Filed 5/20/16 P. v. Sims CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C079546

                   Plaintiff and Respondent,                                     (Super. Ct. No. 14F03728)

         v.

WALTER EARL SIMS,

                   Defendant and Appellant.




         Despite inconsistencies between an arresting officer’s police report, the in-car
camera audio, and his testimony at the hearing on defendant Walter Earl Sims’s motion
to suppress, the trial court found credible the officer’s testimony that defendant gave a
general consent to search his house, which included a locked safe, and denied the motion.
We must defer to the trial court’s findings of fact where, as here, they are supported by
substantial evidence. (People v. Lomax (2010) 49 Cal.4th 530, 563.) We therefore
affirm the trial court’s denial of the Penal Code section 1538.5 motion to suppress the
evidence of drugs and weapons seized during a search of defendant’s house.


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        SUBSTANTIAL EVIDENCE AT THE SECTION 1538.5 HEARING
       Sergeant Michael Lange testified over two days at the Penal Code section 1538.5
hearing, and his testimony formed the basis of the trial court’s ruling. He testified that he
and several other officers from the Sacramento Police Department, aware of an
outstanding felony arrest warrant for defendant, parked outside of his home and watched.
He intended to obtain defendant’s consent for a search of the house. He knocked on the
door and identified defendant as an occupant. Defendant’s girlfriend opened the door and
defendant was arrested without incident.
       While walking to the police car parked 75 to 100 yards down the street, Officer
Lange asked defendant if he had anything illegal in the house. When defendant
responded that he did not, Officer Lange asked him if he minded if he searched the house.
Defendant replied, “Go ahead.” He was handcuffed and put in the patrol car. An
audiotape recorded their conversation in the car. As the tape begins, defendant is asking
the officer to retrieve his cell phone from his bedroom. In the meantime, another officer
obtained the girlfriend’s consent to perform a protective sweep of the house.
       In the southeast bedroom, Sergeant Lange found “evidence of marijuana” and
“four .45-caliber rounds of live ammunition, as well as some other jars and packaging for
marijuana type residue and sales.” Other officers found ammunition in the garage.
Lange found a locked safe in the bedroom closet, partially covered with a blanket or
jacket. As he walked back into the living room, he observed keys on top of the
girlfriend’s open purse. She denied the keys were hers and did not consent to a search of
the safe. One of the keys appeared to be a key to the safe. Another officer determined
that two of the other keys fit defendant’s cars.
       Satisfied that the keys belonged to defendant, Officer Lange opened the safe and
observed a Colt style M-16 assault rifle, handgun, large amount of money, and packaging
that appeared to contain methamphetamine. He returned to the patrol car and asked
defendant if the safe was his. He could not remember if defendant claimed the safe

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belonged to a friend. Defendant denied permission to search it. Officer Lange thereafter
obtained a warrant to continue his search of the safe. A subsequent search revealed that
the safe contained $595 in cash and 23.23 grams of methamphetamine.
       The trial court denied the motion to suppress. The court explained: “When this
Court looks at the totality of the facts in this case, the Court finds that the officer had
general consent that was voluntarily given by the defendant, that the officer found the
keys in the purse of what appeared to be another resident who disclaimed any knowledge
of those keys. A reasonable inference would be that those keys (A) fit the safe and
(B) that the safe was probably -- it probably belonged to the defendant. [¶] . . . [¶]
       “And so I do believe that, operating on the defendant’s consent, the officer was
legally authorized to use the keys to open the safe. Once the defendant denied --
withdrew his consent, the officer no longer had permission to open the door of the safe
and the officer did what he should have [done] and that is seized the safe and booked it
into evidence to get a warrant. [¶] . . . [¶]
       “So in summary, based on the totality of the officer’s testimony, the Court finds
that the officer was credible and that the defendant did give consent and that consent
authorized the officer to look into the safe with the keys that had been abandoned by the
other occupant of the house. Therefore this motion to suppress is denied under [Penal
Code section] 1538.5[, subdivision] (a).”
                                        DISCUSSION
Consent to Search?
       The Fourth Amendment to the United States Constitution prohibits all
unreasonable searches and seizures. (People v. Ramirez (2007) 148 Cal.App.4th 1464,
1468.) A search conducted without a warrant is presumptively unconstitutional unless
the defendant consented to the search. (People v. Woods (1999) 21 Cal.4th 668, 674.)
This case turns on whether defendant consented to a search of his house and, if so,
whether the scope of his consent encompassed the locked safe in his closet. The only

