Opinion
H025278.
10-31-2003
THE PEOPLE, Plaintiff and Respondent, v. LARRY MARVIN DAVIS, Defendant and Appellant.
Appellant pleaded guilty to possession for sale of a controlled substance, possession of controlled substance paraphernalia, and possession of precursors under an agreement that his maximum state prison sentence could be four years. (Health & Saf. Code, §§ 11378, 11364, 11383.) The trial court placed him on probation with conditions including a 10-month jail sentence. On appeal, he contends the trial court erred in denying his motion to suppress evidence. We affirm.
On the morning of January 31, 2002, appellant was home asleep naked in his bed when his common-law wife, Victoria Atwood, awakened him. She wished to inform him that the police were there to serve four arrest warrants on her for misdemeanor traffic matters. Officer Chris Frechette had come to appellants home on a four-acre rural property to serve these warrants and to investigate information that the property might be the site of a clandestine methamphetamine laboratory. Officer Frechette worked for the Santa Clara County Sheriffs Department Drug Enforcement Agency Unit. He had received information from a "concerned citizen" and followed up by interviewing appellants neighbors and running various checks on the vehicles associated with the property. He came to learn that appellant and Atwood lived there and that she had the outstanding warrants.
Officer Frechette was accompanied by Officer Rodriguez; several other officers remained in a concealed staging area one quarter of a mile from the residence. Officers Frechette and Rodriguez, in full uniform, entered appellants property through a gate, and met Atwood, a friend, and some children coming out of the front of the house. Officer Frechette told Atwood he had come to serve the arrest warrants and Atwood acknowledged that she knew of them. She asked if she could go inside and awaken her husband. Officer Frechette "told her that that was not necessary but she could if she wanted to." Atwood "led the way through the house" and Officer Frechette "accompanied Ms. Atwood because she was technically under arrest for the warrants at that point until we could clarify them." Neither officer had his gun drawn.
Atwood woke appellant up. Officer Frechette "told [Atwood] it wasnt necessary [for appellant] to come out, but [appellant] decided he would like to come out and see what was happening." Officer Frechette "advised [appellant] if hes going to come outside with us he should get dressed." Outside, Officer Frechette chatted with appellant about his property, horses and goat. Appellant said he was cold and asked if he could go inside and get a coat. The officer "said he most certainly could." The officer testified he told appellant "he could go back to sleep if he wished, it wasnt necessary for him to be out with us." When appellant returned, Officer Frechette told him he was "also investigating a possible methamphetamine lab." At this, appellant "kind of took on a look of defeat. . . . he started licking his lips, his emotions turned — like slumped shoulders, he looked down at his feet. [The officer] could see nervous symptoms starting to be displayed."
The officer told appellant he had information concerning someone named Rodney Anderson, also known as Rabbit, storing methamphetamine chemicals and laboratory equipment on appellants property. Appellant confirmed he knew Rabbit. Officer Frechette testified that "then he said yes, I am storing some stuff on the property. He consented to show me where it was." Appellant verbally consented to the search and told the officers "we did not need to get a search warrant." Appellant showed the officers some empty, crushed Freon cans and escorted them to a barn-like structure near the house, saying it contained numerous five-gallon containers of solution. Before entering the structure, appellant signed a consent form authorizing the officers to search the premises. Appellant was "extremely cooperative" throughout these events.
Appellant filed a motion pursuant to Penal Code section 1538.5 to suppress evidence seized during this search. Following a hearing, the trial court denied the motion saying, "The primary issue in this case, of course, is the consent. And there was, of course, uncontradicted testimony that defendant consented."
Appellant contends, "The superior court reversibly erred in denying suppression because the record does not show valid consent to the search as a matter of law." Appellant argues that the officers "procured appellants apparent consent to search his house and barn, but that appellant had first submitted to an implied claim of lawful searching authority that he thought pointless to refuse."
The standard of appellate review of a trial courts ruling on a motion to suppress is well established. "When reviewing a ruling on an unsuccessful motion to exclude evidence, we defer to the trial courts factual findings, upholding them if they are supported by substantial evidence, but we then independently review the courts determination that the search did not violate the Fourth Amendment. [Citation.]" (People v. Memro (1995) 11 Cal.4th 786, 846.) The Fourth Amendment "`generally prohibits the warrantless entry of a persons home, either to make an arrest or to conduct a search. [Citations.]" (Ibid.) However, one of the well- delineated exceptions to this rule arises when voluntary consent to search has been given by the individual whose property is searched. (Id. at p. 847.) Whether consent was voluntary or was the product of coercion on the part of searching officers is a question of fact to be determined by the trial court from the totality of the circumstances. (See Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227, 233, 248-249; People v. James (1977) 19 Cal.3d 99, 106.) The courts findings on this issue must be upheld on appeal if they are supported by substantial evidence. (James, supra, 19 Cal.3d. at p. 107.)
Courts look at the following factors to determine whether consent was voluntary: whether the encounter occurred in a public place, whether the suspect consented to speak with the officers, whether the officers informed the individual that he was not under arrest and was free to leave, whether there was a threatening presence of several officers and a display of weapons or physical force, and whether the officers tone of voice was such that the requests would likely be obeyed. (United States v. Yusuff (7th Cir. 1996) 96 F.3d 982, 985-987; see also People v. McKelvy (1972) 23 Cal.App.3d 1027, 1034.)
Here, appellants common-law wife decided to awaken him, and we do not view the officers request that appellant dress himself if he wished to come outside with them to be coercive. Appellant learned of the officers desire to search his premises while outside his home. He had moments earlier been told he was free to leave the officers presence and return to his house to obtain a jacket, or go back to sleep if he wanted. There was no evidence of a display of weapons or physical force by the officers, or that their conversations with appellant were in a harsh or threatening tone. Substantial evidence supports the trial courts denial of the motion to suppress.
The judgment is affirmed.
WE CONCUR, Rushing, P. J. and Premo, J.