CASTANEDA v. PEOPLE (1962)

Prohibition, with alternative writ granted. Petitioner's basic claim in unlawful search and seizure. The point has been protected at all stages of the criminal case, People v. Castaneda, Superior Court No. 260487, in which petitioner was charged with possession of a narcotic in violation of § 11500 Health and Safety Code, a felony. Motion was made in the superior court pursuant to § 995, Penal Code,¹ to set aside the information upon the grounds of (1) lack of probable cause in that all evidence introduced by the district attorney at the preliminary hearing had been obtained by means of an unlawful search and seizure, and (2) error in excluding from evidence a certified copy of an order of the United States District Court suppressing said evidence. The motion having been denied petitioner brings this prohibition proceeding under § 999a, Penal Code.²

Petitioner's counsel invokes the decision of the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), thereby prying loose the lid upon a veritable Pandora's box. In that case it was held ‘that all evidence obtained by searches and seizures in violation of the Constitution is * * * inadmissible in a state court’, by virtue of the absorption by the Fourteenth Amendment of the Fourth Amendment to the United States Constitution. The court further said, at page 660, 81 S.Ct. at page 1694: ‘Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rule invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.'³

In Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), the court had said: ‘In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.’ (p. 224, 80 S.Ct. p. 1447.)

Counsel for petitioner brings the matter into focus by arguing that the question of lawfulness of the instant search and seizure had been adjudicated by the United States District Court in a criminal case there pending wherein defendant was charged with having ‘knowingly and unlawfully received, concealed and facilitated the concealment and transportation of 17 grams, 880 milligrams of heroin, a narcotic drug, which, as the defendant then and there well knew, previously had been imported into the United States of America contrary to United States Code, title 172’; that petitioner's motion to suppress the seized evidence was granted as to ‘any and all narcotic substances or alleged narcotic substances discovered during the search of the home of the Defendant, Henry Castaneda, on the evening of November 21, 1961, and that no part of the same or any evidence pertaining thereto be thereafter used in court in the proceedings against the defendant herein’; that the question thereby became res judicata and any prosecution in the State court for possession of the same narcotics constitutes double jeopardy; in other words, that this seizure of evidence presents a federal constitutional question upon which State courts are bound by decisions of federal courts thereon.

It is established law that decisions of the Supreme Court of the United States upon federal questions, constitutional or statutory, are binding upon State courts to such an extent that prior decisions of a State court are to be overruled so far as they are inconsistent with a ruling upon the same matter by the United States Supreme Court. (Miller & Lux v. Board of Supervisors, 189 Cal. 254, 266, 208 P. 304; Ivanhoe Irrigation District v. All Parties & Persons, 53 Cal.2d 692, 709, 715, 3 Cal.Rptr. 317, 350 P.2d 69; Mapp v. Ohio, supra, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Urie v. Thompson, 337 U.S. 163, 173, 69 S.Ct. 1018, 93 L.Ed. 1282; Carpenter v. Atchison, T. & S. F. Ry. Co., 109 Cal.App.2d 18, 21, 240 P.2d 5; 21 C.J.S. Courts § 206, p. 365; 14 Am.Jur. § 117, p. 336.) But this rule does not extend to decisions of the lower federal courts. The matter is well stated in Rohr Aircraft Corp. v. County of San Diego, 51 Cal.2d 759, 336 P.2d 521 (reversed on other grounds, 362 U.S. 628, 80 S.Ct. 1050, 4 L.Ed.2d 1002). At page 764 of 51 Cal.2d, at page 524 of 336 P.2d: ‘Plaintiff contends, however, that we must reverse the judgment on the authority of the [Board of County Com'rs of] Sedgwick [County, Kan. v. United States] case, supra [D.C.], 105 F.Supp. 995 [123 Ct.Cl. 304], even though we disagree with the decision of the Court of Claims. It is true that we are bound by interpretations of federal statutes by the United States Supreme Court. U.S.Const., art. VI, cl. 2. In our opinion, however, the decisions of the lower federal courts on federal questions are merely persuasive. [Citations.] Although the parties have cited no decision of the United States Supreme Court directly passing upon the point, plaintiff argues that in any event our own decisions require us to follow the Court of Claims. Plaintiff relies on general statements to the effect that this court must accept the construction placed upon federal statutes by the federal courts. Those statements were made, however, either in the light of controlling United States Supreme Court decisions [citations] or in cases where this court had no disagreement with the position taken by the lower federal courts. [Citations.]

