Opposition — David Levell W., a Minor v. State of California

Supreme Court U

» 0 &

FILED

0Ck 2 i960

MICHAEL RODAK, JR. CLERK

NO. 80-5058

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

DAVID LEVELL W., a minor,

Petitioner,

Vv.

STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA, SECOND APPELLATE DISTRICT

RESPONDENT'S BRIEF IN OPPOSITION

GEORGE DEUKMEJIAN, Attorney General

of the State of California

ROBERT H. PHILIBOSIAN, Chief Assistant

Attorney General--Criminal Division

S. CLARK MOORE,

Assistant Attorney General

EDWARD T. FOGEL, JR.,

Deputy Attorney General

SHUNJI ASARI

Deputy Attorney General

ROY C. PREMINGER,

Deputy Attorney General

3580 Wilshire Boulevard

Los Angeles, California 90010

Telephone: (213) 736-2179

Attorneys for Respondent

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NO. 80-5058

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

DAVID LEVELL W., a minor,

Petitioner,

v.

STATE OF CALIFORNIA,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

QUESTION PRESENTED

The issue is whether petitioner's Fourth

Amendment rights were violated when police officers took

. him from his home to the police station for questioning

after petitioner's mother told the officers to take

petitioner and also told petitioner to accompany the

officers.

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TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS AND STATUTE

INVOLVED IN THE CASE

STATEMENT OF THE CASE

SUMMARY OF RESPONDENT'S ARGUMENT

ARGUMENT

THE POLICE OFFICERS LAWFULLY TOOK

PETITIONER TO THE POLICE STATION

CONCLUSION

APPENDIX

ii.

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TABLE OF AUTHORITIES

CASES

Dunaway v. New York, 442 U.S. 200

Ginsberg v. New York, 390 U.S. 629

In re Joe R., 27 Cal.3d 496

In re Scott K., 24 Cal.3d 395

Meyer v. Nebraska, 262 U.S. 390

Parham V. J. R., 442 U.S. 584

Pierce v. Society of Sisters, 268 U.S. 510

Prince v. Massachusetts, 321 U.S. 158

Schneckloth v. Bustamonte, 412 U.S. 218

Wisconsin v. Yoder, 406 U.S. 205

CONSTITUTIONS

U.S. Const., Amend. IV

U.S. Const., Amend, XIV

“STATUTES

Pen. Code, § 836

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OPINION BELOW

On March 18, 1980, the Court of Appeal of the State of

California, Second Appellate District, Division Four, one justice

dissenting, rendered on opinion herein in Case 2d Crim. No.

35263, affirming the judgment of the Juvenile Court of

Los Angeles County Superior Court. The Juvenile Court had

sustained a petition which alleged that petitioner had committed

the felony of burglary, in violation of California Penal Code

section 459. On April 7, 1980, the same Court of Appeal issued

an order denying petitioner's petition for a rehearing. Copies

of the opinion of the Court of Appeal and the order denying a

rehearing are contained in Appendices A and B to the petition for

writ of certiorari filed with this Honorable Court by petitioner.

On May 14, 1980, the Supreme Court of the State of

California denied petitioner's petition for hearing without

opinion. A copy of the order of denial is contained in

, Appendix C to the petition for writ of certiorari.

The opinion of the Court of Appeal was originally

published at 103 Cal.App.3d 469. Pursuant to California Rules of

Court, Rule 976, the California Supreme Court ordered the

opinion depublished on July 18, 1980. A copy of the

depublication order is attached hereto as an Appendix.

7 JURISDICTION

The ground for jurisdiction of this Honorable Court is

set forth on page 2 of the petition.

CONSTITUTIONAL PROVISIONS AND STATUTE

INVOLVED IN THE CASE '

Respondent cites the following constitutional provisions

and statute in its Argument:

| l. The United States Constitution, Amendment Iv,

provides in pertinent part that:

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"The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, ... ."