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evidence of consent is Sergeant Lange’s testimony. The purported consent was not
captured on the audiotape in the car, and Sergeant Lange did not obtain a written consent
to search on a form sometimes utilized for this purpose.
       Defendant argues on appeal, as he did before the trial court, that Sergeant Lange’s
testimony was inconsistent with his written report and with the audiotape recording of his
conversation with defendant. He maintains that the sergeant’s inconsistencies bolster the
defense position that he had not obtained the consent that he testified he had. In short,
defendant insists the sergeant’s testimony was not to be believed.
       In his closing argument at the motion to suppress hearing, defendant laboriously
described those inconsistencies. For example, defense counsel pointed out the
inconsistencies in Lange’s testimony about a conversation he had with defendant
regarding his cell phone. Defense counsel argued: “The officer testified first on direct
examination that he had a conversation with Mr. Sims regarding the phone, that Mr. Sims
specifically told him that he needed the officer to get him his phone, that he wanted to get
some numbers out of his phone, that the phone was in the master bedroom. And that the
phone was on the nightstand. Those are four facts that we know did not occur and was
[sic] not part of the conversation because the officer’s own testimony today was that there
was only one conversation on the phone and that conversation is captured by the in-car
camera.
       “And that in-car camera conversation does not mention anything about Mr. Sims
saying that the phone is on a nightstand, Mr. Sims saying anything about the phone being
in a back bedroom, nor does it say anything about Mr. Sims wanting to get some numbers
off the phone. It is simply Mr. Sims saying, ‘Hey, there is a phone on the bed.’ And the
officer saying, ‘Do you want me to get that for you?’ And Mr. Sims says, ‘Yes.’
       “How the officer testified regarding the conversation with the phone is consistent
with how he testified -- I’m sorry, what he wrote in his police report, but it is not
consistent with the actual conversation that was recorded.

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       “Defense is concerned that because of these inconsistencies this Court should be
careful in accepting the officer’s testimony as to exactly what happened and the
conversations that he had with Mr. Sims.”
       Similarly, Sergeant Lange testified initially that defendant’s girlfriend consented
to a search of the entire house, but on cross-examination, he admitted that she had only
given consent for a protective sweep. Defense counsel labeled the sergeant’s
inconsistency as a “red flag.”
       During cross-examination, defense counsel asked Lange why, if he had already
obtained consent to search the house, he subsequently asked defendant for permission to
search the safe. And Lange responded that he was merely attempting to establish
ownership of the safe. Defense counsel later argued: “But once I confronted him and
impeached him on the in-car camera where he clearly asked Mr. Sims whether he could
have permission to open the safe and clearly asked Mr. Sims whether he has permission
to look into the safe, then he started back-pedaling again. But his first testimony, Your
Honor, was that he never asked Mr. Sims that because he didn’t have to. But we know he
asked him and he eventually was impeached on the in-car camera that he in fact asked
him. And he asked him for permission because he knows he didn’t have permission to
look into that safe.”
       Defense counsel insisted that Sergeant Lange went to defendant’s house with the
intention to arrest him and search the house. When defendant asked the sergeant on the
audiotape, “Hey, what are you doing in my house,” Lange did not say it was because
defendant had given his consent, but rather that he had the right to “search and arrest
you.” Because, in defendant’s view, Lange had not obtained his consent, he did not have
the right to search. The inconsistencies in the sergeant’s testimony, he concludes, make it
abundantly clear that he did not have the right to search and indeed had violated
defendant’s Fourth Amendment right to be free of unlawful searches and seizures.



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         The trial court acknowledged the inconsistencies, big and small. Nevertheless, the
court found Sergeant Lange’s testimony credible. The court explained: “Under
withering cross-examination, although kind I would say but certainly aggressive cross-
examination, the officer did have some inconsistencies in his statement. But he did
testify sincerely in this Court’s opinion that because it had been eight months he did not
wish to guess or enter into any conjecture about the specific words he used without
reading the transcript. Which was not provided to him either before court or during
court. So his answers were vague. And he did explain that vagary [sic] to the Court’s
satisfaction by saying he did not want to deny saying something when he didn’t
remember it. And the specifics of what someone said eight months earlier I would not
necessarily expect the officer to remember every single word that was spoken back and
forth.
         “He did not ever shrink from the contention that the defendant gave him consent to
search, that that was his object. It was clear to the Court that the officer went to the home
with the intent to procure consent to search. That was a consistent theme in his testimony
and that was consistent with what he told the defendant in the police car on the way to
jail, it is consistent with the way he testified in that he told -- asked the defendant first if
he had anything that was illegal in the house and then when the defendant denied that he
did, he asked him if he would mind if the officers looked around to confirm that. That is
not unusual in this Court’s experience and it does not raise a red flag.”
         Like the trial court, we have carefully considered the alleged inconsistencies in
Sergeant Lange’s testimony. But unlike the trial court, we are not at liberty to assess his
credibility. We must affirm the trial court’s factual findings if they are supported by
substantial evidence, and credibility determinations are for the trial court to make.
(People v. Hughes (2002) 27 Cal.4th 287, 327; People v. Hughes (1960) 183 Cal.App.2d
107, 112.)



