PEOPLE v. ALLEN (1992)

OPINION

Donald Jerry Allen was convicted of possession of a controlled substance after a jury trial.   A charge of possession for the purpose of sale was dismissed when the jury deadlocked.   Allen contends the arresting officer failed to obtain an adequate Miranda ¹ waiver.

I

During a narcotics investigation, Allen was found in a motel room which contained 27.8 grams of cocaine and assorted contraband.   The room was registered to Chastity Newton, who was also present at the time of the arrest.

Upon Allen's arrest, a police officer advised him of his constitutional rights, pursuant to Miranda, and asked him whether he understood each of them.   Allen said he did.   The officer then asked Allen, “Why don't you tell me about the dope?”   The officer did not ask whether Allen wanted to talk to the police or if he wished to waive his rights.   Allen did not indicate whether he wanted to talk to the officers, or if he wanted an attorney present during questioning, but proceeded to answer the question.

Allen told the officer that a woman named Candy (who was not present at the time of the arrest) lived in the motel room, from which she sold cocaine.   He also stated he had sold cocaine for Candy one year ago in exchange for room and board.   Allen said he was aware of the cocaine found in the motel room, but it was not his and he was not selling it.

When asked what he was doing in exchange for the lodging, Allen replied he was a “baby-sitter.”   At trial the officers testified they believed this statement meant Allen was watching the cocaine.   Allen testified he was referring to looking after Chastity, who was with him in the motel room at the time of the arrest.

II

 Allen contends the failure to obtain an express waiver resulted in the absence of a meaningful relinquishment of his Miranda rights.   He challenges the trial court's finding his responses to the officer's questioning constituted an implied waiver.

 An accused must be apprised of his or her rights before being subject to a custodial interrogation.  (Miranda v. Arizona, supra, 384 U.S. at p. 467, 86 S.Ct. at p. 1624.)   A waiver of an accused's Miranda rights can be implicit (People v. Boyette (1988) 201 Cal.App.3d 1527, 1535, 247 Cal.Rptr. 795), but there is a presumption against implied waivers which the prosecution has a large burden to overcome.  (North Carolina v. Butler (1979) 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286.)

In Butler, the United States Supreme Court made clear that express statements were not required for a waiver.  (Id. at p. 374, 99 S.Ct. at p. 1758.)   The Court noted that what constitutes a waiver is not a question of form, but turns on whether the waiver was made knowingly and voluntarily.   (Ibid.)  This can be determined by looking at the facts and circumstances of the case, including the defendant's background, experience, and conduct.   (Id. at pp. 374–375, 99 S.Ct. at pp. 1258.) ²

In this case, Allen's rights were read to him, he replied that he understood them, and his statements were not reluctant responses to leading questions, but rather a response to a single question.   The trial court also found no evidence of intimidation.   However, our analysis does not end there.

In People v. Sully (1991) 53 Cal.3d 1195, 283 Cal.Rptr. 144, 812 P.2d 163, the Supreme Court held there was a waiver where the defendant's rights were read to him, he acknowledged he understood his rights, and he answered questions and made statements which he knew were being recorded.  (Id. at p. 1233, 283 Cal.Rptr. 144, 812 P.2d 163.)   The Court found that Sully, a former police officer, had a better understanding of his Miranda rights than the ordinary defendant.  (Ibid.)

Here, the respondent suggests that because Allen had been arrested before, there is a similar indication of greater sophistication.   Without more facts surrounding his prior arrest this court cannot make assumptions about the extent of Allen's knowledge of his legal rights.   The instant case is distinguishable from In re Aven S. (1992) 1 Cal.App.4th 69, 1 Cal.Rptr.2d 655, where the reviewing court had evidence that the defendant had been Mirandized on two or three prior occasions.  (Id. at p. 74, 1 Cal.Rptr.2d 655.)

Whether the police offered the accused an opportunity expressly to waive his or her rights has been a factor in other cases where an implied waiver has been found.   In cases where this opportunity was not offered, other circumstances, which are absent here, have given overriding support to the existence of an implied waiver.

In People v. Mitchell (1982) 132 Cal.App.3d 389, 183 Cal.Rptr. 166, the defendant was offered an opportunity to exercise his rights by a direct question inquiring whether he wished to talk to the officers.  (Id. at p. 403, 183 Cal.Rptr. 166.)   He implicitly answered that question in the affirmative by asking, “What do you want to know?”  (Ibid.)  In Boyette, the defendant implicitly waived his rights by initiating a conversation with the arresting officer before the officer could ask him if he wished to waive his rights.  (People v. Boyette, supra, 201 Cal.App.3d at p. 1535, 247 Cal.Rptr. 795.)   In Butler, the defendant agreed to waive his Miranda rights orally, but refused to sign a waiver form.  (North Carolina v. Butler, supra, 441 U.S. at p. 372, 99 S.Ct. at p. 1757.)

In contrast to Mitchell, Boyette and Butler, the arresting officer in this case never attempted to exact an express waiver from Allen.  “[T]he Court should require the police to obtain an ‘ “affirmative waiver” ’ of Miranda rights before proceeding with interrogation.”  (Connecticut v. Barrett (1987) 479 U.S. 523, 532–533, 107 S.Ct. 828, 833–834, 93 L.Ed.2d 920. (conc. opn. of Brennan, J.).)

The Court in Butler indicated that implied waivers were an exception to the rule which requires extenuating circumstances, and not to be found in every case in which a defendant answers a police officer's questions after a Miranda advisement.  (North Carolina v. Butler, supra, 441 U.S. at p. 374, 99 S.Ct. at p. 1758.)   If we were to find an implied waiver in this case, one could be found in virtually all cases of this variety.  (Ibid.)

In Mitchell, Boyette, and Butler, there were actions or statements following the police offer of an election to remain silent, from which a waiver was inferred.   Here, at best, the prosecution showed only that Allen was advised of his rights.   Nothing which followed the advisement can be construed as a waiver of those rights, save his response to questioning.   The prosecution did not meet its burden in establishing an implicit waiver and it was error for the trial court to allow evidence of the subsequent admissions.

 Improper admission of a defendant's statement warrants reversal unless we can conclude the admission of such evidence was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, People v. Boyer (1989) 48 Cal.3d 247, 279, 256 Cal.Rptr. 96, 768 P.2d 610.)   We cannot.   The evidence consisted of Allen's mere presence in a motel room in which he had been staying for a couple of days, but which was registered to another occupant.   In the absence of his statements, admitting knowledge of the drug's existence and stating he was “babysitting,” there was no other evidence from which his knowledge or possession might be inferred.

Judgment reversed.³

FOOTNOTES

1.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694.

2.   People v. Johnson (1969) 70 Cal.2d 541, 558, 75 Cal.Rptr. 401, 450 P.2d 865 (disapproved on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 899, fn. 8, 135 Cal.Rptr. 786, 558 P.2d 872) seems to set a fairly light burden for establishing an implicit waiver:  “Once the defendant has been informed of his rights, and indicates that he understands those rights, it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows of his rights and chooses not to exercise them.”  (People v. Johnson, supra, 70 Cal.2d at p. 558, 75 Cal.Rptr. 401, 450 P.2d 865.)  Butler, however, later established a more stringent burden, as set forth above.  (North Carolina v. Butler, supra, 441 U.S. at p. 373, 99 S.Ct. at p. 1757.)

3.   Allen also seeks to exclude the statements as inadmissible evidence of prior uncharged offenses.   We need not consider this argument, since we have already determined they should have been excluded.

SONENSHINE, Associate Justice.

SILLS, P.J., and WALLIN, J., concur.