Opinion
For Opinion on Hearing see, 118 Cal.Rptr. 617, 530 P.2d 585.
Opinions on pages 233-247 omitted.
HEARINGS GRANTED
Opinion appearing on pages 233 to 243 deleted due to hearing granted; on April 11, 1974, the cause was transferred to Court of Appeal, First District, Division Two, for reconsideration. Subsequent opinion not certified for publication.
[110 Cal.Rptr. 696]Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., Doris H. Maier, Asst. Atty. Gen., Writs Section, W. Eric Collins, Robert R Granucci, Deputy Attys. Gen., San Francisco, for petitioner.
Harold J. Truett, Public Defender, Peter J. Muzio, Deputy Public Defender, San Rafael, for real party in interest.
KANE, Associate Justice.
The People seek mandate to set aside an order granting a motion to suppress evidence. The principal question is whether the consent to search real party defendant's home was the result of improper questioning of the defendant in violation of the Miranda rule (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694).
On May 22, 1973, defendant was arrested for burglary of the Marin Electric Company in Mill Valley, after an investigation had disclosed that a flashlight found inside the burglarized premises bore his fingerprints. Thereafter, defendant was transported to the Mill Valley Police Department, where he was advised of his constitutional rights and stated that he did not wish to discuss the matter.
The arresting officer, Inspector Sisk, testified that he asked defendant no more questions about the Marin Electric burglary, but that he did present defendant with evidence connecting him to the Marin Electric burglary and in addition questioned him about two other burglaries.
Defendant, after denying involvement in the other burglaries, was taken downstairs to be photographed and fingerprinted. Inspector Sisk left the building shortly thereafter, to answer a burglar alarm.
Upon Inspector Sisk's return, defendant asked 'what was going to happen' to him. Inspector Sisk replied that he was going to obtain a warrant for the search of defendant's home. Defendant then said, 'I will make it easy for you; my sister has things there, my mother has things there, my brother has things there; I will tell you where the--where the stove is.' Defendant stated that he did not want his sister's [110 Cal.Rptr. 697] and brother's things disturbed. Defendant was readvised of his rights by the officer and thereafter confessed to the commission of the burglary.
Later, defendant accompanied the officer to his home, where he turned over to the officer the stove which had been taken in the burglary and which was the object of the suppression order.
On review of a superior court ruling in a proceeding under section 1538.5 of the Penal Code to suppress evidence, our responsibility is to measure the facts, as found by the trier, against the constitutional standard of reasonableness. (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621; People v. Gale (1973) 9 Cal.3d 788, 793, 108 Cal.Rptr. 852, 511 P.2d 1204.)
Section 1538.5 is a proper vehicle for bringing a motion to suppress evidence on the ground that it was obtained as the fruit of an illegal statement (People v. Superior Court (1970) 3 Cal.App.3d 476, 484, 83 Cal.Rptr. 771.)
Our task is not without difficulties, however, for the statute contains no requirement that findings be made or that reasons for the ruling be stated. (See People v. Manning (1973) 33 Cal.App.3d 586, 601, 109 Cal.Rptr. 531 (hg. den.)).
The court made no findings of fact. In the absence of such findings, we accept the testimony of the arresting officer given at the hearing at full value, and address ourselves to the question whether, as a matter of law, the consent was obtained in response to improper questioning in violation of the Miranda rule.
We recognize that in a proceeding of this nature, the trial court sits as a finder of fact, with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony and draw factual inferences, and that the trial court's findings on such matters, whether express or implied, must be upheld on review if they are supported by substantial evidence (People v. Lawler, supra, 9 Cal.3d, p. 160, 107 Cal.Rptr. 13, 507 P.2d 621). Review of the record shows, however, that the officer was the only witness who testified and there was no conflicting testimony.
The rule prohibits continued questioning after an individual has once asserted his constitutional rights. 'After the initial assertion of the privilege, the defendant is entitled to be free of police-initiated attempts to interrogate him. Any statement made by a defendant in response to such questioning cannot be characterized as voluntary.' (People v. Randall (1970) 1 Cal.3d 948, 958, 83 Cal.Rptr. 658, 664, 464 P.2d 114, 120; People v. Burton (1971) 6 Cal.2d 714, 719, 68 Cal.Rptr. 817, 441 P.2d 793; emphasis added.)