‘Where lower federal court precedents are divided or lacking, state courts must necessarily make an independent determination of federal law. Any rule which would require the state courts to follow in all cases the decisions of one or more lower federal courts would be undesirable, as it would have the effect of binding the state courts where neither the reasoning nor the number of federal cases is found persuasive. Such a rule would not significantly promote uniformity in federal law, for the interpretation of an Act of Congress by a lower federal court does not bind other federal courts except those directly subordinate to it. [Citations.] We therefore conclude that the courts of this state may decline to follow the decision of the Court of Claims, as the reasoning of that decision is not persuasive.’ The overruling of this case upon other grounds does not impair the logic or the authority of the above quoted portions, which are well supported by respectable authority. See, 21 C.J.S. Courts § 206, p. 377; Annotation in 147 A.L.R. 857, 858; 69 United States Law Review, p. 449: ‘State Courts and decisions of lower Federal Courts on federal questions.’ It is also true that the statutory federal courts (court of appeals and district court) do not have jurisdiction to review action of the state courts. (United States ex rel. Parker v. Carey, 7 Cir., 135 F.2d 205, 206; cert. denied, 320 U.S. 755, 64 S.Ct. 61, 88 L.Ed. 449; Cooper v. Hutchinson (D.C.N.J.), 88 F.Supp. 774, 784.)

People v. Cahan, 44 Cal.2d 434 at 439–440, 282 P.2d 905, at 908, 50 A.L.R.2d 513 (1955), which established the exclusionary rule for the State of California, rested primarily upon the doctrine of Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, our Supreme Court saying: ‘The decision of the United States Supreme Court in Wolf v. People of State of Colorado that the guarantee of the Fourth Amendment applies to the states through the Fourteenth does not require states like California that have heretofoe admitted illegally seized evidence to exclude it now. The exclusionary rule is not ‘an essential ingredient’ of the right or privacy guaranteed by the Fourth Amendment, but simply a means of enforcing that right, which the states can accept or reject: ‘Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State's reliance upon other methods which, if consistently enforced would be equally effective.’ Italics added. Wolf v. People of State of Colorado, supra, 338 U.S. 25, at p. 31, 69 S.Ct. at page 1362. * * * It would appear, therefore, that despite earlier statements of the United States Supreme Court that the Fourth or the Fifth Amendment barred the use of evidence obtained through an illegal search and seizure [citations], ‘the federal exclusionary rule’, in the words of Mr. Justice Black, ‘is not a command of the Fourth Amendment but is a judicially created rule of evidence which Congress might negate.’ Concurring opinion in Wolf v. People of State of Colorado, supra, 338 U.S. 25, at page 39–40, 69 S.Ct. at page 1367; see also Irvine v. California, 347 U.S. 128, 135, 74 S.Ct. 381 [98 L.Ed. 561].' At page 450 of 44 Cal.2d, at page 915 of 282 P.2d: ‘In developing a rule of evidence applicable in the state courts, this court is not bound by the decisions that have applied the federal rule, and if it appears that those decisions have developed needless refinements and distinctions, this court need not follow them. Similarly, if the federal cases indicate needless limitations on the right to conduct reasonable searches and seizures or to secure warrants, this court is free to reject them. Under these circumstances the adoption of the exclusionary rule need not introduce confusion into the law of criminal procedure. Instead it opens the door to the development of workable rules governing searches and seizures and the issuance of warrants that will protect both the rights guaranteed by the constitutional provisions and the interest of society in the suppression of crime.’ But Wolf v. Colorado was overruled by Mapp v. Ohio, supra, which holds that an unreasonable search or seizure violates the Fourteenth Amendment and evidence thus procured must as a matter of constitutional law be excluded in state court proceedings as well as federal. This opens a new era of law enforcement in this state for our courts have freely disregarded rulings of the United States Supreme Court in this area of the law and will now be required to recant many of their decisions.

