Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge., Super. Ct. No. BF111745.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Clayton S. Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
SEE DISSENTING OPINION
After her motion to suppress under Penal Code section 1538.5 was denied, defendant entered a change of plea of “no contest” to violating Health and Safety Code section 11378, possession of methamphetamine for sale, on the condition that there would be a three-year “lid” on any state prison sentence and that the prior prison term allegation would be dismissed. She was subsequently sentenced to the upper term of three years in state prison. The sole basis for appeal is the denial of the suppression motion.
The facts are taken from the reporter’s transcript of the suppression hearing held on February 15, 2006. The only witness who testified was Detective Dean Marshall.
Dean Marshall, a senior deputy and detective with the Kern County Sheriff’s Department, testified that on December 9, 2005, he contacted defendant at her apartment on Ann Arbor Drive in Bakersfield to inquire about a Mr. Rainwater, who was wanted on outstanding felony warrants. Defendant lived in apartment C. When he arrived, the front door was not open and he had a conversation with defendant at the front door or just inside the front door. The door was either open or partially ajar.
He inquired about Mr. Rainwater. Defendant said she had known him, but he no longer resided there. He asked if there was any type of illegal drugs inside of her apartment and she responded that there were not. He then asked her if she “would mind” if he briefly searched her apartment to which she responded, “yes.” After she responded, the detective told her that he wouldn’t mess up her apartment as he just wanted to take a quick look around to which she responded, “okay.” After she said “okay,” she “let me come in the house and start searching.” The detective and two officers who accompanied him went inside the apartment. During the search, the detective continued to have a “pleasant conversation” with defendant. During the search, various items of contraband were seized. At no time did defendant tell him to stop searching or that she didn’t want him to search her apartment. She did say that she wanted the officers to be neat and not to mess the house up.
DISCUSSION
I. Standard of Review
On review of a denial of a motion to suppress, we defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. Then we independently determine whether, on those facts, the search or seizure was reasonable under the Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876, 924.) If, however, the facts before the trial court are undisputed, and thus the court did not pass upon the credibility of witnesses or the weight of conflicting evidence, the substantial evidence rule does not apply on review and we are not bound by the trial court’s conclusions; instead, we are required to exercise our independent judgment on questions of law. (People v. Aldridge (1984) 35 Cal.3d 473, 477; People v. Long (1987) 189 Cal.App.3d 77, 82-83.) In the present case, the facts bearing on defendant’s consent are undisputed. Accordingly, the question whether the consent was valid, and thus the seized physical evidence admissible, is one of law.
II. Consent to Search
Consent to search may be express or implied. No particular words are required to establish consent to search; rather, consent is established by words or conduct demonstrating that consent has been given. (People v. Frye (1998) 18 Cal.4th 894, 990; People v. Perillo (1969) 275 Cal.App.2d 778, 782.) Consent is determined on the totality of the circumstances. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227.)
Here, the officer asked defendant if she minded if the officers searched her apartment. She answered, “yes,” but the circumstances surrounding her answer plainly demonstrated that she was consenting to a search rather than actually stating that she minded if they conducted a search. The officer assured her he would not make a mess and he would just take a look around. She said, “okay” and let the officers inside the apartment, requesting only that they be neat. She never objected as the officers conducted the search. Instead, she engaged in a pleasant conversation with an officer. The fact that her initial response was technically negative, or maybe only ambiguous in modern usage, does not affect our conclusion that defendant intended it to be an affirmative response constituting, in light of all the circumstances, voluntary consent to search.
In U.S. v. Drayton (2002) 536 U.S. 194, the court found valid consent under similar facts, including a technically negative response to a request to search combined with cooperative conduct. There, the officer asked the codefendant, Brown, “‘Do you mind if I check your person?’ Brown answered, ‘Sure,’ and cooperated by leaning up in his seat, pulling a cell phone out of his pocket, and opening up his jacket.” (Id. at p. 199.) The Supreme Court noted that the officer “asked first if [he] objected [to the search], … indicating to a reasonable person that he or she was free to refuse.” (Id. at p. 206.) The court noted that “[w]hen this exchange takes place, it dispels inferences of coercion,” and concluded that “[a]lthough [the officer] did not inform [the] respondents of their right to refuse the search, he did request permission to search, and the totality of the circumstances indicates that their consent was voluntary, so the searches were reasonable.” (Id. at p. 207.)
Drayton and similar cases establish that when an officer requests permission to search, a defendant validly consents when the fair objective meaning of his or her words in their context is that of acquiescence to the officer’s request. (People v. Perillo, supra, 275 Cal.App.2d 778 [request for permission to search answered with “I don’t care”]; People v. Carrillo (1966) 64 Cal.2d 387 [request to search answered to the effect “Go ahead” and “she didn’t care”]; People v. Burke (1956) 47 Cal.2d 45, disapproved on another ground in People v. Sidener (1962) 58 Cal.2d 645, 647 [permission to search sought with phrase, “‘You don’t mind then if we search your apartment do you?’” and answered with, “‘No, go ahead’”]; People v. Padilla (1960)185 Cal.App.2d 718 [question whether defendant minded if they searched her house answered with “‘No, go ahead. You’re welcome. Just don’t tear it up.’”]; Gorman v. United States (1st Cir. 1967) 380 F.2d 158 [request answered with “Be my guest”]; but see People v. Cruz (1968) 264 Cal.App.2d 437 [no consent where officer asked if defendant would mind if he looked under the front seat of vehicle, defendant shrugged his shoulders, made no verbal response, remained seated in vehicle blocking access until he was ordered out and directed to stand nearby].)
In this case, a fair objective meaning of defendant’s words and conduct is that of affirmative consent, not just acquiescence. Defendant gave valid consent to the search of her apartment and therefore the trial court properly denied the motion to suppress the evidence seized during that search.
DISPOSITION
The judgment is affirmed.
I CONCUR: Dawson, J.
GOMES, J., Dissenting.
“Like speaking German lingo to a dog named Dingo.” (J. Prine (Oh Boy Records 1995) “Leave the Lights On.”) If “yes” means yes, and “no” means yes, how does one say no to a request to search one’s home, without a warrant, without probable cause, or even a reasonable suspicion of criminal activity? Confronted by no fewer than four law-enforcement officers, detaining her boyfriend just outside her door in the yard where her child played, appellant stood aside as officers walked in and began searching, even though she had just denied their request.
The majority interprets appellant’s acquiescence to this substantial show of authority together with her later request to be neat, “put things back,” and “not to mess her house up” as a “pleasant conversation” demonstrating that consent had been given. However, the only testimony about a pleasant conversation related to the initial contact between appellant and the lead detective. During that conversation, detectives learned that the original target of their visit was a prior occupant of the apartment where appellant now lived.
Consent is determined on the totality of the circumstances, “But the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly that coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 228.) “In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” (Id. at p. 229.)
Respectfully, I dissent.