Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN222232, Daniel B. Goldstein and Michael K. Kirkman, Judges.
McDONALD, Acting P. J.
Ruth Ann Alvarez appeals a judgment following her jury conviction of possession of methamphetamine for sale (Health & Saf. Code, § 11378). On appeal, she contends the trial court erred by denying her Penal Code section 1538.5 motion to suppress evidence of the methamphetamine found in her purse during a search in violation of the Fourth Amendment to the United States Constitution. She argues her motion should have been granted because: (1) the police officer unlawfully entered the "business curtilage" of the public storage facility; (2) the scope of her consent to search her recreational vehicle (RV) did not permit the officer to open closed containers (e.g., her purse); (3) the "automobile exception" did not apply to allow the warrantless search without consent; (4) the search was not permissible as incident to an arrest; and (5) the methamphetamine would not have been inevitably discovered.
FACTUAL AND PROCEDURAL BACKGROUND
At about 2:20 a.m. on December 16, 2006, Escondido Police Officer Joseph Leffingwell was patrolling in the area of a public storage facility on Metcalf Street in Escondido. He saw the door to one of the storage units was open and a light was emanating from the unit. He parked his vehicle outside the fenced facility and walked through one of the facility's three open gates. He approached a lighted RV parked next to the storage unit. He saw Alvarez standing at the open doorway of the RV. Three males were behind her. Leffingwell allowed Alvarez to remove her small dog from the RV. He then requested and obtained identification cards or licenses from each of them.
After another officer arrived in response to his request for assistance, Leffingwell conducted a pat-down search of Alvarez because she repeatedly placed her hands in her jacket pockets despite his instructions to keep her hands visible. During the pat-down search, he found a screwdriver in her waistband and a three-inch knife-type tool in her back pocket. He handcuffed her for safety reasons, but explained she was not under arrest.
Alvarez admitted to Leffingwell that the RV and its contents belonged to her. Looking through the open door of the RV, he saw a purse near the door with a glass methamphetamine pipe and a large ziploc baggie a few inches away. The large baggie contained about 50 to 100 small cellophane baggies. He opened the purse and found a coin purse with 12 cellophane packages inside. The packages contained a white crystalline substance, later determined to be a total of 5.85 grams of methamphetamine. Alvarez was arrested.
An information charged Alvarez with possession of methamphetamine for sale (Health & Saf. Code, § 11378). At trial, Leffingwell testified substantially as described above. Escondido Police Detective Stephen Thompson testified that in his expert opinion the methamphetamine was possessed for purposes of sale. Alvarez testified in her defense, stating she lived in her RV. Although she was addicted to methamphetamine, she did not sell it. She had separated her methamphetamine into separate packets in an attempt to limit her use of it.
The jury found Alvarez guilty of the charged offense. The trial court suspended imposition of sentence and placed Alvarez on probation for three years on the condition she serve 270 days in the county jail.
Alvarez timely filed a notice of appeal.
DISCUSSION
I
Standards of Review
In ruling on a Penal Code section 1538.5 motion to suppress evidence, the trial court finds historical facts, selects the applicable rule of law, and applies that law to its findings of fact to determine whether the rule of law as applied to those facts was violated. (People v. Ayala (2000) 23 Cal.4th 225, 255.) On appeal, we apply the substantial evidence standard in reviewing the trial court's findings of historical facts. (Ibid.) We review de novo the trial court's selection of the applicable rule of law. (Ibid.) Likewise, because the trial court's determination whether the rule of law as applied to the facts was violated is predominantly a question of law, we review de novo that determination. (Ibid.)
II
Warrantless Searches Under the Fourth Amendment Generally
The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." The California Supreme Court stated: "The Fourth Amendment protects an individual's reasonable expectation of privacy against unreasonable intrusion on the part of the government. A warrant is required [to search an individual or his or her property] unless certain exceptions apply, including the exception that permits consensual searches. [Citations.] [¶] As the high court has explained: 'The touchstone of the Fourth Amendment is reasonableness. [Citation.] The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.' [Citation.] A warrantless search may be reasonable . . . if the defendant consents to the search . . . . [Citations.]" (People v. Jenkins (2000) 22 Cal.4th 900, 971.) "[T]he Fourth Amendment protects people, not places." (Katz v. U.S. (1967) 389 U.S. 347, 351.)
"A defendant has the burden at trial of establishing a legitimate expectation of privacy in the place searched or the thing seized. [Citations.] The prosecution has the burden of establishing the reasonableness of a warrantless search. [Citations.]" (People v. Jenkins, supra, 22 Cal.4th at p. 972.) "[T]o claim the protection of the Fourth Amendment, a defendant must demonstrate that he [or she] personally has an expectation of privacy in the place searched, and that his [or her] expectation is reasonable . . . ." (Minnesota v. Carter (1998) 525 U.S. 83, 88.)
III
Motion to Suppress
Before trial, Alvarez filed a motion to suppress evidence of the methamphetamine found in her purse because it was obtained in violation of her Fourth Amendment right against unreasonable searches. On March 2, 2007, the trial court conducted an evidentiary hearing on her motion to suppress. Leffingwell testified for the prosecution. He testified that a few days before December 16, 2006, one of the renters at the storage facility informed him of suspected drug activity involving an RV there and that the gates were now nonfunctioning in the locked, open position. At about 2:30 a.m. on December 16, Leffingwell was patrolling that area and saw the light on inside a storage unit that had its door partially open. The storage facility was located at the rear of a U-shaped office building. The storage facility's perimeter was enclosed by the back of the building on one side and a six-foot high chain-link fence on the other sides. The facility's fence had two walk-in gates and a roll gate. All three gates were open. Leffingwell entered the fenced perimeter of the storage facility through the open walk-in gate on the north side. He approached an RV parked in front of one of the storage units. Its lights were on and he could hear people talking. He came around the corner of the RV, and saw Alvarez with her hands inside the RV's open door and three men outside the RV.
