People v. Porter

FILES, J.

Defendant was convicted of a violation of section 11530 of the Health and Safety Code (possession of marijuana) and violation of section 12021 of the Penal Code (possession of a revolver by a convicted felon). He has appealed from the judgment. The sole question presented is the legality of the entry and search by which the marijuana and the revolver were discovered in defendant’s apartment.

The trial was by the court, a jury having been waived. The court found that the defendant had consented to the search, and on that basis received the evidence. Inasmuch as the question is one of fact (see

People

v.

Shelton,

60 Cal.2d 740,-746 [36 Cal.Rptr. 433, 388 P.2d 665]), the People have the benefit of the trial court’s finding if it is supported by substantial evidence. The People’s ease rests entirely upon the testimony of Deputy Sheriff Iavelli, which will be summarized.

Defendant shared an apartment with another ex-convict, Willard Harris. On August 12, 1962, at about 3 a.m., Deputy Sheriff Iavelli, Sergeant Keeney and two federal agents came to the premises. Sergeant Keeney and one federal agent stood on the front porch and rang the bell, while the other two checked the rear. Deputy Sheriff Iavelli testified that he heard the bell and then a voice from the inside asking, “Is that you, Bill?” Sergeant Keeney said, “Yes.” Iavelli then heard the door open. As he returned to the front porch he saw that the door was open approximately half way. Ser

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geant Keeney, who was then on the porch, removed his badge and identification card from his pocket and displayed them, but the witness could not see the person who was inside. What happened next is described by the witness as follows: “Q. Relate this conversation. A. Sergeant Keeney, as I stated, identified himself and stated that a narcotic investigation was in progress. He further stated that Harris had been arrested and had given permission to search the location. Q. What did the defendant say, if anything ? A. Sergeant Keeney asked if we may come in. Defendant said, ‘Come in.’ We then proceeded inside the location. Q. Did you ever hear any conversation between Sergeant Keeney and the defendant concerning consent to search this apartment? A. Yes. At this time Sergeant Keeney asked him about two guns and two jars of pills. He stated he didn’t know anything about it. Sergeant Keeney asked him if he could search the premises. Defendant said, ‘Yes, go ahead.’ Q. What happened then? A. We proceeded to search the premises.” On cross-examination Deputy Sheriff Iavelli described the conversation at the front door in these words: “Q. What did he say? A. Well, he advised him that he was a Deputy Sheriff, that a narcotic investigation was in progress. He further stated that Harris had been arrested and had given permission to search the location, as a joint tenant, I believe. At this time Sergeant Keeney asked this party if we could enter the location. They stated, ‘Yes.’ Q. Is that the entire conversation? A. In substance.”