2. The United State Constitution, Amendment XIV,

provides in pertinent part that:

". . » nor shall any State deprive any person

of life, liberty, or property, without due

process of law; ... ."

3. California Penal Code section 836, provides in

relevant part:

"A peace officer ... may... . without

a warrant, arrest a person:

"2. When a person arrested has committed

a felony, although not in his presence.

"3. Whenever he has reasonable cause

to believe that the person to be arrested has

committed a felony, whether or not a felony has

in fact been committed."

STATEMENT OF THE CASE

On March 1, 1979, Tommy Harris lived at 706 East 48th

Street, apartment 1, in Los Angeles. He left his apartment at

about 5:00 p.m. that day after the locking premises. He returned

home about 10:00 p.m. the same day and saw that the bars on one

of his windows had been cut off and that the window pane was

broken. He also determined that a box of change containing about

$10 to $20 had been taken from inside’ his apartment. (RT 34-35.)

After Mr. Harris had determined that the box of change

was missing from his apartment, he called the police. He

subsequently told the police what had been taken from his

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‘apartment. (RT 36.)

Mr. Harris had not given petitioner or another young man

named Cornell permission to be in his apartment on March 1, 1979.

Prior to that date, Mr. Harris had been acquainted with

petitioner. Both petitioner and the young man named Cornell had

been inside Mr. Harris’ apartment before the date in question.

(RT 35-36.)

Gregory Johnson is a City of Los Angeles police officer.

On March 8, 1979, Officer Johnson and his partner Officer Tyler

were contacted by Los Angeles Police Officer Tietgen. Officer

Tietgen told Officers Johnson and Tyler that he had been in

contact with the mother at a residence at 674 East 48th Street

in Los Angeles concerning one of her children who allegedly had

been involved in the burlary of a house down the street. Officer

Tietgen stated that the mother was supposed to bring her son to

the Newton Street Police Station the day before but she had

failed to do so. Therefore, Officer Tietgen asked Officers

Johnson and Tyler to go to 674 East 48th Street and attempt to

contact the mother to find out when she would bring her son to

the station. (RT 38-39, 54.)

After speaking with Officer Tietgen, Officers Johnson

and Tyler drove to the residence at 674 East 48th Street in

Los Angeles. They arrived there about 8:00 a.m. They were in

uniform and drove a marked police vehicle. (RT 38-39.)

Officers Johnson and Tyler walked up to the front door

of the residence and knocked. A boy who appeared to be ten to

twelve years old answered the door. The officers told the boy

who they were and said that they would like to speak with the

boy's mother. The boy told the officers to wait a minute and he

then left the front door. About a minute later the boy returned

to the front door and told the officers, "My mother wants you to

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' come in." The officers then entered the residence. (RT 40-41.)

The officers followed the boy into a bedroom where the

boy said his mother was. Upon entering the bedroom, Officer

Johnson saw a‘woman lying in bed. The boy said the woman was his

mother. Officer Johnson then told the woman that he and his

partner were there to talk to her about her son who was supposed

to have come down to the Newton Street Police Station the day

before. Officer Johnson said they were wondering why the woman

had not brought her son to the station the day before and they

wanted to know when she was going to bring him. The woman said

her car had broken down and she was unable to bring in her son.

Officer Johnson asked where the woman's son was. The woman

pointed to another bed in the same room and said, "He's there."

Officer Johnson observed that petitioner was in the other bed and

was covered with a sheet. Officer Johnson asked petitioner's

mother whether she could bring petitioner to the station that

same day. Petitioner's mother replied that her car was still not

working. She looked over to petitioner and said, “David, wake

up." Petitioner then starting getting out of bed. (RT 41-42.)

Officer Johnson and his partner continued talking with

petitioner's mother about when she would be able to bring

petitioner to the station. Petitioner's mother said, "Well,

you officers are here. You can take him down." Petitioner's

mother also said she had been having trouble with petitioner.

