Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN221106, K. Michael Kirkman, Judge.
McDONALD, J.
After the court denied his Penal Code section 1538.5 motion to suppress evidence, Russell Guillemot was convicted following a bench trial of cultivating marijuana (Health & Saf. Code, § 11358) and possessing marijuana (Health & Saf. Code, § 11357, subd. (b).) Guillemot challenges the court's denial of his motion to suppress evidence. He contends the court erred because police did not have consent or reasonable suspicion to search his property. We affirm.
FACTS
On November 21, 2006, Guillemot's 16-year-old daughter was home alone when two men held her at knifepoint and robbed the house. After the men left, she called police and reported the robbery. Police officers arrived a few minutes later and found her crying, shaking, and difficult to understand. She told Officer Keim she did not check the house for suspects. She asked an officer to make sure no one was inside the house, but at trial denied making the request. Officers Davis, Garcia, and Monge conducted a basic security search of the house while Officer Keim took the daughter's statement. The officers searching the house did not know whether all the intruders had left. While inside the house the officers noticed a shed in the backyard large enough to hide a person.
Two officers entered the backyard and positioned themselves so no one could attack them from behind. They each checked part of the yard and met at the shed. Officer Davis opened the shed door and observed marijuana plants. He closed the door and continued checking the yard for suspects. After ensuring no suspects were in the house or yard, Officer Garcia contacted a narcotics unit to investigate the marijuana plants.
Before the narcotics unit arrived, Guillemot and his son came home and waited outside. About 20 minutes after the narcotics unit was contacted, Detectives Alvis and Samoa arrived. Alvis explained to Guillemot that the officers found marijuana in the shed and he (Alvis) was investigating the marijuana. He further explained that Guillemot had the option to sign a consent to search form or Alvis could obtain a search warrant. Guillemot read the consent form and signed it. After Guillemot signed the form, Alvis and Samoa searched the house and shed. The detectives found marijuana and drug paraphernalia in the house and marijuana plants in the shed.
DISCUSSION
Guillemot contends (1) his daughter did not give valid consent to the initial security search because, as a minor, she lacked authority to consent; (2) no exigent circumstances created reasonable suspicion to justify the initial search; and (3) his consent to the second, more extensive search was involuntary because tainted by the initial unlawful search.
I Minor's Consent to a Warrantless Search
A. Legal Principles
Generally, a minor cannot waive a parent's privacy rights by consenting to a police search of the home, but a minor gains authority to consent with increasing age and experience. (People v. Jacobs (1987) 43 Cal.3d 472, 482-483.) Police officers need a reasonable belief a person has authority to consent before conducting a search based on that consent. (People v. Jenkins (2000) 22 Cal.4th 900, 972.) Reasonableness is judged against an objective standard: " 'would the facts available to the officer at the moment... "warrant a [person] of reasonable caution in the belief" ' that the consenting party had authority over the premises?" (Illinois v. Rodriguez (1990) 497 U.S. 177, 188, quoting Terry v. Ohio (1968) 392 U.S. 1, 21-22; see also People v. Hoxter (1999) 75 Cal.App.4th 406, 409, 413 [Officers were reasonable to believe a 16-year-old had authority to consent when they knocked on the front door and the minor invited them in.].) An officer's belief in a minor's authority to consent is more reasonable when the minor was a victim of or witness to a crime. (See People v. Jacobs, supra, 43 Cal.3d at p. 483, fn. 7.) We review de novo findings of fact for substantial evidence and whether the officers' belief was reasonable under the Fourth Amendment. (People v. Zamudio (2008) 43 Cal.4th 327, 342 (Zamudio).)
B. Analysis
Police officers could have reasonably believed Guillemot's daughter had authority to consent to a search of the house and yard. Guillemot's daughter was a crime victim and instigated the investigation. Her demeanor, crying, and shaking justify the officers' belief in her victimization. She met officers in the yard and requested they make sure no one was in the house. On their arrival, police officers did not know if any suspects remained in the house. Guillemot's daughter's actions warranted the officers' belief that she had authority to consent to the search. (People v. Hoxter, supra, 74 Cal.App.4th at p. 413.)
II Exigent Circumstances Justifying a Warrantless Search
A. Legal Principles
Even without a consent to search, police officers may conduct a cursory protective sweep of a residence and adjacent spaces to prevent imminent danger to life, serious damage to property, escape of a suspect, or destruction of evidence. (Maryland v. Buie (1990) 494 U.S. 325, 331-336 (Buie); People v. Lucero (1988) 44 Cal.3d 1006, 1017.) To justify a cursory inspection of places where a person may hide, officers must rely on specific articulable facts that create a reasonable suspicion of danger. (Buie, at pp. 332-333.) Land surrounding a house often receives less privacy protection than the house, and therefore requires a lesser showing of exigency than residences. (People v. Sahagun (1979) 89 Cal.App.3d 1, 19-20.)
B. Analysis
Here, officers had a reasonable suspicion of danger to justify a search of the house, yard, and shed based on exigent circumstances. The officers testified Guillemot's daughter was unsure whether anyone remained in the house or yard and requested they check. Although at trial she denied requesting and consenting to the search (Zamudio, supra, 43 Cal.4th at p. 342), her agitated state, the suspects' possible continued presence, the suspects' use of violence against the minor, and the presence of a shed large enough to conceal a person are articulable facts creating reasonable suspicion of ongoing danger and constituted exigent circumstances. The search of the house, yard, and shed lasted no longer than 10 minutes, and officers did not seize any evidence during the cursory search. (Buie, supra, 494 U.S. at pp. 333-336.)
III Guillemot's Consent to a Warrantless Search
A. Legal Principles
When the prosecution relies on consent to justify a warrantless search, substantial evidence must show the consent was voluntary. To be voluntary, consent cannot be coerced through explicit or implicit threats or merely a submission to express or implied assertions of authority. (Zamudio, supra, 43 Cal.4th at p. 341; People v. Boyer (2006) 38 Cal.4th 412, 445-446.) The amount of time elapsed between the crime and the consent, the courtesy or discourtesy of the officers, time available to consider signing the consent form, and the vulnerability of the consenting person may show voluntariness. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 229; Payne v. Arkansas (1958) 356 U.S. 560, 562, 566-567 [vulnerability in connection with a confession demonstrated in 19-year-old with fifth grade education and limited understanding].)
B. Analysis
Substantial evidence supports the conclusion that Guillemot's consent to the second, more extensive search was voluntary. His consent was not tainted by the prior search, which we conclude was proper. The officers did not make any implicit or explicit threats. They simply explained their options were to obtain a warrant or his consent. The officers brought chairs from the house for the Guillemot family to sit on during the investigation. Guillemot had time to read the consent form and signed the form because he decided he had nothing to hide. Finally, Guillemot was not vulnerable. Although he was sweaty and hungry after exercising, he was not uneducated, young, or lacking in mental capacity. (Payne v. Arkansas, supra, 356 U.S. at pp. 566-567.) Accordingly, we conclude his consent to the search of the house was voluntary and affirm the judgment.
CONCLUSION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., O'ROURKE, J.