Petition — Bagnell v. California

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1979

No__@O-1391

WALTER CROFT BAGNELL,

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA,

SECOND APPELLATE DISTRICT,

DIVISION TWO

ROGER JON DIAMOND

15415 Sunset Boulevard

Pacific Palisades, California 90272

(213) 4541351

Attorney for Petitioner

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1979

No.

WALTER CROFT BAGNELL,

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL

OF THE STAiE OF CALIFORNIA,

SECOND APPELLATE DISTRICT,

DIVISION TWO

ROGER JON DIAMOND

15415 Sunset Boulevard

Pacific Palisades, California 90272

(213) 4541351

Attorney for Petitioner

TOPICAL INDEX

Page

Table of Authorities iii

OPINIONS BELOW 2

JURISDIC TION 3

QUESTIONS PRESENTED 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED 4

STATEMENT OF THE CASE 5

MANNER IN WHICH, AND STAGE

DURING WHICH, PETITIONER

RAISED FEDERAL CONSTITU TIONAL

QUESTIONS 11

REASON FOR GRANTING THE WRIT 12

A. Police Officers May Not Re-

Enter an Apartment Hours

After They First Entered It 12

B. The Search and Seizure May Not

Be Upheld On the Basis Of

Consent 18

CONCLUSION 23

APPENDICES

TABLE OF AUTHORITIES

Cases

Arkansas v. Sanders,

U.S. , 61 L, Ed. 2d 235,

99 S.Ct. 2586 (1979)

Bumper v. North Carolina,

391 U.S. 543, 20 L.Ed. 2d 797,

17,

88 S.Ct. 1788 (1968) 19, 21,

Michigan v. Tyler,

436 U.S. 499, 56 L. Ed. 2d 486,

98 S.Ct. 1942 (1978) 14,

Mincey v. Arizona,

437 U.S. 385, 57 L. Ed. 2d 290,

98 S.Ct. 2408 (1978)

People v. Braeseke,

25 Cal. 3d 691 (1979)

Schneckloth v. Bustamonte,

412 U.S. 218, 36 L. Ed. 2d 854,

93 S.Ct. 2041 (1973)

United States v. Chadwick,

433 U.S. 1, 55 L. Ed. 2d 538,

97 S.Ct. 2476 (1977)

United States v. Matlock,

415 U.S. 164, 39 L. Ed. 2d 242,

94 S.Ct. 988 (1974)

ii.

15,

16,

17,

22

10

20

18

Vale v. Louisiana,

399 U.S. 30, 26 L. Ed. 2d 409,

90 S.Ct. 1969 (1970)

Constitutions

United States Constitution:

Fourth Amendment

Fourteenth Amendment

Statutes

Rule 22 of the Supreme Court Rules

California Penal Code:

Section 182

Section 1538.5

28 U.S.C. §1257(3)

iil.

12, 13,

14

11

17

12

11

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1979

No.

WALTER CROFT BAGNELL,

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA,

SECOND APPELLATE DISTRICT,

DIVISION TWO

Walter Croft Bagnell, petitioner, pruys that

a Writ of Certiorari issue to review the judgment

of the Court of Appeal of the State of California,

Second Appellate District, Division Two, entered

on October 16, 1979, which affirmed the judgment

of conviction of the Superior Court of California

for the County of los Angeles. A timely petition

for rehearing was denied by the Court of Appeal

on November 7, 1979, and the California Supreme

Court denied a petition for hearing on December 13,

1979.

1,

OPINIONS BELOW

The Superior Court of California rendered

no decision when it pronounced judgment on

February 26, 1979. Petitioner was convicted

upon his guilty plea to California Penal Code

Section 182 (conspiracy) after the Superior Court

denied on January 16, 1979 his pre-trial motion to

suppress evidence which was made on the ground

that his Fourth Amendment right was violated by a

search and seizure of evidence in an apartment which

he and his girlfriend shared. The Superior Court

made some oral comments at the time it denied

the motion, but they are not published. They do

appear in the transcript.

The Court of Appeal filed an eight page

decision on October 16, 1979 affirming the judg-

ment of conviction. The decision, which was not

published, is reprinted in Appendix No. 1 to this

Petition. On November 7, 1979 the Court of

Appeal denied a petition for rehearing without

opinion. A copy of the order is reprinted in

Appendix No. 2.

On December 13, 1979 the California Supreme

Court denied without opinion a petition for hearing.

A copy of the unpublished order is reprinted in

Appendix No. 3.

JURISDICTION

The judgment of the Court of Appeal was

entered October 16, 1979, but did not become final

until the California Supreme Court denied a hear-

ing on December 13, 1979. This Court has

jurisdiction to review the judgment by writ of

certiorari under 28 U.S.C. §1257(3). This

Petition was timely filed. See Rule 22 of the

Supreme Court Rules.

QUESTIONS PRESENTED

i. Is consent to enter an apartment

voluntarily obtained in compliance with the

Fourth Amendment when the police tell the tenant,

who is waiting outside her apartment in the cold,

that if she enters they will follow her in, where

she initially chooses to remain outside but eventually

enters when she becomes too cold?