In People v. Fioritto (1968) 68 Cal.2d 714, 719, 68 Cal.Rptr. 817, 441 P.2d 625, however, the court noted it did not disapprove of the use of statements voluntarily initiated by a suspect; such statements are sanctioned by the court and expressly authorized in the Miranda opinion. In People v. Ireland (1969) 70 Cal.2d 522, 536, 75 Cal.Rptr. 188, 450 P.2d 580, 588, the court noted that 'even a defendant in custody might make statements admissible under Miranda if it were shown that such statements were the result of the defendant's own initiative and did not arise in a context of custodial interrogation.'
The arresting officer testified at the hearing on the motion to suppress that he asked defendant no more questions about the Marin Electric burglary after the defendant invoked the privilege. He admitted, however, that he continued to question the defendant with respect to several other burglaries in which he suspected the defendant was involved and that he displayed to the defendant the evidence that connected him to the Marin Electric burglary.
The privilege having been once invoked, all further attempts at police interrogation should cease (People v. Fioritto, supra, p. 719, 68 Cal.Rptr. 817, 441 P.2d 625). However, police may with propriety readvise the defendant of his Miranda rights and ask him whether he wishes to discuss a separate offense (People v. Lyons (1971) 18 Cal.App.3d 760, 777, 96 Cal.Rptr. 76). The officer testified that he readvised the defendant of his Miranda rights on several occasions.
Assuming, arguendo, that a Fioritto violation occurred when the officer continued [110 Cal.Rptr. 698] to question the defendant about other burglaries, the consent to search was not obtained as a result of that interrogation. The record shows that the interrogation ceased, without any incriminating statements having been obtained, when defendant was taken downstairs to be photographed and fingerprinted.
After the photographing and fingerprinting had been completed, defendant indicated he wanted to contact his probation officer and was permitted to make six or seven telephone attempts to do so. In addition, Inspector Sisk himself tried to contact the probation officer for defendant. Following this, Inspector Sisk left the building to respond to a burglar alarm in the downtown area.
The record reflects that defendant and Sisk were acquainted with each other from a prior burglary arrest.
While Sisk was gone, defendant was in the custody of Lieutenant Dyke who did not interrogate defendant. When Sisk returned to the station, the defendant initiated a conversation by asking 'what was going to happen now.' The officer replied that he intended to obtain a warrant for the search of the defendant's home. Thus, the consent to search was not only freely and voluntarily given after a Miranda warning (cf. People v. Strawder (1973) 34 Cal.App.3d 370, 379, 108 Cal.Rptr. 901), it was given without any request for consent having been made at all.
An officer's statement that he intends to do what he has a legal right to do is not a coercive threat that will render invalid a consent given in response thereto (People v. Manning, supra, 33 Cal.App.3d, p. 602, fn. 1, 109 Cal.Rptr. 531).
Under the circumstances shown, we must conclude that the consent was voluntarily obtained, the prosecution having met its burden of showing that the statement was the result of the defendant's own initiative, not arising as a product of a custodial interrogation (People v. Fioritto, supra, 68 Cal.2d, pp. 719-720, 68 Cal.Rptr. 817, 441 P.2d 625; People v. Ireland, supra, 70 Cal.2d, p. 536, 75 Cal.Rptr. 188, 450 P.2d 580; People v. Randall, supra, 1 Cal.3d, p. 956, fn. 7, 83 Cal.Rptr. 658, 464 P.2d 114).
'Where government officials rely on consent to justify the lawfulness of a search, the burden is on them to show by clear and positive evidence that the consent was freely, voluntarily and knowledgeably given. (Bumper v. North Carolina (1968) 391 U.S. 543, 548 [88 S.Ct. 1788, 20 L.Ed.2d 797]; People v. Shelton (1964 60 Cal.2d 740, 744, 36 Cal.Rptr. 433, 388 P.2d 665; Channel v. United States (9th Cir. 1960) 285 F.2d 217, 219-220.)' (Blair v. Pitchess (1971) 5 Cal.3d 258, 274. 96 Cal.Rptr. 42, 53, 486 P.2d 1242, 1253.)
Let a writ of mandate issue directing the superior court to set aside its order of July 20, 1973, granting defendant's motion to suppress evidence.
TAYLOR, P. J., and ROUSE, J., concur.