Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF108571A
CANTIL-SAKAUYE, J.
Following the denial of his motion to suppress, defendant Mack Dandre Bonds, entered negotiated pleas of no contest to cultivating marijuana, to possessing it for sale, and to misdemeanor child endangerment in exchange for the suspension of the imposition of sentence and a grant of probation. (The present record is inadequate to determine whether defendant served any presentence custody for which he might be entitled to additional conduct credits under recent amendments to Penal Code section 4019. He agreed to immediate sentencing, without preparation of a probation report.) On appeal, he contends the trial court erred in denying his suppression motion. We shall affirm the order granting probation.
FACTS
Except to the extent the details underlying the convictions are relevant to the motion, we omit them. Defendant filed a motion to suppress evidence in which he argued that a written consent from Yolanda Bullock, his cohabitant, to search a second location, which she provided during the execution of a search warrant at the first location, was involuntary and in any event ineffective as to defendant’s privacy interests at the second location.
At the suppression hearing, the court announced it had reviewed the transcript of the preliminary hearing, at which a Stockton detective had testified about being summoned to a residence on Sheffield Court in Stockton where a search pursuant to a warrant from Calaveras County had been taking place. This had led to the discovery of indoor marijuana cultivation in a home that otherwise appeared unoccupied. The detective spoke with defendant and Bullock, both of whom were present. The Calaveras County deputies, who were executing the search warrant, had obtained the presence of the two through the ruse of a call to a cell phone number that they had found in the residence, in which they pretended to be a delivery service leaving a package at the Sheffield location.
Bullock was a codefendant and is not a party to the present appeal.
After being advised of his rights, defendant agreed to speak with the Stockton detective. He admitted being the cultivator of the marijuana. Bullock, a prison guard, also agreed to speak with the detective. She told him that she and defendant had been living together on and off for three years. They were moving out of the Sheffield house to another one on Briarwood. She claimed that the cultivation began only after they had moved out of the Sheffield home. She had already provided a written consent to the Calaveras deputies for a search of the Briarwood home, while defendant was sitting in a patrol car. (The Stockton detective had her sign another one subsequently at the Briarwood home that he had drafted as well.) The detective went with Bullock to the Briarwood home, which was fully furnished. He found a “substantial” amount of marijuana in bags in what appeared to be a master bedroom to which both adults had access, as well as other evidence of sales. At this point, Bullock admitted that she was aware of the cultivation operation in the Sheffield residence, which is the reason she had moved to Briarwood. Defendant was not supposed to have moved in with her, but he “followed along and brought his stuff with him.”
At the suppression hearing, a detective from Calaveras County testified that he had been one of the deputies executing the search warrant at the Sheffield home. When Bullock arrived at that location, he asked her if they resided anywhere else. She identified the Briarwood address as where she lived with defendant and signed a Calaveras County consent form for a search of it. The Calaveras deputy did not speak with defendant at any time. Defendant testified that he stayed overnight at the Briarwood home in the master bedroom and kept belongings at the house without paying rent, describing the two of them as being in a “breakup stage.”
Defense counsel acknowledged a lack of evidence to contest the validity of Bullock’s consent. Counsel argued, however, that Bullock’s consent did not extend to defendant’s interest in the Briarwood home. The court rejected the claim, because defendant failed to establish a search of any area over which he had exclusive dominion, and this was not a case like Georgia v. Randolph (2006) 547 U.S. 103 [164 L.Ed.2d 208] (Randolph), where the police conducted a search with the consent of one cohabitant over the express objection of another.
DISCUSSION
Defendant does not renew his arguments either that Bullock’s consent to the search was involuntary, or that she did not have the authority to consent to a search of the areas where the police found evidence against him. His focus is instead on Randolph. He claims that in keeping him separated from Bullock while questioning her and obtaining her consent to search, the police prevented him from manifesting his objection to the search, which would have triggered Randolph’s bar on use of the evidence against him.
Discussing at length the “common understandings” that are the basis of the jurisprudence involving the authority of an apparent occupant to consent to the search of an area jointly held with an absent defendant (Randolph, supra, 547 U.S. at pp. 109-114 [164 L.Ed.2d at pp. 218-222]), the court asserted that a “co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant[; the] disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all. Accordingly..., the cooperative occupant’s invitation [does not add anything] to the government’s side to counter the force of an objecting individual’s claim to security against the government’s intrusion into his dwelling place.” (Id. at pp. 114-115 [164 L.Ed.2d at pp. 222-223], italics added.) The lead opinion therefore concluded, “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” (Id. at p. 120 [164 L.Ed.2d at pp. 225-226], italics added.) In attempting to distinguish early cases upholding a search where a defendant “with self-interest in objecting” was nearby, the lead opinion acknowledged that it was “drawing a fine line, ” limiting its application to the sole circumstance where the other party “is in fact at the door and objects” and not where the other party is “nearby but not invited to take part in the threshold colloquy, ” unless “the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection....” (Id. at p. 121 [164 L.Ed.2d at pp. 226-227], italics added.)
Randolph consists of Justice Souter’s lead opinion for three justices. Justice Stevens wrote a concurring opinion that does not appear to take issue with the lead opinion’s analysis, while Justice Breyer’s concurrence took a different approach that emphasized the case-specific nature of the issue and would leave him open to a different result under different circumstances; however, he agreed with the line that the lead opinion sought to draw circumscribing its application. (Randolph, supra, 547 U.S. at p. 126 [164 L.Ed.2d at pp. 229-230].)
Defendant likens the facts of this case to the caveat in Randolph regarding police interference with the exercise of the right to object. We disagree.
Assuming that Randolph is not in fact literally limited to conversations “at the door” (as neither defendant nor Bullock were at the Briarwood residence at the time the deputies obtained the original consent to search), and would apply wherever the police jointly confront co-residents to seek a consent to search a location, the present facts do not show any affirmative evidence that anyone isolated defendant in the patrol car away from the presence of Bullock in order to prevent him from registering any objection to their request to search. In litigating his motion, defendant did not explore either the timing of his placement in the patrol car or the basis for it. Indeed, defendant never testified at the hearing that he was prevented from expressing his objection to a search of the Briarwood home. We do not agree that the mere fact of his sequestration in the patrol car gives rise to a rational inference of an intent to foreclose his objection (as opposed to being a part of the ordinary procedure for securing the scene during the search, or for arresting defendant after he admitted cultivating the marijuana); it is instead speculation. Under Randolph, the police were otherwise free not to invite defendant to join the discussion seeking consent, even if he was nearby. As for Bullock’s assent to the actual search, Randolph simply does not apply, as defendant was not present. Accordingly, we reject defendant’s argument.
DISPOSITION
The order granting probation is affirmed.
We concur: NICHOLSON, Acting P. J. RAYE, J.