2. May the police enter an apartment

without a search warrant over five hours after

one officer entered the apartment with petitioner,

observed the contraband and ther arrested peti-

tioner outside the apartment?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment:

"The right of the people to be

secure in their persons, houses,

papers, and effects, against unreason-

able searches and seizures, shall not

be violated, and no warrants shall issue,

but upon probable cause, supported by

oath or affirmation, and particularly

describing the place to be searched, and

the persons or things to be seized."

The Fourteenth Amendment:

“e « « Se GUNS. 5 5. GREE ss ss

deprive any person of life, liberty,

or property, without due process of

rhs

California Penal Code Section 1538, 5:

(a) A defendant may move for

the return of property or to suppress

as evidence any tangible or intangible

thing obtained as a result of a search or

seizure on either of the following

grounds:

'"(1) The search or seizure

without a warrant was unreasonable.

'"(m) ... A defendant may seek

further review of the validity of a search

or seizure on appeal from a conviction

in a criminal case notwithstanding the

fact that such judgment of conviction

is predicated upon a plea of guilty.

Such review on appeal may be obtained

by the defendant providing that at some

stage of the proceeding prior to conviction

he has moved for the return of property

or the suppression of the evidence. "

STATEMENT OF THE CASE

Petitioner met two co-defendants and some

undercover police officers at a restaurant in

Los Angeles on March 8, 1978. They discussed

the manufacture of phencyclidine, which is

commonly known as PCP or Angel Dust. Peti-

tioner and four of the officers then left the

restaurant and drove to an apartment which

petitioner shared with his girlfriend, Gina

Faber.

At the apartment petitioner and one of the

officers entered while the others remained out-

side. The two co-defendants had gone elsewhere.

Petitioner showed the officer some chemicals which

were to be used to manufacture PCP. Piperidine

was in a five-gallon black can, and two one gallon

cans containing bromobenzene and cyclohexanol

were inside a suitcase. Petitioner and the officer,

who was still acting in an undercover capacity,

discussed manufacturing PCP. When they left

5.

the apartment petitioner was arrested at approxi-

mately 2:15 p.m.

At another location the two co-defendants

were arrested. Numerous police officers then

remained outside the apartment shared by petitioner

and Gina Faber. The chemicals remained inside

while some officers went to obtain a search warrant

to enable them to enter the apartment and to seize

the chemicals.

While some officers were attempting to

obtain a search warrant, others remained outside

the apartment waiting for them to return witha

search warrant. At 5:00 p.m., Gina Faber arrived.

The circumstances surrounding her arrival are

significant and therefore will be described according

to the testimony given at petitioner's preliminary

hearing and at the pretrial hearing on petitioner's

motion to suppress evidence.

Faber was called by the prosecution asa

witness at the preliminary hearing after being given

immunity. Her testimony at the preliminary hear-

ing, like all of the testimony at the preliminary

hearing, was considered by the trial court pursuant

to stipulation (Reporter's Transcript, pp. 25-26,

hereinafter ''RT"'). Faber returned to her apartment

at approximately 5:00 p.m. on March 8, 1978. When

she returned she asked the police officers outside

her apartment for permission to enter her apartment

because she had a package which she wanted to place

inside her apartment. The police had told her to

place it outside. Eventually, police officer

James A. Abbott entered the apartment with her so

she could place her package inside her apartment,

6.

About 15 minutes later, after she exited her apart-

ment, she told Abbott that she had a little summer

blouse on, that it was getting cold, and that she

wanted to go back into her apartment. In Faber's

words elicited by the prosecution during the

preliminary hearing, ''They told me they would

accompany me and we entered" (Clerk's Transcript,

pp. 69-71, hereinafter "CT"’).

Faber testified at the request of the petitioner

at the hearing in the Superior Court on the motion

to suppress evidence. At the hearing, Faber

elaborated on her preliminary hearing testimony.

She stated that when she returned to her apartment

at approximately 5:00 p.m., police officers advised

her that she could not enter her apartment. After

a few minutes, Faber asked the police officers

whether she could go into her apartment to put

several packages inside which she had in her arms.

In response, the police stated that if she wanted to

go in they were going to go in with her. When she

entered the first time only one officer followed her

in. She immediately exited. Later, while waiting

outside, she began to get cold. She again requested

permission to go inside her apartment to put some-

thing on. The officers did not permit her to go

in by herself. Inasmuch as she preferred to go in

by herself and the officers would not let her, she

remained outside a little while longer where it

began to get "extremely cold."

She did not want the officers to go in with her.

When she entered her apartment the officers followed

her in. She testified that she did not invite them

in (RT 28-30).

Faber testified that once she went in and the

officers followed her in she told them to wait in the

living room until the search warrant arrived (RT

32). Faber did not invite the officers into her

apartment (RT 32, line 28).