Professor Rex A. Collings, Jr. (University of California School of Law, Berkeley) has made an excellent review and forecast of the problems ahead of us in an article entitled ‘Toward Workable Rules of Search and Seizure—An Amicus Curiae Brief’ appearing in 50 California Law Review 421. On that page he says: ‘On June 19, 1961, the Supreme Court of the United States rendered its landmark decision in Mapp v. Ohio. As a minimum result of that decision all states now have the exclusionary rule. Another possible result, which may be alarming to Californians, is that our courts will no longer be permitted to develop their own rules of search and seizure, at least not without close supervision by the United States Supreme Court. Perhaps many of the efforts of the California courts in the past seven years are destined for the trash heap.’ The author reviews numerous questions upon which the state and federal court decisions are now at variance.⁴

The Supreme Court of the United States seems to be in agreement with California courts upon the meaning of reasonable cause for arrest or search. (See, United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 94 L.Ed. 653; Mapp v. Ohio, supra, 367 U.S. at p. 653, 81 S.Ct. 1684; Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327; People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577.) The question of whether a particular search was reasonable is primarily one of fact, but the Mapp opinion dictates that the state courts must reach a conclusion which conforms to the views of the federal Supreme Court, for in this field, as on other federal constitutional questions, the Supreme Court will make its own independent inquiry as to the sufficiency of the evidence.

In Lisenba v. California, 314 U.S. 219, 238, 62 S.Ct. 280, 291, 86 L.Ed. 166, the court, examining a claim of involuntary confession and resultant denial of due process, said: ‘There are cases, such as this one, where the evidence as to the methods employed to obtain a confession is conflicting, and in which, although denial of due process was not an issue in the trial, an issue has been resolved by court and jury which involves an answer to the due process question. In such a case we accept the determination of the triers of fact, unless it is so lacking in support in the evidence that to give it effect would work that fundamental unfairness which is at war with due process.’

Elkins v. United States, supra, 364 U.S. 206, 224, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669: ‘In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.’

In Malinski v. New York, 324 U.S. 401, at pages 416–417, 65 S.Ct. 781, at page 789, 89 L.Ed. 1029, Mr. Justice Frankfurter concurring said: ‘The exact question is whether the criminal proceedings which resulted in his conviction deprived him of the due process of law by which he was constitutionally entitled to have his guilt determined. Judicial review of that guaranty of the Fourteenth Amendment inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses. These standards of justice are not authortatively formulated anywhere as though they were prescriptions in a pharmacopoeia. But neither does the application of the Due Process Clause imply that judges are wholly at large. The judicial judgment in applying the Due Process Clause must move within the limits of accepted notions of justice and is not to be based upon the idiosyncrasies of a merely personal judgment. The fact that judges among themselves may differ whether in a particular case a trial offends accepted notions of justice is not disproof that general rather than idiosyncratic standards are applied. An important safeguard against such merely individual judgment is an alert deference to the judgment of the state court under review. But there cannot be blind acceptance even of such weighty judgment without disregarding the historic function of civilized procedure in the progress of liberty.

‘And so, with every respect for the contrary views of the majority of the judges below and of some of my brethren here, I cannot escape agreement with the Chief Judge of the New York Court of Appeals and two of his associates that there was not in this case a fair trial of issues vital to the determination of guilt or innocence.’

Mr. Justice Harlan concurring and dissenting in Smith v. California, 361 U.S. 147, 172, 80 S.Ct. 215, 4 L.Ed.2d 205 (an obscene literature case), said: ‘While a State is not debarred from regarding the trier of fact as the embodiment of community standards, competent to judge a challenged work against those standards, it is not privileged to rebuff all efforts to enlighten or persuade the trier.

‘However, I would not hold that any particular kind of evidence must be admitted, specifically, that the Constitution requires that oral opinion testimony by experts be heard. There are other ways in which proof can be made, as this very case demonstrates. * * * Where there is a variety of means, even though it may be considered that expert testimony is the most convenient and practicable method of proof, I think it is going too far to say that such a method is constitutionally compelled, and that a State may not conclude, for reasons responsive to its traditional doctrines of evidence law, that the issue of community standards may not be the subject of expert testimony. I know of no case where this Court, on constitutional grounds, has required a State to sanction a particular mode of proof.’

The California Supreme Court recognized and applied this doctrine in People v. Ditson, 57 Cal.2d 415, 20 Cal.Rptr. 165, 369 P.2d 714, a murder case in which it was claimed there had been a denial of due process through admission of certain evidence discovered as the result of a lie detector test and a confession thus made by defendant Cisneros. The court said, at page 422, 20 Cal.Rptr. at page 167, 369 P.2d at page 716: ‘Since the matter involves due process a conviction by means obnoxious to the federal concept cannot be sustained. Accordingly the entire record must be examined to determine, among other things, whether any error has been prejudicial to defendants or any procedure has operated to deprive either of them of any essential element of a fair trial or due process of law.’ Again at page 436, 20 Cal.Rptr. at page 176, 369 P.2d at page 725: ‘As stated at the outset, the trial court's expressed understanding of the law relating to the admissibility of the product or ‘fruits' of an involuntary confession has been rejected by the Supreme Court of the United States and must be regarded as untenable. We therefore undertake to state the now established rule under federal decisions, which rule has been recognized, although perhaps not heretofore unqualifiedly adopted, as the rule governing such procedure in California.’ After making such an examination it was concluded that the confession was not involuntary and the judgment should be affirmed.

