People v. Michael

TRAYNOR, J.

— By information defendant was charged with four counts of possessing narcotics in violation of Health and Safety Code, section 11500, and one prior felony conviction of violating the same section. Her motion to set the information aside (see Pen. Code, § 995) was granted on the ground that all of the evidence against her had been obtained by an illegal search and seizure in violation of her constitutional rights. The People appeal.

At the time of her arrest defendant was living at her mother’s home. Two state narcotics inspectors, an investigator from the Los Angeles district attorney’s office, and a Los Angeles police officer went to defendant’s residence. They knocked on the door, identified themselves as officers, and were admitted by defendant’s mother. They did not have a search warrant. One of the officers identified himself to defendant and asked her if she had any narcotics in the house. Defendant’s mother then left the room and returned with a bottle containing a narcotic, which the officer took from her. She told the officers that “This is all she has.” Defendant told the officer she knew the bottle contained a narcotic, and on being asked whether she had any more narcotics, she produced a box from her bedroom containing other narcotics and hypodermic equipment, which she handed to the officer. Defendant was arrested, the evidence was taken to police headquarters and analyzed, and four narcotics were identified.

The attorney general contends that the evidence in this case was voluntarily produced by defendant and her mother and was therefore not illegally obtained. Defendant, on the other hand, contends that the admission of the officers into her home and the production of the narcotics were in submission to authority and without effective consent. Accordingly, she contends that anything the officers heard and any physical evidence they obtained after the entry without a warrant was inadmissible.

[753]

To protect his right to object to an unreasonable search or seizure a defendant need not forcibly resist an officer’s assertion of authority to enter his home or search it or his person

(United States

v.

Di Re,