She stated that if he had been involved in the burglary under

investigation she wanted to know about it because she was going

to contact the probation officer and she did not want petitioner

back in the house. (RT 43.)

Petitioner's mother told the officers to take petitioner

to the police station. She also told petitioner to get out of

bed and get dressed because the officers were waiting for him.

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’' Petitioner got out of bed. His mother told him to hurry up and

get going. Petitioner got dressed. Petitioner then exited from

the house and got into the police car with the officers. The

officers never ‘told petitioner he was under arrest. After

petitioner got into the police car, Officer Johnson handcuffed

him because he did not want to take a chance that petitioner

might escape or jump out of the car while it was in motion. (RT

43-44.)

Officer Johnson and his partner drove petitioner to the

Newton Street Police Station. After arriving at. the station,

Officer Johnson advised petitioner of his constitutional rights.

Petitioner said he understood his constitutional rights. He

waived his rights and said he did not want his parents present

during questioning. Petitioner was also advised of his

constitutional rights by Officer Tietgen at the station.

Petitioner told Officer Tietgen that he understood his rights and

that he waived them. (RT 45-49, 57-59.)

After petitioner had been advised of and waived his

constitutional rights, he said that he and a boy named Cornell

had used bolt cutters to cut the bars off the window at

Tommy Harris’ apartment and that Cornell then went through the

window to look for marijuana and stuff while petitioner remained

outside as a lookout. Petitioner related that thereafter Cornell

exited the apartment through the window carrying a cigar box full

of quarters, pennies, nicl.les and dimes. Petitioner and Cornell

then went to the liquor store at 5lst and Avalon where they

cashed in the coins. Cornell subsequently took the bolt cutters

and went to his "old lady's" house and petitioner went home. (RT

49-50.)

After petitioner had waived his rights, Officer Tietgen

asked him if he knew what right and wrong were and whether he

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' knew that taking something from someone else is wrong.

Petitioner replied, “Yeah, I know it's wrong. It's petty theft."

Petitioner further told Officer Tietgen that someone else had

broken into the victim's house, that there were bars on the

window of the victim's house and that the house was stucco. (RT

54, 58-59.)

SUMMARY GF RESPONDENT'S ARGUMENT

The Petition for Writ of Certiorari should be denied.

Petitioner's mother had legal authority to give the police

officers permission to take petitioner to the police station

for questioning. Moreover, petitioner manifested his consent to

accompanying the otficers to the station. Therefore, it was

proper for the officers to take petitioner to the station and

evidence of the confession petitioner made at the station was

admissible.

ARGUMENT

THE POLICE OFFICERS LAWFULLY TOOK

PETITIONER TO THE POLICE STATION

Petitioner contends that his mother had no legal

authority to consent to the police taking him to the police

station since the police had neither probable cause nor a warrant

to arrest him. Therefore, petitioner maintains his being taken

from his house to the police station by the police officers

constituted an unlawful arrest in contravention of his Fourth

Amendment right not to subjected to an unreasonable seizure of

his person. (Petn. 6-11.) Respondent disagrees and submits, for

the reasons set forth below, that the police officers acted

lawfully by taking petitioner from his home to the police

station.

| It is true that the police officers did not have a

warrant for petitioner's arrest at the time they took him from

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his home to the police station. It is also true that the

prosecution did not establish at petitioner's adjudication

hearing that the police then had probable cause to arrest

petitioner without a warrant. (See Cal. Pen. Code, § 836; RT

54-57.) However, Officers Johnson and Tyler nevertheless lawfully

took petitioner from his home to the police station for

questioning because, contrary to petitioner's assertion,

petitioner's mother had lawful authority to instruct the officers

to take petitioner to the police station.

It was only because petitiones'’s sorter ‘e car had broken

down that she had not previously brought petitioner to the police

station and was unable to bring him to the station on the date

the officers came to her and petitioner's house. There was no

other reason. (RT 42.) In the exercise of her parental right

to care for, discipline and control petitioner's upbringing and

behavior, a liberty interest protected by the due process

- clause of the Fourteenth Amendment to the United States

Constitution, petitioner's mother herself lawfully could have

brought petitioner to the police station at any time she saw fit.

