Filed 7/24/13 P. v. Fazzio 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                    (San Joaquin)
                                                            ----



THE PEOPLE,                                                                                  C071526

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF114140A)

         v.

ANDREW FAZZIO,

                   Defendant and Appellant.




         At the core of this case is the common law maxim that “ ‘[a] man’s home is his
castle.’ ” (Minnesota v. Carter (1998) 525 U.S. 83, 94 [142 L.Ed.2d 373, 383], italics
omitted.) Stockton Police Officer David Wells testified that he arrived at the county
hospital and spoke with a paramedic who had “responded to a residence for an infant
[who] had some medical problems . . . .” The paramedic expressed concerns over a male
who was watching the remaining children. The children’s mother arrived at the hospital,
and after speaking with her in the emergency room, Officer Wells grew concerned over
the male who was watching the children. As a result, Officer Wells went to the house


                                                             1
without the mother. After the male let Officer Wells into the house, the male eventually
admitted that marijuana was growing there. Although Officer Wells did not obtain a
warrant, a search of the house yielded two guns and ammunition.
       Based on the evidence found in the search, defendant Andrew Fazzio was
convicted of two counts of being a felon in possession of a firearm and one count of
being a felon in possession of ammunition. Defendant moved to suppress as the fruits of
an illegal search the physical evidence and verbal statements obtained after Officer Wells
entered his house, but the magistrate (Judge James E. Hammerstone, Jr.) denied his
motion. On appeal, defendant contends the magistrate erred in denying his suppression
motion. We agree and therefore reverse.
                  FACTUAL AND PROCEDURAL BACKGROUND
       In February 2010, Officer Wells arrived at the county hospital in response to a
complaint made by Matt Venema, a paramedic who had taken a medically distressed
child from a residence to the hospital. After Officer Wells arrived at the hospital, he
spoke with Venema. Venema thought it was odd that a male babysitter at the residence
knew “nothing about the child’s medical history, date of birth . . . and had no way of
contacting the parents to receive that information.” He also noted that the man had
tattoos.
       Sometime after, the mother of the ill child, Renee Streeter, arrived at the hospital.
Officer Wells spoke with Streeter and asked her questions about the man who was caring
for the children at her house. According to Officer Wells, Streeter told him the man’s
name was David and he was a relative. She also explained that David was babysitting
her three children that day because the regular daycare provider was unavailable. She did
not, however, know David’s full name.
       Officer Wells grew concerned over David’s unfamiliarity with the children’s
medical history and birth dates and Streeter’s inability to recall David’s last name. He
explained his concerns to Streeter. Although Officer Wells examined the child at the

                                              2
emergency room and the child showed no signs of abuse or mistreatment, he told Streeter
he wanted to go to the house and check on the welfare of her other two children. Streeter
responded by saying, “we’ll go check on them.”
       Officer Wells, however, went to Streeter’s home without her. After he knocked on
the door, a male who fit Venema’s description of the babysitter answered the door and
identified himself as David. Like Venema, Officer Wells noticed the man had tattoos.
The man was later identified as David Castro.
       Castro explained to Officer Wells what had happened with the ill child. Castro
stated that Streeter left the children with him when she went to work. She told Castro
that one of the children was sick. At some point when the three children were in Castro’s
care, one of them was “choking and was going in and out of sleep spells . . . .” Castro
went to the next-door neighbor’s house to call for emergency response. After paramedics
arrived and treated the child, Castro stayed behind with the other two children. Like
Venema told Officer Wells, David was unable to provide Officer Wells with the
children’s dates of birth or medical history.
       Officer Wells informed Castro that he wanted to come in and check on the welfare
of the other two children. In response, Castro told Officer Wells he was on parole and
asked Officer Wells whether he was in trouble; Castro appeared nervous. Officer Wells
“assured him as long as [he] could come in and check on the children, there was . . . no
reason for him to be nervous . . . .” After this discussion, Castro invited Officer Wells in.
       Officer Wells first identified a six-year-old child on the couch in the living room.
She appeared to him to be “healthy and happy, and there were no signs of . . . abuse or
mistreatment . . . .” Castro and Officer Wells went upstairs together to check on the
second child, who was sleeping.
       Once upstairs, Officer Wells checked on the second child, who did not show signs
of “abuse or mistreatment.” However, Officer Wells noted “[s]poiled food on the
ground, along with . . . small toys . . . . The floor was covered with stuff.”