It seems apparent, therefore, that the state courts are now confronted with the task of squaring all their due process decisions involving rights conferred by the federal constitution with the views of the Supreme Court of the United States as expressed in their decisions, present or prospective, and that this extends to the fact questions. This is also true of causes of action and other rights conferred by federal statute,—exemplified by the Federal Employers' Liability Act. See, Urie v. Thompson, supra, 337 U.S. 163, 174, 69 S.Ct. 1018, 93 L.Ed. 1282; Davee v. Southern Pacific Co., 58 A.C. 584, 587, 25 Cal.Rptr. 445, 375 P.2d 293; McGuigan v. Southern Pac. Co., 112 Cal.App.2d 704, 714, 247 P.2d 415.

The extent to which local procedure governs the disposition of federal constitutional and statutory rights in a state court is involved in some uncertainty, but an examination of the authorities establishes, we think, a rule that the state courts are free to pursue their own methods of framing and trying issues so long as those methods do not result in any substantial impairment or impingement upon said federal rights, but they definitely cannot be pursued to that point; they there become matters of substance and are controlled by the rulings of the United States Supreme Court.

Mapp v. Ohio, supra, 367 U.S. 643, says in footnote 9, at page 659, 81 S.Ct. 1684, at page 1693: ‘As is always the case, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected. * * *’

An annotation entitled ‘Local law and practice as applicable to actions under Federal Employers' Liability Act—Supreme Court cases', found in 96 L.Ed. of United States Supreme Court Reports page 408, says at 409: ‘The proposition has been made that while state courts are without power to detract from ‘substantive rights' granted by Congress in cases under the act, they are free to follow their own rules of ‘practice’ and ‘procedure.’ While in the field of conflict of laws matters of procedure, as distinguished from matters of substantive law, are governed by the law of the place where an action is brought, the Supreme Court has refused, in actions under the Federal Employers' Liability Act, to make a distinction between matters of substance and procedure depend upon nomenclature, that is, upon the label ordinarily given to the issue as to which such a distinction may be relevant. Moreover, a majority of the Court has indicated that it is impossible for the court to lay down a precise rule to distinguish ‘substance’ from ‘procedure.’ Hence each question which may be labeled as procedural must be treated separately, in the light of the general principle that a substantive right or defense arising under the federal act cannot be lessened or destroyed by a local rule of practice.

‘Attention is called to the fact that, while a substantive federal right or defense duly asserted cannot be lessened or destroyed by a state rule of practice, yet a plaintiff must assert a federal right, such as a right under the Federal Employers' Liability Act, at a time and in a manner calling for the consideration of the claim by the state courts under their established system of practice and pleading; otherwise the refusal of the state courts to admit testimony tendered in support of such claims is not a denial of a federal right which the Supreme Court can review.’

Our own Supreme Court in McCarroll v. Los Angeles County etc. Carpenters, 49 Cal.2d 45, at page 61, 315 P.2d 322, at page 331, discussing the right of a state court to enjoin a strike, says: ‘Moreover, in cases brought in state courts under the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.), an area in which the most vexing problems of state enforcement of federal rights have arisen, it has been held that state procedure must give way if it impedes the uniform application of the federal statute essential to effectuate its purpose, even though the procedure would apply to similar actions arising under state law. E. g. Dice v. Akron, Canton & Youngstown R. R., 342 U.S. 359, 362–364, 72 S.Ct. 312, 96 L.Ed. 398.’ At page 60 of 49 Cal.2d, at page 330 of 315 P.2d: ‘What the substantive federal law of collective bargaining agreements is we cannot now know. Until it is elaborated by the federal courts we assume it does not differ significantly from our own law.’

The instant proceeding requires a disposition of the claim that the California court is required to receive in evidence proof of a ruling made by the United States District Court that the search and seizure which uncovered evidence for the federal prosecution as well as the state case against Castaneda was an unreasonable one and hence a denial of due process of law. Upon the authorities above cited and upon independent reasoning we answer the question in the negative, holding that there was no error and no denial of due process in the rejection by the state court of the proffered certified copy of the federal court ruling—this because the state court is not bound by a decision of a lower federal court even though it be upon a due process question.