Los Angeles Pclice Officer James A. Abbott,

who did not testify at the preliminary hearing,

testified at the hearing on the motion to suppress

that he and other police officers secured the premises

at 5414 Newcastle Avenue by waiting outside. They

were awaiting the arrival of a search warrant to be

obtained by Officer Johnson, who previously informed

Abbott that ''There were chemicals in the apartment

~oe Gee S009).

Officer Johnson told Abbott and other police

officers that there was a suitcase and a black five-

gallon can in a little office area just inside the

door of the apartment (RT 12).

The officers continued to wait for Johnson's

return with the search warrant when Georgina Faber

returned to her apartment. Abbott told her that

he was a police officer and that he was securing her

apartment while awaiting the return of other officers

with a warrant (RT 13). Faber asked the officers

whether she could go in and place a package inside.

Abbott told her that because there were chemicals

and contraband inside the apartment she would have

to be accompanied if she went inside. She did enter

briefly and then exited (RT 13-14).

After approximately 30 minutes elapsed, it

began to get dark and cool. Faber stated that she

wanted to go in to get a coat (RT 14). Abbott testified

8.

that it was getting dark and that Faber said,

"Itm starting to get cold. 1 would like to get

a coat.'' (RT 22.) Officer Abbott replied

that someone would have to accompany her and

that she could not go into the apartment unless she

had a police officer with her (RT 20-22). Accord-

ing to Abbott, Faber stated nothing in response to

his statement. Abbott testified,

"She didn't move to enter the

apartment so I assumed she didn't want

to go."' (RT 22.)

After approximately five minutes, Faber stated,

according to Abbott,

"It's getting cold. We mightas

well all go inside. We're going to have to

wait anyway."' (RT 23.)

Finally Faber entered her apartment along

with four police officers (RT 19; 19). When the

officers entered they went into the living room

where they ate pizza and waited approximately

an hour and a half for Officer Johnson to arrive

with the search warrant (RT 15).

Officers Johnson and Wetzel arrived at the

apartment at approximately 7:30 p.m. with an invalid

search warrant (RT 15; 19). The officers seized

the contraband "pursuant to the search warrant... .

(RT 21, line 6.) The officers did not seize the

contraband pursuant to their observations (RT 21,

lines 4-8).

This testimony, some of which was elicited

at the preliminary hearing and considered by the

trial court judge who read the transcript, and

some of which was given directly in the trial court,

led the court to conclude that the seizure could be

justified on two theories:

(1) The officers could have

immediately re-entered the apartment

after arresting petitioner and seized

the chemicals;

(2) Faber voluntarily consented

to the entry by the police, who then

seized the chemicals which were in plain

view.

Both the magistrate at the preliminary hear-

ing and the trial judge ruled that the search warrant

was invalid for reasons unrelated to this proceeding.

That ruling was not challenged by respondent in

the California appellate courts, although it could

have been. 1/

1/

People v. Braeseke, 25 Cal. 3d 691 (1979).

10.

MANNER IN WHICH, AND STAGE

DURING WHICH, PETITIONER

RAISED FEDERAL CONSTITUTIONAL

QUESTIONS

Prior to trial, on May 17, 1978 petitioner

filed a written Notice of Motion For Order Sup-

pressing and Returning Evidence and a Memorandum

of Points and Authorities. The motion sought an

order quashing search warrant No. 14546 and an

order suppressing and returning all property

seized pursuant to the search warrant. Petitioner

based his motion in part on the Fourth and Fourteenth

Amendments to the United States Constitution. The

chemicals had been seized pursuant to the search

warrant.

Petitioner brought his motion pursuant to

California Penal Code Section 1538.5, which

authorizes pretrial motions to litigate the

validity of searches and seizures alleged to have

been conducted in violation of the Fourth and Four-

teenth Amendments.

On January 16, 1979 the Superior Court

conducted a hearing on the motion and ruled, as

did the magistrate at the preliminary hearing,

that the search warrant was invalid. However,

the Superior Court also ruled that the police

officers who seized the chemicals did not need

a search warrant because:

(1) The officers could have immediately

re-entered the apartment after arresting

petitioner and seized the chemicals;

11.

°

(2) Faber voluntarily consented to the

entry by the police, who then seized the

chemicals which were in plain view.

After the court denied petitioner's pretrial

suppression motion, petitioner entered a guilty

plea to Penal Code Section 182 (conspiracy to

manufacture PCP). Petitioner then appealed his

conviction in accordance with California law which

permits such an appeal where a pretrial suppression

motion is denied. He urged the California Court

of Appeal to reverse his conviction because the

search and seizure violated the Fourth Amend-

ment's prohibition against unreasonable searches

and seizures, but his argument was rejected.

The California Supreme Court refused to review

the decision of the Court of Appeal.

REASON FOR GRANTING THE WRIT

The California Court of Appeal's decision

regarding the legality of the search and seizure

is not in accord with applicable decisions of this

Court.