                                                3
       When leaving the child’s room, he saw a room directly in front of him with a
“bright light coming from underneath the door . . . .” He recognized the light as
consistent with those he had seen in “marijuana grow houses.” Officer Wells also heard
what sounded like a fan; he put his ear to the door to confirm the sound.
       Officer Wells asked Castro if there was marijuana in the room. Again, Castro
appeared nervous and Officer Wells “reassured him that . . . at [that] time [Castro] really
wasn’t in trouble; [Officer Wells] just wanted to check the safety o[f] the kids . . . .”
Castro then admitted that he knew marijuana was in the room.
       Because he was concerned for his own safety, Officer Wells detained Castro and
patted him down for weapons. Two additional units arrived. According to Officer Wells,
at no point during the conversation at the home did Castro appear threatening.
       After Castro was placed in handcuffs, Officer Wells decided it was appropriate to
conduct a protective sweep of the house to ensure there was no one else there. While
clearing the master bedroom, Officer Wells checked a closet where he found a
bulletproof vest, ammunition, and a holster.
       While Officer Wells was clearing the house, Streeter returned home. Officer
Wells spoke with her and she indicated defendant lived there. According to Officer
Wells, she suggested defendant had been arrested for narcotics and might have served
prison time. Officer Wells told Streeter that the state of the child’s room, presence of
guns, and the marijuana grow made him concerned for the safety of the children. Streeter
responded that she had a marijuana grow card and that defendant “doses her.”
       After they spoke for a while, Streeter “eventually gave [him] permission to search
the house.” A subsequent search of the master bedroom yielded a gun under the mattress
and a “large amount of money in a drawer of a dresser in the bedroom.” The search did
not include the locked room containing marijuana because Streeter did not have a key.
       After the search, Officer Wells learned defendant was a felon who could not own a
firearm. Officer Wells went to the hospital, where defendant was with his child, and

                                               4
arrested him. Defendant confirmed he was a convicted felon and identified the gun
seized by Officer Wells as his own. With the permission of defendant, Officer Wells
went back to defendant’s house to look for another gun.
       Defendant was charged with two counts of possession of a firearm by a felon,
three counts of possession of ammunition by a felon, and one count of receiving stolen
property. He was also alleged to have a prior serious felony and a prior conviction.
       Defendant moved to suppress all evidence as the fruits of an unconstitutional
search. The magistrate denied the motion to suppress. The magistrate explained his
decision as follows:
       “All right [sic]. It comes down to a credibility call. And I’m going to come down
on Officer Wells’[s] behalf. For example, in Ms. Streeter’s testimony, she said she
wasn’t aware the defendant was a felon, just that he, quote, ‘had a past.’ And she didn’t
know that he couldn’t have guns, yet the gun she says isn’t hers and she doesn’t know
how it’s supposed to be there. That just doesn’t wash.
       “So I’ll find that there was consent. And the motion to suppress . . . is hereby
denied.
       “[¶] . . . [¶]
       “I’ll also find that it was an exigent circumstance in light of the fact that Ms.
Streeter’s son was apparently in such distress that the babysitter David went next door to
the neighbor and called for an ambulance, and that it’s the ambulance attendant that first
brings the situation to Officer Wells’s attention. And I think Officer Wells, at that
particular point in time, under the circumstances of this case, it was incumbent upon him
to get in there and check the children. Being able to do that, one matter would have led
to the other. So it’s denied.”
       After a trial to the court (Judge Seth R. Hoyt, Jr.), defendant was convicted of both
counts of possession of a firearm by a felon and one count of possession of ammunition
by a felon. He filed a timely notice of appeal.

                                              5
                                        DISCUSSION
                                               I
                                    Arguments on Appeal
       On appeal, defendant claims the magistrate ’s “[d]enial of [his] motion to suppress
was reversible error.” His first claim is that the “trial court erred in finding that the
warrantless search of [his] home was lawful due to exigent circumstances” because
neither the community caretaker exception, nor an emergency law enforcement situation
justified Officer Wells’s warrantless entry. Also, defendant claims: “The trial court
erred in finding that valid consent had been given to search [his] home” because: (1)
Castro did not have authority to consent; (2) Streeter’s subsequent consent at the home
was involuntary; (3) defendant’s consent to search his home was involuntary; and (4)
Castro’s prior consent as a probationer was insufficient to justify the search.
                                               II
                                     Standard of Review
       “In ruling on a suppression motion, ‘the trial court (1) finds the historical facts, (2)
selects the applicable rule of law, and (3) applies the latter to the former to determine
whether the rule of law as applied to the established facts is or is not violated.
[Citations.] . . . [¶] The court’s resolution of the first inquiry, which involves questions
of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its
decision on the second, which is a pure question of law, is scrutinized under the standard
of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-
law question that is however predominantly one of law, viz., the reasonableness of the
challenged police conduct, is also subject to independent review. [Citations.] The reason
is plain: “[I]t is ‘the ultimate responsibility of the appellate court to measure the facts, as
found by the trier, against the constitutional standard of reasonableness.’ ” ’ ” (People v.
Wilkinson (2008) 163 Cal.App.4th 1554, 1562.)



