People v. Fike CA5 ( 2022 )

Filed 8/26/22 P. v. Fike CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE ,
F083103
Plaintiff and Respondent,
(Super. Ct. No. BF179066A)
v.
JOHN CARL FIKE, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from orders of the Superior Court of Kern County. Colette M.
Humphrey, Judge.
Robert F. Kane, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Cavan
M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Franson, J. and Snauffer, J.
After the trial court denied two motions to suppress evidence, defendant John Carl
Fike pled no contest to second degree burglary (Pen. Code, § 460, subd. (b); count 1) on
June 8, 2021. The court granted him two years’ probation. On appeal, he contend s the
trial court erred in denying his two motions to suppress evidence. We affirm.
DISCUSSION
The Fourth Amendment guarantees the right to be free of unreasonable searches
and seizures by law enforcement, and a warrantless search or seizure is presumed to be
unreasonable unless the search falls within a recognized exception. (U.S. Const.,
4th Amend.; Mincey v. Arizona (1978) 437 U.S. 385, 390; Katz v. United States (1967)
389 U.S. 347, 357; People v. Williams (1999) 20 Cal.4th 119, 125–126.)
A defendant may move to suppress evidence obtained as a result of a warrantless
search or seizure on the ground that “[t]he search or seizure without a warrant was
unreasonable.” (Pen. Code, § 1538.5, subd. (a)(1)(A).) When a defendant challenges the
lawfulness of a search or seizure, “the People are obligated to produce proof sufficient to
show, by a preponderance of the evidence,” that one of the exceptions to the warrant
requirement is applicable. (People v. Romeo (2015) 240 Cal.App.4th 931, 939.)
On review of the trial court’s denial of a motion to suppress, “ ‘ “[w]e 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. Suff
(2014) 58 Cal.4th 1013, 1053.)
I. Officer Hardin’s Detention of Defendant
On January 24, 2020, the hearing on the first suppression motion was held.
Defendant moved to suppress evidence obtained as a result of a warrantless traffic stop.
He contended an anonymous tip was insufficient to provide the officer a reasonable
suspicion that defendant was involved in criminal activity and thus the detention was
unlawful.
2.
A. Evidence
On November 16, 2019, an anonymous tipster called the police at 3:18 a.m. and
again at 3:28 a.m., stating that a white Ford F-150 was repeatedly going behind a large
hardware/appliance store (the store), and someone was possibly utilizing a strap to
remove washing machines from a shipping container. The tipster had just observed the
behavior. At approximately 3:57 a.m., Bakersfield Police Officer Eric Hardin was
dispatched to the store based on the tip. He arrived at about 4:04 a.m. and went to the
back of the store near the loading docks. He did not see any vehicles, so he called the
tipster back for more information at about 4:06 a.m. The tipster said he had been at the
nearby gas station (which was 75 yards from the container) when he saw an older-model
white Ford F-150 occupied by two white males drive behind the store. Then it looked
like they were using a strap to remove washing machines from a container and load the
machines into the F-150. They drove away and came back (without the machines) twice
to repeat the same activity. The tipster stated that at one point, he left the gas station and
went closer behind the store.
While Hardin was speaking to the tipster, he located an approximately
25-foot-long container with its front door open and without a lock. He also saw a large
three-pallet stack of cinder blocks about five feet away from the container’s doors. As
Hardin was sitting in his vehicle looking at the container, an older white Ford F-150 came
around the corner to the back of the store, then quickly made a U-turn and drove away.
This was significant to Hardin because the vehicle matched the tipster’s description, the
vehicle came to the location described by the tipster, and the vehicle’s return to the scene
matched the repeated pattern described by the tipster. In addition, it was 4:00 a.m.
Hardin turned on his lights and conducted a traffic stop of the F-150, which stopped in
the driveway leading from the store into the gas station.
Hardin contacted the two men in the F-150. Defendant was the driver and his son
was the passenger. Hardin asked for the men’s identification and asked where they lived.
