Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. RF005448A. John I. Quinlen, Judge.
Matthew D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Jennevee H. DeGuzman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Gomes, J.
After his motion to suppress was denied, appellant, Louiell Joseph Davis, pled no contest to unlawful possession of ammunition (Pen. Code, § 12316, subd. (b)(1)) in exchange for a stipulated sentence of two years.
On appeal, Davis contends the court abused its discretion when it denied his motion to suppress. We will reverse.
FACTS
On June 18, 2008, Kern County Sheriff’s deputies arrested Davis at his mobile home on three outstanding warrants. During a search of a bedroom, the deputies found narcotics paraphernalia, a shotgun, and shotguns shells.
On July 7, 2008, the district attorney filed an information charging Davis with being a felon in possession of a firearm (count 1/Pen. Code, § 12021, subd. (a)(1)), being a felon in possession of ammunition (count 2/Pen. Code, § 12316, subd. (b)(1)), and possession of drug paraphernalia (count 3/Health and Saf. Code, §11364). The information also alleged two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)).
On August 20, 2008, Davis filed a motion to suppress.
On September 25, 2008, at a hearing on this motion, Kern County Sheriff’s Deputy Darren Clodt testified that on June 18, 2008, he and other deputies went to Davis’s mobile home to serve an arrest warrant on Davis. Prior to going to Davis’s residence, Clodt contacted the park manager who told him she was concerned because she had heard that Davis had weapons inside his mobile home. The deputies knocked on the door to Davis’s mobile home and Davis’s “common law” wife, Marjorie Hall, answered. The deputies asked Hall if Davis was home and she said he was in the back. Hall stepped back and the deputies entered the house with their guns drawn, called out Davis’s name, and arrested him after he came out of one of the back rooms. Davis was immediately handcuffed and turned over to a deputy who transported him to the Ridgecrest Jail.
After Senior Deputy Scott made a sweep of the residence to ensure no one else was in there, the deputies told Hall about their concerns with the guns and asked where the guns were. Hall told them they were in the bedroom or closet. Deputies Clodt and Scott searched the bedroom and closet but did not find anything. Clodt spoke with Hall again and she told him that the guns had to be in there. They looked in the bedroom a second time and this time found a shotgun, shotgun shells, and narcotics paraphernalia. Hall did not explicitly give them permission to search. Hall was seated in the living room when the initial exchange with Deputy Clodt occurred and she remained in the living room the whole time the deputies were there.
Hall testified she had been living in a “common law” relationship with Davis for 15 years. Hall lived at the mobile home a month and a half and Davis two weeks before Davis was arrested. On the day of the search, a deputy asked for Davis, put his hand on the door, and with a gun in one hand, forced Hall back into the house.
Hall backed up with her hands in the air and was told to stay in the living room. The deputies walked halfway down the hall and ordered Davis to come out of the bedroom. Davis came out and the deputies began to search the mobile home. Davis told Hall to take the deputies names and badge numbers because it was illegal for them to search the residence. After removing Davis from the premises, the deputies continued to search and told Hall they were there because there were guns in the house. Hall told them she did not know about the guns. Later she told the deputies she remembered seeing a gun three months earlier and that the guns might be in the bedroom. She did not, however, give the deputies permission to search the room. Hall answered the deputies’ questions out of fear and she did not feel she could leave. The deputies took Davis out of the home within two minutes of arriving there. They searched the house for almost two hours.
Davis testified he told the deputies they could not search the house. Hall was told to stay in the living room.
On September 26, 2008, after the court denied Davis’s suppression motion, Davis entered his plea of no contest to the possession of ammunition offense in exchange for a stipulated two-year term and the dismissal of the remaining counts and enhancements.
DISCUSSION
Davis contends Hall did not consent to a search of the bedroom where the deputies found the shotgun and other contraband. Thus, according to Davis, the court abused its discretion when it denied his suppression motion. We agree.
In reviewing a ruling on a motion to suppress, we first determine if substantial evidence supports the court’s findings of fact, whether express or implied, and, if so, we uphold those findings We then exercise our independent judgment to determine on the ensuing question of law whether the search was reasonable within the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362-363.) In every case, the Fourth Amendment requires that consent to search be voluntary and posits voluntariness as a question of fact for the court to decide in light of all the circumstances. (Ohio v. Robinette (1996) 519 U.S. 33, 40; People v. James (1977) 19 Cal.3d 99, 106.) Warrantless searches are presumptively unreasonable absent exigent circumstances. (People v. Bravo (1987) 43 Cal.3d 600, 609.) The Fourth Amendment’s prohibition against the warrantless search of a home does not apply where proper consent to the search has been given. Consent is a recognized exception to the warrant requirement. (People v. Oldham (2000) 81 Cal.App.4th 1, 9.)