                                               6
       “ ‘The power to judge credibility of witnesses, resolve conflicts in testimony,
weigh evidence and draw factual inferences, is vested in the trial court. On appeal all
presumptions favor proper exercise of that power, and the trial court’s findings -- whether
express or implied -- must be upheld if supported by substantial evidence.’ ” (People v.
James (1977) 19 Cal.3d 99, 107.)
                                             III
           Officer Wells’s Warrantless Entry into Defendant’s Home Violated
         Defendant’s Fourth Amendment Right Against Unreasonable Searches
       The Constitutions of both the United States and California proscribe unreasonable
searches and seizures. (See U.S. Const, 4th Amend.; Cal. Const., art. I, § 13.) “ ‘[S]ince
voter approval of Proposition 8 in June 1982, state and federal claims relating to
exclusion of evidence on grounds of unreasonable search and seizure are measured by the
same standard. [Citations.] “Our state Constitution thus forbids the courts to order the
exclusion of evidence at trial as a remedy for an unreasonable search and seizure unless
that remedy is required by the federal Constitution as interpreted by the United States
Supreme Court.” ’ ” (People v. Gemmill (2008) 162 Cal.App.4th 958, 964.) The basic
rule is that “searches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only
to a few specifically established and well-delineated exceptions.” (Katz v. United States
(1967) 389 U.S. 347, 357 [19 L.Ed.2d 576, 585], fn. omitted.)
                                             A
                  Exigent Circumstances Did Not Justify Officer Wells’s
                        Warrantless Entry into Defendant’s Home
       Defendant’s first argument is that the trial court erred in finding exigent
circumstances justified Officer Wells’s entry. First, he argues that “there was not
substantial evidence to support the trial court’s conclusion that the police officer was
facing an emergency situation that required immediate action.” Second, because an

                                              7
officer must have “probable cause that the place to be searched contained the evidence or
suspects the police were seeking,” and there “were no facts before the trial court that the
police officer was in pursuit of a criminal or searching for evidence related to a crime,”
“it was error to find that the Fourth Amendment protections were excused in
[defendant’s] case.”1
       The People contend that defendant is incorrect because “exigent circumstances
entry is in fact justified where there is probable cause to believe an imminent threat exists
to the life or welfare of someone inside a residence.”2 They go on to state the “trial court
found -- inter alia -- Officer Wells’[s] warrantless entry was justified because the facts
available to him at the time made that entry objectively reasonable.” We disagree with
the People.
       “[A]lthough ‘searches and seizures inside a home without a warrant are
presumptively unreasonable,’ [citation], that presumption can be overcome. For
example, ‘the exigencies of the situation [may] make the needs of law enforcement so


1       There is no evidence that Castro or Streeter engaged in any sort of criminal
activity prior to Officer Wells’s initial entry in the home. Thus, we agree that Officer
Wells did not have probable cause to believe that there was evidence of a crime inside
defendant’s home, or a felon was inside defendant’s home. (See People v. Ormonde
(2006) 143 Cal.App.4th 282, 291 [“ ‘ the few “specifically established and well-
delineated exceptions” to the warrant requirement [citation], [include exigent
circumstances] such as “ ‘hot pursuit of a fleeing felon, or imminent destruction of
evidence, . . . or the need to prevent a suspect’s escape . . . ” ’ ”]; see also Illinois v. Gates
(1983) 462 U.S. 213, 238-239 [27 L.Ed.2d 527, 548] [probable cause requires “a fair
probability that contraband or evidence of a crime will be found in a particular place.
And the duty of a reviewing court is simply to ensure that the magistrate had a
‘substantial basis for . . . [concluding]’ that probable cause existed”].)
2      Because an officer needs only a reasonable belief that an individual is injured or in
imminent danger to justify a warrantless entry under the emergency aid doctrine, the
People curiously overstate the appropriate standard as probable cause. (See People v.
Troyer (2011) 51 Cal.4th 599, 606 cert. den. (Oct. 3, 2011) (Troyer) [“the exception
‘requires only “an objectively reasonable basis for believing . . .” [citation] that “a person
within [the house] is in need of immediate aid” ’ ”].)