Upon the question which emerges from the ruling just stated, namely, whether the instant search was reasonable (regardless of the decision of the federal court) petitioner's counsel relies upon Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828, and Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, both of which hold that except in rare instances a search of a residence cannot be made without a search warrant or as an incident to a lawful arrest. Counsel advances the contention of necessity of a search warrant upon the assumption that there was no valid consent to a search in this case, a matter later discussed herein.

Chapman v. United States, supra, seems to be the latest expression of the Supreme Court upon the subject. It was held in Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, that a search of a building made without a search warrant which could have been procured violated the Fourth Amendment because of the absence of a warrant (pp. 706–707, 68 S.Ct. 1229). However, this case was overruled in United States v. Rabinowitz, supra, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653, wherein the court said: ‘To the extent that Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that case is overruled. The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances—the total atmosphere of the case. It is a sufficient precaution that law officers must justify their conduct before courts which have always been, and must be, jealous of the individual's right of privacy within the broad sweep of the Fourth Amendment.’ Such was also the holding in Harris v. United States, 331 U.S. 145, 150–151, 67 S.Ct. 1098, 91 L.Ed. 1399. But Mr. Justice Whittaker, speaking for six members of the court in Chapman, made no mention of Rabinowitz, and relying upon Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951, and Johnson v. United States, supra, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, held that a search of a dwelling made without a search warrant where there was ample time to procure one, the search not being made as an incident to a lawful arrest, was a denial of due process. The Rabinowitz decision was called forcibly to the attention of the author by the concurring opinion of Mr. Justice Frankfurter and the dissent of Mr. Justice Clark. The former said, 365 U.S. at page 618, 81 S.Ct. at page 780: ‘The Court's opinion in this case is hardly calculated, I regret to say, to contribute to clarification. The reasoning by which the Court reaches its result would be warranted were Trupiano v. United States, 1948, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, still law. While the Court does not explicitly rely on it, underlying the present decision is the approach of Trupiano. That decision was a short-lived deviation from the course of decisions preceding it and it was specifically overruled by United States v. Rabinowitz, 1950, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653, [660]. Since the Rabinowitz case expresses the prevailing view, the decision in this case runs counter to it. The Court does rely on Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, although that case was seriously impaired by Rabinowitz, 339 U.S. at page 66, 70 S.Ct. at page 435, dissenting opinion, 339 U.S. at page 85, 70 S.Ct. at page 444.’ Mr. Justice Clark said, 365 U.S. at page 619, 81 S.Ct. at page 781: ‘The Constitution condemns only an unreasonable search. As my Brother Frankfurter says, that determination ‘turns on the circumstances presented by a particular situation.’' And at page 622, at page 783 of 81 S.Ct.: ‘Every moment of every day, somewhere in the United States, a law enforcement officer is faced with the problem of search and seizure. He is anxious to obey the rules that circumscribe his conduct in this field. It is the duty of this Court to lay down those rules with such clarity and understanding that he may be able to follow them. For some years now the field has been muddy, but today the Court makes it a quagmire. It fashions a novel rule, supporting it with an old theory long since overruled. If Rabinowitz is no longer law the Court should say so. It is disastrous to law enforcement to leave at large the inconsistent rules laid down in these cases. It turns the wellsprings of democracy—law and order—into a slough of frustration.’ Nevertheless, Mr. Justice Clark was the sole dissenter. The only conclusion we can reach, for the present at least, is that Chapman represents binding authority as to the necessity of obtaining a search warrant. It is contrary to California holdings (People v. Winston, 46 Cal.2d 151, 162–163, 293 P.2d 40; People v. Sayles, 140 Cal.App.2d 657, 660, 295 P.2d 579; People v. Dupee, 151 Cal.App.2d 364, 367, 311 P.2d 568; People v. Handy, 200 A.C.A. 434, 440, 19 Cal.Rptr. 409), and the law of this state must be revamped accordingly. The officers had no search warrant in the instant case and the entry into defendant's home and search of same must be held unlawful unless defendant or some other authorized person consented thereto. This presents a question of fact which requires a review of the evidence at this point. Said evidence consists of the transcript of the preliminary hearing in the municipal court.

