People v. Biehl

AGEE, J. Defendant moved the superior court under section 995 of the Penal Code to set aside the information on the ground that the marijuana which he is charged with possessing was obtained by illegal search and seizure. The motion was granted and the People appeal from the order of dismissal.

The only witness who testified for the People at the preliminary hearing was state narcotic agent Noel. It was stipulated that the state chemist, if called, would testify that the 15 cigarettes found in defendant’s apartment contained marijuana.

Noel’s testimony that the defendant consented to the search was contradicted by the testimony of defendant and his wife. The committing magistrate stated that he was resolving this conflict in favor of the People and he thereupon held the defendant to answer. (Pen. Code, § 872.)

The superior court placed its own independent interpretation upon the evidence adduced at the preliminary hearing and concluded (1) that the agents had obtained admittance into defendant’s apartment by a subterfuge and (2) that they had then so conducted themselves that defendant’s consent to the search of his apartment was in submission to an implied assertion of authority.

It is true that an entry which is gained by trickery or subterfuge renders a search and seizure invalid (People v. Roberts, 47 Cal.2d 374, 378 [303 P.2d 721]; People v. Reeves, 61 Cal.2d 268, 273 [38 Cal.Rptr. 1, 391 P.2d 393]). It is also true that an apparent consent to a search may be involuntary if given in submission to an express or implied assertion of authority. (Castaneda v. Superior Court, 59 Cal.2d 439, 442-443 [30 Cal.Rptr. 1, 380 P.2d 641]; People v. Michael, 45 Cal.2d 751, 754 [290 P.2d 852].)

[807]However, neither the superior court nor an appellate court, in ruling upon a motion made under section 995 o£ the Penal Code, has the power to pass on conflicts in the evidence (People v. Soto, 144 Cal.App.2d 294, 296 [301 P.2d 45]) or to substitute its judgment as to the weight to be given to the evidence for that of the committing magistrate. (People v. Platt, 124 Cal.App.2d 123, 131 [268 P.2d 529].)

As stated in People v. Jackson, 146 Cal.App.2d 553, 556-557 [303 P.2d 767] : “In arriving at his decision the magistrate may weigh the evidence, may resolve conflicts, and may give or withhold credence to witnesses. In testing the sufficiency of the showing made before him on motion to quash the superior court cannot do these things. ’ ’