                                                8
compelling that the warrantless search is objectively reasonable.’ ” (Michigan v. Fisher
(2009) 558 U.S. 45, 47 [175 L.Ed.2d 410, 413].) However, “the police bear a heavy
burden when attempting to demonstrate an urgent need that might justify warrantless
searches . . . .” (Welsh v. Wisconsin (1984) 466 U.S. 740, 749-750 [80 L.Ed.2d 732,
743].)
         One type of exigency is covered by the emergency aid doctrine. (See Michigan v.
Fisher, supra, 558 U.S. at p. 47 [175 L.E.2.d at p. 413].) “ ‘ “The need to protect or
preserve life or avoid serious injury is justification for what would be otherwise illegal
absent an exigency or emergency.” ’ ” (Brigham City v. Stuart (2006) 547 U.S. 398, 403
[164 L.Ed.2d 650, 657-658].)
         Our Supreme Court most recently explained the emergency aid doctrine in Troyer
as follows: “ ‘[P]olice may enter a home without a warrant when they have an
objectively reasonable basis for believing that an occupant is seriously injured or
imminently threatened with such injury.’ . . . ‘ “ ‘There is no ready litmus test for
determining whether such circumstances exist, and in each case the claim of an
extraordinary situation must be measured by the facts known to the officers.’ ” ’ ”
(Troyer, supra, 51 Cal.4th at p. 606.)
         “The ‘ “emergency aid exception” ’ to the warrant requirement ‘does not depend
on the officers’ subjective intent or the seriousness of any crime they are investigating
when the emergency arises.’ [Citation.] Rather, the exception ‘requires only “an
objectively reasonable basis for believing . . .” [citation] that “a person within [the house]
is in need of immediate aid.” ’ [Citation.] ‘We are to approach the Fourth Amendment
. . . with at least some measure of pragmatism. If there is a grave public need for the
police to take preventive action, the Constitution may impose limits, but it will not bar
the way.’ ” (Troyer, supra, 51 Cal.4th at p. 606.)
         In Troyer officers responded to an emergency call that an unidentified male had
possibly been shot twice. (Troyer, supra, 51 Cal.4th at p. 603.) When they arrived, the

                                              9
officers “approached the front porch of the residence, where a 40-year-old white male
was administering first aid to a female victim . . . who had been shot multiple times.”
(Ibid.) They also encountered another male, Abeyta, who was bleeding from his head,
had blood on his shirt, and was visibly agitated. (Ibid.)
       The victim told the officer that two males were responsible for the shooting and
had fled in a vehicle. (Troyer, supra, 51 Cal.4th at p. 603.) An officer noted blood marks
on the front door of the house, including the area near the handle. (Ibid.) The officer
asked Abeyta if there was someone in the house several times, but Abeyta’s answers
were inconsistent. (Ibid.)
       The officer described the situation as chaotic -- the shooting victim was screaming
and Abeyta was visibly agitated. (Troyer, supra, 51 Cal.4th at p. 603.) The officer
“could not focus on whether there were any sounds coming from inside the residence.
Under these circumstances, [the officer] decided that he had a responsibility to verify
whether there were additional victims or suspects in the house.” (Id. at pp. 603-604.) As
a result, the officer proceeded into the house and a search eventually yielded contraband
in a locked room. (Id. at p. 604.)
       The court held that the officers had a reasonable belief that “one or more shooting
victims could be inside the house.” (Troyer, supra, 51 Cal.4th at p. 607.) The court first
reasoned that after responding to a reported gunshot, “[b]loodstains on the door signaled
that a bleeding victim had come into contact with the door, either by entering or by
exiting the residence.” (Ibid.) The court also noted that the dispatch report provided that
a male had possibly been shot twice. (Id. at 608.) Although the police found Abeyta at
the scene with a wound to his head, “the officer never stated that he observed any
gunshot wounds on Abeyta or that he had concluded Abeyta must have been the man
described in the dispatch report.” (Ibid.)
       Last, “Sergeant Albright asked Abeyta whether there was anyone inside the
residence, but Abeyta’s inconsistent answers raised serious concerns about his ability to