Carl N. Copping, deputy sheriff of Los Angeles County, was the only witness called. On November 21, 1961, about 7:30 p. m., he parked his car in front of 10890 Lewis Road, Lynwood; that was the home of John Spade who was a known addict; Copping had been informed by his sergeant that narcotics traffic was going on at that address. Copping had ‘handled’ Spade on four or five occasions and he had assisted the officers in further narcotic investigations. Spade had worked with Copping and other officers in the preceding October and had told them that defendant Castaneda had narcotics in his possession; that he had seen 10 to 12 kilos of marijuana in defendant's home. On this evening of November 21st, after witnessing suspicious activities at Spade's home, Officers Copping and Bridges went to the kitchen door, Officer Goodwin to the front door and Officer Burley to the rear door. Copping and Bridges looked through the kitchen window which was open and covered by a screen only; they saw Spade taking a ‘fix’; he had narcotic paraphernalia and had just finished or was taking an injection. Copping walked to the kitchen door and stood there for 30 to 40 seconds whereupon Spade opened the door and recognized him. Spade's sleeve was still up and Copping could see his arm; he arrested Spade and walked into the kitchen. Castaneda was sitting in a kitchen chair near the door and one Trejo was sitting next to him; Spade and both of them were generally lethargic, eyes pinpointed and generally slow in response, and in the opinion of Copping (experienced and expert in the narcotic field) all of them were under the influence of a narcotic. Though the witness did not know defendant he did recognize him by sight and had received information concerning him from informants whose information had resulted in arrests and convictions of narcotic violators; these informants were addicts and after questioning had given defendant as the source of heroin. Spade told Copping where to find the narcotic outfit, which was under the sink in the kitchen, and Spade said Henry (defendant) had brought it. Castaneda and Trejo were then arrested, Spade being already in custody; defendant was handcuffed in front and the cuffs were kept on him at all times until he reached the police station but he made no complaint about them. On the way to the station defendant, replying to question, said he had no more narcotics, no more at his home. Copping asked him if the officers could look and he asked if they had a search warrant. ‘I stated I did not have a search warrant, and I would not need one if he would give me consent, at which time he gave me consent. Q What did he say? A He said you could go ahead and look.’ Goodwin, Copping and defendant then proceeded toward defendant's home at 305 West Bennett Street in Compton; Copping knew where defendant lived. Asked where he lived he said 1430 Tamarind Street, Compton, and that he had lived there about a year with his mother. “Are you sure you live at 1413 Tamarind Street?' He stated, ‘All right. You guys know where I live.” They then alighted from the car and started down the driveway at 305 West Bennett Street, whereupon defendant said: “I don't live here; I live over here.’ And he pointed to 303 West Bennett. He knocked on the door, an elderly lady let him in, which was later identified as his aunt Mary Orozco. And I asked—we asked the defendant, ‘Where od you sleep?’ He said, ‘Well, I sleep in the back bedroom with my cousin Johnny. We then—we first of all, we assured the lady that we were police officers. We properly identified ourselves. We went to the bedroom where Johnny was sleeping in a single bed, no other bed in the room, and no other clothes except those of Johnny's in the room. * * * Then proceeded to the front room with the defendant, asked him to sit down on the couch, at which time he did. Deputy Goodwin then had a conversation that I could hear with the defendant's aunt Mary Orozco. * * * And Deputy Goodwin asked Mrs. Orozco if Henry lived there. She stated, ‘No, he lives across the way.’ And at this time the defendant stated, ‘Mary, don't tell them nothing. Mary, don't tell them nothing.’ Q Then what happened? A We then proceeded across the way, across from 303 to 305, where a young girl was sitting with the defendant's four minor children. And we asked this lady, this young girl, if the defendant lived there. She stated yes, he did. * * * We then asked Henry again if he had any narcotics in the house. And he stated, ‘All right, I will tell you where they are.’ * * * At this time the defendant stated that he had half a pound of marijuana and two spoons of junk, and it was over at his mother's house at 1413 Tamarind Street' (‘junk’ meaning heroin). The officers and defendant then went to the Tamarind address where defendant directed them down a long driveway into a garage and pointing to the rafters said, ‘it's up there.’ A ladder was used and search made but nothing was found. ‘And I says, ‘There is nothing up here.’ And the defendant stated, ‘What? Somebody must have taken it, because it was there this afternoon.’' The officers and defendant then returned to 305 West Bennett Street and in defendant's presence made a search of his house, finding in a dresser drawer two Benzedrine pills and a Benzedrine capsule; in the hallway in a black and red box two rubbers containing white powder, a small wax bag with 72 Seconal tablets, 69 loose Seconal tablets, another small bag with 96 Seconals, several prophylactics, two bags containing white powder. When it was found and defendant was asked whose it was, he said that it has left from two ounces of heroin he had bought a week or two before for $300.