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Both identification cards listed the same address on Handel Avenue and both men said
they lived there. Hardin requested a back-up officer and conducted a records check,
learning that defendant’s license was suspended. After Bakersfield Police Officer Steven
Ronfeldt arrived, Hardin inspected the container. In front of the container, he noticed a
thick liquid on the cement that contained drag marks and footprints. The two men’s
shoes appeared to match the footprints. Within minutes, Hardin spoke to the store’s
manager and learned that the container had been full of washing machines and its doors
had been locked. The men did not have permission to be in the container. Surveillance
camera footage showed an older vehicle, which appeared to be the same or similar to the
men’s F-150, driving along the back of the store and stopping at 2:10 a.m. Two people,
both wearing black jackets, appeared to use a strap to wrap around the cinder block
pallets and pull them away from the container. The people went out of the camera’s view
and, about 10 minutes later, got back in the vehicle and drove away. They returned in
about an hour, then returned for a third trip about 20 minutes after the second. In the
second and third trips, they could be seen moving cardboard boxes that were consistent
with the packaging of washing machines.
Hardin informed the men they were going to be placed under arrest. When Hardin
conducted an inventory search of the vehicle, he found two black jackets and a bag
containing a lock pick set. Hardin advised Ronfeldt it would be relevant to the
investigation to contact the resident at the Handel Avenue residence, which Ronfeldt did
shortly thereafter.
The trial court denied the suppression motion, concluding there was “nothing
wrong with this stop” and finding it “constitutional,” “permissible,” and “good police
work.”
B. Analysis
The Fourth Amendment prohibits seizures of persons, including investigative
detentions that are unreasonable, even if brief. (Whren v. United States (1996) 517 U.S.
4.
806, 809–810; Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16.) A traffic stop is a seizure of
the occupants of the vehicle within the meaning of the Fourth Amendment. (Heien v.
North Carolina (2014) 574 U.S. 54, 60; Brendlin v. California (2007) 551 U.S. 249,
251.) But a brief investigatory stop of a vehicle based on an officer’s objectively
reasonable suspicion that the person detained has engaged in criminal activity is a
well-recognized exception to the warrant requirement. (United States v. Twilley (9th Cir.
2000) 222 F.3d 1092, 1095.) “[T]o justify this type of seizure, officers need only
‘reasonable suspicion’—that is, ‘a particularized and objective basis for suspecting the
particular person stopped’ of breaking the law.” (Heien, at p. 60; People v. Souza (1994)
9 Cal.4th 224, 231 [“A detention is reasonable under the Fourth Amendment when the
detaining officer can point to specific articulable facts that, considered in light of the
totality of the circumstances, provide some objective manifestation that the person
detained may be involved in criminal activity.”].) “The officer’s subjective suspicion
must be objectively reasonable, and ‘an investigative stop or detention predicated on
mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in
complete good faith. [Citation.]’ [Citation.] But where a reasonable suspicion of
criminal activity exists, ‘the public rightfully expects a police officer to inquire into such
circumstances “in the proper exercise of the officer’s duties.” ’ ” (People v. Wells (2006)
38 Cal.4th 1078, 1083 (Wells).)
“ ‘Reasonable suspicion is a lesser standard than probable cause, and can arise
from less reliable information than required for probable cause, including an anonymous
tip.’ ” (People v. Dolly (2007) 40 Cal.4th 458, 463 (Dolly), quoting Wells, supra,38 Cal.4th, at p. 1083; Alabama v. White (1990) 496 U.S. 325, 330–331 [“reasonable
suspicion can arise from information that is less reliable than that required to show
probable cause”].) In Dolly, our Supreme Court stated: “A tip’s reliability … need not
depend exclusively on its ability to predict the suspect’s future behavior [citation] or the
officer’s ability to corroborate present illegal activity [citation]. Rather, the tip’s
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reliability depends upon an assessment of ‘the totality of the circumstances in a given
case.’ ” (Dolly, at p. 464.) An anonymous tip of low reliability, if corroborated by an
officer’s personal observation or if deemed urgent due to exigent circumstances, can
provide reasonable suspicion under the totality of circumstances (e.g., White, at pp. 330–
331; Wells, at p. 1083); however, some tips, if lacking adequate detail or corroboration by
an officer’s personal observations, are insufficiently reliable to provide reasonable
suspicion (e.g., Florida v. J.L. (2000) 529 U.S. 266 (J.L.); People v. Saldana (2002) 101
Cal.App.4th 170).