                                             10
give accurate and reliable responses. [Citations.] The first time Albright asked whether
anyone was inside the house, Abeyta just stared at Albright for 15 to 20 seconds and
failed to respond. The second time, Abeyta continued to stare at the officer and
eventually said he ‘did not think so.’ The third time, Abeyta paused for a ‘long’ time,
stared at the officer, and then said ‘no.’ Because the window blinds were closed,
Albright could not peek inside to verify whether Abeyta’s final answer was the correct
one, nor, given the chaos at the scene, could he hear whether any sounds were coming
from inside the residence. Under these circumstances, and inasmuch as Albright did not
know who lived at the residence or who had been the aggressor, an objectively
reasonable basis existed to enter the residence to search for additional victims.” (Troyer,
supra, 51 Cal.4th at pp. 608-609.)
       The case here, however, is distinguishable from Troyer. First, in Troyer blood on
the threshold to the house suggested that someone was possibly injured inside, here there
was no evidence that one of the children remaining in the house with Castro was injured.
Given that Officer Wells affirmed on cross-examination that he “didn’t notice any sort of
signs of any kind of abuse or mistreatment” on the child at the hospital, there was no
evidence that Castro posed any sort of danger to the children remaining in the house.
       This case can be further distinguished from Troyer in that Officer Wells’s
investigation did not yield conflicting testimony that might have suggested a child was
injured inside the house. Whereas the testimony of Abeyta in Troyer was equivocal as to
whether any one was injured inside the house, here Streeter and Castro’s explanation for
why he was babysitting and the source of the child’s illness were identical. When Officer
Wells spoke to Streeter at the hospital, she told him that the man was a family member of
her husband, that his name was David, and that he was filling in for the normal childcare
provider. When Officer Wells spoke to Castro at the house, Castro informed Officer
Wells he was on probation, and he was nervous. Castro, however, also corroborated
Streeter’s testimony: he confirmed that his first name was David and that the mother left

                                            11
the children with him while she was at work. More importantly, the only new evidence
Officer Wells unearthed from Castro was that the child was sick before Castro got there,
and Castro, after noticing the child was “choking and was going in and out of sleep
spells,” proceeded to the neighbor’s house to call for medical response. Because all
Officer Wells knew was that a tattooed male replacement babysitter, who did not know
the medical history of the children, called the paramedics when a sick child appeared to
became more seriously ill, we cannot say that there existed “an objectively reasonable
basis . . . [for Officer Wells] to enter the residence to search for additional [sick or injured
children].” (Troyer, supra, 51 Cal.4th at p. 609.)
       On the contrary, we conclude that it was not reasonable for Officer Wells to
believe that the two other children reportedly in the house were injured or in imminent
danger. An emergency circumstance justifies entry only when “the police reasonably
believe an emergency exists which calls for an immediate response to protect citizens
from imminent danger . . . .” (United States v. Holloway (11th Cir. 2002) 290 F.3d 1331,
1337, italics added.) Considering the child at the hospital showed no physical signs of
abuse or neglect, there was no basis to infer, for example, that Castro was physically
abusive to the child. Because there was no evidence linking Castro with the child’s
illness, nor evidence that Castro was a threat to the remaining children’s safety, there was
no basis for reasonably concluding that Castro posed any serious danger to the two
remaining children such that Officer Wells needed to immediately enter the home and
check on them. (Ibid.; see also Brigham City v. Stuart, supra, 547 U.S. at p. 406 [164
L.Ed.2d at p. 659] [finding “an objectively reasonable basis for believing . . . that [an]
injured adult might need help” where the police saw a juvenile punch an adult and the
adult spit blood ]; Tamborino v. Superior Court (1986) 41 Cal.3d 919, 924 [finding “that
the discovery of one wounded victim afforded reasonable cause to enter and briefly search
for additional victims” where the police received a call that a residence had been robbed
and someone was injured inside], italics added.)

                                              12
       While we do not doubt that Officer Wells was truly concerned for the safety of the
two children who reportedly remained in the home, that concern alone does not justify his
warrantless entry. Indeed, while the “solicitude of [Officer Wells] for the [children’s]
safety and welfare was of course commendable . . . [he] must also be concerned with the
interest of [their] parent[s] in the security and privacy of [their] home, an interest
expressly protected by constitutional command. [Citation.] The issue, therefore, is not
simply whether the conduct of Officer [Wells] might have been ‘reasonable’ under all the
circumstances, but whether the People have shown that his entry into [defendant’s] home
falls within one of the ‘few specifically established and well-delineated exceptions’ to the
warrant requirement. [Citations.] Among those exceptions is the emergency doctrine.
[Citation.] But the exception must not be permitted to swallow the rule: in the absence
of a showing of true necessity -- that is, an imminent and substantial threat to life, health,
or property -- the constitutionally guaranteed right to privacy must prevail.” (People v.
Smith (1972) 7 Cal.3d 282, 285-286.)
       Accordingly, we hold that exigent circumstances did not justify Officer Wells’s
warrantless entry into defendant’s home.
                                               B
                     Consent Was Not a Valid Justification For Officer
                     Wells’s Warrantless Entry into Defendant’s Home
       “To the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a
person’s house as unreasonable per se, [citations] one ‘jealously and carefully drawn’
exception, [citations] recognizes the validity of searches with the voluntary consent of an
individual . . . .” (Georgia v. Randolph (2006) 547 U.S. 103, 109 [164 L.Ed.2d 208, 218-
219] (Randolph); see Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [36 L.Ed.2d
854, 858] [“It is . . . well settled that one of the specifically established exceptions to the
[warrant requirement rule] is a search . . . conducted pursuant to consent”].) Thus, the
prohibition against warrantless searches of the home “does not apply . . . to situations in