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       The trial court found Sergeant Lange credible and sincere. It acknowledged the
inconsistencies in his testimony but found they were either understandable because of the
passage of time and the fact he had not reviewed the transcript of the audio recording or
insignificant because many of the inconsistencies turned on semantics. It is true that six
months had passed and that he testified, “I haven’t reviewed the in-car camera. I’m not
going to know my exact words.”1 There was also confusion over precisely who obtained
consent to conduct a protective sweep and how and when the consent to search was
obtained. Lange discounted defense counsel’s accusations that his testimony differed
from his written report in that regard. The court recognized, “The fact that legal terms of
art are often bantered about in an incorrect context, whether or not Officer Hanson
thought he had legal authority to conduct a protective [sweep] or even if Sergeant Lange
thought he had the legal authority to conduct a protective sweep and whether or not they
were both incorrect, the fact remains that Sergeant Lange got consent to search in the
general terms from the defendant.” We agree with the Attorney General that there is
ample evidence to support the trial court’s factual finding that defendant consented to a
search of his house based on the testimony of Sergeant Lange and the trial court’s
assessment of his credibility.
Scope of Consent to Search?
       Defendant contends that even if we affirm the trial court’s finding he consented to
a search for illegal items in the house, the search of a locked safe exceeded the scope of
his consent. “A consensual search may not legally exceed the scope of the consent
supporting it.” (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.) Defendant finds
support in State v. Wells (Fla. 1989) 539 So.2d 464 (Wells), wherein the Florida Supreme
Court held that the consent to search the trunk of a car did not encompass consent to



1 Although the trial court stated eight months had passed between the search and
Sergeant Lange’s testimony at the suppression hearing, it had, in fact, been six months.

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search a locked suitcase therein, and People v. Cantor (2007) 149 Cal.App.4th 961
(Cantor), wherein the Court of Appeal found that consent to a “real quick” check of a car
for anything illegal did not mean the defendant had consented to the removal with a
screwdriver of the back panel of a record cleaner and a search of the equipment. These
cases are distinguishable.
       The trial court emphasized that the visibility of the key distinguishes this case
from those cited by defendant. Whereas in Wells the police officers pried open the lock
with a knife to get into the suitcase, here Sergeant Lange saw a set of keys sitting in plain
view on top of defendant’s girlfriend’s purse. One of the keys looked like a key to a safe,
and given that two of the other keys had been confirmed to be keys to defendant’s cars,
he believed the safe belonged to defendant, who had given his consent to search for
anything illegal. Nor was using a visible key to open the safe equivalent to taking a
screwdriver to remove the back panel of the record cleaner the defendant in Cantor had
stashed in the trunk of his car. In both cases, the courts concluded the police officers’
intrusive and invasive conduct far exceeded the reasonable expectations of the suspects
when they gave consent to search.
       Indeed, the United States Supreme Court, in a similar case, rejected an analogy to
Wells. (Florida v. Jimeno (1991) 500 U.S. 248 [114 L.Ed.2d 297] (Jimeno).) The court
wrote: “The facts of this case are therefore different from those in State v. Wells, supra,
[539 So.2d 464] on which the Supreme Court of Florida relied in affirming the
suppression order in this case. There the Supreme Court of Florida held that consent to
search the trunk of a car did not include authorization to pry open a locked briefcase
found inside the trunk. It is very likely unreasonable to think that a suspect, by
consenting to the search of his trunk, has agreed to the breaking open of a locked
briefcase within the trunk, but it is otherwise with respect to a closed paper bag.”
(Jimeno, at pp. 251-252.) The court reiterated the guiding principle: “The standard for
measuring the scope of a suspect’s consent under the Fourth Amendment is that of

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‘objective’ reasonableness -- what would the typical reasonable person have understood
by the exchange between the officer and the suspect? [Citations.] The question before
us, then, is whether it is reasonable for an officer to consider a suspect’s general consent
to a search of his car to include consent to examine a paper bag lying on the floor of the
car. We think that it is.” (Id. at p. 251.)
       Similarly, we agree with the trial court that Sergeant Lange did not exceed the
scope of the consent defendant gave to search for anything illegal when he used a key he
saw in plain sight to open the safe. The search of the safe, like the search of the bag in
Jimeno, was objectively reasonable. Moreover, once defendant withdrew his consent by
denying the sergeant’s request to search the safe, Sergeant Lange seized the safe and
searched it only after securing a warrant. His conduct bears no resemblance to the
conduct of law enforcement in Wells and Cantor.
       In short, we conclude that defendant had no reasonable expectation of privacy
once he gave the police his consent to search for anything illegal in the house and left
keys readily accessible to his safe and cars. Because Sergeant Lange did not exceed the
scope of defendant’s consent to search as a matter of law, the trial court’s denial of the
motion to suppress the contents of the safe is affirmed.
                                       DISPOSITION
       The judgment is affirmed.

                                                            RAYE               , P. J.

We concur:


         HULL                , J.



         MURRAY              , J.



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