Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC644764
Mihara, J.
This is a prosecution appeal from the superior court’s order granting defendant’s motion to traverse a search warrant and suppress evidence on the ground that the warrant was based on a warrant less search of defendant’s apartment that exceeded the scope of defendant’s girlfriend’s consent. The prosecution claims that the search did not exceed the scope of the consent. The main point of contention is whether, after initially searching the apartment and finding a locked safe, the scope of the consent was exceeded when a narcotics dog was brought to the apartment, over an hour later, without the knowledge of the girlfriend, to sniff the safe. It was the dog’s alert to the safe that supported the warrant for a search of the safe. We conclude that the method and timing of the search did not exceed the scope of the consent. We reject defendant’s claim that the superior court erred in concluding that his girlfriend did not have apparent authority to consent to a search of the apartment.
I. Factual Background
Just after 8:00 p.m. on June 18, 2006, San Jose Police Officer John Prim responded to a domestic violence call at an apartment building. Since he and the other officer who responded to the call did not know which apartment the call concerned, they knocked on numerous apartment doors before determining that the call related to apartment 108. A little after 8:30 p.m., Prim and another officer knocked on the door of apartment 108. Angelina Gortarez answered the door. She was holding a small child in her arms, and her eyes were red and puffy. Defendant was standing directly behind her.
Prim asked defendant to come outside and talk to him, and defendant complied. Prim pat searched defendant, and he asked defendant if he could search his pockets. Defendant said “Yeah, go ahead and search.” Prim found a “four-way metallic key” and a wallet containing $562 in cash in defendant’s pockets. He also found an address book. On the last page of the address book were a set of numbers that possibly related to drugs.
Meanwhile, San Jose Police Officer Christopher James Gridley was speaking to Gortarez inside the apartment. Her cheek was swollen, and there was a lump on the side of her forehead. Gortarez told Gridley that defendant was her boyfriend, and they lived together and had a child. She said that “when they got into an argument that [defendant] would kick her out and then after they made up he would allow her to come back and that went on . . . all the time.” She had been injured when, during an argument, defendant pushed her, and she fell and hit her head.
Gortarez testified at the suppression hearing that she was not living in the apartment at the time of the search and that she did not tell any police officers that she was living there. She asserted that she had simply brought her son to visit his father on Father’s Day. She admitted that her name was on the lease and on the PG&E bill. Gortarez also admitted that she had a key to the apartment, and that she provided this key to police at their request. The superior court explicitly credited the officers’ testimony over Gortarez’s testimony, and we must defer to the superior court’s credibility determinations.
After searching defendant, Prim returned to the apartment and spoke to Gortarez, who was sitting on a chair in the kitchen of the apartment. Prim asked Gortarez if she lived there. She said “she did, but she was kicked out six weeks ago unwillingly by [defendant], her boyfriend.” There were “numerous child items in the house.” Gortarez said she paid the bills for the apartment and that her name was on the rental agreement and the PG&E bill. Prim saw the PG&E bill with Gortarez’s name on it. Prim believed that Gortarez was currently living in the apartment. Prim asked Gortarez if he could “search the house for anything illegal.” She said “Yeah, go ahead.” Prim said nothing about using a dog. Gridley placed defendant under arrest for domestic violence and put defendant in the back of Gridley’s patrol car.
At about 9:00 p.m., Prim did a brief search of every room of the two-bedroom apartment. In the closet of the room that Gortarez identified as the bedroom she shared with defendant, Prim saw a safe on a shelf. Another officer took the safe down from the shelf and put it on the bed. Prim saw personal items that appeared to belong to Gortarez in this bedroom. Gortarez remained seated in the kitchen while Prim was searching the apartment.
At about 10:15 p.m., a dog was brought to the scene by a Los Gatos police officer. At this point, Gortarez and her child had left the apartment, and nothing was said to her about the dog entering the apartment. Gortarez did not see the dog and was unaware of its presence. The Los Gatos police officer took the dog into the apartment, and the dog alerted to the safe. The officers seized the safe and, a couple of days later, sought and obtained a warrant to search its contents. The key Prim found in defendant’s pocket fit the lock on the safe. Fifty grams of methamphetamine were found inside the safe.
II. Procedural Background
Defendant was charged by information with possession of methamphetamine for sale (Health & Saf. Code, § 11378), and it was alleged that he had suffered prior convictions for this offense (Health & Saf. Code, § 11370.2, subd. (c); Pen. Code, § 1203.07, subd. (a)(11)) and had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)).
Defendant was charged with domestic violence in a separate misdemeanor case.
Defendant moved to traverse the warrant and suppress the contents of the safe. He asserted that the warrant was defective because it was based on the warrant less search of his apartment, and the use of the dog during the warrant less search exceeded the scope of Gortarez’s consent. He also argued that Gortarez lacked apparent authority to consent to a search of his apartment.
The People asserted that the warrant was validly based on probable cause. The probable cause was the narcotics dog’s “alert” to the safe during the warrant less search of the apartment. The warrant less search was proper because it was within the scope of defendant’s girlfriend’s consent, and she had apparent authority to consent.