Defendant cites J.L. for the broad proposition that “[a]n anonymous telephone tip
about an individual may not create a reasonable suspicion justifying a stop.” In J.L., an
anonymous tipster stated that a person wearing a plaid shirt was waiting at a specific bus
stop and was carrying a concealed weapon. According to the Supreme Court, the tip was
insufficiently detailed because the caller did not explain how he knew about the
concealed weapon or supply any other information demonstrating that his information
was reliable. (J.L., supra, 529 U.S. at p. 273.)
In People v. Saldana, the court also found an anonymous tip inadequate,
explaining: “The tip contained no internal indicia of the basis for or reliability of the
informant’s information. The tip did not include predictive information that could be
corroborated by observation. The observed corroboration that a vehicle fitting the
description was indeed present at the described location did not corroborate the criminal
element of the tip that the station wagon contained a gun or cocaine. Appellant’s
observed conduct of exiting the restaurant, entering the station wagon, and driving away
was not suspicious.” (People v. Saldana, supra, 101 Cal.App.4th at p. 175.)
In Dolly, our Supreme Court distinguished J.L. In Dolly, an anonymous tipster,
who reported that he had just been assaulted with a firearm, provided the location of the
car as “parked on the north side of Jefferson Boulevard at Ninth Avenue,” and described
the perpetrator “as a light-skinned African-American male with a cast on his arm, in a
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possibly gray Nissan Maxima on the north side of Jefferson, and was said to have
threatened the [tipster] with a gun. Two or three minutes later, the officers arrived at the
scene and spotted a black Nissan Maxima parked on the north side of Jefferson, just east
of Ninth. There were three people in the car. Defendant, who was sitting in the driver’s
seat, matched the description provided in the radio dispatch. He also had a cast on his
left arm.” (Dolly, supra, 40 Cal.4th at p. 462.) The Supreme Court concluded the tip was
more reliable than the one described in J.L. because it was “a firsthand, contemporaneous
description of the crime as well as an accurate and complete d escription of the perpetrator
and his location, the details of which were confirmed within minutes by the police when
they arrived.” (Dolly, at p. 468.) According to the court, a primary determinant of a tip’s
reliability is the basis of the tipster’s knowledge, and that reliability is enhanced by the
tipster’s contemporaneous viewing of the suspicious activity. (Ibid.)
Here, the tipster witnessed the men’s suspicious behavior and apparent burglary of
washing machines three times in the early morning hours from the gas station next to the
store, and he reported them to the police contemporaneously (or very nearly so). When
Hardin called the tipster back, he provided even more details. His tips described the
two men as white and their vehicle as an older white Ford F-150. He described details of
the crimes—the men’s use of a strap to facilitate the apparent burglary of the washing
machines from a shipping container behind the store. He reported that the men returned
to the same container two more times and repeated the same apparent burglary, each time
returning with an emptied truck. These details, based on the tipster’s personal and
contemporaneous viewing of the repeated pattern of activity suggested the information
was reliable. Furthermore, the information was corroborated when, within minutes of
Hardin’s arrival, two white men and their older white Ford F-150 arrived at the exact
scene of the crime shortly after 4:00 a.m., then immediately turned around and departed.
These observations corroborated the tip’s descriptions of the men, their vehicle, and their
pattern of returning to repeat their crime. The men’s flight at the sight of the patrol
7.
vehicle further corroborated the criminal element of the information, suggesting the men
were guilty of the crimes and were attempting to avoid discovery and arrest. Under the
totality of the circumstances, the tip, as corroborated by Hardin’s personal observations,
was reliable and sufficient to provide Hardin reasonable suspicion that these two men had
repeatedly been stealing washing machines and were again returning to the scene to
continue their ongoing criminal endeavor. We agree with the trial court that defendant’s
detention did not violate his Fourth Amendment rights.