The chain-link fence had barbed wire along its top.
Alvarez denied that she lived in the RV, but stated she used it for additional storage. She stated the RV and everything in it belonged to her. When Leffingwell asked her whether she would mind if he searched the RV, she replied: "I would prefer you didn't." When he asked her for a "yes" or "no" answer, she just shrugged her shoulders. He then asked her: "Let me ask it simply. Would you mind if I searched your RV?" Alvarez replied, "No."
Before commencing the search, Leffingwell and another officer searched the three men. Alvarez refused to be searched. While the three men were being searched, Alvarez repeatedly placed her hands in her jacket pockets despite Leffingwell's instructions to take her hands out of her pockets. He then conducted a pat-down search of Alvarez, finding a screwdriver in her rear belt area and a knife in her back pocket. The knife had a three-to-four-inch blade that appeared to be sharpened and had a point. Alvarez told him that she used the knife for stripping wire. He handcuffed her and told her she was being detained.
Leffingwell had Alvarez sit down outside the RV. As he walked toward the RV, she stated she thought she might need to talk to a lawyer. While Leffingwell stood outside the RV, he looked in through its open door and saw a purse, a glass methamphetamine pipe, and a large ziploc bag containing smaller plastic baggies consistent with packaging methamphetamine. The purse was two inches away from the pipe. Alvarez admitted the purse belonged to her. Leffingwell opened the purse to look for identification because he was considering arresting her for possession of a concealed weapon. Alvarez did not specifically consent to his search of the purse.
Testifying for the defense, William May stated he and two friends were with Alvarez the night of the incident when Leffingwell approached them and asked them for identification. He testified that Leffingwell asked her: "Do you mind if I search the RV?" May testified that Alvarez replied, "No."
Elbry Spencer testified that he was Alvarez's boyfriend and a maintenance worker at the office building and its adjacent storage facility. Because none of the storage units had electrical connections, any electrical cord to the RV would have had to have been hooked up to an electrical outlet inside the office building 50 yards away.
The trial court denied Alvarez's motion to suppress evidence of the methamphetamine found in her purse. It rejected Alvarez's argument that she had a reasonable expectation of privacy in the premises of the storage facility other than her storage unit and RV. Although she argued by analogy that a renter in an apartment complex could have a trespasser arrested, the trial court stated:
"Here's where the failure [of your analogy] lies. If you go to your apartment complex example. Yes, a citizen's arrest can be [e]ffected for trespass even if the gate was open. But that's not the same as Fourth Amendment analysis and a reasonable expectation of privacy. Would an officer need a warrant to enter the apartment complex even if the gate was closed? The answer is no. "It's akin to the Open Field Doctrine where say you have four acres, and the officer enters the property. As long as he doesn't go into the curtilage or the residence, he doesn't need a warrant. But an individual can be arrested for trespass. In fact, there is a case on point. . . ."
Regarding Leffingwell's authority to search the RV, the trial court found Alvarez consented to the search. The court rejected her argument that the scope of her consent to the search did not include opening the closed purse found in her RV. The court stated:
"I don't think the consent issue is even a close call. . . . [¶] As to the purse, that was really my only issue. And I think that with the consent and the pipe, and the numerous bags next to it, and [Alvarez] saying first that all the property in the RV is hers, with the consent that gets him in. [¶] For any reviewing court, . . . if there's a disagreement, there's also inevitable discovery. Because the officer testified it was going to be inventoried anyway."
The court denied the motion.
IV
Officer's Entry onto the Storage Facility Premises
Alvarez contends the trial court erred in denying her Penal Code section 1538.5 motion to suppress evidence of the methamphetamine found in her purse. She argues her consent to search the RV was vitiated by Leffingwell's unlawful entry onto the premises of the storage facility, which she refers to as its "business curtilage."
A
"[T]to claim the protection of the Fourth Amendment, a defendant must demonstrate that he [or she] personally has an expectation of privacy in the place searched, and that his [or her] expectation is reasonable . . . ." (Minnesota v. Carter, supra, 525 U.S. at p. 88.) Therefore, to prove Leffingwell violated her Fourth Amendment right by unlawfully entering onto the storage facility premises, or purported "business curtilage," of the storage facility and therefore her subsequent consent to search the RV was vitiated, Alvarez has the burden to first show she had a reasonable expectation of privacy in the premises of the storage facility (other than her storage unit and RV).
"The [United States Supreme] Court long has recognized that the Fourth Amendment's prohibition on unreasonable searches and seizures is applicable to commercial premises, as well as to private homes. [Citation.] An owner or operator of a business thus has an expectation of privacy in commercial property, which society is prepared to consider reasonable [citation]. . . . An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual's home. [Citation.]" (New York v. Burger (1987) 482 U.S. 691, 699-700.) Therefore, the government generally must obtain a warrant before entering commercial premises in which the business owner has a reasonable expectation of privacy. (Marshall v. Barlow's, Inc. (1978) 436 U.S. 307, 312-313; People v. Potter (2005) 128 Cal.App.4th 611, 618.) One exception to the warrant requirement is the "open-to-the-public" exception pursuant to which the government, without a warrant, may enter and inspect commercial premises that are open to, and observable by, the public. (Potter, at p. 618.) "When a business owner opens his [or her] business to the public, he or she has no reasonable expectation of privacy in the area; accordingly, the government is free to conduct a search of the items in plain view during normal business hours. [Citation.]" (Ibid.) "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. [Citations.]" (Katz v. U.S., supra, 389 U.S. at p. 351.)
