Filed 11/1/13 P. v. Smith CA1/5


             NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                           FIRST APPELLATE DISTRICT
                                 DIVISION FIVE


THE PEOPLE,
          Plaintiff and Respondent,                                      A136446
                   v.
ROBERT LAWRENCE HUFFMAN                                                  (Sonoma County Super. Ct.
SMITH,                                                                   Nos. SCR-600242 & SCR-614245)
          Defendant and Appellant.

          Appellant Robert Lawrence Huffman Smith appeals from his convictions in two
criminal cases. The sole basis for his appeal is that the trial court improperly denied, in
each case, his motion to suppress certain evidence under Penal Code section 1538.5. We
affirm.
                                      PROCEDURAL BACKGROUND
          After the trial court denied his motion to suppress in case No. SCR-600242,
appellant pled guilty to one count of possession of heroin for sale (Health & Saf. Code,
§ 11351) in January 2012. In February, while out of custody pending sentencing,
appellant was arrested and new charges were brought in case No. SCR-614245. The trial
court denied his motion to suppress in this case as well. After a jury trial, appellant was
convicted of one count of selling heroin (Health & Saf. Code, § 11352, subd. (a)), one
count of child endangerment (Pen. Code, § 273a, subd. (b)), and one count of obstructing
a peace officer (id., § 148, subd. (a)(1)). In August, appellant was sentenced in both
cases to an aggregate term of nine years‟ imprisonment.


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                                       DISCUSSION
       Appellant‟s sole challenge on appeal is to the trial court‟s denial of his two
suppression motions. “As the finder of fact in a proceeding to suppress evidence (Pen.
Code, § 1538.5), the superior court is vested with the power to judge the credibility of the
witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual
inferences in deciding whether a search is constitutionally unreasonable. [Citation.]
Accordingly, in reviewing [a] suppression order, we consider the record in the light most
favorable to . . . respondents since „all factual conflicts must be resolved in the manner
most favorable to the [superior] court‟s disposition on the [suppression] motion.‟
[Citation.]” (People v. Woods (1999) 21 Cal.4th 668, 673 (Woods).) While “ „we defer
to the superior court‟s express and implied factual findings if they are supported by
substantial evidence, . . . we exercise our independent judgment in determining the
legality of a search on the facts so found. [Citations.]‟ [Citation.]” (People v. Lomax
(2010) 49 Cal.4th 530, 563.)
I. Case No. SCR-600242
       A. The Suppression Hearing
       At the suppression hearing, Santa Rosa Police Officer Macias testified as follows.
On March 28, 2011, he was patrolling a hotel parking lot known to have a high volume of
illegal drug activity. He was in uniform and in a marked police car. Around 9:30 p.m.,
Macias saw in the parking lot an individual he knew to be Eric Aiello. Four months
earlier, Aiello told Macias that he had purchased illegal drugs in that parking lot. On
March 28, Aiello walked to the edge of the hotel parking lot and crossed to the adjacent
property, the back of a gas station parking lot, where a parked car was waiting. Aiello,
while holding cash, reached into the passenger side window of the car. When he
withdrew his hand it no longer held cash, and it appeared to Macias that Aiello had
received “something” in exchange for the cash.
       Macias pulled his patrol car behind the parked car and activated his emergency
lights and spotlights. In response, Aiello started quickly walking away from Macias and
appeared to toss something away as he walked. The driver and only occupant of the

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parked car, subsequently identified as appellant, started the car and put it in drive.
Macias twice told appellant to stop and exit the car, the second time adding that he had
already given appellant‟s license plate number to incoming units. Appellant exited the
car and Macias handcuffed him, telling appellant he was being detained but was not
under arrest. Before appellant exited the car, Macias saw a large amount of cash on his
lap.
       Aiello also stopped and was handcuffed. In the course of conducting a patdown
search of Aiello, Macias located items indicative of drug use. Macias asked Aiello
whether he was buying drugs from appellant, and Aiello responded that he was paying
appellant a debt. Macias‟s patdown search of appellant did not reveal any indicia of
criminal activity. However, when Macias looked in the windows of appellant‟s car, he
saw in plain view suspected drug paraphernalia and a portable safe.
       Macias subsequently conducted a search of the vehicle and located over 100
empty syringes, a cell phone with text messages indicating the owner was involved in
drug sales, and over $500 in cash. After being confronted with the results of a canine
search indicating the scent of drugs on the driver‟s seat, appellant admitted to having
drugs on his person and produced more than 50 “baggies” containing a substance later
identified as heroin.
       Neither appellant nor Aiello testified at the suppression hearing.
       B. Analysis
       Appellant argues (1) his initial detention was not reasonable, and (2) the
subsequent vehicle search was not reasonable. We conclude that both the detention and
the vehicle search were reasonable, and that appellant‟s motion to suppress was properly
denied.
       1. Detention
       “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.” (People v. Souza (1994) 9 Cal.4th 224, 231 (Souza).)