                                               13
which voluntary consent has been obtained, either from the individual whose [premises
are] searched . . . or from a third party who possesses common authority over the
premises.” (Illinois v. Rodriguez (1990) 497 U.S. 177, 181 [111 L.Ed.2d 148, 156].)
       On appeal, defendant argues that consent was not a valid basis for Officer Wells’s
warrantless search of the home. First, he argues that Castro did not have the authority to
consent to a search of defendant’s home. Second, he argues that Streeter’s consent given
after she arrived home was involuntary. Third, he argues his own consent to search his
home was involuntary. Last, he argues that Castro’s probation search condition did not
justify the search.3
       The People contend that Streeter consented at the hospital. They also contend that
Castro had authority to consent to the search. The People further argue that there was
substantial evidence to support the trial court’s conclusion that Streeter’s consent was
voluntary.
       1.     Officer Wells Exceeded the Scope of Any Consent Obtained
              From Streeter at the Hospital
       The People state the facts from the suppression hearing “clearly support . . . that
. . . at the hospital Ms. Streeter consented to the officer thereafter proceeding to the
residence, for the purpose of conducting a welfare check of the two other children . . . .”
We conclude that Officer Wells exceeded the scope of Streeter’s consent when he entered
the home without her.
       “The standard for measuring the scope of a suspect’s consent . . . is that of
‘objective’ reasonableness -- what would the typical reasonable person have understood
by the exchange between the officer and the suspect?” (Florida v. Jimeno (1991)
500 U.S. 248, 251 [114 L.Ed.2d 297, 302].) “A consensual search may not legally



3      Because the People do not contest the merits of this particular claim, and we find
the entry to be unjustified, we do not reach the merits of this claim.

                                              14
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 circumstances.” (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.)
       Here, Officer Wells exceeded the scope of Streeter’s consent because he entered
the house without her. At the suppression hearing Officer Wells testified on cross-
examination as follows:
       “Q. [Defense Counsel]: [You told Streeter] you needed to go and check on the
children to make sure that the children were okay?
       “A. [Officer Wells]: That I would like to go there and check on them, yes.
       “[¶] . . . [¶]
       “Q. [Defense Counsel]: And you told her that, you said, look I need to check on
the other two children because of this information that had been related to you by the
paramedic?
       “A. [Officer Wells]: Correct.
       “Q. [Defense Counsel]: And she kind of was cooperative with you, she said okay,
let’s -- we’ll go check on them; is that right?”
       “A. [Officer Wells]: Yes.” (Italics added.)
       Thus, according to Officer Wells, Streeter explicitly said they would go together
and check on the children. Because the trial court credited Officer Wells’s testimony, the
only reasonable belief that Officer Wells could have possessed would have been that
Streeter’s consent was limited to their contemporaneous entry. (See Florida v. Jimeno,
supra, 500 U.S. at p. 251 [114 L.Ed.2d at p. 302].) Accordingly, when Officer Wells
entered the house without her he unlawfully exceeded the scope of Streeter’s consent.
(See People v. Crenshaw, supra, 9 Cal.App.4th at p. 1408.)