Although Alvarez asserts the fenced-in area of the storage facility (presumably the area outside of the storage units themselves) constituted a "business curtilage" in which she had a reasonable expectation of privacy under the Fourth Amendment, the United States Supreme Court has not yet decided whether the "curtilage" concept that applies to homes also applies to commercial buildings. (Dow Chemical Co. v. U.S. (1986) 476 U.S. 227, 239, fn. 7 ["Our holding here does not reach the issues raised . . . regarding a 'business curtilage' in U.S. v. Swart [(7th Cir. 1982) 679 F.2d 698]; that case involved actual physical entry onto the business premises."]; U.S. v. Elkins (6th Cir. 2002) 300 F.3d 638, 653 ["Dow stated that it was an open question whether business structures may have a 'curtilage' protected against warrantless physical entry . . . ."].) Furthermore, the lower courts have not agreed whether there is a "business curtilage" doctrine similar to the curtilage associated with a residential building. (Elkins, at p. 653, comparing Swart, at p. 701 [recognizing business curtilage] with U.S. v. Wolfe (E.D. Pa. 1974) 375 F.Supp. 949, 958 ["[T]he concept of curtilage does not apply to buildings other than dwellings."] and People v. Janis (Ill. 1990) 565 N.E.2d 633, 638-639 [rejecting defendant's "business curtilage" claim because the "area immediately adjacent to a commercial establishment, unlike the curtilage of a home, does not provide the setting for those intimate activities that the amendment is intended to shelter."].) We tend to agree with the court's observation in Elkins: "Whatever curtilage protection a business may receive in light of Dow is presumably limited by the Supreme Court's later decision in [U.S. v. Dunn (1987) 480 U.S. 294 (Dunn)], which held that police were entitled to cross a barbed-wire fence and approach to the very edge of the defendant's barn in order to peer within [the barn] using flashlights. [Citation.] Moreover, it is clear that areas that adjoin a commercial building but are accessible to the public do not receive curtilage-like protection." (Elkins, at p. 653, fn. omitted.)
The established concept of residential curtilage has been defined as "the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life[.]' [Citation.]" (Oliver v. U.S. (1984) 466 U.S. 170, 180.) "For the purposes of the Fourth Amendment, curtilage is important because it expands the constitutional boundaries of the home beyond the four walls of the house. [Citations.]" (U.S. v. Cannon (9th Cir. 2001) 264 F.3d 875, 880.)
In contrast to the concept of curtilage, courts have held there is no reasonable expectation of privacy under the Fourth Amendment when police conduct warrantless observations from open fields. (People v. Channing (2000) 81 Cal.App.4th 985, 990-992.) "An open field need be neither 'open' nor a 'field.' " (Oliver v. U.S., supra, 466 U.S. at p. 180, fn. 11.) An "open field" includes "all areas except the home itself and curtilage (the land immediately surrounding and associated with the home). [Citations.]" (Channing, at p. 992.) "Law enforcement may conduct warrantless observations from open fields; the fact that the observing officer trespasses to get to his or her observation point does not transmute the observation into an unconstitutional search. [Citation.]" (Id. at p. 990.) "The existence of a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated, however, for an actual trespass is neither necessary nor sufficient to establish a constitutional violation." (U.S. v. Karo (1984) 468 U.S. 705, 712-713.)
Another court subsequently observed: "While a technical trespass by police officers theoretically may have civil implications, how they gain access to the common hallways of a multi-unit apartment building is of no constitutional consequence." (Commonwealth v. Dora (Mass.App.Ct. 2003) 781 N.E.2d 62, 68 [finding no Fourth Amendment violation based on officers' warrantless entry into interior common areas of apartment building through locked outer door].) Therefore, the determination whether a warrantless search violated an individual's Fourth Amendment right does not depend on whether an officer trespassed on the individual's property, but rather on whether that entry violated the individual's reasonable expectation of privacy. (Ibid.; Oiumette v. Howard (1st Cir. 1972) 468 F.2d 1363, 1365; U.S. v. Connor (7th Cir. 1973) 478 F.2d 1320, 1323 ["Even if the officers were on the apron, which was not fenced off from the alley, we think that a mere 'technical trespass' did not transform an otherwise reasonable investigation into an unreasonable search."].) The United States Supreme Court held that a government inspector's warrantless entry onto the outdoor premises of a business involved the open fields exception in the circumstances of that case and did not violate the business's Fourth Amendment right. (Air Pollution Variance Bd. v. Western Alfalfa Corp. (1974) 416 U.S. 861, 862, 865.)