II. Officer Ronfeldt’s Observation Through the Fence and the Ex-Wife’s
Consent
On March 4, 2021, the hearing on the second suppression motion was held.
Defendant moved to suppress evidence obtained as a result of Ronfeldt’s observation into
defendant’s ex-wife’s side yard.1 Defendant contended Ronfeldt’s observation amounted
to an unlawful warrantless search.
A. Evidence
1. Officer Ronfeldt’s Observation Through the Fence
Hardin testified that when he asked the two men for their residential addresses,
they both gave the same address on Handel Avenue. Their identification cards and the
truck’s registration also stated the same address. Later, when Hardin asked the question
again, defendant clarified that the Handel Avenue address was his ex-wife’s residence.
Hardin asked Ronfeldt to respond to the Handel Avenue residence and contact whomever
lived there.
Ronfeldt and another uniformed officer went to the residence on Handel Avenue
around 5:00 a.m. or later. Ronfeldt parked off to the side of the house. As he approached
the front door, he crossed the property from the side, walking across the wide driveway
1 The trial court found defendant had standing and the People do not challenge it
here.
8.
and past a small flatbed trailer parked there. As he walked toward the house and past the
side yard’s wooden fence, which was about 10 to 15 feet away from him, he could see
through a “significant gap” of three inches or less in the fence. He was able to see
through the gap without touching the fence, coming closer, or straining in any way. He
saw what looked like a brown cardboard box with white labeling, the approximate height
of an appliance box, so he approached the fence and saw that there were additional
similar boxes.2 He proceeded to the front door to contact defendant’s ex-wife.
2. The Ex-Wife’s Consent
The ex-wife answered the door and identified herself to Ronfeldt as the
homeowner. She said defendant was her ex-husband, and he had not lived at the
residence for several years. She said their son stayed there sometimes but did not live
there. Ronfeldt told her the nature of the investigation and said he thought there were
stolen appliances in her side yard. She went outside and he showed her the boxes
through the gap. She did not recognize the boxes, and she told him she knew nothing
about them.
At this point, Ronfeldt asked the ex-wife if he could conduct a search. She agreed
and gave her consent both verbally and in writing. She consented to a search of the entire
2 Defendant notes that the ex-wife testified it was dark and the only lights were by
the front door, and thus it is unclear how Ronfeldt could have seen through the fence.
There was no evidence that Ronfeldt used (or needed) a flashlight, but we note that an
“officer’s use of a flashlight to improve his vision does not affect the plain view of [an
item]. ‘It is well established law that the observation of that which is in the plain sight of
an officer standing in a place where he has a lawful right to be does not constitute a
search and such observation is lawful regardless of whether the illumination permitting
the observation is natural light, artificial light, or light from a flashlight held by the
officer viewing the object in question.’ ” (People v. Chavez (2008) 161 Cal.App.4th
1493, 1501 (Chavez); see People v. Superior Court (Mata) (1970) 3 Cal.App.3d 636, 639
[“Observation of that which is in view is lawful, whether the illumination is daylight,
moonlight, lights within the vehicle, lights from street lamps, neon signs or lamps, or the
flash of lights from adjacent vehicles [citation]; that the light comes from a flashlight in
an officer’s hand makes no difference.”].)
9.
property, but Ronfeldt searched only the side yard and garage. At no time did the ex-wife
say or do anything to suggest her consent was not freely given, nor did she ever ask
Ronfeldt to stop the search.
According to the ex-wife, when Ronfeldt asked her for consent to search, she did
not feel threatened by the officers, nor did she ever feel coerced or forced to give her
consent. But she did feel threatened by the situation because she worried she could
possibly be charged with possession of stolen property. On cross-examination, she
explained she did not feel like she could say no because the officers had shown her the
property in her side yard and she felt that she could not stand by and claim she was
unaware of the property. She was afraid she was going to get in trouble.