The superior court concluded that Gortarez’s consent to search did not extend to the use of a dog as she was not asked about the use of a dog, never saw the dog, and was unaware of the dog’s presence. In addition, the court concluded that, because the dog did not arrive until more than an hour after the initial search, “[t]he time frame seems to me to be unreasonable.” Since the warrant was based on the dog’s alert, the warrant was defective. The case was dismissed after the prosecution conceded that it “ha[d] no significant evidence left,” and the People filed a timely notice of appeal.
The hearing on defendant’s motion was held before the same judge who had issued the warrant.
III. Discussion
Defendant challenged the warrant less search of his apartment on the grounds that the search exceeded the scope of Gortarez’s consent and that Gortarez lacked apparent authority to consent to a search of the apartment. The superior court concluded that Gortarez had the apparent authority to consent to the search, but the search exceeded the scope of her consent. On appeal, the People contend that the court erred in concluding that the search exceeded the scope of Gortarez’s consent. Defendant asserts that the superior court correctly concluded that the search exceeded the scope of Gortarez’s consent. Alternatively, defendant contends that the superior court erred in concluding that Gortarez had the apparent authority to consent to a search of the apartment.
A. Scope of Consent
“The standard for measuring the scope of a[n individual’s] consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the [individual]?” (Florida v. Jimeno (1991) 500 U.S. 248, 251 (Jimeno); People v. Jenkins (2000) 22 Cal.4th 900, 974 (Jenkins).)
The parties disagree about the applicable standard of review. The People contend that we exercise independent review, while defendant insists that our review is deferential. “The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Here, the superior court made explicit factual findings regarding the interchange between Prim and Gortarez. It credited Prim’s testimony about this exchange. The court’s only other relevant factual findings were that Gortarez was not aware of the dog’s presence or use in the search and that the dog was utilized more than an hour after Prim’s initial search of the apartment. Neither party claims that these factual findings are not supported by substantial evidence. Hence, we defer to the superior court’s factual findings on these matters. However, the ultimate question of what a reasonable person would have understood to be the scope of Gortarez’s consent based on her exchange with Prim is a legal question upon which we exercise independent judgment. (People v. Leyba (1981) 29 Cal.3d 591, 597.)
“The scope of a search is generally defined by its expressed object.” (Jimeno, supra, 500 U.S. at p. 251.) Here, the expressed object of the search was to find “anything illegal.” A reasonable person would have understood from the broad scope of Prim’s request and the unqualified nature of Gortarez’s affirmative response that Gortarez was consenting to the use of any search methods reasonably aimed at disclosing the presence of “illegal” things, and that a search of the two-bedroom apartment “for anything illegal” might well extend for more than an hour.
Defendant claims that the use of the dog was “an entirely separate and discrete search for which no consent was given nor requested.” (Italics omitted.) There is no evidentiary or legal support for this claim. The evidence indisputably reflects that the police officers were continuously in control of the apartment from the time of Gortarez’s consent to the completion of the dog-assisted search. While Prim’s initial brief search was temporally distinct from the subsequent dog-assisted search, Gortarez’s unqualified response to Prim’s broad search request did not impose any temporal limitations, and a reasonable person would have understood her consent to permit both a brief initial search and a subsequent, more intensive search that was completed less than an hour and a half later.
A reasonable person would have concluded that the scope of Gortarez’s consent extended both to the use of the narcotics dog and to a search that was not completed for more than an hour after her consent. Consequently, the superior court erred in concluding that the search was unreasonable because it exceeded the scope of Gortarez’s consent.
B. Apparent Authority
The superior court rejected defendant’s claim that Gortarez lacked apparent authority to consent to the search of the apartment. Defendant claims that this was error.
“The question before us is whether the ‘facts available to the officer at the moment . . . [would] “warrant a man of reasonable caution in the belief” that the consenting party had authority’ over the property as to which consent is given.” (Jenkins, supra, 22 Cal.4th at p. 977.) As noted above, we defer to the superior court’s factual findings, but independently review its legal conclusions.
Gortarez was the person who answered the apartment door when the officers knocked. She told the officers that defendant was her boyfriend and that they lived together in the apartment with their child. The officers observed “child items” in the apartment. Although Gortarez said that defendant had kicked her out six weeks earlier, she explained that this was part of a pattern in which defendant would periodically kick her out and then they would reconcile and she would return. Gortarez told Prim that she paid the household’s bills and her name was on the lease. Prim confirmed that Gortarez’s name alone was on the apartment’s PG&E bill.
These facts, which were available to Prim at the time he sought Gortarez’s consent, were sufficient to justify a reasonable person’s belief that Gortarez had the authority to consent to a search of the apartment. Her presence in the apartment, the presence of her child’s belongings, the fact that she answered the door, her statement that she lived with defendant, and her status as a lessee and as the person responsible for the household bills strongly supported a conclusion that she was currently residing in the apartment. Her statement that defendant had kicked her out six weeks earlier was not inconsistent with a conclusion that she was currently residing in the apartment because she also stated that she habitually resumed residing in the apartment each time she and defendant reconciled. The presence of Gortarez, her child, and her child’s belongings in the apartment appeared to confirm that she and defendant had reconciled. The superior court did not err in concluding that Gortarez had apparent authority to consent to a search of the apartment.
IV. Disposition
The superior court’s order is reversed. The case is remanded to the superior court with directions to vacate its orders granting defendant’s motion and dismissing the case, and to enter a new order denying defendant’s motion.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.