                                              15
         2.     Castro’s Subsequent Unlimited Consent at the Home Was Not Effective
                Against Streeter’s Prior Limited Consent
         Defendant next argues that Castro was unable to consent to the search of his home
because “it was unreasonable for the police officer to believe that [Castro] had authority
to consent to the police officer’s search of [defendant’s] home.” Relying on People v.
Misquez (1957) 152 Cal.App.2d 471, the People contend that because “at least one court
has . . . concluded that a babysitter is indeed a person with the actual or apparent
authority to consent to the search of the premises,” Castro’s consent was effective to
justify the warrantless entry into defendant’s home. We disagree with the People, albeit
on grounds differing from those advanced in the parties’ briefs.
         It is well settled that third parties may consent to the search of the premises in
certain instances. (See Randolph, supra, 547 U.S. at p. 109 [164 L.Ed.2d at pp. 218-
219].) With respect to “a fellow occupant who shares common authority over property”
(ibid.), “permission to search [will suffice when it is] obtained from a third party who
possesse[s] common authority over or other sufficient relationship to the premises . . . .”
(United States v. Matlock (1974) 415 U.S. 164, 171 [39 L.Ed.2d 242, 250].) In such
circumstances, the pertinent inquiry is based on the facts known to the officer, was it
objectively reasonable for the officer to believe that the consenting party had authority
over the premises? (Illinois v. Rodriguez, supra, 497 U.S. at p. 188 [111 L.Ed.2d at p.
161].)
         The question of third party consent, however, becomes more complicated when
parties differ as to the consent they give law enforcement. While we could not locate
authority involving one party giving limited consent and another party subsequently
giving unlimited consent, cases involving instances in which a party gives consent
following another’s express refusal shed light on the present case.
         In Randolph the United States Supreme Court held that a “physically present
inhabitant’s express refusal of consent to a police search is dispositive as to him,

                                               16
regardless of the consent of a fellow occupant.” (Randolph, supra, 547 U.S. at pp. 122-
123 [164 L.Ed.2d at p. 227].) According to the Court, “[t]he constant element in
assessing Fourth Amendment reasonableness in the consent cases . . . is the great
significance given to widely shared social expectations . . . . Matlock accordingly not
only holds that a solitary co-inhabitant may sometimes consent to a search of shared
premises, but stands for the proposition that the reasonableness of such a search is in
significant part a function of commonly held understanding about the authority that co-
inhabitants may exercise in ways that affect each other’s interests.” (Id. at p. 111 [164
L.Ed.2d at p. 220.)
       The Sixth Circuit in United States v. Jones held that a handyman’s consent to
search the defendant’s home after the defendant had already refused consent was
insufficient to justify an officer’s warrantless entry. (United States v. Jones (6th Cir.
2003) 335 F.3d 527, 531.) The court explained: “[A] handyman, clearly lacked actual
authority to permit Officer Gilreath to enter the residence. His authority, even assuming
that he had any, would have ceased at the point that [the defendant] denied consent to a
search, which had to be understood by Officer Gilreath to include a denial of entry.
Although it is true that an employee does in some instances have sufficient authority to
consent to entry into or a search of his employer’s residence, the lesser, and necessarily
derivative, interest of the employee cannot override the greater interest of the owner.
When the primary occupant has denied permission to enter and conduct a search, his
employee does not have the authority to override that denial.” (Ibid.)
       Here, even assuming it was objectively reasonable for Officer Wells to conclude
that Castro had authority to consent to the search of defendant’s home, we conclude that
Castro’s subsequent unlimited consent was insufficient to justify Officer Wells’s initial
entry after Streeter had already limited her consent to a contemporaneous entry with
Officer Wells. Jones provides guidance. Similar to the defendant’s refusal of consent in
Jones, here Streeter had limited her consent to contemporaneous entry with Officer Wells

                                             17
while speaking with him at the hospital. Nevertheless, Officer Wells proceeded to her
home without her and subsequently obtained unlimited consent from the babysitter,
Castro, much like the unlimited consent received from the handyman by the officer in
Jones. Because “the lesser, and necessarily derivative, interest of [an] employee[, like a
babysitter such as Castro,] cannot override the greater interest of the owner” like Streeter,
Castro’s subsequent unlimited consent could not override Streeter’s prior limited consent.
(See United States v. Jones, supra, 335 F.3d at p. 531.)
       The United States Supreme Court’s decision in Randolph also supports our
conclusion. Although the court in Randolph dealt with a physically present and objecting
cohabitant, the court rested its decision on society’s expectations between cohabitants.
(See Randolph, supra, 547 U.S. at p. 111 [164 L.Ed.2d at p. 220].) The Court further
explained as follows: “Unless the people living together fall within some recognized
hierarchy, like a household of parent and child or barracks housing military personnel of
different grades, there is no societal understanding of superior and inferior, a fact
reflected in a standard formulation of domestic property law, that ‘[e]ach cotenant . . . has
the right to use and enjoy the entire property as if he or she were the sole owner, limited
only by the same right in the other cotenants.’ ” (Id. at p. 114 [164 L.Ed.2d at p. 222].)
In other words, while societal expectations support the proposition that cohabitants
generally have equivalent rights to consent, or refuse consent, to the search of mutually
shared premises, the Court implied that certain relationships might give one individual a
greater claim of authority over the premises than the other.
       Here, unlike cohabitants or cotenants, there is a clear hierarchy between a resident
of a household and nonresident babysitter, like the relationship between Castro and
Streeter, such that Streeter has a superior claim of authority over that of the consenting
nonresident babysitter Castro. Therefore, Castro’s subsequent unlimited consent at the
home could not override or otherwise alter the nature of Streeter’s limited consent at the
hospital. (See Randolph, supra, 547 U.S. at p. 114 [164 L.Ed.2d at p. 222].)