In determining whether exterior premises constitute curtilage or open fields, the United States Supreme Court has stated that courts should give "particular reference to four factors: [(1)] the proximity of the area claimed to be curtilage to the home, [(2)] whether the area is included within an enclosure surrounding the home, [(3)] the nature of the uses to which the area is put [i.e., whether the area is being used for the intimate activities of the home], and [(4)] the steps taken by the resident to protect the area from observation by people passing by." (Dunn, supra, 480 U.S. at p. 301.) "[T]hese 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.) Applying its four-factor analysis to the facts in that case, Dunn concluded officers did not violate an individual's Fourth Amendment right by crossing (without a warrant) a perimeter fence, interior barbed-wire fences, and a wooden fence to look inside a barn located about 50 yards from a fence surrounding a ranch house because the barn was not within the house's curtilage. (Dunn, supra, 480 U.S. at pp. 296-298, 302-305.) The court noted the barn was not being used for intimate activities of the home (the third factor) and the defendant "did little to protect the barn area from observation by those standing in the open fields" (the fourth factor). (Id. at pp. 302-303.)
One court subsequently stated: "Under Dunn . . ., it does not matter that officers first trespass upon property that is obviously curtilage (the fence behind the house in Dunn . . .) while investigating a tip, as long as the incriminating observations themselves take place outside the protected curtilage." (U.S. v. Traynor (9th Cir. 1993) 990 F.2d 1153, 1157, overruled on another ground in U.S. v. Johnson (9th Cir. 2001) 256 F.3d 895, 913, fn. 4.)
B
Applying the legal principles discussed above to the undisputed facts in this case, we conclude Leffingwell did not violate Alvarez's reasonable expectation of privacy under the Fourth Amendment when he entered onto the premises of the public storage facility. Assuming arguendo Alvarez had a reasonable expectation of privacy within the "four walls" of her RV and storage unit, she nevertheless did not have a reasonable expectation of privacy in the exterior premises of the public storage facility. Although the storage facility's perimeter was surrounded by a chain-link fence on three sides and the office building on the fourth side, that fence served only to secure the premises and not to provide Alvarez (or any other storage unit renter) with privacy regarding intimate (or other) activities within the meaning of the Fourth Amendment. Chain-link fences do not, in any substantial way, obscure one's direct view of persons or things on the other side of the fence. "[A] chain-link fence does little to assert a privacy interest (as opposed to a property interest) in details visible from outside the fence." (U.S. v. Tolar (7th Cir. 2001) 268 F.3d 530, 532.) Furthermore, the gates leading to the exterior premises of the storage facility were open. "An open gate invites entry . . . ." (Ibid.) Accordingly, by standing outside her RV on the exterior premises of the public storage facility surrounded by a chain-link fence with open gates, Alvarez, in effect, knowingly exposed to the public herself and her actions and therefore had no reasonable expectation of privacy protected by the Fourth Amendment. (Katz v. U.S., supra, 389 U.S. at p. 351.)
Our analysis in this case is similar to that in U.S. v. Reed (8th Cir. 1984) 733 F.2d 492, in which the court stated:
"Applying these Fourth Amendment principles, it is clear that Officer Wells'[s] initial entry into the fenced but open back parking lot of C.D.Y. did not invade defendants' reasonable expectation of privacy. As the magistrate found, C.D.Y., a construction company, was located in a commercial area and was bound on three sides by public streets; the parking lot and loading area were visible from the streets on the east and south side[s]; and the fenced gate to the lot was completely open, providing a . . . path to and from the public street . . . . [Citations.] Furthermore, there was no indication that the back parking lot was 'private' to the owners or to those specifically authorized to use it. [Citation.] In fact, suppression hearing testimony indicated that the back lot served as a common loading area for C.D.Y. and a carpet business located to the immediate west of C.D.Y. We conclude that, at most, the back lot was a 'semi-private area'; it certainly was not an area in which defendants had a reasonable expectation of privacy. [Citations.]" (Id. at p. 501.)
Perhaps more apposite to this case is U.S. v. Boden (7th Cir. 1988) 854 F.2d 983, which involved the warrantless entry by officers onto the premises of a commercial self-storage facility. (Id. at p. 985.) The facility was surrounded by a six-foot fence with barbed wire along its top. (U.S. v. Boden, supra, 854 F.2d at p. 985.) The facility had one entrance, an electric sliding gate, which was broken and remained open. (Ibid.) A sign warned that if management observed any unauthorized person on the premises, it would call the police. (Ibid.) Officers drove through the open gate to observe the activities of the defendant, a storage unit renter, who was loading boxes from his storage unit into his car parked nearby. (Id. at pp. 985-987.) Boden rejected the defendant's contention that he had a Fourth Amendment privacy interest in the entire premises of the storage facility. (Id. at p. 990.) Noting the gate was open on the particular day and the defendant "did not expect that what he did in the facility's common area could be shielded from another tenant or those that tenant invited," Boden concluded the defendant "had no reasonable expectation of privacy in the area outside of his locker [i.e., storage unit]." (Ibid.)
Boden does not specify whether the perimeter fence was solid (i.e., obscuring visibility) or a chain-link or other type of "open" fence (i.e., does not obscure visibility). (U.S. v. Boden, supra, 854 F.2d at p. 985.)
Furthermore, an analogy to the doctrine of residential curtilage supports the conclusion that Alvarez did not have a reasonable expectation of privacy in the entire premises of the public storage facility. Our consideration of the four Dunn factors in the circumstances of this case supports our conclusion. First, the proximity of the entire premises to Alvarez's storage unit and RV apparently was not close. However, to the extent we consider only the premises on which Alvarez was standing at the time of Leffingwell's entry, the proximity arguably was sufficiently close to her unit and RV to support a finding of curtilage.
Second, the entire premises of the storage facility was enclosed by a fence, which arguably could support a finding of curtilage. However, the fenced area was large and did not enclose only Alvarez's storage unit and RV, but also the other storage units, as well as the driveway and parking area adjacent to those units. Therefore, on the whole, we conclude the second factor does not support a finding of curtilage.
