couey approaching the Shell station.   He went to its garbage bin, lifted one of its two lids, and started “rummaging.”  “He stuck his hands in there and it was obvious he was going through the garbage.”   Apparently finding nothing Couey lifted the garbage bin's other lid, “and then started going through the garbage there.”   He finally walked away, apparently empty handed.   He had made no purchase at the Shell station and had talked to no one.  “He went directly to that garbage bin ․ that was there where the money was supposed to be kept.”

And one or more of the officers who recognized Couey remarked, “that this gentleman was also wanted by robbery detail for some robberies,” and that he had been previously arrested for “robberies or rapes.”   Although this fact appears not to have been relied upon by the officers in arresting Couey, it could reasonably be deemed to increase the probability that Couey was a party to yet another criminal activity.

Believing that they had probable cause for Couey's arrest, the officers arrested him.

 “Probable cause [for arrest] exists where ‘the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.”  (Draper v. United States (1959) 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327.) *

 Exercising our independent judgment on the uncontroverted evidence, we open that upon seeing the criminally disposed Couey seeking out, and sifting through, the garbage bin into which Jones' sister was directed to place the ransom money, the police were patently entitled to, and did, reasonably believe and conscientiously entertain a strong suspicion that Couey was at least a participant in an ongoing extortion plot.

 And, of course, in determining the reasonableness of police conduct, “the ‘gravity of the offense’ is an appropriate factor to take into consideration.”  (People v. Sirhan (1972) 7 Cal.3d 710, 739, 102 Cal.Rptr. 385, 497 P.2d 1121.)   Here the crime was of extreme gravity;  the police had reasonably trustworthy information that Jones had been kidnapped, and that his death was threatened unless the ransom be promptly deposited in the Shell station's garbage bin.   It is of no consequence that Jones later “escaped” from his kidnapper, whom he identified as Couey.   Reasonableness will be determined by information known to the police at the time of their claimed misconduct.   Here, had not the police acted, for ought they knew, Jones' threatened execution would have been consummated.

We consider now the police search that turned up one of the murder victim's jackets.

Following Couey's arrest and in their investigation of the above-mentioned murders and robberies, police officers went to Couey's home, and talked to his father.   According to an officer:  “He invited us in.   We talked about the case.   I explained to him that we had conflicting stories.   I explained to him that his son, Anthony, had said that [another] was responsible for shooting Mr. Lincoln and that [the other] had said that his son, Anthony, was responsible for the shooting ․ and that what we were interested in was ascertaining the truth, that there was ․ still a weapon still outstanding and we, of course, were interested in recovering the weapon for several reasons․  We explained that the clothing had been taken, that we had been told that clothing had been taken and that we were soliciting his cooperation in looking for these items․

“He was very cooperative and said—we asked him if we could take a look around in his house for any of these items and the gun and he said:  ‘Sure, go ahead.’   And I handed him a permissive search form, which he signed and he pointed out his son's bedroom․  It was open․  [The officers entered and inside a closet was seen] this greenish herringbone sport coat․  I asked Mr. Couey, Sr., if he knew who—if this sport coat was Anthony's and he said:  No, it wasn't.  [The officer believed it to be] evidence [for] several reasons.   One, Mr. Couey said that it did not belong to his son;  two, it was inconsistent with the other items of clothing in there.   It was too large.   It was larger than any of the other items in there and it certainly appeared to belong to an older person.   The coat looked like it had been around for awhile and it was certainly larger than the other coats in the closet in size․

“I felt that it was Mr. Lincoln's․

“I took it to ․ the residence of Billy Glenn, Mrs. Billy Glenn․  She was very familiar with Mr. Lincoln, had known him for years as well as his [victim] grandson, Kevin, and I wanted to ascertain from her if she recognized the coat.

․ She said that the coat belonged to Mr. Lincoln.”

The leading case on such a parental consent issue as that before us is United States v. Matlock (1974) 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242, which holds:

“[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․  Common authority ․ rests ․ on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”  (P. 171 and fn. 7, 94 S.Ct. at p. 993 and fn. 7.)

Federal appellate courts, without exception found by us, have consistently held that a parent's consent to search the room of a co-inhabitant child, particularly as here a minor child, is not constitutionally invalid.

United States v. Block (4th Cir.1978) 590 F.2d 535, 541:  A mother, who “had the normal free access that heads of household commonly exercise in respect of the rooms of family member occupants, ․ clearly had authority to permit inspection” of her son's room.

United States v. Wright (8th Cir.1977) 564 F.2d 785, 790:  A mother who, as usual, had access to all rooms of the house, properly gave a valid consent to a search of her son's room where incriminating evidence was found.

United States v. Peterson (4th Cir.1975) 524 F.2d 167, 180–181:  “United States v. Matlock ․ makes clear ‘that the consent [to search her son's room] of [a mother] who possesses common authority over premises' ” will be valid.   “[Her] access and control over the entire premises, as well as her substantial interest in or ‘sufficient [other] relationship to’ the premises, vested her with sufficient authority under any aspect of the case to consent to a search of the room․”

United States v. DiPrima (1st Cir.1973) 472 F.2d 550, 551–552:  “[E]ven if a minor child, living in the bosom of a family, may think of a room as ‘his,’ the overall dominance will be in his parents.   We cannot pronounce a rule that will answer all cases, except to say that to some extent the police must be allowed to rely upon the word of the householder and general appearances․  [T]he court was warranted in finding authority in the mother, as the householder, to give a general consent.”

United States v. Mix (5th Cir.1971) 446 F.2d 615, 619:  A mother who had consented to a search of her son's bedroom “enjoyed equal rights in the premises (including the room in which appellant slept) with appellant and voluntarily gave the detectives permission to search.   The trial judge committed no error in denying appellant's motion to suppress․”

Maxwell v. Stephens (8th Cir.1965) 348 F.2d 325, 336–338:  “The record clearly discloses no concealment of identity, no discourtesy, no abuse or threat, and no ruse or force exerted by the officers.   It contains testimony that Mrs. Maxwell [defendant's mother] showed and directed them to the closet where her son's clothes were․  It was [as here, a jacket] an item which freely came into the hands of the authorities by one who had the right to make it available to them․  The situation therefore appears to us to be one not involving any unreasonable search or seizure within the prohibition of the Fourth, Fifth, and Fourteenth Amendments.   Reasonableness, after all, is the applicable standard.”**

 Here also, in the exercise of our independent judgment, upon uncontroverted evidence and the above-noted federal authority, we discern no constitutional fault in the complained of police activity.

The order of dismissal of Counts I, II, III and IV of the information is reversed.


FOOTNOTE.   Compare:  “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.’ ”  (People v. Harris (1975) 15 Cal.3d 384, 389, 124 Cal.Rptr. 536, 540 P.2d 632.)

FOOTNOTE.   We here note the California rule antedating Proposition 8:  “In determining the reasonableness of a law enforcement officer's conduct in making a search based on consent, the controlling determination is whether under the circumstances:  (a) the person purporting to grant consent to the police believes he has exclusive or joint control over the premises and (b) the police reasonably and in good faith believe such person has the authority to consent to such entry.”  (Vandenberg v. Superior Court (1970) 8 Cal.App.3d 1048, 1055, 87 Cal.Rptr. 876, and see authority there collected.)

ELKINGTON, Associate Justice.

RACANELLI, P.J., and HOLMDAHL, J. concur.

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