People v. McCoy

Convicted of possession of heroin in violation of section 11500 of the Health and Safety Code, appellant urges on this appeal that the trial court erroneously admitted into evidence “narcotics seized as the result of an unlawful search and seizure.” We have concluded, however, that the prosecution obtained the narcotics through a search to which appellant consented. Although appellant asserted that the searched room was not his own, he allowed the officers to enter it; the false assertion did not mitigate the granted permission.

The record discloses that at about 12:15 a. m. on December 15, 1959, Inspectors Martin and Lawlor of the San Francisco Police Department and Federal Narcotic Agent Niblo, acting on information acquired from an anonymous informer to the effect that “Andy the Salesman” was selling narcotics out of Room 9 at 524 Clement Street, San Francisco, proceeded to that address. Inspector Martin stationed himself on a stairway from which he could view the door to Room 9 while Inspector Lawlor and Agent Niblo remained “at the foot of the main stairway in an alcove just off the entrance to the hotel.”

After about one-half hour the appellant emerged from Room 9, leaving the door open, and walked to the rear of the premises. Upon the elapse of another 20 to 25 minutes Martin summoned Lawlor and Niblo to the head of the stairs. Martin then followed the course taken by appellant and entered a “community restroom” where he found appellant sitting in a chair, apparently asleep. He aroused appellant, identified himself, and asked appellant his name and address; appellant, stating his name, said he lived on Cabrillo Street but was visiting someone in the building.

The inspector then related the following sequence; the

Appellant’s counsel objected to the admission of the testimony of the officers and moved to strike it, claiming that appellant did not consent to the search. Although no record of denial appears in the transcript the court apparently rejected the motion; the court subsequently found appellant guilty as charged.

Appellant raises a single contention on this appeal: the police officers unlawfully searched the room without his consent. He denies that his directions to “ ‘go ahead’ ” and search followed by his disclaimer of any connection with the room, constituted the giving of his consent. We do not believe that appellant’s false disclaimer of residency vitiated the consent given to search the room; the evidence obtained was not inadmissible as the product of an unlawful search and seizure.

“It is settled law in this state that where the defendant freely consented to a search of the premises under his control, any search made pursuant thereto is not unreasonable.” (People v. King (1959), 175 Cal.App.2d 386 , 389 [ 346 P.2d 235 ]; People v. Gorg (1955), 45 Cal.2d 776 , 782 [ 291 P.2d 469 ].) While the prosecution has the burden of proving consent, its existence is a question of fact to be determined by the trier of fact. (People v. Gorg, supra, 45 Cal.2d 776 , 782; People v. Roberts (1956), 47 Cal.2d 374 , 377 [ 303 P.2d 721 ].)

The factual situation in the instant ease compares to that in People v. White (1958), 159 Cal.App.2d 586 [ 324 P.2d 296 ], wherein the defendant claimed that the search of his room “was not a proper incident of his arrest.” (P. 592.) The appellate court, however, determined that defendant had given his consent to the search and that therefore the prosecution

In the instant case appellant’s denial of residency did not affect, and certainly did not destroy, the fact of his consent to the search of the room. Appellant did reside in the room; he had the right to permit the officers to enter the room; he did so. Appellant’s attempted deception as to his occupancy is irrelevant.

We affirm the judgment.

Bray, P. J., and Duniway, J., concurred.