Filed 1/9/18 P. v. Lutter CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,

Plaintiff and Respondent,

v.

SHERREE L. LUTTER,

Defendant and Appellant.


E066173

(Super.Ct.No. FVI1400527)

OPINION


APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata and John M. Tomberlin, Judges. Affirmed.
Valarie Mark Kalb, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Sherree L. Lutter moved to suppress all evidence found in a warrantless search of her house. The trial court denied the motion, finding that she had voluntarily consented to the search. Defendant then pleaded guilty to one count of cruelty to an animal (Pen. Code, § 597, subd. (b)) and was placed on probation for five years.
In this appeal, defendant contends that the trial court erred by finding that her consent was voluntary. We will hold that there was substantial evidence that defendant’s consent was voluntary and no evidence that required the trial court to find that it was involuntary. Accordingly, we will affirm.
I
FACTUAL BACKGROUND
The following facts are taken from the testimony and exhibits introduced at the hearing on defendant’s motion to suppress.
On December 5, 2013, Deputy Johnnie Mamon went to defendant’s house, in an unincorporated area of Lucerne Valley. He was responding to some reports that dogs at the location were being abused and neglected. He was in uniform and driving a marked patrol car.
From outside the house, he could see approximately nine dogs in cages in the back yard; he could see the outlines of their ribs and spines, and there was no water in the cages. He smelt “[a] strong odor of feces and urine.”
Deputy Mamon knocked on the door. There was no response. After “several minutes,” he called for an animal control officer.
While he was waiting, defendant came out. Deputy Mamon explained that he was there “in response to the dogs and their poor condition.” He added that an animal control officer was en route. The interaction was “hospitable” and “there was no agitation.”
“Several minutes” after that, an animal control officer arrived. Deputy Mamon asked defendant if he and the animal control officer could go in her house to check on the condition of the dogs inside. Defendant refused. Deputy Mamon testified, “I explained to her that I understood.” He told her, “If she refused, I could freeze the scene and write a search warrant . . . .” “[B]ut I preferred to have her permission.”
“At that point, [defendant] change[d] her mind.” According to Deputy Mamon, she consented to the search, though he did not remember exactly what words she used. She then opened the door and went in the house, followed by the officers. As a result of the entry, the officers were able to observe “the animals and their condition.”
II
THE TRIAL COURT COULD PROPERLY FIND THAT
DEFENDANT VOLUNTARILY CONSENTED TO THE SEARCH OF HER HOUSE
“A defendant may move to suppress evidence under [Penal Code] section 1538.5 on grounds that a search without a warrant was unreasonable. A warrantless search is presumptively unreasonable, and the prosecution bears the burden of demonstrating a legal justification for the search. [Citation.]” (People v. Simon (2016) 1 Cal.5th 98, 120.)
“It is well settled . . . that a search conducted without a warrant issued upon probable cause is “per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” [Citations.] It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. [Citations.]” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219.)
“The voluntariness of consent is a question of fact to be determined from the totality of circumstances. [Citations.] If the validity of a consent is challenged, the prosecution must prove it was freely and voluntarily given — i.e., ‘that it was [not] coerced by threats or force, or granted only in submission to a claim of lawful authority.’ [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 445–446.)
“In reviewing a trial court’s ruling on a motion to suppress, we defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. [Citation.] And in determining whether, on the facts so found, the search was reasonable for purposes of the Fourth Amendment to the United States Constitution, we exercise our independent judgment. [Citation.]” (People v. Simon, supra, 1 Cal.5th at p. 120.)
Two California Supreme Court cases are virtually on point.
The first case is People v. Ruster (1976) 16 Cal.3d 690, disapproved on other grounds in People v. Jenkins (1980) 28 Cal.3d 494, 503, fn. 9. There, the defendant was arrested and taken to the police station. (Id. at pp. 694, 699.) The booking officer told him: “‘[W]e are impounding your car and we are obtaining a search warrant for it. We will be able to hold the car until we search it. . . . However, if we have a permissive search from you we expect to find things of the same nature in your car with all of the other records. You can consent to such a search knowing that we can use the material against you. However, you do not have to consent to it. In fact, you can demand we get a search warrant. In that case we will get a search warrant, but your car will be impounded in the meantime. What is your choice?” (Id. at pp. 699–700.) The defendant consented. (Id. at p. 700.)
The Supreme Court upheld the trial court’s finding that the consent was voluntary. (People v. Ruster, supra, 16 Cal.3d at pp. 700–701.) The defendant relied on Bumper v. North Carolina (1968) 391 U.S. 543, which had held: “When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.” (Id. at p. 550.) The Ruster court responded: “Bumper is inapposite because the officer here did not claim present authority to search under a warrant. Instead, the officer merely informed defendant that he would obtain a warrant if defendant did not consent to the search. Moreover, in the same breath the officer expressly informed defendant that he need not consent to the search, that the search was expected to reveal incriminating evidence, and that such evidence would be admissible against him.” (People v. Ruster, supra, at p. 701.)