During his search of the side yard, Ronfeldt found nine dishwashers, lined up in a
row, in their manufacturer’s cardboard boxes. The boxes were the same boxes he had
seen through the gap in the fence. The ex-wife told Rondfeldt she had not expected
defendant or her son in the previous days and she had not seen either of them in the last
24 hours.
The appliances were photographed as evidence, and the store’s security retrieved
them.
The trial court denied the suppression motion, stating, “I actually find no fault
with any of the police work on this case.”
B. Analysis
1. Officer Ronfeldt’s Observation Through the Fence
“ ‘It is axiomatic that the “physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed.” ’ ” (People v. Celis (2004) 33
Cal.4th 667, 676, quoting Welsh v. Wisconsin (1984) 466 U.S. 740, 748.) “[W]hen it
comes to the Fourth Amendment, the home is first among equals. At the Amendment’s
‘very core’ stands ‘the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion.’ [Citation.] This right would be of little practical
10.
value if the State’s agents could stand in a home’s porch or side garden and trawl for
evidence with impunity; the right to retreat would be significantly diminished if the
police could enter a man’s property to observe his repose from just outside the front
window.” (Florida v. Jardines (2013) 569 U.S. 1, 6 (Jardines).)
Thus, the Supreme Court has recognized “the area ‘immediately surrounding and
associated with the home’—what our cases call the curtilage—as ‘part of the home itself
for Fourth Amendment purposes.’ ” (Jardines, supra, 569 U.S. at p. 6; United States v.
Cannon (9th Cir. 2001) 264 F.3d 875, 880 [“curtilage is important because it expands the
constitutional boundaries of the home beyond the four walls of the house”].) “This area
around the home is ‘intimately linked to the home, both physically and psychologically,’
and is where ‘privacy expectations are most heightened.’ ” (Jardines, at p. 7.) “The front
porch is the classic exemplar of an area adjacent to the home and ‘to which the activity of
home life extends.’ ” (Id. at p. 7.) “[T]he extent of the curtilage is determined by factors
that bear upon whether an individual reasonably may expect that the area in question
should be treated as the home itself. [Citation.] … [T]he central component of this
inquiry [is] whether the area harbors the ‘intimate activity associated with the “sanctity of
a man’s home and the privacies of life.” ’ ” (United States v. Dunn (1987) 480 U.S. 294,
300.)3
When an officer enters a home’s curtilage without a warrant, he or she is permitted
to engage in the activities allowed of any private citizen, such as approaching the front
3 United States v. Dunn articulated the relevant factors a court should consider in
determining whether a location falls within the curtilage, including “the proximity of the
area claimed to be curtilage to the home, whether the area is included within an enclosure
surrounding the home, the nature of the uses to which the area is put, and the steps taken
by the resident to protect the area from observation by people passing by.” (United States
v. Dunn, supra, 480 U.S. at p. 301.) However, “these factors are useful analytical tools
only to the degree that, in any given case, they bear upon the centrally relevant
consideration—whether the area in question is so intimately tied to the home itself that it
should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” (Ibid.)
11.
door or standing on the porch and knocking on the front door. (Jardines, supra, 569 U.S.
at p. 8.) Jardines explained: “ ‘A license may be implied from the habits of the country,’
notwithstanding the ‘strict rule of the English common law as to entry upon a close.’
[Citation.] We have accordingly recognized that ‘the knocker on the front door is treated
as an invitation or license to attempt an entry, justifying ingress to the home by solicitors,
hawkers and peddlers of all kinds.’ [Citation.] This implicit license typically permits the
visitor to approach the home by the front path, knock promptly, wait briefly to be
received, and then (absent invitation to linger longer) leave. Complying with the terms of
that traditional invitation does not require fine-grained legal knowledge; it is generally
managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a
police officer not armed with a warrant may approach a home and knock, precisely
because that is ‘no more than any private citizen might do.’ ” (Id. at pp. 8–9,
fn. omitted.)
