People v. Cahan

150 Cal.App.2d 786 (1957) THE PEOPLE, Respondent,

v.

CHARLES H. CAHAN, Appellant.

Crim. No. 5758. California Court of Appeals. Second Dist., Div. One.

May 13, 1957. Ray M. Davidow for Appellant. [787]

Edmund G. Brown, Attorney General, and Morris Schachter, Deputy Attorney General, for Respondent.

DORAN, J.

[1] As recited in appellant's brief, "Mrs. Springer, of 3861 Brunswick Avenue, telephoned the police on November 3, 1955, to come to her home. The defendant Marsh was her son; she had raised the defendant Cahan. Neither lived with her at that address. She resided there with her husband. On arriving, the police were admitted into her home. Neither of the defendants was present at that time. There were quite a few officers. After some conversation two of the officers stayed in the bedroom at the said address, and Mrs. Springer left. Defendant Marsh arrived and was observed to be engaged in bookmaking by the two police officers from their vantage point in the bedroom. He was arrested and taken from the house. Subsequently, Mr. Cahan arrived and was observed by the two officers from their vantage point in the bedroom to be engaged in bookmaking, and he was arrested."

"Both arrests were made without a warrant for either defendant."

"Issue"

"The sole issue is whether or not consent to the officers was voluntarily given to enter, to remain, to search, and to hide; or whether or not there was a submission on the part of Mrs. Springer to an express or implied assertion of authority by the police officers."

"Defendant's Contention"

"It is defendant's contention that Mrs. Springer submitted to the implied assertion of authority of the police officers and did not voluntarily consent to the police officers hiding in her house or searching the premises." It is further argued by appellant, "It is defendant's contention that consent to enter is not consent to search or remain or hide on the premises; that consent to remain is not consent to hide. Defendant further contends that Mrs. Springer consented freely only to the officers entering to see if the defendants were on the premises, that thereafter her consent to the officers remaining and hiding was not voluntarily given, if given at all."