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       Macias witnessed an exchange of cash for something in a location known for
illegal drug activity. One of the individuals involved in the exchange, Aiello, previously
told Macias that he had purchased illegal drugs in that same location. Then, when
Macias turned on his patrol car‟s emergency lights and spotlight, both appellant and
Aiello took evasive acts. Given the totality of these circumstances, Macias‟s suspicion
that appellant had just engaged in an illegal drug sale was reasonable. (See Illinois v.
Wardlow (2000) 528 U.S. 119, 124 (Wardlow) [“nervous, evasive behavior is a pertinent
factor in determining reasonable suspicion”]; Souza, supra, 9 Cal.4th at p. 227 [“flight in
response to the appearance of a uniformed officer or a marked patrol car ordinarily is
behavior that police may legitimately regard as suspicious, and therefore also can be a
key factor in establishing reasonable cause to detain”]; id. at p. 240 [“An area‟s
reputation for criminal activity is an appropriate consideration in assessing whether an
investigative detention is reasonable under the Fourth Amendment.”]; People v. Methey
(1991) 227 Cal.App.3d 349, 358 [knowledge of individual‟s prior criminal activity is
appropriate factor in determining reasonableness of detention], disapproved on another
ground by Schlick v. Superior Court (1992) 4 Cal.4th 310, 315.) We reject appellant‟s
arguments to the contrary as explained below.
       Appellant challenges the trial court‟s finding that Macias witnessed Aiello receive
something in exchange for cash. But Macias‟s uncontradicted testimony that he
witnessed something exchanged for cash amply supplies substantial evidence for the trial
court‟s finding.
       Appellant attempts to undermine the relevance of Macias‟s testimony that the
location was known for illegal drug activity by arguing only the hotel parking lot was so
known and the exchange took place in the neighboring gas station parking lot. However,
Macias testified to his experience with illegal drug activity taking place in a corner of the
hotel parking lot or its “direct proximity,” indicating that the area known for drug activity
extended beyond the formal property line of the hotel parking lot. Moreover, it would
not be unreasonable for an officer to conclude that drug trafficking would occur in the
adjacent location.

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       Contrary to appellant‟s contention, People v. Bower (1979) 24 Cal.3d 638 does not
preclude consideration of the high crime nature of the location. This case stands for the
proposition that a detention is not warranted just because “otherwise innocent-appearing
circumstances” take place in a high-crime location. (Id. at p. 645.) But the
circumstances here were far from “innocent-appearing,” — Macias witnessed an
individual he knew previously engaged in illegal drug activity exchange cash for
something, and both Aiello and appellant began to flee at the sight of Macias. That this
suspicious activity took place in an area known for illegal drug sales is a relevant factor
in determining whether the detention was reasonable. (Wardlow, supra, 528 U.S. at pp.
124-125; Souza, supra, 9 Cal.4th at p. 240.)
       People v. Jones (1991) 228 Cal.App.3d 519, relied upon by appellant, is also
distinguishable. In Jones, the Court of Appeal found a detention unreasonable where an
officer witnessed the defendant give another person money on a street corner in an area
known for illegal drug activity. (Id. at p. 524.) But here, the money was exchanged for
something, one of the individuals involved in the exchange was known to have bought
illegal drugs at that location, and both members to the transaction began to flee at the
sight of a police officer.
       Finally, appellant argues the fact he and Aiello fled at the sight of Macias should
not be considered consciousness of guilt. Specifically, appellant contends, when Macias
turned on his patrol car‟s spotlight, he had not verbally identified himself as a police
officer and appellant and Aiello may have simply wanted to leave the “annoyance” of the
spotlight. The trial court‟s implied finding that appellant and Aiello knew Macias was a
law enforcement officer when they began to flee is a finding of fact to which we defer if
supported by substantial evidence. Macias testified he was in uniform and a marked
police car. He was thus plainly identifiable as a police officer. There was no evidence
that an obstruction blocked either appellant‟s or Aiello‟s view of Macias‟s uniform or
patrol car, or that the spotlight was so blinding they could see nothing else. Substantial
evidence supports the trial court‟s finding. Moreover, despite appellant‟s attempt to
undermine this factor, it is well settled that flight from a police officer is relevant to the