“ ‘A sidewalk, pathway, common entrance or similar passageway offers an
implied permission to the public to enter which necessarily negates any reasonable
expectancy of privacy in regard to observations made there. The officer who walks upon
such property so used by the public does not wear a blindfold; the property owner must
reasonably expect him to observe all that is visible. In substance the owner has invited
the public and the officer to look and to see.’ ” (Chavez, supra, 161 Cal.App.4th,
at p. 1500, quoting Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 629.)
“ ‘ “It is clear that police with legitimate business may enter areas of the curtilage
which are impliedly open, such as access routes to the house. In so doing they are free to
keep their eyes open. [Citation.] An officer is permitted the same license to intrude as a
reasonably respectful citizen. [Citation.] However, a substantial and unreasonable
departure from such an area, or a particularly intrusive method of viewing, will exceed
the scope of the implied invitation and intrude upon a constitutionally protected
expectation of privacy. [¶] What is reasonable cannot be determined by a fixed formula.
12.
It must be based on the facts and circumstances of each case. [Citation.]” ’ [Citation.]
As summarized by a leading text: ‘[W]hen the police come on to private property to
conduct an investigation or for some other legitimate purpose and restrict their
movements to places visitors could be expected to go (e.g., walkways, driveways,
porches), observations made from such vantage points are not covered by the
Fourth Amendment.’ ” (Chavez, supra, 161 Cal.App.4th at p. 1500; Lorenzana v.
Superior Court (1973) 9 Cal.3d 626, 634 [“observations of things in plain sight made
from a place where a police officer has a right to be do not amount to a search in the
constitutional sense”].)
As noted, an officer within the curtilage is not allowed to use intrusive methods to
gain information. (Jardines, supra, 569 U.S., at p. 9.) “When a law enforcement officer
physically intrudes on the curtilage to gather evidence, a search within the meaning of the
Fourth Amendment has occurred. [Citation.] Such conduct thus is presumptively
unreasonable absent a warrant.” (Collins v. Virginia (2018) 584 U.S. ___, ___ [138 S.Ct.
1663, 1670].) As Jardines explained: “[I]ntroducing a trained police dog to explore the
area around the home in hopes of discovering incriminating evidence is something else.
There is no customary invitation to do that. An invitation to engage in canine forensic
investigation assuredly does not inhere in the very act of hanging a knocker [on the front
door]. To find a visitor knocking on the door is routine (even if sometimes unwelcome);
to spot that same visitor exploring the front path with a metal detector, or marching his
bloodhound into the garden before saying hello and asking permission, would inspire
most of us to—well, call the police. The scope of a license—express or implied—is
limited not only to a particular area but also to a specific purpose…. Here, the
background social norms that invite a visitor to the front door do not invite him there to
conduct a search.” (Jardines, supra, 569 U.S. at p. 9, fns. omitted.)
“[I]t is not a Fourth Amendment search to approach the home in order to speak
with the occupant, because all are invited to do that. The mere ‘purpose of discovering
13.
information,’ [citation], in the course of engaging in that permitted conduct does not
cause it to violate the Fourth Amendment. But no one is impliedly invited to enter the
protected premises of the home in order to do nothing but conduct a search.” (Jardines,
supra, 569 U.S. at p. 9, fn. 4.) In Jardines, the court concluded that an officer’s use of a
trained drug-sniffing dog on the homeowner’s porch to investigate the contents of the
home constituted a search within the meaning of the Fourth Amendment. (Id. at pp. 11–
12.)