A. Police Officers May Not Re-

Enter an Apartment Hours

After They First Entered It

Petitioner was arrested outside his apartment.

In Vale v. Louisiana, 399 U.S. 30, 26 L.Ed. 2d 409,

90 S.Ct. 1969 (1970), this Court revers«d the judg-

ment of the Louisiana Supreme Court and held

12.

unconstitutional a search of the defendant's home

conducted by police who had just arrested the

defendant outside his house. This Court rejected

the state court's view that the search was proper

because it occurred '''inthe immediate vicinity

of the arrest' and was 'substantially contemporaneous

therewith. '"' 399 U.S, at 33.

The instant case involves an even more

flagrant violation of the Fourth Amendment

because here, unlike Vale, the police did not

immediately enter the premises after petitioner's

arrest. Thus, the search was not even ''sub-

stantially contemporaneous" with petitioner's

arrest.

This Court made it crystal clear in Vale v.

Louisiana, supra, that the police may not enter

the premises without a search warrant. This

Court stated,

" . . Ifa search of a house is

to be upheld as incident to an arrest,

that arrest must take place inside the

house, cf. Agnello v. United States,

269 U.S. 20, 32, 70 L.Ed. 145, 148,

46 S.Ct. 4, 51 ALR 409, not somewhere

outside - whether two blocks away.

James v. Louisiana, 382 U.S. 36, 15 L.

Ed. 2d 30, 86 S.Ct. 151, twenty feet away,

Shipley v. California, supra, or on the

sidewalk near the front steps. ‘Belief,

however well founded, that an article

sought is concealed in a dwelling house

furnishes no justification for a search of

that place without a warrant.' Agnello

13.

v. United States, supra, at 33, 70 L.Ed.

at 149, 51 ALR 409. That basis rule

'has never been questioned in this Court. '

Stoner v. California, supra, at 487 n.5,

11 L. Ed. 2d at 859."

Vale v. Louisiana, 399 U.S. at 33-34.

The California Court of Appeal purported to

distinguish Vale by noting that in Vale the police

had not been in the home prior to the arrest

whereas here the police had been in petitioner's

apartment and had seen the contraband. That the

police had earlier been in petitioner's apartment

cannot give them a perpetual license to re-enter

without a search warrant.

In Michigan v. Tyler, 436 U.S. 499, 56 L. Ed.

2d 486, 98 S.Ct. 1942 (1978), this Court held

that once firemen lawfully enter a building to put

out a fire, they may remain inside without a

warrant ''for a reasonable time to investigate the

cause of a blaze after it has been extinguished.

And if the warrantless entry to put out the fire

and determine its cause is constitutional, the

warrantless seizure of evidence while inspecting

the premises for these purposes also is constitu-

tional.'' Id. at 510. However, the firemen may

not re-enter the premises four days later, this Court

held, because the exigent circumstances which

justified the initial search no longer existed.

The case stands for the proposition that an initial,

lawful, warrantless entry does not permit law

enforcement officers to return on subsequent

occasions without a warrant. The subsequent

entry by the police without a warrant in the instant

case comes squarely within the prohibition of

14,

Michigan v. Tyler, supra.

It is no answer to say that in Michigan v. Tyler,

the Court did permit the re-entry by the firemen at

8:00 a.m. on January 22, 1970 after they left at

about 4:00 a.m. on the same morning.2/ The Court

did permit the re-entry because it concluded that

it was a continuation of the initial search which was

interrupted by darkness, steam and smoke and

that exigent circumstances justified such action,

Here, the officers did not enter the premises to

resume a search already commenced. The one

officer who entered the premises with petitioner

prior to his arrest conducted no search, Hence,

the subsequent entry by the police was for the

purpose of commencing a search and seizure; it

was not to resume activity already begun and

temporarily halted because of ''darkness, steam,

and smoke.'' This Court found the re-entry at

8:00 a.m. to be "an actual continuation of the first

[search]."' Id. at 511. Here, there was no

continuation; the entry subsequent to petitioner's

arrest was the first search.

Moreover, this Court found exigent circum-

stances justifying the initial search and continuation

thereof. In the instant case, however, there were

no exigent circumstances justifying the entry

without a warrant after petitoner's arrest. Indeed,

the officers themselves not only believed they needed

a search warrant, they had the time to, and did in

fact, obtain one. Their problem is simply that

2/

Justices White and Marshall dissented from

this ruling.

15.

the search warrant they did obtain was invalid,

a finding respondent could have, but did not

challenge, in the state courts.

Three weeks after this Court decided

Michigan v. Tyler, supra, it handed down Mincey

v. Arizona, 437 U.S. 385, 57 L. Ed. 2d 290,

98 S.Ct. 2408 (1978), which invalidated a search

conducted by police who were lawfully in peti-

tioner's apartment pursuant to a murder investigation

commenced after one officer was shot and killed by

petitioner in the apartment. The State of Arizona

conceded, as it had to, that the search and seizure

would otherwise have been invalid; it merely

argued that because a murder had occurred,

the Court should establish a ''murder scene"'

exception in order to uphold the validity of the

police officers' conduct. This Court rejected

the request.