                                             18
        3.    Streeter’s Consent at Her House and Defendant’s Consent at
              the Hospital Were Not Lawfully Obtained
        Defendant contends that Streeter’s consent after she returned home to find Officer
Wells had already searched her house, and defendant’s consent to search his home after
he was arrested at the hospital, did not justify Officer Wells’s warrantless entry. We
agree.4
        “ ‘[W]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a
search, he has the burden of proving that the consent was, in fact, freely and voluntarily
given.’ ” (Schneckloth v. Bustamonte, supra, 412 U.S. at p. 222 [36 L.Ed.2d at p. 860].)
“The rule is clearly established that consent induced by an illegal search or arrest is not
voluntary, and that if the accused consents immediately following an illegal entry or
search, his assent is not voluntary because it is inseparable from the unlawful conduct of
the officers.” (Burrows v. Superior Court (1974) 13 Cal.3d 238, 251.) Thus, the People
“ ‘have the burden of proving . . . that the consent was lawful, . . . and was not
inextricably bound up with unlawful conduct.’ ” (People v. Lawler (1973) 9 Cal.3d 156,
163.)
        Here, both Streeter’s subsequent consent at the home and defendant’s consent at
the hospital were not lawfully obtained. Streeter arrived home to find Officer Wells had


4       The People contend that defendant never argued that his own consent was
involuntarily obtained in the trial court and that claim is therefore forfeited on appeal. In
his motion to suppress, defendant specifically stated, “Mr. Fazzio was illegally arrested
based upon the unlawful search of his house by Officer Wells, therefore any consent or
other information obtained from him may not be used to justify the search.” Because he
argued that his consent was involuntary as a result of Officer Wells’s prior entry, it is
clear that defendant properly preserved this argument for appeal. (See People v. Oldham
(2000) 81 Cal.App.4th 1, 12 [“defendants making a section 1538.5 motion ‘must specify
the precise grounds for suppression of the evidence in question, and, where a warrantless
search or seizure is the basis for the motion, this burden includes specifying the
inadequacy of any justifications for the search or seizure’ ”].)


                                             19
already been inside her home. Officer Wells arrested defendant at the hospital.
Defendant and Officer Wells then proceeded to defendant’s house to look for another
gun. Because there were no intervening events between Officer Wells’s initial
warrantless entry of defendant’s home, and the subsequent consents of both defendant
and Streeter, both their consents were products of the “[prior] unlawful search of [their
home]” (Burrows v. Superior Court, supra, 13 Cal.3d at p. 251), such that their
“consent[s] and the prior illegal search are inextricably joined . . . [and] cannot justify a
further illegal search.” (People v. Lawler, supra, 9 Cal.3d at p. 164.)
       It is well settled that “[t]he exclusionary rule . . . [bars] from trial physical,
tangible materials obtained either during or as a direct result of an unlawful invasion.”
(Wong Sun v. United States (1963) 371 U.S. 471, 485 [9 L.Ed.2d 441, 454].)
Accordingly, because there were no intervening events between Officer Wells’s initial
warrantless entry into defendant’s home and the finding of the weapons and other
tangible evidence used against defendant during trial, all evidence obtained after Officer
Wells’s initial unlawful entry must be excluded as a fruit of the initial illegality. (Id. at
pp. 487-488 [9 L.Ed.2d at p. 455] [holding that the “ ‘fruit of the poisonous tree’ ”
inquiry is “ ‘whether, granting establishment of the primary illegality, the evidence to
which instant objection is made has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary taint’ ”].)




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                                     DISPOSITION
      The judgment is reversed and the trial court is directed to vacate its order denying
defendant’s motion to suppress and to enter a new order granting that motion.



                                                     ROBIE         , Acting P. J.



We concur:



      BUTZ         , J.



      MAURO           , J.




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