Third, the nature of the uses of the storage facility premises does not support a finding of curtilage. Storage unit renters and their invitees presumably could come onto the premises at any time of day, especially because the gates at that time were nonfunctional and in the locked, open position. Those persons could drive onto the premises and presumably use the premises for storing and retrieving personal property from their respective units (and feasibly could also use the premises for other purposes). Those uses by the renters, including Alvarez, do not constitute use for the intimate activities of the home (or other private use). Therefore, the third factor does not support a finding of curtilage.
Finally, and perhaps most importantly, the fourth factor does not support a finding of curtilage. Based on the record, there is no evidence Alvarez (or the owner or any other renter) took steps to protect the storage facility premises from observation by people passing by. The premises were surrounded on three sides by a chain-link fence with three open gates. Although a chain-link perimeter fence may provide an element of security to persons and property (especially if all gates were closed and locked), that type of fence does not provide any substantial element of privacy to the enclosed persons or property. A chain-link perimeter fence is not designed to prevent observation of persons and their activities. Rather, persons inside that fence and their activities are clearly visible through the "open" design of that fence. The fourth factor does not support a finding of curtilage. Our application of the Dunn factors supports a conclusion that the storage facility premises were not curtilage and therefore Leffingwell did not violate Alvarez's reasonable expectation of privacy when he entered the premises.
Instead of constituting "business curtilage," as Alvarez argues, we believe the exterior premises of the public storage facility constituted an "open field," to the extent that concept is helpful in determining whether Leffingwell's entry onto the premises violated her Fourth Amendment right.
An analogous case involving an apartment building parking lot supports our conclusion. In U.S. v. Soliz (9th Cir. 1997) 129 F.3d 499 (overruled on another ground in U.S. v. Johnson, supra, 256 F.3d at p. 913, fn. 4), United States Border Control agents entered onto the premises of a four-apartment complex, consisting of a duplex in front and a duplex in back. (Soliz, at p. 501.) A gravel parking area was located between the two buildings, which area was accessed through a driveway gate off of a public alley. (Ibid.) The parking area was clearly visible from the public alley through the chain-link fence that surrounded the entire premises. (Ibid.) The premises were also accessible through a walk-in gate from the public street in front of the premises. (Ibid.) However, on the day the agents entered the premises the gate was broken off and lying to one side of the fence. (Ibid.) Agents entered the premises without a warrant, and saw two cars parked in the parking area. (Ibid.) They saw the defendant standing behind one car's open trunk, which contained three persons. (Ibid.) On determining the three persons were illegally in the United States, the defendant was placed under arrest. (Ibid.) Applying the four-factor Dunn test, Soliz concluded the agents did not enter the curtilage of the defendant's home. (Soliz, at p. 503.) Soliz noted: "A fence surrounded the entire property. However, it was a chain link fence through which the public could easily see--it was not intended to shield the property from public view. The mere existence of such a fence does not necessarily demonstrate enclosure of curtilage." (Id. at p. 502.) Furthermore, the parking lot "was a shared area used by the residents and guests for the mundane, open and notorious activity of parking. . . . We doubt whether, in the absence of evidence of intimate activities, a shared common area in a multi-unit dwelling compound is sufficiently privacy oriented to constitute curtilage. [Citations.]" (Id. at p. 503.)
Finally, Soliz stated: "No steps were taken here to prevent outside observation of the parking area. The fence surrounding the property did not prevent people from peering in, the gate was strewn on the ground, and the property could be viewed from both the street and the alley. [Citation.]" (U.S. v. Soliz, supra, 129 F.3d at p. 503.) Because Soliz is factually similar to this case (other than its apartment building setting), it supports our conclusion Alvarez did not have a reasonable expectation of privacy in the premises of the public storage facility. (See also People v. Shaw (2002) 97 Cal.App.4th 833, 839 [no reasonable expectation of privacy in ground of common area backyard of apartment complex].)
Although Alvarez argues the storage facility was not open to the public at 2:20 a.m. and the premises were secured from the public by fencing and gates that could be closed and locked, neither of those factors show she had a reasonable expectation of privacy in the premises of the public storage facility, rather than an expectation of security. Furthermore, we are not persuaded by her argument that "the enclosed area surrounding the storage facility was the functional equivalent of a curtilage for a commercial premise." To the extent she argues Leffingwell trespassed when he entered onto the premises of the storage facility, that purported property right violation is only marginally relevant to our determination whether she had a reasonable expectation of privacy in the premises. (U.S. v. Karo, supra, 468 U.S. at pp. 712-713; Commonwealth v. Dora, supra, 781 N.E.2d at p. 68; Oiumette v. Howard, supra, 468 F.2d at p. 1365; U.S. v. Connor, supra, 478 F.2d at p. 1323.) Based on our consideration of all relevant factors, we conclude Alvarez did not have a reasonable expectation of privacy in the public storage facility premises. Accordingly, when Leffingwell entered onto the premises of the public storage facility and approached Alvarez outside her storage unit and RV, he did not violate her Fourth Amendment right against unreasonable searches and seizures. His entry onto the storage facility premises did not vitiate her subsequent consent to search her RV.
Because we conclude Leffingwell's entry onto the public storage facility premises did not violate Alvarez's Fourth Amendment right, we do not decide whether an officer's entry in violation of her Fourth Amendment right would have, as a matter of law, required exclusion of her subsequent consent to search the RV under the "fruit of the poisonous tree" doctrine.
