People v. Baker

¶1I respectfully dissent. I would affirm the judgment.

¶2In the trial court defense counsel moved to suppress evidence found in defendant’s residence (§ 1538.5, Pen. Code), but did not move to traverse or quash the search warrant, which I can well understand. Having reviewed the search warrant received in evidence on the hearing and made a part of the appellate record, I can only conclude it is a valid one. The validity of the search warrant,1 as well as the issue of “a valid and voluntary consent” to search, was before the trial court on the section 1538.5 motion, and *572defense counsel argued that assuming the information contained in the affidavit to be accurate, there is “insufficient probable cause relative to the arson” (italics added) to support the warrant. However, the court based its denial of the motion to suppress on a finding of “a proper consent to search” stating it thus did not reach the issue with respect to the search warrant.

¶3I

¶4Search Warrant

¶5That portion of the majority opinion holding that on remand a full hearing must be had in the trial court to determine the validity of the search warrant is predicated on what I consider to be a strained interpretation of the following portion of Detective Orr’s affidavit supporting the search warrant: “Your Affiant drove to 10556 Greeley Ave [sz'c] and knocked on a side door and heard footsteps inside. A curtain parted and then returned but no one answered the door. I walked to the garage and saw 9 vehicles parked on the property and an open door to the garage. Inside the garage I observed several auto engines including a blue and a red one on the floor.” The majority opine that this language can be construed to suggest that Detective Orr illegally entered defendant’s garage—opened the door and entered the garage for the purpose of finding corroborating evidence of his informant’s statements—which renders his initial observation of the engines on the garage floor an unlawful search. They further assert that inasmuch as it is on this initial invalid warrantless search the search warrant is based, the warrant is invalid and the search of defendant’s residence and seizure of evidence found therein would be unlawful because his consent to search was based on the arrival of a valid search warrant.

¶6I disagree for I perceive the issue differently. I would deny to defendant the full scale hearing the majority seek to give him and would affirm the judgment, for three reasons. First, the interpretation given by the majority to the language used in Detective Orr’s affidavit is far-reaching and much too speculative on which to base an order of remand to the superior court for a full hearing on the validity of the search warrant and its bearing on consent. Second, defendant having had one hearing to determine the validity of the search of the residence based on a consent he claimed not to be voluntary because, among other things, it was in submission to police authority, and having lost, I would not give him a second chance to proceed on a new and different theory, one not raised in the court below, i.e., that the search warrant on which he relied in giving consent was invalid because it was based on an unlawful entry to and search of his garage; his theory below was that the search warrant is invalid because there is insufficient *573probable cause “relative to the arson” in the affidavit to support it.2 Third, the search warrant is a valid one based on Detective Orr’s lawful observation of two engines described by his informant as stolen, in defendant’s garage. In my view the only reasonable interpretation of Detective Orr’s affidavit, giving the normal ordinary meaning to the common language used therein, is that after he talked with his informant who described the blue and red engines in defendant’s garage as stolen, he drove to defendant’s residence to talk to him, knocked and, receiving no answer, walked to the garage. He saw nine vehicles parked on the property. At the garage he observed an open garage door, looked inside while standing outside the garage and, through the open door, saw on the floor the two engines previously identified by the informant. I cannot conclude, as do the majority, that Detective Orr’s affidavit adds up to an unlawful entry to and an invalid search of the garage; to the contrary, I can only construe the language to mean that Detective Orr did not enter the garage, and while lawfully standing outside of the garage, observed through an open door that which was in plain view. I find nothing illegal about this kind of conduct.

¶7II

¶8Consent

¶9Defendant’s consent to search his residence was found by the trial court to be a “proper consent” after a hearing on the issue of whether it was freely and voluntarily given. The question whether a consent to search was voluntary is one of fact for the trial court, and its resolution will not be disturbed on appeal if there is substantial evidence to support it. (People v. Ruster (1976) 16 Cal.3d 690, 701 [129 Cal.Rptr. 153, 548 P.2d 353, 80 A.L.R.3d 1269].) There is such evidence here.

¶10Appellant contends his consent was not freely given because of the presence of six or eight officers, and a choice offered by police that “a search warrant was on the way, and that he could either let them in now or wait another twenty minutes and they would go in anyway.” His contention is without merit. The record does not demonstrate the kind of police conduct that would render such consent invalid. (People v. James (1977) 19 Cal.3d 99, 110 [137 Cal.Rptr. 447, 561 P.2d 1135].) Nor did the choice of con*574senting to the search or waiting until the arrival of the search warrant vitiate his consent to search. There was nothing coercive about this choice afforded him by the officer inasmuch as it told the defendant nothing more than that the officers had already done that which they were legally entitled to do— they had obtained a search warrant and were on their way to serve it. (People v. Gurtenstein (1977) 69 Cal.App.3d 441, 450 [138 Cal.Rptr. 161]; People v. McClure (1974) 39 Cal.App.3d 64, 69 [113 Cal.Rptr. 815].) In fact, the warrant had been issued, but not yet arrived; it was brought to the premises while the search was in progress. There was no deception, no coercion used in obtaining consent.

¶11Appellant says he “felt” he was under arrest or illegally detained because the officer ordered him to empty his pockets, sit down and not move, thus his consent was given in submission to an express or implied assertion of authority. This, too, is a question of fact. (People v. Superior Court (Peck) (1974) 10 Cal.3d 645, 649 [111 Cal.Rptr. 565, 517 P.2d 829].) While defendant testified he was ordered to empty his pockets prior to arrest, the evidence is conflicting and the trial judge, as he had the right to do, resolved the factual conflict (People v. Gale (1973) 9 Cal.3d 788, 792 [108 Cal.Rptr. 852, 511 P.2d 1204]) and impliedly found that at the time defendant gave consent to search he was under neither arrest nor unlawful detention. I would not disturb the trial court’s implied finding. Temporary detention of an occupant of a house while a search is being executed is not an unlawful detention. (Michigan v. Summers (1981) 452 U.S. 692 [69 L.Ed.2d 340, 101 S.Ct. 2587]; see also People v. Wilks (1978) 21 Cal.3d 460, 467 [146 Cal.Rptr. 364, 578 P.2d 1369].)

¶12Finally, there is no evidence to support appellant’s claim that the search exceeded the scope of consent. Defendant made his consent to search neither with limitations nor conditional, nor did he in any manner object to the scope of the search while it was being made. (People v. Williams (1980) 114 Cal.App.3d 67, 73-74 [170 Cal.Rptr. 433].)

¶13I would affirm the judgment.