On cross-examination Copping said the officers had no search warrant for Spade's or defendant's home; that in conversations extending over a year defendant had been named by several persons as a dealer in narcotics, viz.: ‘Bennie Rodriguez, who lives in the Compton area; Fernando Ochotoreno, known as Foxy to the deputies that work this area; Richard Mendoza, known as Lito; John Montoga Garcia, known as Bugs; John Spade; Bobby Thornton, lives out in Pico Rivera—Santa Fe, excuse me, City of Santa Fe. And Gelbue, I can't recall his true name at this moment, lives on 721 Poplar Street in Compton.’ The witness did not see defendant touch the narcotic outfit or see him take a fix or have possession of any narcotic at Spade's house. Defendant was arrested for being under the influence of a narcotic but booked on a charge of possession.

While going from place to place defendant asked two or three times if Copping had a warrant, and ‘[h]e may have asked that same question twice, maybe three times, and I repeated to him, ‘Henry, if you don't have any narcotics in your home, will you give me consent to search, and I don't have to have a search warrant.’ * * * Asked me if I had a search warrant. THE COURT: You told him you didn't need one. Then what did he say? A He asked me if I had a search warrant once at Johnny Spade's house, and he asked me maybe at his house. He could have asked me again at his aunt's house, but I don't recall at this moment if he did, but I do explicitly remember that he asked me for a search warrant at John Spade's house, so when we were getting ready to go down to his house, and then again at his house. THE COURT: You told him if he didn't have any narcotics and he gave you consent you didn't need a search warrant? A Yes, sir. THE COURT: Then what did he say when you made that statement, if anything? A I said I wanted him to watch while we searched, stay right with us. * * * There was a discussion about the warrant in his front room and I related the substance of that conversation, to the best of my knowledge. Q Those are the two conversations about a warrant? A Two for sure. Q One at Spade's, one there, and maybe one more? A Possible could have repeated it. * * * Was there any time when in your presence or between you and the defendant, any conversation between the defendant and the police officers, relative to the possibility of arresting other members of his family? A Yes, there was. Q What was that conversation? A It wasn't stated in the form that they were under arrest. There was a statement made that when the narcotics were found he first stated—he denied that they were there. He didn't know that they were there. And at that time he was told everyone in the house would have to go to the Firestone Station, and the kids would have to go, possibly go to Juvenile Hall. This is standard procedure in any arrest, because you can't leave the children unattended, and the only person there was a 16-year-old baby sitter.' This latter conversation was had between defendant and Officer Bridges.

The items found in defendant's home were received in evidence over objection and are vital to a successful prosecution; if wrongfully seized the prosecution must fail and the writ of prohibition must issue under § 999a, Penal Code. The magistrate who bound defendant over to the superior court impliedly held that defendant consented to the search of his home. The question now before us is whether there is any substantial evidence which consistently with federal precedents warrants a finding of consent. We hold that there is, although counsel's argument to the contrary is somewhat persuasive. The evidence warrants the inference that defendant was trying to lead the officers away from his cache of heroin but when that effort proved futile he consented, though he repeated his inquiry whether the officers had a search warrant. Failure to object to a search is evidence of consent (People v. Torres, 56 Cal.2d 864, 867, 17 Cal.Rptr. 495, 366 P.2d 823; People v. Elliott, 186 Cal.App.2d 178, 182, 8 Cal.Rptr. 795.) This defendant watched the search from room to room and registered no protest at any time. The fact that he was under arrest and in handcuffs does not preclude a finding of voluntary consent. (People v. Lujan, 141 Cal.App.2d 143, 147, 276 P.2d 93; People v. Valdez, 188 Cal.App.2d 750, 756, 10 Cal.Rptr. 664.) Johnson v. United States, supra, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, and Chapman v. United States, supra, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828, concede that the Fourth Amendment does not deny ‘law enforcement the support of the usual inferences which reasonable men draw from evidence’ but that those inferences are to be drawn by a magistrate and not by an enforcement officer (see p. 614 of 365 U.S., p. 779 of 81 S.Ct.).

In People v. Tyler, 193 Cal.App.2d 728, 734, 14 Cal.Rptr. 610, 613, the court said: ‘We find nothing in Mapp v. Ohio, supra, to indicate that as a result of that decision the states are bound to follow the federal requirements of reasonable and probable cause instead of their own,’ and the Supreme Court of the United States denied certiorari on May 28, 1962, in 370 U.S. 905, 82 S.Ct. 1252, 8 L.Ed.2d 401.⁵

We hold that there is at bar substantial evidence sufficient to support a finding of consent to a search, hence the existence or non-existence of a search warrant becomes immaterial.