Respondent's position herein, carried to

its logical extreme, is that once an officer has

been inside a home, he can always return, no

matter when, and enter without a search warrant,

in order to conduct a search and seizure of the

premises. The Fourth Amendment simply does not

permit this to occur.

In summary, police officer Johnson, who

entered petitioner's apartment with officer Wetzel

at 7:30 p.m. pursuant to an invalid search warrant,

cannot claim the right to enter based onthe fact

that he was inside the apartment with petitioner

for about 15 minutes at approximately 2:00 p.m.

the same day. His prior entry certainly did not

give him the right to re-enter the premises,

16,

Officer Wetzel, who had not been in the apartment

earlier, has no basis for claiming a right to enter

with an invalid search warrant,

The Court of Appeal's distinction between

a search and a seizure is totally incomprehensible.

Somehow the Court of Appeal was of the opinion that

since the officers did not have to search once they

entered the premises, their entry should be viewed

differently than if they had to conduct a search,

The Fourth Amendment's search warrant require-

ment to enter a private home is not obviated

because an officer knows where in a home the

items to be seized are located. That there will

be no search once an officer enters a home does

not, by itself, affect the requirement of the Fourth

Amendment that a search warrant first be obtained

for the entry. Perhaps the Court of Appeal was

fooled by the name commonly used, "Search

warrant.'' Although its name is ''search warrant,"

it is also required for such activities as entering

a home and seizing evidence.

Also significant in this connection is the fact

that a search warrant was necessary to the extent

the chemicals were located ina suitcase. See

United States v. Chadwick, 433 U.S. 1, 55 L. Ed.

2d 538, 97 S.Ct. 2476 (1977), Arkansas v. Sanders,

U.S. __, 61 L. Ed. 2d 235, 99 S.Ct. 2586

(1979). The Court of Appeal's statement that no

search was conducted must be rejected.

17,

B. The Search and Seizure May Not

Be Upheld On the Basis Of

Consent

The state trial and appellate courts upheld

the seizure of the chemicals at petitioner's

apartment on the basis that petitioner's girlfriend,

Gina Faber, voluntarily consented to the entry by

the police, 2 This ruling was erroneous for two

reasons: (1) Faber did not consent, or if she did,

her consent was not voluntary and (2) she did not

consent to the entry of officers Johnson and Wetzel,

who entered at 7:30 p.m. under the authority of

an invalid search warrant, and who seized the

suitcase, which contained two cans of chemicals,

and the other can of chemicals, pursuant to the

search warrant.

Preliminarily, petitioner does not contend

that his girlfriend, Gina Faber, with whom he shared

the apartment, did not have authority to consent to

a search. If Faber's consent was voluntary,

petitioner concedes she had the authority to give it.

See United States v. Matlock, 415 U.S. 164, 169,

39 L. Ed. 2d 242, 94 S.Ct. 988 (1974):

'. . . [T]he voluntary consent of

any joint occupant of a residence to

search the premises jointly occupied is

3/

This was one of two alternate theories for

upholding the entry without a valid search warrant.

18.

valid against the co-occupant,

permitting evidence discovered in

the search to be used against him

ata criminal trial... ."

Petitioner's concession that Faber had the

authority to give consent does not decide the

questions presented herein:

(1) Did she consent?

(2) If so, was her consent voluntarily given?

(3) If she did voluntarily consent, what

did she consent to?

First, petitioner submits that Faber did not

consent to the entry of some police officers at

5:30 p.m. The record is clear that she did not

want the police to come in atall. She reluctantly

entered the apartment because she was getting

cold. The officers merely followed her in. There

is no dispute in the record on this.

Second, even if Faber's actions in first refus-

ing to enter and in then entering the apartment can

in any way be construed as consent, it isclear the

"Gonsent'' was not voluntary. Respondent had the

duty to demonstrate her consent was voluntary.

In holding a search and seizure to have been

unconstitutional because the consent was not voluntary,

This Court stated in Bumper v. North Carolina,

391 U.S. 543, 548-549, 20 L.Ed. 2d 797, 885, Ct.

1788 (1968),

"When a prosecutor seeks to rely

upon consent to justify the lawfulness

of'a search, he has the burden of proving

19,

that the consent was, in fact, freely and

voluntarily given. This burden cannot

be discharged by showing no more than

acquiescence to a claim of lawful authority.

A search conducted in reliance upon a

warrant cannot later be justified on the

basis of consent if it turns out that the

warrant was invalid, "'

To determine whether consent is voluntary or

involuntary, this Court stated in Schneckloth v.

Bustamonte, 412 U.S. 218, 223-224, 36 L. Ed. 2d

854, 93 S.Ct. 2041 (1973) that it would be appro-

priate to examine cases dealing with the voluntariness

of confessions. Mincey v. Arizona, 437 U.S. 385,

57 L. Ed. 2d 290, 98 S.Ct. 2408 (1978) dealt with

the voluntariness of a confession as wellas

a search and seizure issue. In Mincey the Court

stated that in determining 'voluntariness" the

Court was not bound by a state court's determina-

tion that a particular confession was voluntary.

