Russi

*164 Opinion

Petition for writ of mandate to order the Napa County Superior Court to suppress certain evidence.

Questions Presented

1. The entry and search of Miss Reed’s premises were legal.

2. There was sufficient evidence of petitioner’s knowledge, possession and control of the contraband.

Criminal complaints were filed in the Napa County Superior Court against petitioner and his codefendant, Linda Reed, charging them jointly with violating Health and Safety Code section 11500 (possession of heroin), section 11530 (possession of marijuana), and section 11555 (possession of narcotics paraphernalia). At the preliminary hearing both were held to answer. 1 Petitioner’s motion to suppress evidence was denied after a hearing. Petitioner now seeks a writ of mandate to command the trial court to suppress evidence which he contends was illegally seized.

Facts

Some time prior to September 10, 1972, Linda Reed had pleaded guilty to a charge of possession of marijuana and had been placed on probation. The pertinent terms of that probation agreement were “That [she] submit to search and seizure of [her] person and property at any time of the day or night by any law enforcement…

I dissent.

I am of the opinion that the consent given by Linda Reed did not operate as a consent by petitioner and therefore that the seized contraband cannot be used against him. One joint occupant of a residence who is present may under certain circumstances grant consent to search, which will be effective even to justify the seizure of the property of the. other occupant who is absent. Thus, in People v. Carter, 48 Cal.2d 737, 746 [ 312 P.2d 665 ], it was held that when the usual amicable relations exist between husband and wife, and the property seized is of a kind over which the wife normally exercises as much control as does the husband, the absent husband may be deemed to have given tacit consent to the wife to allow the search. But consent by an absent joint occupant is ineffective against a nonconsenting person who is present when the officers declare themselves. (Tompkins v. Superior Court, 59 Cal.2d 65 [ 27 Cal.Rptr. 889 , 378 P.2d 113 ].) The Reed consent ought to be regarded as one made by an absent person, or at least to be regarded as analogous to such a consent. For although Miss Reed was present at the premises when the search was made, she did not then give or…

Petition for writ of mandate to order the Napa County Superior Court to suppress certain evidence.

Questions Presented

Criminal complaints were filed in the Napa County Superior Court against petitioner and his codefendant, Linda Reed, charging them jointly with violating Health and Safety Code section 11500 (possession of heroin), section 11530 (possession of marijuana), and section 11555 (possession of narcotics paraphernalia). At the preliminary hearing both were held to answer. [1] Petitioner's motion to suppress evidence was denied after a hearing. Petitioner now seeks a writ of mandate to command the trial court to suppress evidence which he contends was illegally seized.

Some time prior to September 10, 1972, Linda Reed had pleaded guilty to a charge of possession of marijuana and had been placed on probation. The pertinent terms of that probation agreement were "That [she] submit to search and seizure of [her] person and property at any time of the day or night by any law enforcement officer with or without a warrant ..." The word "property" clearly covers her lease or rental of her apartment. Her right to the occupancy of the apartment is a…