Other problems suggested by authorities cited by petitioner's attorney also become immaterial here,—such as the federal rule that a search made without a warrant must be incidental to a lawful arrest (see, Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134, and United States v. Rabinowitz, supra, 339 U.S. 56, 60, 70 S.Ct. 430, 94 L.Ed. 653, as opposed to People v. Brown, 45 Cal.2d 640, 643, 290 P.2d 528, and People v. Ball, 162 Cal.App.2d 465, 467, 328 P.2d 276), or the rule that the search incident to an arrest must be made in the immediate vicinity (see, Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145 and People v. Aleria, 193 Cal.App.2d 352, 355–359, 14 Cal.Rptr. 162).

So far-reaching are the implications of the Mapp decision that there is a tendency on the part of bench and bar to view the same with trepidation. However, Professor Collings may have flashed a ray of light into the surrounding gloom when he said in his article in 50 California Law Review at page 429: ‘Each set of facts is slightly different and the question which arises is whether the trial court properly ruled as a matter of law that there was reasonable cause. In my opinion, it would be impossible for the Supreme Court to lay down meaningful uniform standards of reasonable cause. Of course it could decide many cases with per curiam opinions, but even that device imposes some limits on the capabilities of the Court.’ And at page 440: ‘The federal test of ‘probable cause,’ a term which is synonymous with reasonable cause, appears to be the same as the California test. Even if Mapp does foretell a national law of search and seizure, the vagueness of the test coupled with the sheer number of cases will discourage Supreme Court intervention. It seems likely that the Court will hold that reasonableness is in the first instance for the state courts and grant certiorari rarely if ever.'

It appearing that the search of defendant's house was made with his consent the claim of unlawful search and seizure fails and it follows that the peremptory writ of prohibition cannot issue.

Peremptory writ denied and alternative writ discharged.

FOOTNOTES

1.  Penal Code § 995: ‘The indictment or information must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases: * * * If it be an information: 1. That before the filing thereof the defendant had not been legally committed by a magistrate. 2. That the defendant had been committed without reasonable or probable cause.’

2.  Penal Code § 999a: ‘A petition for a writ of prohibition, predicated upon the ground that the indictment was found without reasonable or probable cause or that the defendant had been committed on an information without reasonable or probable cause, must be filed in the appellate court within 15 days after a motion made under Section 995 of this code to set aside the indictment on the ground that the defendant has been indicted without reasonable or probable cause or that the defendant had been committed on an information without reasonable or probable cause, has been denied by the trial court. * * *’

3.  The above quotations are taken from the opinion of Mr. Justice Clark, which represents the views of five Justices. Two of the five (Justices Black and Douglas) filed concurring opinions. The Douglas opinion starts with the words: ‘Though I have joined the opinion of the Court, I add a few words.’ Justice Black's opinion expresses the view that the Fourth Amendment is not alone sufficient to support the Clark ruling but when combined with the Fifth Amendment solid basis is laid. The views of Mr. Justice Clark may therefore be accepted as those of the majority of the Court.

4.  One who would have at hand a Baedeker as he traverses this strange new territory would do well to carry with him a copy of Professor Collings' article. See also, Case Note in UCLA Law Review, page 254 and John P. Bruno's ‘Comment’ upon ‘The Exclusionary Rule of Illegally Obtained Evidence: Its Development and Application’ in 35 Southern California Law Review, page 64.

5.  On the other hand the writ was granted on January 22, 1962, in People v. Ker, 195 Cal.App.2d 246, 15 Cal.Rptr. 767, sub nom. Ker v. California, 368 U.S. 974, 82 S.Ct. 480, 7 L.Ed.2d 437. In that case the District Court of Appeal said, 195 Cal.App.2d at page 256, 15 Cal.Rptr. at page 773: ‘In the light of the implied findings of the trial court in its conclusion that probable cause existed, and the more than ample facts supporting the same; and the circumstances surrounding the entry, the finding of the marijuana and the subsequent search of defendant's apartment, the recent reference to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, does not justify a change in our original conclusion.’ The significance of the granting of the writ cannot presently be appraised because of the facts of the case and uncertainty as to the ground upon which the writ was granted.

ASHBURN, Justice.

FOX, P. J., and HERNDON, J., concur.