Where a residence is occupied by more than one person, a search is reasonable if consent is given by one of the joint residents who possess common authority or other sufficient relationship to the premises or effects to be inspected. (United States v. Matlock (1974) 415 U.S. 164, 171.) Co-occupants with joint access or control to property assume the risk police may be permitted to search by a co-occupant sharing the property. (People v. Bishop (1996) 44 Cal.App.4th 220, 237.) Consent to enter and to search may be express or implied and may be demonstrated by conduct or by words. (People v. Frye (1998) 18 Cal.4th 894, 990; People v. Superior Court (Henry) (1974) 41 Cal.App.3d 636, 639 [implied consent].)
In People v. Munoz (1972) 24 Cal.App.3d 900 (Munoz), several officers went to defendant Munoz’s house to investigate information that Munoz was selling drugs and were let in the residence by Munoz. There they encountered defendant Salas, who occupied one of the rooms at the residence, and Munoz’s wife. When one officer asked defendant Munoz if he could search the house his wife gave them consent. The officers and the defendants proceeded to the southwest bedroom. Prior to entering the room, an officer asked Salas if that was his bedroom and he replied, “This is my bedroom. I sleep here.” The officers then entered the room, searched it, and found a baggie containing marijuana. (Id. at pp. 903-904.)
In finding that Salas did not impliedly consent to a search of his room, the Munoz court stated,
“There is also merit to [the People’s] contention that the search of Salas’ bedroom was lawful but not because he impliedly consented to the search. Salas was in the kitchen when [an officer] asked Munoz for his consent to search; no request was directed to him and he remained silent. The officers, accompanied by Munoz and Salas then proceeded to the southwest bedroom where without asking or receiving Salas’ consent, searched his room. We do not agree with [the People’s] contention that Salas’ silence supports a finding that he impliedly consented. [The People cite] numerous authorities to the effect that for a valid consent specific words are not necessary and actions may be sufficient. However, here there was no request of Salas to search and no stepping aside or affirmative physical movements by him as in People v. Harrington, 2 Cal.3d 991, 995 …, no inculpatory language by Salas which implied lack of objection as in Nerell v. Superior Court, 20 Cal.App.3d 593, 599 …, no throwing of keys on a table impliedly inviting a search and giving immediate means of doing so as in People v. Guyette, 231 Cal.App.2d 460, 464 …, and no opening of the door to his room by Salas as in People v. Jolke, 242 Cal.App.2d 132, 149 …. Salas was not asked for his consent and engaged in no overt conduct implying consent; his silence under these circumstances does not imply consent. [Citation.]” (Munoz, supra, 24 Cal.App.3d at p. 107, italics added.)
Here, like defendant Salas in Munoz, Hall was not asked for her consent and she did not engage in any overt conduct implying consent. Instead, after the deputies told her their concerns about the guns, all Hall did was tell them that the guns were in a certain bedroom or closet. Thus, in accord with Munoz we conclude that Hall did not impliedly consent through her conduct to a search of the bedroom where the shotgun and other contraband were found.
Respondent contends the facts of the instant case are similar to Henry, supra, 41 Cal.App.3d 636 wherein the court found the defendant impliedly consented through her conduct to the search of a dresser drawer. We disagree.
In Henry, a female defendant claimed a man forced his way into her house and demanded sex, which she refused. The defendant admitted shooting at the man with a gun, but claimed she missed him and hit a wall. When the officer asked where the gun was, the woman told him it was in a dresser drawer in the bedroom and she offered to show him where it was. After another officer escorted the woman out of the house the first officer looked in the dresser drawer and found the gun. On appeal, the Henry court reversed the trial court’s order granting the defendant’s suppression motion. (Henry, supra, 41 Cal.App.3d at pp. 638-639.)
Henry is easily distinguishable from the instant case because in that case the defendant impliedly consented to a search of the drawer where the gun was found through her conduct in offering to show the officer where the gun was located. No such conduct occurred here. Thus, we conclude that the court erred when it denied Davis’s motion to suppress.
DISPOSITION
The judgment is reversed.