Majority
In an information filed by the District Attorney of San Diego County, appellant was jointly charged with defendant Raney with violation of Health and Safety Code section 11530 (possession of marijuana). Both appellant and Raney pleaded not guilty and their motion to suppress evidence under Penal Code section 1538.5 was denied. By stipulation the case was submitted to the trial court on the transcript of the preliminary hearing with each side reserving the right to offer additional evidence. After reading the transcript of the preliminary hearing and listening to additional evidence presented by both the prosecution and the defendants, the trial court found appellant and Raney guilty. Imposition of sentence was suspended for three years and appellant was granted probation on various terms and conditions. Stark appeals from the judgment (order granting probation).
Contentions on Appeal
1) The consent to search the car in which appellant was riding at the time of his arrest was invalid because no warning was given by the police officer of the right to refuse permission to search.
2) The evidence is insufficient as a matter of law to support the conviction.
Statement op Facts
At approximately 8 p.m. on May 23,1968, Officer Lindstrom noticed a 1958 Ford automobile traveling on Garnet Street in the City of San Diego. The automobile had a large cardboard sign approximately 9 inches'by 12 inches illegally displayed, in the right hand comer of the windshield. When the officer
Offieer Lindstrom walked to the side of the car to obtain the driver’s license. In the back seat of the car he noticed many items including a fire extinguisher, an electric drill, numerous other tools, boxes and papers. The interior of the car was very dirty. The officer asked for and obtained identification from all three occupants. All appeared very nervous, particularly the girl who was shaking like a leaf when she handed the officer her identification. Raney produced an out-of-state driver’s license, and the offieer was not satisfied with the' girl’s identification. He asked all three occupants to get out of the car.
"When questioned concerning ownership of the car, Raney stated it belonged to his girl friend, Roberta Peterson, and that he had been using it for two or three weeks with her permission. Further conversation between Officer Lindstrom and the three occupants of the car continued for about five minutes when another police unit arrived on the scene. At this point Offieer Lindstrom asked for and received permission to search the car from Raney.[2] He did not advise Raney he had the right to refuse to consent to the search.
A plastic bag containing approximately 12 grams of marijuana was found under the right front seat of the ear. The plastic bag was clean and dust free in contrast to other items in the car which were dirty and covered with dust. Offieer Lindstrom noticed a “roach clip” attached to a necklace worn by appellant; later, when the officer looked again, the clip was missing. The following day at the jail, debris taken from appellant’s pockets contained particles of marijuana.
The rule is now established in California that warning of the right to refuse permission to search is not a requirement to obtaining a valid and effective consent to search. (People v. Superior Court, 71 Cal.2d 265 , 270-271 [ 78 Cal.Rptr. 210 , 455 P.2d 146 ] ; People v. Linke, 265 Cal.App.2d
1 There is no conflict in the evidence on this feature of the ease. Appellant did not testify at either the preliminary hearing or the trial. Co-defendant Raney testified at the preliminary hearing as follows: “A. He [Officer Lindstrom] asked if I would mind if he looked through the car. Q. What did you say? A. Well, I thought about it for a few seconds, maybe 15 or 20, and said ‘Well, I guess it is all right. Q. Now - A. With a ‘Sure’ after that. ‘Well, I guess it is all right,’ and as an afterthought, ‘ sure ’. ’ ’
Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances. (People v. Michael, 45 Cal.2d 751 , 753 [ 290 P.2d 852 ] ; Castaneda v. Superior Court, 59 Cal.2d 439 , 442 [ 30 Cal.Rptr. 1 , 380 P.2d 641 ] ; People v. Linke, supra, 265 Cal.App.2d 297 , 310-311 [ 71 Cal.Rptr. 371 ].) Where substantial evidence supports the trial court’s finding a voluntary consent has been given, a reviewing court must accept that finding. (People v. Bilderbach, 62 Cal.2d 757 , 762-763 [ 44 Cal.Rptr. 313 , 401 P.2d 921 ] ; People v. Roberts, supra, 246 Cal.App.2d 715 , 727 ; People v. Linke, supra, 265 Cal.App.2d 297 , 311.)
In the instant case the trial judge who ruled on the motion to suppress evidence made written findings of fact and conclusions of law. While he found that Raney had not been advised of his right not to consent to the search, he also specifically found that Raney voluntarily gave his consent to the search.
Substantial evidence supports the trial court’s finding Raney’s consent to search the car was freely and voluntarily given.
(1) The words with which he gave consent were clear, unequivocal and undisputed.
(2) The record demonstrates that Raney’s consent to search the car was intelligently given with an understanding he had the right to withhold it. When his counsel asked him what his understanding of his right with respect to the re
(3) There is nothing to indicate the consent to search resulted from submission to police authority. Neither Raney nor the other occupants of the ear were under arrest at the time the request was made. They had been stopped for a minor traffic violation on a busy thoroughfare at 8 p.m. in the evening. There is nothing in the atmosphere surrounding the incident which smacks of police coercion. One who has something to hide from the police will always face a dilemma when consent to search is requested. If he consents to the search, that which he seeks to hide will likely be discovered; if he refuses permission, he risks increasing the suspicion he wants to dispel. That he must choose between the devil and the deep is of his own making, and the compulsion to consent prompted by this circumstance is not the kind of coercion which renders an apparent consent ineffective. (See Gorman v. United States, 380 F.2d 158 ,165.)
Appellant’s contention the evidence is insufficient as a matter of law to support his conviction is likewise without merit. It is sufficient to point out the packet containing 12 grams of marijuana was found under that portion of the seat upon which he had been sitting; the packet was clean and dust free whereas the other items in the car were dirty and covered with dust; at one time he was seen to have a " roach clip” fastened to his necklace, but later disposed of it; debris taken from his pockets contained particles of marijuana. There is substantial evidence to support the implied finding of the trial court that appellant had knowledge of the presence of the marijuana in the automobile, he exercised dominion and control over it, and had knowledge of its narcotic character. (People v. Showers, 68 Cal.2d 639 , 642-644 [ 68 Cal.Rptr. 459 , 440 P.2d 939 ].)
The judgment is affirmed.
Brown (Gerald), P. J., and Coughlin, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied October 15, 1969.
Footnotes
- * Assigned by the Chairman of the Judicial Council.
Cases cited
- People v. Superior Court 71 Cal.2d 265 at 270-271 p. 714, p. 715
- People v. Bustamonte 270 Cal.App.2d 648 at 652-653 p. 715
- People v. Davis 265 Cal.App.2d 341 at 347 p. 715
- People v. Cirilli 265 Cal.App.2d 607 at 610 p. 715
- People v. MacIntosh 264 Cal.App.2d 701 at 705-706 p. 715
- People v. Richardson 258 Cal.App.2d 23 at 31 p. 715
- People v. Dahlke 257 Cal.App.2d 82 at 87 p. 715
- People v. Campuzano 254 Cal.App.2d 52 at 57 p. 715
- People v. Chaddock 249 Cal.App.2d 483 at 485 p. 715
- People v. Roberts 246 Cal.App.2d 715 at 729, at 727 p. 715
- People v. Michael 45 Cal.2d 751 at 753 p. 715
- Castaneda v. Superior Court 59 Cal.2d 439 at 442 p. 715
- People v. Linke 265 Cal.App.2d 297 at 310-311, at 311 p. 715
- People v. Bilderbach 62 Cal.2d 757 at 762-763 p. 715
- People v. Showers 68 Cal.2d 639 at 642-644 p. 716