Consequently, there was nothing unlawful or improper about her

telling Officers Johnson and Tyler to take petitioner to the

station and her telling petitioner to accompany the sitteecs.”

Even where there is an invasion of a protected freedom,

the power of the state to control the conduct of children reaches

beyond the scope of its authority over adults. (Ginsberg v.

New York (1968) 390 U.S. 629, 638; Prince Ve. Massachusetts

(1944) 321 U.S. 158, 170.) Furthermore, parents have powers

greater than those of the state to curtail their minor child's

1. At the time petitioner's mother told the police to take

petitioner to the station, petitioner was 13 years old. (CT 8.)

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. jurisprudence historically has reflected Western Civilization

exercise of the constitutional rights the child may otherwise

enjoy; a parent's own constitutionally protected liberty includes

the right to bring up his or her children (Meyer v. Nebraska

(1923) 262.U.S. 390, 399), and to direct the upbringing and

education of his or her children. (Pierce v. Society of Sisters

te

(1925) 268 U.S. 510, 534-535.) As against the state, this

parental duty and right is subject to limitations only if it

appears that parental decisions will jeopardize the health and

safety of the child, or have a potential for significant social

burdens. (Wisconsin v. Yoder (1972) 406 U.S. 205, 234.) As

noted by this Honorable Court in Prince v. Massachusetts, supra

(1944) 321 U.S. 158, 166, “It is cardinal with us that the

custody, care and nurture of the child reside first in the

parents, whose primary function and freedom include preparation

for obligations the state can neither supply nor hinder."

As this Court also recently recognized, this nation's

concepts of the family as a unit with broad parental authority

over minor children. Our cases have consistently followed that

course; our constitutional system long ago rejected any notion

that a child is the mere creature of the state and, on the

contrary, asserted that parents generally have the right, coupled

with the high duty, to recognize and prepare their children for

additional obligations. The law's concept of the family rests or

@ presumption that parents possess what a child lacks in

maturity, experience, and capacity for judgment required for

making life's difficult decisions. More important, historically

it has been recognized that natural bonds of affection lead

parents to act in the best interests of their children.

(Parham V. J. R. (1979) 442 U.S. 584, 602.)

In the case at bench, petitioner's mother, in the

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' exercise of her federal constitutional right as well as her moral

duty and legal responsibility to control petitioner's upbringing,

gave the police permission to take petitioner to the police

station for quéstioning. This action by petitioner's mother was

eminently reasonable under the circumstances and was not an

action such as to jeopardize petitioner's health and safety but

rather was in petitioner's best interest. Giving the police

permission to take petitioner to the police station for

questioning was a reasonable and necessary extension of

petitioner's mother's authority and control over petitioner's

moral training, health and well ceils

In taking petitioner to the police station, the police

officers merely acted as an agent of petitioner's mother by

following her instructions. Therefore, the officers acted

lawfully and reasonably by taking petitioner from his home to

the station and did not illegally arrest or detain petitioner.

The action of the police officers in taking petitioner

to the police station was lawful for the additional reason that

petitioner manifested his consent to accompanying the officers.

The evidence was undisputed that the police officers never asked

or commanded petitioner to accompany them to the police station.

Rather, after the officers, while in petitioner's and his

mother 's home, had asked petitioner's mother when she would be

able to bring petitioner to the police station for purposes of

investigation, petitioner's mother said that since the officers

were there at the house they could take petitioner to the

station. She also told petitioner to get out of bed, to get

dressed, to hurry up and to go with the officers. Petitioner

then got dressed and accompanied the officers to the station.

(RT 42-44.)

In the absence of any evidence whatsoever that

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‘ petitioner objected to going to the police station with the

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presented below is that petitioner voluntarily consented to

officers~ , the only rational conclusion from the evidence

accompanying the officers. Just as a person's consent to a

search by the police obviates the necessity for a search warrant

or probable cause (Schneckloth v. Bustamonte (1973) 412 U.S.