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reasonableness of a detention. (Wardlow, supra, 528 U.S. at p. 124; Souza, supra, 9
Cal.4th at p. 241.)
         2. Vehicle Search
         “If there is probable cause to believe a vehicle contains evidence of criminal
activity,” a warrantless search is permissible “of any area of the vehicle in which the
evidence might be found.” (Arizona v. Gant (2009) 556 U.S. 332, 347.) Probable cause
exists if, given all the circumstances known at the time, “there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates
(1983) 462 U.S. 213, 238.)
         In addition to the circumstances supporting the detention discussed above, Macias
found other indications of criminal activity before he searched appellant‟s car. First, he
found drug paraphernalia on Aiello, indicating that Aiello was still actively using illegal
drugs and rendering it more likely that Aiello had just been involved in a drug
transaction.1 Second, Macias saw drug paraphernalia, a large quantity of cash, and a
portable safe in plain view in appellant‟s car.2 The totality of the circumstances gave rise
to a fair probability appellant was selling illegal drugs out of his car, and evidence of
such activity would be found in the car. The vehicle search was supported by probable
cause.
II. Case No. SCR-614245
         A. The Suppression Hearing
         1. The People‟s Witnesses
         Deputies Sedgwick and Petersen of the Sonoma County Sheriff‟s Office testified
for the People at the suppression hearing as follows. Around 8:00 p.m. on February 11,
2012, Sedgwick saw lit fireworks in the parking lot of a Santa Rosa motel, in front of
room 2B. Setting off fireworks is prohibited in Santa Rosa, and Sedgwick and Petersen

1   To the extent appellant challenges Aiello‟s patdown search as not reasonable, he lacks
standing to do so. (See Rawlings v. Kentucky (1980) 448 U.S. 98, 104-105.)
2   Although Macias could have chosen at this point to search for the item that Aiello had
tossed away, he was not, as appellant suggests, required to do so.
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approached the motel room to investigate. As they were approaching, a woman
subsequently identified as Angela Neiman exited room 2B and lit a cigarette. She did not
directly respond when Sedgwick asked her whether she set off the firework.
       Appellant then emerged from the motel room and admitted lighting the firework.
Sedgwick and appellant engaged in conversation approximately 10 to 20 feet away from
the motel room. Petersen and Neiman conversed as Neiman stood in the doorway of the
room. The door was partially open and Petersen could see two young children playing
inside. He also saw a double or queen bed, toys, personal effects, and food. Neiman was
supervising the children as she talked to Petersen, glancing back at them and giving them
instructions.
       At some point during their conversation, Neiman told Petersen that she needed to
help her son use the bathroom. Petersen, concerned there might be weapons inside the
room, asked if he could follow her. Neiman responded “yes” or “yeah.” Petersen
stepped inside the room and observed in plain view what he suspected to be illegal drugs
and paraphernalia. Appellant did not object when Petersen entered the motel room,
although he appeared agitated when Petersen exited.
       Petersen told Sedgwick what he had seen and stated they should arrest appellant.
After arresting appellant, Sedgwick asked Neiman what she was doing at the motel room
that evening. She first responded that she had brought her son to play with appellant‟s
son, but then admitted she was there to purchase illegal drugs.
       2. Appellant‟s Witness
       Neiman, the sole witness for appellant at the suppression hearing, testified as
follows. On the evening in question, she was visiting appellant, an acquaintance of hers,
at a motel room he had rented. About five minutes after she arrived, she stepped out of
the room to smoke a cigarette and saw Sedgwick and Petersen approach. Shortly after
they began talking to her, appellant came out of the room. Neiman stood in the doorway
while appellant talked to Sedgwick and Petersen approximately three feet away. The
door was halfway open and Neiman was watching her son and appellant‟s son as they
played inside.