V
Scope of Consent to Search the RV
Alvarez contends that, even if Leffingwell's entry onto the storage facility premises did not violate her Fourth Amendment right, the methamphetamine in her closed purse must be suppressed because the scope of her consent to search the RV did not include opening closed containers like her purse.
A
During the evidentiary hearing on Alvarez's motion to suppress evidence of the methamphetamine found in her purse, Leffingwell testified he asked Alvarez: "Would you mind if I searched your RV?" Alvarez replied, "No." Leffingwell's testimony regarding Alvarez's consent to the search was confirmed by May, one of the three men present with her that night, who testified that Leffingwell asked Alvarez: "Do you mind if I search the RV?" May testified that Alvarez replied, "No."
After receiving Alvarez's consent to search the RV, Leffingwell stood outside the RV, looked in through its open door, and saw the purse, a glass methamphetamine pipe, and a large ziploc bag containing smaller plastic baggies consistent with packaging methamphetamine. The purse was two inches away from the pipe. Alvarez admitted the purse belonged to her. Leffingwell opened the purse and found a coin purse with 12 cellophane packages inside. The packages contained a white crystalline substance, later determined to be a total of 5.85 grams of methamphetamine.
In denying Alvarez's motion to suppress evidence of the methamphetamine found in her purse, the trial court rejected her argument that the scope of her consent to search the RV did not include opening the closed purse found in her RV.
B
A warrant is not required for a government agent to search an individual's property if that individual voluntarily consents to the search. (People v. Jenkins, supra, 22 Cal.4th at p. 971.) "The prosecution has the burden of establishing the reasonableness of a warrantless search. [Citations.]" (Id. at p. 972.) Therefore, we presume the prosecutor had the burden to show Alvarez consented to the search of her RV, and that the scope of her consent included opening closed containers found in the RV.
Alvarez does not contend that her consent to search the RV was involuntary.
"The standard for measuring the scope of a suspect'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 suspect? [Citations.]" (Florida v. Jimeno (1991) 500 U.S. 248, 251.) "Generally, the scope of a warrantless search is defined by its expressed object. [Citation.] A consensual search may not legally exceed the scope of the consent supporting it. [Citation.] Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of the circumstances. [Citation.]" (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.)
"A suspect may of course delimit as he chooses the scope of the search to which he consents. But if his consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization." (Florida v. Jimeno, supra, 500 U.S. at p. 252.) Jimeno rejected the defendant's argument that "if the police wish to search closed containers within a car[,] they must separately request permission to search each container." (Ibid.)
Because in the circumstances of this case, Leffingwell did not state or otherwise suggest the object of his requested search of the RV, we disregard as inapposite those cases in which searches of closed containers were deemed to be within the scope of consent because, in part, the objects of the searches were expressed. (See, e.g., Florida v. Jimeno, supra, 500 U.S. at pp. 249-251 [officer told defendant he had reason to believe he was carrying narcotics in car and would be looking for narcotics in the car]; People v. Crenshaw, supra, 9 Cal.App.4th at pp. 1407, 1414-1415 [officer asked the defendant whether he had any drugs in the vehicle and asked whether he could search the vehicle for drugs]; People v. $48,715 United States Currency (1997) 58 Cal.App.4th 1507, 1515 [officer told the defendant he wanted to search the car for narcotics].) Rather, for purposes of this opinion, we focus on those cases in which only a general consent to search property is requested and obtained without any identification of the object of the search. Our independent research has not produced any cases holding that a general consent to search property (e.g., a vehicle) does not include within its scope the opening of closed containers. Rather, the cases we have found support the conclusion that the scope of a general consent to search property includes opening of closed containers that can be readily opened.
In People v. Williams (1980) 114 Cal.App.3d 67, a police officer asked the defendant: "May I search your car?" (Id. at p. 71.) The defendant replied to the effect: " 'Yes, go ahead.' " (Ibid.) About 30 minutes later at an impound lot, the defendant's car was searched and brown bags or envelopes were found in the trunk of the car. (People v. Williams, supra, 114 Cal.App.3d at p. 71.) Williams rejected the defendant's argument that the scope of his consent to search the car did not include its trunk or the containers found inside the trunk. (Id. at pp. 73-74.) Williams stated:
Although Williams does not expressly so state, it is implicit within its discussion that the paper bags or envelopes were opened and incriminating evidence was found inside. (People v. Williams, supra, 114 Cal.App.3d at pp. 73-74.)
"Our research has disclosed no cases holding that a consent to search a vehicle does not extend to the trunk of that vehicle nor to concealed items therein. . . . [¶] . . . [¶]
"We believe the voluntary consent to search his automobile given by defendant in this case authorized a search of all compartments in the automobile and of any containers found within those compartments. Had the defendant wished to limit the scope of the search, he should have done so. We believe that the defendant intended, and the officer understood, that the consent encompassed the vehicle in its entirety including its contents. To hold otherwise would require an extended and potentially confusing colloquy between the officer and the subject in an effort to isolate the precise areas of the automobile to which the consent to search extended. We do not believe that the Fourth Amendment requires anything more than the defendant's voluntary consent to the search of property under his control.
"Authorization to search an automobile must be deemed to include the automobile in its entirety, unless the defendant expressly states otherwise. We find that the consent given in this case was sufficiently broad to cover all areas searched and items seized by the officers." (People v. Williams, supra, 114 Cal.App.3d at pp. 73-74, italics added.)