218, 219), so too should the consent of a person to being taken

to the police station by the police for investigation obviate

the necessity for an arrest warrant or the requirement of

probable cause for an arrest.

In re Scott K. (1979) 24 Cal.3d 395, 155 Cal.Rptr. 671,

595 P.2d 105, relied on by petitioner in support of his

argument, is distinguishable from the case at bench. In the

In re Scott K., case, a police officer searched a locked tool

box belonging to the minor defendant without consent of the

minor but with the consent of the minor's father. The search

disclosed marijuana inside the tool box. The California Supreme

Court held that the search was unlawful because it violated

the minor's property rights and the minor's father had no

legal right to consent to the search because he had no property

interest in the tool box. In the present case, however, the

police action in taking petitioner to the police station took

place with the consent of both petitioner's mother and

petitioner. Petitioner manifested his consent to accompanying

the officers to the station by obeying his mother's direction

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to accompany the officers.

2. Petitioner makes no claim that he did not voluntarily

accompany the officers.

3. The police action in the instant case occurred on

March 8, 1979. (RT 38-39.) The opinion in In re Scott K.

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Dunaway v. New York (1979) 442 U.S. 200, another case

cited by petitioner, is also inapposite to the instant case. In

Dunaway it was held that for purposes of the Fourth Amendment

prohibition against unreasonable searches and seizures, an

individual who is taken into custody by police, transported to

the police station without being told he is under arrest, and

detained at the police station for interrogation, is "seized" in

the Fourth Amendment sense when he is involuntary taken to the

police station. (Dunaway at p. 207.) However, in the present

case petitioner voluntary and consensually accompanied the police

officers to the station pursuant to his mother's instructions.

In view of the foregoing, petitioner was neither

illegally arrested nor detained. The police officers lawfully

took petitioner to the police station and, therefore, evidence of

the confession petitioner made at the station was properly

introduced against petitioner. To hold to the contrary surely

-would be an ultimate example of sparing the rod and spoiling the

child.

xs enrekeet

was filed on May 25, 1979. (See In Re Scott K., 24 Cal.3d at p.

395, 155 Cal.Rptr. at 671, 595 P.2d at 105.) The holding of

In re Scott K. pertaining to the scope of a parent's right to

consent to a search of his minor child's private property only

applies prospectively from and after the date of the opinion in

the case. (In re Joe R. (1980) 27 Cal.3d 496, 511-512,

165 Cal.Rptr. 837, 846-847, 612 P.2d 927, 936-937.) Therefore,

not only is the rationale of In re Scott K. inapplicable to the

police action in the case at bar, but is also under California

law as well as Federal law, the action by the police was lawful.

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CONCLUSION»

For the foregoing reasons, it is requested that the

petition for writ of certiorari be denied.

; Respectfully submitted,

GEORGE DEUKMEJIAN, Attorney General

of the State of California

ROBERT H. PHILIBOSIAN, Chief Assistant

Attorney General--Criminal Division

S. CLARK MOORE,

Assistant Attorney General

EDWARD T. FOGEL;, JR.

Deputy Attorney General

SHUNJI ASARI,

Deputy Attorney General

ROY C. P f

Deputy Attorney Gener

Attorneys for Respondent

12.

2nd Crim. No. 35263

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

IN BANK

IN RE DAVID W., A PERSON COMING UNDER THE JUVENILE COURT LAW

SUPREME CO''TT

bes JUL 1 8 1980

DAVID W. LAURENCE P. Gilt, Clork

in Deopxty

The Reporter of Decisions is directed not to publish in the

Official Reports the opinion in the above entitled proceeding

filed March 18, 1980 which appears at 103 Cal. App. 3d 469. (Cal.

Const., Art., VI, section 14; Rule 976, Cal. Rules of Court.)