"Instead, this Court is under a duty to make an

independent evaluation of the record." Id, at 398.

Petitioner submits that the record in the

instant case demonstrates that Faber's "consent, "'

if it was consent, was not voluntary. There is

really no dispute concerning the evidence in this

case. The state courts simply interpreted the

undisputed evidence different than it should have

been. This Court is not bound by the state

court's interpretation of uncontroverted evidence,

As a matter of federal constitutional law, Faber

did not voluntarily consent to the entry by the police

at 5:30 p.m.

20.

Faber's “ cision to enter the apartment was

based on her growing colder and colder. The

undisputed evidence is that she did not want the

police to enter. Only later, after first waiting

outside in the cold, did she decide to enter. She

did not want the police to follow her in, but she

was given no choice. If she entered to escape

the cold, they would follow. Sucha decision

cannot be construed as voluntary consent,

Third, if her actions in first trying to

remain outside in the cold and in their entering

the apartment can by any stretch of the imagination

be considered voluntary consent to the police to

enter, we must still decide what exactly she consented

to. Here, the record is clear that the officers

were only given permission to remain in the living

room of the apartment. They were not given permis~

sion to go into other rooms or to conduct a search

of the premises.

Absolutely no consent was given to officers

Johnson and Wetzel, who arrived two hours later

with a search warrant. They were not among the

officers who entered at 5:30 p.m. Not only were

officers Johnson and Wetzel not given consent to

search or seize, they were not even given consent

to enter. They entered the apartment pursuant to

an invalid search warrant, and seized a suitcase

pursuant to that invalid search warrant. Under the

authority of Bumper v. North Carolina, supra, the

"consent" given to Johnson and Wetzel to search

was not voluntary because they searched and seized

pursuant toa search warrant. Indeed, Faber

gave Johnson and Wetzel no consent.

21.

If the other officers who entered at 5:30

p.m. had been given consent to search and seize,

they would have proceeded to do so at 5:30 p.m.

It should also be kept in mind that no

consent was ever given to seize and open the suit-

case, which contained two cans of chemicals.

See United States v. Chadwick, supra, and Arkansas

v. Sanders, supra.

In summary, Faber gave no consent to enter.

If she did, she did not do so voluntarily. If she

did give consent to enter, and she did so voluntarily,

she gave it only to the officers who entered at

5:30 p.m., and the consent was limited to permitting

the officers to remain in the living room to wait for

the arrival of the other officers with a search

warrant. The officers who arrived at 7:30 p.m.

with a search warrant, later determined to be

invalid, were never invited in by Faber. It was

their seizure of the suitcase, which contained two

cans of chemicals, and the seizure of a third can

not inside the suitcase, pursuant to an invalid

search warrant, which led to petitioner's prosecu~

tion. These items were not located in the living

room, where the officers who entered at 5:30 p.m.

waited.

The record is clear on this point.

Los Angeles Police Officer James A. Abbott was

the only witness called by the prosecution at the

suppression hearing in the Superior Court. 4

4/

=' Other evidence was presented by the transcript

of the preliminary hearing. It was at the Superior

Court hearing that the prosecution attempted to justify

the seizure without benefit of a valid warrant.

22.

He testified that the suitcase and 5 gallon can were

seized pursuant to the search warrant and not

pursuant to his observations (RT 21).

"6. 6. A search conductedin reliance

upon a warrant cannot later be

justified on the basis of consent if it

turns out that the warrant was invalid."

' Bumper v. North Carolina,

391 U.S. at 549.

CONCLUSION

For the foregoing reasons, petitioner respect-

fully urges this honorable Court to grant his petition

for writ of certiorari and reverse the judgment of

the California Court of Appeal, Second Appellate

District, Division Two.

Respectfully submitted,

ROGER JON DIAMOND

Attorney for Petitioner

23.

APPENDIX NO. 1

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE OF THE ) 2 CRIM. NO. 34825

STATE OF CALIFORNIA, ) (Super. Ct. No.

) A139968)

Plaintiff and )

Respondent, ) Court of Appeal -

vs. ) Second Dist.

)FILED

WALTER CROFT BAGNELL, ) Oct. 16, 1979

)

Defendant and ) Clay Robbins, Jr., Clerk

Appellant. )

) Deputy Clerk

Defendant Bagnell pleaded guilty to conspiring

with codefendants Golub and Boring to possess,

manufacture and sell the drug PCP. He pleaded

guilty, after the superior court ruled that evidence

seized by police from an apartment shared by him

and his girlfriend and from an automobile belong-

ing to Golub would be admissible at trial. He has

appealed urging only that the above evidence should

have been suppressed.