In this case, assuming the driveway was part of the home’s curtilage, we conclude
Ronfeldt was nevertheless permitted to walk upon the driveway as he approached the
front door to contact the resident, just as a private citizen would be permitted to do. It is
not uncommon for visitors to approach a house via the driveway, especially if they are
not parked directly in front of the house. Further, some modern houses require use of the
driveway to reach the front door. Unlike the intrusive conduct in Jardines, Ronfeldt’s
conduct in walking across the driveway 10 to 15 feet from the fence was unintrusive and
merely typical of what a private citizen might do when coming to contact the resident. 4
An implied license allowed ordinary citizens this movement, and Ronfeldt was lawfully
4 This case also differs from People v. Lovelace (1981) 116 Cal.App.3d 541, cited
by defendant. There, the defendant was growing marijuana, and an officer discovered it
only by standing in an alley and peering, from a distance of an inch or two, through
knotholes and one-quarter-inch gaps in defendant’s privacy fence. (Id. at p. 547.) The
court noted the fence, which surrounded the backyard of a private residence, had been
“repaired and tightened up in order to shield the backyard from public view … for
purposes of [e]nsuring privacy.” (Id. at pp. 548–549). It created an expectation of
privacy that was both subjectively and objectively reasonable. (Ibid.) The court
concluded that because the officer was only able to view the contraband by standing at “a
vantage point not expected to be used by the public at large,” the search violated the
defendant’s reasonable expectation of privacy. (Id. at p. 554.) By contrast, in the present
case, the fence was not maintained to ensure privacy, but contained a significant gap, and
Ronfeldt’s vantage point was one expected to be used by the public at large, on the
driveway 10 to 15 feet from the fence, rather than in the alley one to two inches from the
fence.
14.
present on the driveway. From this lawful vantage point, he observed in plain view the
cardboard with labeling through the gap in the fence. Defendant had no reasonable
expectation of privacy in whatever could be readily seen in plain view through the fence
from this lawful vantage point. And after Ronfeldt observed in plain view what he
suspected was the cardboard packaging of the stolen appliances, he was justified in
moving closer to confirm or dispel his suspicion. (See People v. Roberts (1956) 47
Cal.2d 374, 380 [“The radio was in plain sight, and it fitted the general description of
property known by the officers to be stolen. Under the circumstances, there appears to be
no reason in law or common sense why one of the officers could not pick up the radio
and examine it for the purpose of dispelling or confirming his suspicions.”)
We conclude no unlawful search occurred when Ronfeldt observed the cardboard
with labeling through the gap in the fence. The trial court did not err in concluding
Ronfeldt’s observation did not violate defendant’s Fourth Amendment rights.
2. The Ex-Wife’s Consent
A warrantless search may be justified by valid consent from a person who has the
right to authorize the search. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219;
People v. Woods (1999) 21 Cal.4th 668, 674–676.) Such consent must be freely and
voluntarily given by a person who has authority over the target premises. (See
Schneckloth, at p. 227 [whether consent was voluntary or was the product of coercion on
the part of searching officers is a question of fact to be determined from the totality of the
circumstances].) “Where, as here, the prosecution relies on consent to justify a
warrantless search or seizure, it bears the ‘burden of proving that the … manifestation of
consent was the product of [the person’s] free will and not a mere submission to an
express or implied assertion of authority.’ ” (People v. Zamudio (2008) 43 Cal.4th 327,
341.)
Here, the ex-wife gave Ronfeldt verbal and written consent to search her property
after she unexpectedly learned that the cardboard boxes, which probably contained stolen
15.
property, were in her side yard. Her authority to consent was established when she
informed Ronfeldt she was the owner of the property. The only remaining question is
whether her consent was the result of her freewill or of an assertion of Ronfeldt’s
authority.
Although some of the ex-wife’s testimony suggested she felt pressured to consent,
we believe substantial evidence supported the conclusion that any pressure she felt was a
result of her having just learned that stolen property had been hidden in her yard and that
her own ex-husband and son had exposed her to criminal liability—and that this
unexpected and unwelcome information led her to realize it would be best for her to
allow the police to investigate. (People v. Suff, supra, 58 Cal.4th at p. 1053 [we defer to
the court’s implied findings that are supported by substantial evidence].) The record
supports the trial court’s implied finding that the ex-wife’s consent was valid and that
Ronfeldt’s entry and search of the side yard were justified by that consent. (See People v.
Suff, supra, 58 Cal.4th at p. 1053 [we defer to the court’s implied findings that are
supported by substantial evidence].) We again conclude the trial court did not err.
DISPOSITION
The trial court’s orders denying the two motions to suppress are affirmed.
16.