The second case is People v. Ratliff (1986) 41 Cal.3d 675. There, police officers arrived at the defendant’s home, had his father wake him up, and questioned him. (Id. at pp. 684–685.) One of the officers asked if they could search his car; there was evidence that the officer added that, if the defendant did not consent, they would obtain a warrant. The defendant then consented. (Id. at pp. 685–686.) The Supreme Court upheld the trial court’s finding that the defendant’s consent was voluntary; it explained: “[T]he trial court was . . . entitled to conclude that even if such a ‘threat’ was made, it merely amounted to a declaration of the officers’ legal remedies should defendant refuse to cooperate. [Citation.]” (Id. at p. 687.)
Here, under Ruster and Ratliff, Deputy Mamon appropriately explained to defendant exactly what would happen if she did not consent to search. And indeed, if she had persisted in refusing consent, the officers would have been entitled to freeze the scene and to obtain a search warrant. Deputy Mamon’s personal observation of apparently malnourished dogs without water would have provided sufficient probable cause to support a warrant. Defendant does not specifically argue that the officers were not entitled to freeze the scene. If only out of an excess of caution, however, we note that they could properly prevent defendant and others from entering the premises — while not entering the premises themselves — during the time it took to obtain a warrant, in order to prevent the destruction of evidence. (Illinois v. McArthur (2001) 531 U.S. 326, 331–333.)
Defendant asks us not to follow these cases. She argues: “When an officer claims he or she can obtain the legal right to search, the effect on the listener is no less coercive simply because the assertion is truthful . . . .” However, when it comes to whether or not to follow a California Supreme Court case, “[Ours] not to reason why, [ours] but to do and die.” (Tennyson (1854) “The Charge of the Light Brigade.”)
Defendant also points to several other circumstances, which, she claims, show that her consent was not voluntary. In our view, however, these are insubstantial makeweights.
First, she notes that Deputy Mamon “indicated . . . that [defendant] was suspected of criminal activity . . . .” However, in cases such as Ruster and Ratliff, when an officer states that he or she has the option of obtaining a search warrant, obviously the defendant is suspected of criminal activity. “[C]onsent to a search is not necessarily coerced simply because the subject of an investigation is suspected of having participated in a crime . . . . [Citations.]” (People v. Laursen (1968) 264 Cal.App.2d 932, 942, disapproved on other grounds in Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 703, 706.) Indeed, even if a defendant was under arrest and in handcuffs when he or she consented, that falls short of showing that the consent was involuntary. (People v. Ratliff, supra, 41 Cal.3d at p. 686; People v. McClure (1974) 39 Cal.App.3d 64, 70.)
In support of this point, defendant cites Wilson v. Superior Court (1983) 34 Cal.3d 777 and Florida v. Royer (1983) 460 U.S. 491. However, these cases dealt with whether the defendant’s consent was tainted by an unlawful detention, not whether the consent was factually involuntary. (Wilson v. Superior Court, supra, at pp. 783–791; Florida v. Royer, supra, at pp. 501, 519.) Thus, they are not relevant here.
Defendant also cites Amos v. United States (1921) 255 U.S. 313. There, however, officers went to the defendant’s home and told his wife “that they were revenue officers and had come to search the premises ‘for violations of the revenue law’ . . . .” (Id. at p. 315.) She then let them in. (Ibid.) The court held that the wife did not voluntarily consent to the search because “demanding admission to . . . search . . . under [g]overnment authority” constituted “implied coercion.” (Id. at p. 317.) Here, Deputy Mamon never made any such demand.
Second, defendant points out that not just one but two officers were present. However, People v. Munoz (1972) 24 Cal.App.3d 900 held that “[t]he fact there were four officers does not in itself carry an implied assertion of authority . . . .” (Id. at p. 905.) A fortiori, the presence here of only two officers did not overbear defendant’s will.
Third, she argues that Deputy Mamon did not tell her that she had the right to refuse consent. As she concedes, however, “such advice is not essential to a finding of valid consent. [Citation.]” (People v. Boyer, supra, 38 Cal.4th at p. 447, fn. 20.) “‘The mere asking of permission to enter and make a search carries with it the implication that the person can withhold permission for such an entry or search.’ [Citations.]” (People v. James (1977) 19 Cal.3d 99, 116.) In any event, defendant showed that she was well aware of this right when she did — at least initially — refuse to consent.
Fourth, she claims that, by saying that he “understood” and he “preferred to have [defendant’s] permission,” Deputy Mamon suggested that he was on defendant’s side. In defendant’s view, this was a “coercive technique[].” Quite the contrary, in our view, this demonstrates that Deputy Mamon did not resort to an assertion of authority to obtain defendant’s consent. You catch more flies with honey than with vinegar, but that does not mean that the deployment of honey is coercive.
Even when we view all of these factors in combination, we conclude that defendant consented voluntarily. She was a competent adult on her own premises. Deputy Mamon described the interaction as “hospitable.” Initially, defendant refused consent; Deputy Mamon told her he “understood.” Thus, up until that point, defendant was plainly not cowed. She changed her mind only after Deputy Mamon explained that he could freeze the scene and get a warrant. As this was, in fact, true, it was not unduly coercive. Defendant found herself in a situation where she had to choose between two undesirable alternatives. Nevertheless, her choice was entirely voluntary.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.


We concur:

CODRINGTON
J.

SLOUGH
J.