# Petition — Bagnell v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 937

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1813%3A1. Public record. Not legal advice.