Accordingly, Williams upheld the trial court's ruling denying the defendant's motion to suppress the evidence found in the trunk of his car. (Id. at pp. 72-74.)
In U.S. v. Snow (2d Cir. 1995) 44 F.3d 133, the United States Court of Appeals for the Second Circuit discussed in detail the common understanding of the meaning of the term "search" for purposes of determining whether the scope of a consent to search a car included opening two bags found in the passenger's compartment of a car. (Id. at pp. 134-136.) Although the exact consent language was not stated in the opinion, Snow stated that the defendant, after a traffic stop by police officers, consented to a search of his car. (Id. at p. 134.) The defendant was not informed of the purpose of the search. (Id. at p. 135.) Officers searched the car, finding and opening a duffel bag on the back seat and a closed bag jammed under the back seat of the car. (Id. at pp. 134-135.) In applying the Jimeno objective test for determining the scope of a consent to search, Snow addressed the question: "What meaning would a reasonable person attach to the word 'search'?" (Id. at p. 135.) Snow stated:
"The word 'search' carries a common meaning to the average person. Dictionary definitions furnish some guide: 'to go over or look through for the purpose of finding something; explore; rummage; examine,' 'to examine closely and carefully; test and try; probe,' 'to find out or uncover by investigation.' [Citation.] The Oxford English Dictionary (2d ed. 1989) is not much different: 'examination or scrutiny for the purpose of finding a person [or] thing,' 'look through, examine internally (a building, an apartment, a receptacle of any kind) in quest of some object concealed or lost.' [Citation.]
"Thus, under either the King's or the Colonists' English, the term 'search' implies something more than a superficial, external examination. It entails 'looking through,' 'rummaging,' 'probing,' 'scrutiny,' and 'examining internally.' We therefore conclude, based on the plain meaning of this common word, that an individual who consents to a search of his car should reasonably expect that readily-opened, closed containers discovered inside the car will be opened and examined.
"That the defendant did not--and probably could not--know what the officer was looking for does not change our view of his consent. It is self-evident that a police officer seeking general permission to search a vehicle is looking for evidence of illegal activity. It is just as obvious that such evidence might be hidden in closed containers. If the consent to search is entirely open-ended, a reasonable person would have no cause to believe that the search will be limited in some way." (U.S. v. Snow, supra, 44 F.3d at p. 135, italics added.)
In the circumstances of Snow, the court concluded the defendant's consent to search extended to the closed bags found in the car, noting "[n]either [bag] was locked or otherwise secured, and no damage to the bags was required to gain access." (U.S. v. Snow, supra, 44 F.3d at p. 135.) Therefore, Snow reversed the trial court's order granting the defendant's motion to suppress the evidence found in the two bags. (Id. at pp. 134, 136.)
Snow stated it "express[ed] no view" whether the defendant's consent "would have extended to items like locked briefcases." (U.S. v. Snow, supra, 44 F.3d at p. 135.)
In U.S. v. Mendoza-Gonzalez (5th Cir. 2003) 318 F.3d 663, the defendant's truck was stopped at a permanent immigration checkpoint. (Id. at p. 664.) A United States Border Patrol agent asked the defendant whether he could "take a look" inside the trailer. (Id. at p. 665.) The defendant agreed and opened the rear doors. (Ibid.) Climbing inside the trailer, the agent found and opened (using a pocketknife) a few brown cardboard boxes each sealed with a single piece of clear tape. (Ibid.) Packaged bricks of marijuana were found in the boxes. (Ibid.) Mendoza-Gonzalez upheld the trial court's ruling denying the defendant's motion to suppress that evidence, concluding the scope of the defendant's consent to search included opening the sealed boxes. (Id. at pp. 666-672.) The court stated:
"Law enforcement officials are not required to separately request permission to search each container within a vehicle for which they have received consent to search. [Citation.] [The defendant] chose not to place any explicit limitations in his response to [the agents'] general request [to search], which, in this Circuit, is evidence of general consent. [Citation.] . . . The fact that [the defendant] did not object when [the agent] actually began to open the box provides additional evidence that the agent's actions were within the scope of [the defendant's] initial consent. [Citations.]" (U.S. v. Mendoza-Gonzalez, supra, 318 F.3d at p. 667, fn. omitted.)
Concluding the defendant gave a general consent to search the trailer, the court then addressed whether "it was reasonable to interpret [the defendant's] general oral consent to search the trailer as authority to open a cardboard box, closed shut with a piece of tape, located inside [the trailer]." (Id. at p. 669.) The court stated:
"Although the scope of a search is generally defined by its expressed object, an object need not have been specified if the circumstances could otherwise lead a reasonable person to conclude that the search might include the container at issue. [Citation.] As discussed earlier, we believe a reasonable person privy to the conversations that took place between [the defendant] and each of the [agents] would believe that [the defendant's] consent to search the trailer included permission to open a brown cardboard box located inside of it." (U.S. v. Mendoza-Gonzalez, supra, 318 F.3d at p. 670.)
Finally, the court distinguished the facts in its case from those cases involving locked containers, stating:
"[The defendant's] expectation of privacy with regard to the brown cardboard boxes did not rise to the level of that evidenced by a locked container. . . . The boxes at issue in this case were located inside the trailer of a commercial vehicle and could be easily opened by removing or cutting through a single piece of tape. A single piece of tape is commonly used on a cardboard box not to send any particular message of privacy, but rather to keep the stiff side flaps closed to prevent the contents from spilling out and being damaged during transit. . . . An objective appraisal of all of the circumstances surrounding the search of the cardboard box indicates that [the defendant's] apparent expectation of privacy regarding its contents did not rise to the level of making its search unreasonable under the Fourth Amendment." (U.S. v. Mendoza-Gonzalez, supra, 318 F.3d at p. 671, fn. omitted.)
