People v. Challoner

136 Cal. App. 3d 779, 186 Cal. Rptr. 458, 1982 Cal. App. LEXIS 2065

• Court: California Court of Appeal
• Decided: October 21, 1982
• Docket: Crim. 41042
• Status: Published

Opinions

Opinion

DALSIMER, J.

Kenneth William Challoner appeals from the judgment of conviction entered following his guilty plea before Judge Miller to possession of cocaine for sale (Health & Saf. Code, § 11351). Appellant challenges the trial court’s denial of his motion to suppress made before Judge McVittie, contending that the warrantless search of his residence was unreasonable under the Fourth Amendment to the United States Constitution and article I, section 13, of the California Constitution because the consent to search was involuntary.

We view the facts in the light most favorable to the trial court’s ruling. (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410 [118 Cal.Rptr. 617, 530 P.2d 585].) On May 20, 1980, at approximately 5 p.m., four sheriffs officers arrived by van at defendant’s house after being informed that a narcotics sale was occurring there. With guns drawn, they quickly got out of the van. Soon thereafter, officers in three other police vehicles arrived at the scene. Defendant ran toward the house, but stopped abruptly when ordered to do so. Defendant and several other persons were placed under arrest.

Sergeant Barrier rapidly went to the front porch. The front door was open, but the screen door remained closed. Sergeant Barrier saw two women standing approximately fifteen feet away from the door. Without knocking on the door, Sergeant Barrier proceeded to address the women. Still displaying his gun, Barrier said in a loud, clear voice that he was a sheriffs officer and was conducting a narcotics investigation. He asked the women if either of them lived there. Vivian Eiseman, defendant’s common law wife, said that she lived there. Sergeant Barrier told her that he had made some narcotics arrests outside and said that he wanted to enter the house to search for other suspects and for narcotics. When Sergeant Barrier made this statement, his gun was drawn, pointed at the ground, and Officer Flynn, who was approaching the house, was close behind him. The two women remained approximately fifteen feet from the door. Ms. Eiseman answered, “Sure,” and Sergeant Barrier searched each room for other suspects. In one of the bedrooms, he found cocaine. The officers did not have a search warrant. When the cocaine was found, Sergeant Barrier requested permission to perform a more thorough search. Ms. Eiseman then said, “Sure, search it all, he’s been selling cocaine and marijuana and screwing up for a long time, go ahead.” When a further search was conducted, additional drugs were found.

When the government relies on consent to justify a warrantless search, it must establish by substantial evidence that the consent was voluntarily given. (People v. McKelvy (1972) 23 Cal.App.3d 1027, 1033 [100 Cal.Rptr. 661].) Mere acquiescence to a claim of authority will not suffice. (Ibid.) “The People must show that consent was ‘uncontaminated by any duress or coercion, actual or implied.’ [Citations.]” {Ibid.)

In McKelvy, a police spotlight was placed on defendant at 3 a.m. and four officers, each carrying a shotgun or carbine, moved “into position” around defendant. (Id., at p. 1032.) Defendant complied with an officer’s request to hand over an item he had placed in his pocket. Observing that “where the undisputed facts clearly reveal that an apparent consent was not freely and voluntarily given but was in submission to an assertion of authority, a reviewing court is not bound by [the trial court’s] finding of consent . . . [citations],” (id., at pp. 1033-1034), the court held that there was insufficient evidence to support the trial court’s finding of consent. (Id., at p. 1034.) The McKelvy court stated, “[N]o matter how politely the officer may have phrased his request for the object, it is apparent that defendant’s compliance was under compulsion of a direct command by the officer. [Citations.] The evidence established ‘no more than mere acquiescence to a claim of lawful authority.’” (Ibid.)

Consent to search given in response to a request by an armed officer whose gun is drawn is suspect. Such consent may well be obtained by coercion and hence not voluntary. A person so confronted might reasonably believe that he was not free to refuse the permission sought. Thus, the court in People v. James (1977) 19 Cal.3d 99 [137 Cal.Rptr. 447, 561 P.2d 1135], in upholding the trial court’s determination that defendant’s consent to search was voluntary, pointed out that although the officers were armed, the consent was not secured at gunpoint. (Id., at pp. 110-113.) It is noteworthy that James cites McKelvy with approval. In People v. Schomer (1971) 17 Cal.App.3d 427 [95 Cal.Rptr. 125], in explaining why substantial evidence supported the trial court’s finding that the consent to search was voluntary even though the officers were armed, we emphasized that at no point had the deputies unholstered their guns. (Id., at p. 433.) Again, in People v. Harrington (1970) 2 Cal.3d 991, 997 [88 Cal.Rptr. 161, 471 P.2d 961], the court, in upholding the trial court’s finding that consent to search was voluntary, carefully pointed out that although the officer was armed, there was nothing to indicate that he ever unholstered his gun or engaged in other coercive or threatening action.

In the case at bar, it is clear that under the totality of the circumstances Ms. Eiseman’s consent was not given voluntarily. Evidence of the drawn gun is not itself sufficient to establish that her consent was the product of coercion, but there was insufficient evidence to establish that Ms. Eiseman’s consent was voluntary. The number of officers present, the arrest of her common law husband and the others at gunpoint just moments prior to the request for permission to search the house, the failure of Sergeant Barrier to knock before requesting permission to search, and Ms. Eiseman’s distance from the door at the time that the request to search was made, together with the display of the weapon at the time Sergeant Barrier requested permission to search, establish as a matter of law that the consent was not “ ‘uncontaminated by . . . coercion.’ ” (People v. McKelvy, supra, 23 Cal.App.3d 1027, 1033.) The consent of Ms. Eiseman, having been obtained through coercion, was not voluntary.¹ Since the consent of Ms. Eiseman was not voluntary, the conviction must be reversed.

The judgment is reversed.

Spencer, P. J., concurred.

1 The fact that once cocaine was found, Ms. Eiseman expressed anger or frustration concerning appellant’s involvement with drugs and agreed that the officers could continue their search does not in any way validate the original consent.

1 This matter includes two consolidated cases.

Case number A 525884 (a two-count information), filed on October 14, 1980, accused the defendant on May 20, 1980, of having in his possession for sale a controlled substance (cocaine) in violation of Health and Safety Code section 11351 (count I), and of having in his possession for purpose of sale marijuana in violation of Health and Safety Code section 11359 (count II).

Case number A 526789, a single-count information, filed on March 10, 1981, accused the defendant on January 17, 1981, of being in possession of a controlled substance (cocaine) in violation of Health and Safety Code section 11350 (consolidated with case number A 525884 as count III).

Following denial of defendant’s motion to suppress evidence he pled guilty to count I (possession of cocaine for sale) and counts II and III were dismissed in the interest of justice.

At time of sentencing on June 29, 1981, imposition of sentence was suspended and defendant was placed on formal probation for three years on a condition, amongst others, that defendant spend the first six months in county jail. However, the court granted a six months stay of the local jail time pending a supplementary probation report and indicated there would be another six months stay if there were no violations of probation. The record on appeal does not reflect the current status of the case.