The items taken from the automobile were a

jar containing a liquid ingredient of PCP known as

piperidine, an attache case anda Suitcase. Items

taken from the apartment consisted of several

gallons of piperidine, cyclohexanol and phencyclidine -

all ingredients used in concocting PCP.

z°3

Officers McConnell and Lanmon of the Los

Angeles Police Department, while working under

cover, made nurchases of cocaine and PCP from

Boring in March of 1978. At that time Boring

indicated that a friend of his had the chemicals

necessary to manufacture PCP. He asked the

officers to obtain a chemist to perform the job of

manufacturing.

A meeting was arranged ata restaurant. The

officers attended with yet a third officer, Johnson,

who wasa chemist. The officers were introduced

to Golub and Bagnell by Boring. Bagnell questioned

Johnson as to the amount of PCP that could be

manufactured from the quantities of ingredients

which he claimed to have. The officer said it

would beenecessary to see the chemicals in order

to answer the question.

Golub offered to show the officer samples which

he said were in his car. Johnson said it would be

nedessary for him to see all of the chemicals.

Bagnell, Johnson and the other two officers

left the restaurant to go to inspect the chemicals

while Golub, who stated that he would meet Bagnell

at his office later, left separately with Boring.

Bagnell led the officers to an apartment in Encino

which he shared with his girlfriend. At the apart-

ment he permitted only Johnson to enter,

Inside the apartment Bagnell pointed out a five

gallon black can and a white suitcase sitting in the

entrance way near the back door. Opening the

suitcase, Bagnell took out two gallon bottles which

Johnson recognized by their ordor as containing

1-2

bromobenzene and cyclohexanol. Johnson had

worked with both of these chemicals as a chemist,

Although Johnson was unable to pry off the lid of

the five-gallon black can, Bagnell indicated that it

was piperidine and stated that he had ten gallons

more at another location.

Johnson told Bagnell that he would need

additional chemicals. Bagnell asked him to submit

a list of the additional chemicals needed. They then

discussed the terms of their arrangement. Johnson

demanded $5,000 inadvance. Bagnell agreed to

pay $5,000 on delivery of the chemicals and $5,000

when the PCP was manufactured.

After Johnson left the apartment he informed the

other officers of what he had seen in the apartment.

Bagnell was arrested. Radio contact was made

with yet another officer who was surveilling Golub

and Boring. The latter were stopped in their

automobile and arrested. A search of the interior

of the car failed to yield the chemical samples

mentioned earlier by Golub. When the officers

looked in the trunk they found the above mentioned

jar of piperidine.

Officers McConnell and Lanmon stood guard

at the apartment while Johnson left to procure a

search warrant. During theinterim, Bagnell's

girlfriend arrived at the apartment. After some

conversation with the officers, during which she

was informed of the situation, the girlfriend then

consented to the officers entering the apartment to

await the return of Officer Johnson.

1-3

The contraband was in plain view on the premises.

When Officer Johnson returned with the search warrant

the contraband was taken fromthe premises.

At the preliminary hearing the magistrate,

on motion of the defendant, quashed the search

warrant on the grounds that the affidavit was defective

in form in failing to specify the time period during

which the above described activities took place.

Defendant, however, was held to answer on the

basis of the officers' testimony as to their observa-

tions of, and communications with, the participants

in the conspiracy.

In the superior court the People moved under

Penal Code section 1538. 5(j) to relitigate the

magistrate's suppression ruling. _ The superior

court ruled that while the warrant was technically

defective, there was an independent basis for

admitting the evidence which had been seized.

We agree.

Officer Johnson's initial observations of the

contraband in the apartment was made ata time

when he was lawfully on the premises at defendant's

invitation. He would have been empowered at

that time to arrest defendant and seize the evidence.

(People v. Superior Court (Irwin) 33 Cal. App. 3d 475;

People v. Block, 6 Cal. 3d 239; Guidi v. Superior

Court, 10 Cal.3d 1.) The fact that defendant was

permitted to exit the apartment before being arrested

did not vitiate the officer's authority. (People v.

Superior Court (Quinn) 83 Cal. App. 3d 609. )

Furthermore, ata later time, the other officers

were voluntarily admitted to the apartment by a

co-occupant. They were then presented with a second

opportunity to lawfully seize the contraband in plain

sight. (People v. Superior Court (Irwin) supra;

People v. Block, supra. )

The Fourth Amendment to the United States

Constitution speaks of ''unreasonable" seizure.

It cannot be gainsaid here that the officers conducted

themselves in a highly reasonable fashion. Un-

fortunately, yet understandably, in an effort to

insure that their conduct would comport with the

requirements of the law they took an unnecessary

and abortive additional step in procuring what turned

out to be a technically defective warrant.

The superior court judge quite properly

observed that the prior reasonable conduct of the

officers was not rendered unreasonable by their

efforts to act even more reasonably then necessary.

Compliance with the requirement of reasonable-

ness under the Fourth Amendment would nc! be

encouraged by suppression under these circumstances,

We are not here dealing with a search of the

premises. The issue is simply the officer's right

to seize contraband which was in plain sight and

which had been voluntarily exhibited to Officer

Johnson by defendant.