The court affirmed the defendant's conviction. (Id. at p. 674.)
In U.S. v. Zapata (1st Cir. 1994) 18 F.3d 971, law enforcement officers asked the defendant whether they could search his car. (Id. at p. 974.) The defendant replied, "Sure, go ahead," and, on request, handed his car keys to the officers. (Ibid.) The officers found two duffel bags in the car's trunk. (Ibid.) One bag was partially unzipped and, through its opening, the officers saw packaging commonly used for cocaine. (Ibid.) An officer removed the packaging from the bag and saw it contained white powder, determined to be cocaine. (Ibid.) Zapata upheld the trial court's ruling denying the defendant's motion to suppress the evidence. (Id. at pp. 974, 979.) The court noted "[i]t is . . . well settled that a general consent to search a motor vehicle subsumes the specific consent to search any easily accessible containers within the vehicle. [Citation.]" (Id. at p. 977.) Zapata concluded: "Because the duffel bags were lying in the trunk, [the defendant's] general consent to a search of the automobile constituted consent to a search of the duffel bags. [Citations.]" (Id. at pp. 977-978.)
Finally, in People v. Jenkins, supra, 22 Cal.4th 900, the California Supreme Court stated: "Other courts and commentators have observed that open-ended consent to search normally does not suggest that the person consenting would expect the search to be limited in any way, and that a general consent to search includes consent to pursue the stated object of the search by opening closed containers. [Citations.]" (Id. at pp. 975-976.)
Based on our review of the cases discussed above, we conclude that the scope of a general consent to search a vehicle includes consent to open closed but unlocked, readily-opened containers found in the vehicle. (U.S. v. Snow, supra, 44 F.3d at p. 135.) Alternatively stated, applying Jimeno's objective reasonableness test, we conclude "the typical reasonable person" would understand that a general consent to search a vehicle, absent any limitations or other expressions regarding the scope of that search, extends to the opening of readily-opened, closed containers found within that vehicle. (Florida v. Jimeno, supra, 500 U.S. at p. 251.)
Like Snow, we decline to address whether, or the extent to which, consent to search a vehicle may extend to a locked container found in a vehicle. (Cf. State v. Wells (Fla. 1989) 539 So.2d 464.)
C
Applying the above legal standard to the undisputed facts in this case, we conclude that a reasonable person would understand, by the exchange between Leffingwell and Alvarez, that the scope of Alvarez's consent to search her RV extended to Leffingwell opening the closed purse he found in her RV. (Florida v. Jimeno, supra, 500 U.S. at p. 251.) Because Leffingwell did not state or otherwise reveal the object of his requested search and Alvarez did not limit the scope of her consent to search the RV, her consent to search the RV was a general consent to search that vehicle and included consent to search any readily-opened, closed containers found in the RV. (U.S. v. Snow, supra, 44 F.3d at p. 135; People v. Williams, supra, 114 Cal.App.3d at pp. 73-74; U.S. v. Mendoza-Gonzalez, supra, 318 F.3d at p. 667-671; U.S. v. Zapata, supra, 18 F.3d at pp. 977-978; People v. Jenkins, supra, 22 Cal.4th at p. 975.) Based on the undisputed facts, we conclude Alvarez's purse Leffingwell found in her RV was closed, but not locked, and was readily opened by him. Therefore, the trial court correctly rejected Alvarez's argument that the scope of her consent to the search the RV did not include opening the closed purse found in her RV.
People v. Cantor (2007) 149 Cal.App.4th 961, cited by Alvarez, is inapposite to this case because the officer in that case requested and obtained permission only to perform a "real quick" "check" of the car, which consent did not include unscrewing the panel of equipment found in the trunk. (Id. at pp. 965-967.)
The fact that the purpose of Leffingwell's requested search of the RV was not known to her does not necessarily make her consent ambiguous and therefore could not reasonably be understood as extending to closed containers in her RV. Rather, the absence of an identification of the purpose of the search supports the conclusion that the consent to search the RV was a general consent, the scope of which extended to readily-opened, closed containers. (U.S. v. Snow, supra, 44 F.3d at p. 135.) Had Alvarez wished to limit the scope of, or entirely stop, the search, she could have done so by expressing to Leffingwell that wish at any time prior to his opening her purse. (Florida v. Jimeno, supra, 500 U.S. at p. 252; People v. Williams, supra, 114 Cal.App.3d at pp. 73-74; U.S. v. Mendoza-Gonzalez, supra, 318 F.3d at p. 667.)
Likewise, we reject Alvarez's assertion that the scope of her consent was limited by Leffingwell's purported subjective intent to search her purse only for identification because he intended to arrest her. The scope of a defendant's consent to search is based on Jimeno's objective reasonableness test, and not by the officer's unexpressed subjective intent. (Florida v. Jimeno, supra, 500 U.S. at p. 251.)
Because Leffingwell did not violate Alvarez's Fourth Amendment right when he opened her closed purse in response to her express consent to search the RV, the trial court correctly denied her motion to suppress evidence of the methamphetamine found in her purse. We need not, and do not, address the alternative grounds on which that evidence arguably may have been admitted at trial (e.g., a search pursuant to the "automobile exception," a search incident to an arrest, or because of its inevitable discovery).
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J., IRION, J.