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       When her son told her he needed to use the bathroom, Neiman relayed this to
Petersen, who was standing closer to her than Sedgwick. Neiman walked with her son to
the bathroom door and then stood in the middle of the motel room, between the bathroom
and the outside door. She was watching her son in the bathroom when she heard
appellant say, “Hey, what are you doing.” Neiman turned around and saw that Petersen
had entered the room. Petersen said, “She gave me permission,” and Neiman responded
that she had not.
       Neiman admitted that, when later asked by Sedgwick why she was at the motel
room, she initially told him it was a play date for her son. She further admitted that this
answer was not the truth, and that she subsequently told Sedgwick the real reason, which
was to buy heroin. Neiman suffers from hearing loss and, because she had used heroin
earlier on the day in question, was less perceptive that evening than she otherwise would
have been.
       3. Trial Court‟s Ruling
       The trial court denied appellant‟s motion to suppress. The trial court credited the
deputies‟ testimony, and found Neiman not credible. Accordingly, the trial court found
that Neiman consented to Petersen‟s entry into the motel room. The trial court further
found that Neiman had apparent authority to consent to the entry, upon which Petersen
reasonably relied.
       B. Analysis
       Appellant argues (1) Petersen‟s entry was not justified under the apparent
authority doctrine, (2) the deputies improperly removed appellant from the motel room
doorway to avoid his objection to the entry, and (3) the trial court improperly credited the
deputies‟ testimony over Neiman‟s. We conclude Petersen‟s entry was reasonable and
appellant‟s motion to suppress was properly denied.
       1. Apparent Authority
       “[A] warrantless search of property . . . is reasonable under the Fourth
Amendment where proper consent is given. [Citation.] Where the subject property is a
premises occupied by more than one person, a search will be reasonable if consent is
                                              8
given by one of the joint occupants „who possessed common authority over or other
sufficient relationship to the premises or effects sought to be inspected.‟ [Citations.]
This is so, even where the defendant has not consented to the search. [Citation.] Further,
even if the consenting cotenant, in fact, lacks authority, officers may rely on his or her
apparent authority. [Citations.]” (People v. Oldham (2000) 81 Cal.App.4th 1, 9-10
(Oldham).) This apparent authority doctrine “does not suggest that law enforcement
officers may always accept a person‟s invitation to enter premises. . . . As with other
factual determinations bearing upon search and seizure, determination of consent to enter
must „be judged against an objective standard: would the facts available to the officer at
the moment . . . “warrant a man of reasonable caution in the belief” ‟ that the consenting
party had authority over the premises? [Citation.]” (Illinois v. Rodriguez (1990) 497
U.S. 177, 188.)
       Appellant first contends it was not objectively reasonable for Petersen to conclude
that Neiman had authority to consent to the entry, and therefore Petersen had the duty to
inquire further into her authority before relying on her consent. We disagree. Neiman
emerged from the motel room alone and stood outside smoking a cigarette as the deputies
approached. She subsequently stood in the doorway and supervised two young children
who were playing inside the room. This conduct made it appear she had control over the
premises and the ability to come and go as she pleased. Moreover, the portion of the
room visible to Petersen provided no indication only one person was staying there.
Under these circumstances, it was reasonable to conclude Neiman was staying in the
motel room with appellant and therefore had the authority to consent to Petersen‟s entry.
       The cases cited by appellant requiring further inquiry before a law enforcement
officer could rely on apparent authority all involve circumstances in which the officer had
reason to suspect the individual in fact lacked apparent authority. (U.S. v. Reid (9th Cir.
2000) 226 F.3d 1020, 1025-1026 [male individual‟s response to officer‟s knock on
apartment door did not constitute apparent authority where officer knew this individual
was not on the lease for the apartment, knew a woman owned a car frequently parked in
the apartment‟s designated parking space, and had not seen this individual on any of the

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officer‟s many previous visits to the apartment complex]; State v. Kieffer (1998) 217
Wis.2d 531, 549-550 [homeowner‟s statement that the defendant slept in a loft above the
garage and did not pay rent did not constitute apparent authority where loft door had a
lock to which homeowner lacked key and homeowner stated that he always knocked
before entering loft door even if unlocked]; People v. James (1994) 163 Ill.2d 302, 318
[the driver‟s consent to search of vehicle did not constitute apparent authority to search
the passenger‟s purse left on a passenger seat: “The purse was found on a passenger seat
in the car, not on the driver‟s seat, thereby tending to the conclusion that the purse
belonged to the passenger, not the driver. It would have been unreasonable for the officer
to believe that [the driver] shared some common use in the purse with one of the
passengers in the vehicle, since a purse is generally not an object for which two or more
persons share common use and authority.”]; State v. Suazo (1993) 133 N.J. 315, 322 [the
driver‟s consent to search of vehicle did not constitute apparent authority to search bag
the defendant identified as his prior to the search].) These cases are therefore
distinguishable, because the record reveals no circumstances casting doubt on Neiman‟s
apparent authority prior to Petersen‟s entry.
       Appellant next argues Petersen did not actually believe that Neiman had authority
to consent to the entry. Appellant points to the deputies‟ testimony that after discovering
illegal drugs in the motel room they arrested appellant but not Neiman, and instead asked
Neiman what she had been doing in the motel room that night. Appellant argues such
conduct is not consistent with a subjective belief Neiman shared control of the room.
       Petersen‟s subjective belief is a question of fact. (Woods, supra, 21 Cal.4th at p.
674 [officer‟s subjective reason for conducting search is question of fact].) Therefore, we
must defer to the trial court‟s finding that Petersen subjectively believed Neiman had
apparent authority to consent if the finding is supported by substantial evidence.3