Basically defendant challeges the officer's

right to re-enter the premises to make the seizure

after Johnson exited therefrom. He argues that

the girlfriend did not give her consent for the police

to enter her apartment. In brief, he is challenging

a

the sufficiency of the evidence of consent as found

by the trial court. We test this challenge in the

light of the well-accepted premise that factual

conflicts must be resolved in a manner most

favorable to the ruling of a trial court. (People

v. Martin, 9 Cal. 3d 687; People v. Medina, 26

Cal. App. 3d 809; People v. Heard, 266 Cal. App. 2d

747.)

The voluntariness of a consensual entry is

plainly a question for resolution of a trial court in

the light of all of the circumstances. (People v.

James, 19 Cal. 3d 99.) Obviously only the girlfriend's

consent was necessary. (People v. Guyette, 231

Cal. App. 2d 460. )

Beyond that, the officer's right to seize the

contraband did not terminate with the exit of

Officer Johnson. Unquestionably the officer could

have immediately re-entered, after the arrest of

defendant, and seized the contraband. Defendant

concedes this but contends that the lapse of time

here - some five hours - between Johnson's exit

and the actual seizure interrupted the continuity

and vitiated the right to enter without a warrant.

In Vale v. Louisiana, 399 U.S. 30, officers,

armed with an arrest warrant, arrested defendan t

outside of his home and then entered his residence

to search for contraband. It was there held that

absent a search warrant the evidence produced by

that search had to be suppressed. Vale was merely

an application of the rule in Chimel v. California,

395 U.S. 752, concerning the scope of a sear ch in

conjunction with anarrest. It has no application

here.

1-6

Similarly, in Michigan v. Tyler, 436 U.S. 499,

and Cleaver v. Superior Court, 24 Cal. 3d 297, the

issue addressed was the propriety of the police

withdrawing from a building after an initial

lawful entry and later re-entering to continue to

search for evidence.

Each of those cases involved entry into build-

ings in which there had been fires. Also in each

case, for reasons of impaired visibility and other

unfavorable conditions resulting from the fire,

the police withdrew, waited a period of time and

re-entered. ‘

Both the United States Supreme Court and the

California Supreme Court held in effect that the re-

entry was reasonable and proper as a continuation

of the initial search so long as the re-entry was

made within a reasonable time and the conditions

which permitted lawful entry initially still prevailed.

As we have previously pointed out the officers

here did not re-enter to continue to search, but

only to seize items that could have been preperly

seized-earlier. That fact alone sets this case

apart from the above cited authorities.

Furthermore, application of the rationale

of Michigan v. Tyler, supra, and Cleaver v.

Superior Court, supra, to the facts at bench compels

the conclusion that the officers' conduct was

reasonable.

The circumstances \vyhich obtained at the time

of Johnson's original observations had not changed,

The contraband remained in the apartment where

1-7

Johnson had observed it. No one had entered in

the interim. The lapse of time was not unreason~

able and ‘the officer's reason for waiting, i.e., ‘

the mistaken belief that a search warrant was

needed was no less reasonable than the reason the

officers delayed in Michigan v. Tyler and Cleaver

v. Superior Court, i.e., poor visilibity, smoke, SOV 7- 1979"

etc. Los Angeles, Cal : , 19

APPENDIX NO. 2

People

The arrest and detention of Golub and Boring

was based upon probable cause and was thus proper. TITLE Walter C,. B&gneli 34.825

No

The search of the car, as an incident thereto, was

also proper since the officers, based upon Golub's

own statements, had reason to believe that the

automobile contained contraband. That statement

coupled with the entire circumstances justified a

search of the trunk when the interior of the car

failed to produce the contraband. (Compare

Wimberly v. Superior Court, 16 Cai. $d 557..)

The Court:

Petition for rehearing denied,

The only contraband seized in the search of

the trunk was the jar of piperidine which was in

plain sight. The attache case and the suitcase Ciay Rossins, Clerk

yielded no contraband, hence United States v.

Chadwick, 433 U.S. 1; Arkansas v. Sanders,

ae See L.ed. 235, 99 S.Ct. -] and

People v. Dalton, 24 Cal. 3d 850, are inapposite.

@0 ose

The judgment is affirmed.

NOT FOR PUBLICATION

/s/ COMPTON ag :

We concur: COMPTON ;

/s/ F. FLEMING , Acting. P.J.

/s/ BEACH Pa

BEACH

3-6

APPENDIX NO. 3

ORDER DUE

December 14, 1979

ORDER DENYING HEARING

AFTER JUDGMENT BY THE

COURT OF APPEAL

_2d District, Division 2 , Crim. No. 34825

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

IN BANK

PEOPLE Supreme Court

V. FILED

BAGNELI« DEC 13 1979

G. E. BISHEL, Clerk

/s/

Deputy

Appellant's petition

for hearing DENIED.

/s/ Bird

Chief Justice