Toulson
People v. Toulson
Opinion
Lead Opinion
Stephens, J.
Defendant Robert H. Toulson was convicted of illegal possession of marijuana. (Health & Saf. Code, § 11580) by a court sitting without a jury. He appeals from the order granting him probation. (Pen. Code, §1237.)
Facts
On December 26, 1966, two uniformed and armed Los *183 Angeles City police officers, Jobe and Jenkins, were on duty, and at about 5:30 p.m., went to a hotel at 258 West Eighth Street in San Pedro. Officer Jobe had previously received information from a confidential informant that defendant had narcotics in his possession.* 2 Defendant was known to be living at the hotel, in room 213. At the time he first saw the officers, defendant was in the hallway outside his room, some 60 feet away. He saw them walking up the stairs to the second floor. Defendant was then talking to the landlady at the hotel desk at the front of the hotel and on the second floor, some 15 feet from the stairs. When the officers arrived on the second floor, they observed defendant in the hallway, walking from the front of the hotel and from the area of the stairs leading from the first floor, toward his room. He was some 25 or 30 feet from the room. The door of room 213 was open and the…
Dissenting Opinion
Aiso, J.
—I respectfully dissent. The People seek to justify an entry, a search, a seizure, and an arrest—all without a search or arrest warrant—and the ensuing conviction upon the theory that defendant consented to the entry, search, and seizure and thereby waived his Fourth Amendment rights. The record, in my opinion, fails to reflect the type of inquiry, required by minimal due process, as to whether defendant’s apparent consent was in fact and in law freely and intelligently given. Nor does the record show that the People have sustained their burden in proving a justification for proceeding without a warrant in this case. The majority opinion, furthermore, sets forth no reason why in arriving at the disposition it reaches, it need not consider whether a defendant must be first advised of his rights under the Fourth Amendment, in the manner now required under the Fifth (right against self-incrimination) and the Sixth (right to counsel) Amendments, before an effective consent may be found.
I.
Since we deal with a federal constitutional question (Mapp v. Ohio (1961) 367 U.S. 643 [ 6 L.Ed.2d 1081 , 81 S.Ct. 1684 , *188 84 A.L.R.2d 933 ]), which necessitates a review of a constitutional…