3   The trial court found, “Neiman appeared to have the apparent authority to consent,
upon which . . . Petersen reasonably relied.” The trial court‟s finding that Petersen
“relied” on this apparent authority appears to constitute a finding that he subjectively
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Petersen testified he suspected Neiman and appellant were “staying together” in the motel
room. He further testified that, in his conversation with Neiman prior to the entry, they
did not discuss who had rented the room or her relationship with appellant, and that he
had no independent knowledge of these matters. Although the decision to arrest only
appellant for the illegal drugs found in the motel room suggests Petersen did not attribute
them to Neiman, this does not contradict Petersen‟s testimony about his earlier belief in
her authority to consent to the entry to that room; he may have obtained relevant
information on this issue after the entry. Substantial evidence supports the trial court‟s
finding that Petersen subjectively believed Neiman had authority to consent to the entry.
       2. Removal to Avoid Objection
       As noted above, where a property is occupied by more than one person, the
consent of one is generally sufficient to render a search reasonable. (Oldham, supra, 81
Cal.App.4th at pp. 9-10.) However, “if a potential defendant with self-interest in
objecting is in fact at the door and objects, the co-tenant‟s permission does not suffice for
a reasonable search.” (Georgia v. Randolph (2006) 547 U.S. 103, 121.) This exception
only applies if the defendant is present prior to the search and objects: “So long as there
is no evidence that the police have removed the potentially objecting tenant from the
entrance for the sake of avoiding a possible objection[,]” “the potential objector, nearby
but not invited to take part in the threshold colloquy, loses out.” (Ibid.)
       Appellant does not claim he objected to the entry prior to its occurrence. Instead,
he argues the deputies improperly removed him from the motel room doorway to
preclude him from objecting. But the record is silent as to whether it was appellant or
Sedgwick who initiated the movement away from the doorway. In any event, even
assuming Sedgwick moved appellant, appellant has pointed to no evidence in the record
(and we have found none) that any such movement was made to prevent him from
objecting to an entry. Absent such evidence, the fact that appellant was “nearby but not
invited to take part in the threshold colloquy” does not render the entry violative of his

believed Neiman had such authority; to the extent such finding is not express, it is
implied. (See Woods, supra, 21 Cal.4th at p. 673.)
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Fourth Amendment rights. (Georgia v. Randolph, supra, 547 U.S. at p. 121.) State v.
Jackson (Del.Super.Ct. 2007) 931 A.2d 452, cited by appellant, is not to the contrary, as
in that case the defendant in fact objected to the search prior to its occurrence. (Id. at p.
454.)
        3. Credibility Findings
        The trial court credited the testimony of Sedgwick and Petersen and found Neiman
not credible. Appellant challenges several of the factors relied upon by the trial court in
its adverse credibility finding. But we must defer to the credibility determinations of the
trial court, as “[t]he trial court is the exclusive judge of the credibility of the witnesses.”
(People v. Duncan (2008) 160 Cal.App.4th 1014, 1018 (Duncan).) In any event, there is
support in the record for the trial court‟s adverse credibility finding: among other things,
Neiman admitted initially lying to Sedgwick (which appellant concedes “can lessen her
credibility”) and admitted that she was not as perceptive on the night in question as she
would have been had she not used heroin that morning.
        Appellant urges us to reject the testimony of the deputies. “To reject the
statements given by a witness whom the trial court has found credible, either they must
be physically impossible or their falsity must be apparent without resorting to inferences
or deductions. [Citation.]” (Duncan, supra, 160 Cal.App.4th at p. 1018.) Appellant has
identified no such statements by Sedgwick or Petersen.
                                        DISPOSITION
        The judgments are affirmed.




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                     SIMONS, Acting P.J.



We concur.




NEEDHAM, J.




BRUINIERS, J.




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