Opinion
KINGSLEY, Acting P. J.We have consolidated these two cases for hearing and decision because they contain a common question of law, although one of them (Kenner) also involves an additional issue.
In both cases, the real parties stand charged with felony offenses in respondent court — Kenner with joyriding in violation of section 10851 of the Vehicle Code, Brooks with burglary in violation of section 459 of the Penal Code. In both cases the police had reasonable cause to arrest the real parties. In both cases, the police went to the home of the real party intending to arrest him based on the information theretofore obtained. In neither case did the police have, or attempt to secure, a warrant either of arrest or for search. In neither case is it claimed that there existed any emergency making the securing of a warrant impracticable.
In Brooks, the police received a consent to enter, expressly stating that their purpose was to arrest Brooks. The validity of that consent is not here questioned. They found Brooks seated in the front room. Brooks made an unsolicited statement incriminating himself. The respondent court, relying on People v. Ramey (1976) 16 Cal.3d 263 [127 Cal.Rptr. *68629, 545 P.2d 1333], granted a motion to suppress the statement and physical evidence secured as a result of that statement. The present petition (under subd. (o) of § 1538.5 of the Pen. Code) followed. We issued our alternative writ and the case has been argued. In the Brooks case we grant the petition and order the peremptory writ.
In Kenner, the police, arriving at Kenner’s home, were met by his brother (whose age does not appear from the record) and asked to enter “to talk to” Kenner. According to the police evidence, accepted by the trial court, the brother gave consent to the entry and called his mother who, in turn, called Kenner. Without any conversation, the police arrested Kenner. As in Brooks, a motion to suppress statements made after arrest was granted and this petition followed. We issued our alternative writ. In the Kenner case we deny the petition and deny a peremptory writ.
I
In both cases, the respondent court granted the suppression motions solely on the ground that the arrest was void under Ramey. We conclude that that reading of Ramey is erroneous. In Ramey, and in the cases on which it relies, there was no issue of a consensual entry. Ramey, and the other cases, were concerned only with entries to effect an arrest, accomplished solely by the exercise of police authority. The decisions must be read in the light of the problems facing those courts. In all of them, the courts express the need to insure the sanctity of the home — the man’s “castle” concept. But thafconcem, which underlies all police entry cases, whether the entry be to arrest or to search, has not in the search cases gone so far as to void consensual entries. (See the cases cited in Witkin, Cal. Evidence, § 77, pp. 73-74.) The effect of a valid consent was recognized by the Supreme Court, itself, in the Ramey opinion where, summarizing its holding, the court said (at p. 275) “But in the absence of a bona fide emergency, or consent to enter, police action in seizing the individual in the home must be preceded by judicial authorization of an arrest warrant.” (Italics added.)
It is true that, if consent to enter is an exception to, or a situation distinguishable from, Ramey, the courts will be faced with a substantial number of difficult factual determinations. But that is equally true of all cases in which an alleged consent is relied on to validate police action. The Fourth Amendment, and the California Constitution, prohibit only unreasonable searches and seizures. If, in striking a balance *69between effective law enforcement and the sanctity of the home, consensual entries are to be prohibited, there exists a policy decision beyond the proper scope of authority in an intermediate appellate court.
It follows that the People’s petition in Brooks should be granted and a peremptory writ issued to direct the denial of Brook’s motion to suppress evidence.
II
Kenner, however, presents an additional problem. Although the respondent court found that there was a consensual entry, it did not, and on the record before it could not, find that that consent validated the arrest which followed.
In People v. Superior Court (Arketa) (1970) 10 Cal.App.3d 122, 127 [89 Cal.Rptr. 316], the court held that a consent to enter was not a consent to search; the officer’s rights being limited to the scope of the consent given. Before an apparent consent can be said to be given voluntarily and knowingly, an alleged consentor must be aware of the purpose of the requested entry and a consent obtained by trickery or subterfuge renders a subsequent search and seizure invalid. Section 844 of the Penal Code requires a police officer not only to demand admittance but to have “explained the purpose for which admittance is desired.”
In Kenner, the request was to “talk to” Kenner. In fact, as the record makes clear, the officers had no intention of talking to Kenner at all. When he appeared he was immediately arrested, without any prior interrogation. A person may willingly consent to admit police officers for the purpose of discussion, with the opportunity, thus suggested, of explaining away any suspicions, but not be willing to permit a warrantless and nonemergent entry that affords him no right of explanation or justification.
It follows that, in Kenner, although the trial court was wrong in believing that Ramey dictated a grant of the motion to suppress, the trial court reached the correct result because the purported “consent” did not authorize the arrest that immediately followed the entry.
In Civil No. 50988, the petition is granted. Let a peremptory writ issue, directing the respondent court, in its case No. A-611,801, to vacate that portion of its order of March 24, 1977, which granted the motion of *70defendant Brooks to suppress evidence and to enter a new and different order denying such motion.
In Civil No. 50766, the alternative writ is discharged; the petition for a writ of mandate is denied.
Dunn, J., concurred.