THE PEOPLE v. STEVEN MICHAEL SHOEMAKER JR

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. STEVEN MICHAEL SHOEMAKER, JR., Defendant and Appellant.

F061450

Decided: August 25, 2011

 * APPEAL from a judgment of the Superior Court of Kern County.   Kathryn Montejano, Judge.   Gabriel Cruz Vivas, under appointment by the Court of Appeal, for Defendant and Appellant.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

An information was filed charging appellant, Steven Michael Shoemaker, Jr., with corporal injury to a spouse (Pen.Code, § 273.5, subd. (a)) and felony false imprisonment (Pen.Code, § 236).   Shoemaker unsuccessfully moved to suppress evidence secured by a warrantless police search of his house (Pen.Code, § 1538.5).   In a bifurcated trial, the jury found Shoemaker guilty of felony infliction of corporal injury to a spouse with a prior conviction of spousal abuse within seven years (Pen.Code, § 273.5, subd. (a)) and misdemeanor false imprisonment (Pen.Code, § 236).   They also found true allegations that he had suffered a prior strike conviction and a prior prison term enhancement (Pen.Code, §§ 1170.12, subds.(a)-(d), 667.5, subd. (b)).  The court sentenced Shoemaker to five years in prison and ordered him to pay various fees and fines.

On appeal, Shoemaker argues the trial court erred in denying his suppression motion because his spouse did not have actual or apparent authority to consent to the search of his house.   We disagree and will affirm.

Shoemaker moved, at the preliminary hearing, to suppress the officers' observations, his statement and the sweater officers found after they entered the house.   The evidence pertinent to the suppression motion disclosed that Visalia Police Officer Brian Ferreira responded to a domestic violence report by Nayor Saesee.   He found Saesee crying with a swollen and bloody upper lip.   Saesee told him she and her husband, Shoemaker, were having problems and she wanted to separate.   She had moved out of the house with the children and their clothing the week before, and was staying at her sister's or her mother's house.   She had returned to the family home on West Evans that evening because Shoemaker had asked to see their son and wanted to talk with her.   At their house, Saesee told him she did not want to be with him if he did not want to change.   They argued and Shoemaker hit her.   The blow cut the inside of her lip and caused her nose to bleed.   Shoemaker refused to let her leave the house for 20 to 30 minutes.   Saesee eventually called her sister to pick her up and take her to her mother's house where Saesee called the police.

Saesee told Officer Ferreira that Shoemaker was at their house on West Evans.   She gave officers permission to enter the house and gave Ferreira the key.   She did not want the officers to break into the house because, “it's not our house, we are renting it from housing.   And I didn't want to fix it if they had to break in.   So I gave them the key.”   Saesee told Officer Ferreira that the house was her home and she lived there.   She felt she had a right to enter the house and to permit the officers to enter.   She had not wanted to leave, but had to for her children's and her own safety.   Officer Ferreira believed Saesee had authority to enter the house because she lived there and all of her property was still there, although she had been staying with her sister that week.   Officer Ferreira testified that when he arrived at the house he knocked on the door, but there was no answer.   He entered the house using the key and found Shoemaker in the bathroom.   Officer Ferreira arrested Shoemaker and, while doing so, found Saesee's bloody sweater on the floor.   Shoemaker volunteered that he may have cut himself shaving.

The trial court denied the suppression motion finding that the officers reasonably believed that Saesee had authority to permit them to enter the premises.

At trial, Shoemaker offered sealed documents from the housing department that apparently indicated that Saesee had moved out of the house the day before the offenses occurred.   The court did not admit the documents but agreed to revisit the suppression motion at the conclusion of the trial.   The Court reviewed the preliminary hearing transcript in light of the new information but denied the motion again.   The court concluded that Saesee “still had the ability to have dominion and control over the home․  The tone of all her answers [to Officer Ferreira's questions] indicate that she still had an interest in this home and was not even convinced that she may not return to that home.”

DISCUSSION

Shoemaker contends that Saesee lacked both actual and apparent authority to consent to the search of the house.   He further argues that Officer Ferreira could not have reasonably believed she had the authority to consent to a search of the house.   Finally, Shoemaker argues that the bloody sweater was illegally obtained and provided the jurors with inflammatory evidence that indicated that there was a high degree of injury.

The appellate court, in reviewing a denied motion to suppress, defers to the trial court's factual findings, where supported by substantial evidence, and determines anew whether on the facts so found, the search or seizure was reasonable under the Fourth Amendment.  (People v. Glaser (1995) 11 Cal.4th 354, 362.)

All warrantless searches are presumed to be illegal.  (People v. Bishop (1996) 44 Cal.App.4th 220, 237.)   One exception to the illegality of a warrantless search is if consent to search the premises has been obtained.   (Ibid.) Consent from a third party who has common authority over the premises is valid.  (Illinois v. Rodriguez (1990) 497 U.S. 177, 181.)

The authority justifying third party consent is not tied to the law of property.  (United States v. Matlock (1974) 415 U.S. 164, 172, fn. 7.) Rather, it rests “on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”  (Ibid.) “Moreover, even a change in living arrangements may not vitiate an absent spouse's consent to a search if that spouse has a continuing property interest in the premises but was, in effect, forced out by the defendant.”  (People v. Bishop, supra, 44 Cal.App.4th at p. 238.)

There are multiple factors indicating Saesee still had joint access and control over the premises.   Saesee and Shoemaker were married and had been living together in the shared residence until very recently.   Saesee had not wanted to move out of the house, but was forced to move for the safety of her children and herself.   When she moved out, she only took clothing for her children and herself;  the rest of her property remained in their shared home.   Saesee still had a working key to the house that she gave to Officer Ferreira.   Finally, her reticence to have the police officers break into the house indicated she was liable for damage to the residence.

Conversely, Shoemaker's assertions that Saesee lacked authority to consent to the officer's entry are not supported by the record.   Saesee had taken clothing but left behind the children's toys and her possessions while she “was going back and forth at [her] mom's and [her] sister's” houses.   She retained a working house key with which to freely access the house.   And, while the suppression hearing record is silent as to whether or not she had “exercised authority” over the house since she had left, because Saesee and Shoemaker were married and the house was the community residence, the only reasonable inference was that Saesee retained authority over the house despite her absence.

On these facts and authorities, the trial court did not err in finding Saesee had authority to consent to the police entry and search of the house and the search did not violate the Fourth Amendment.

Moreover, Officer Ferreira reasonably believed Saesee had authority to consent to the search.   As long as the officer's belief in a third party's assertion of authority to consent is reasonable, it does not violate the Fourth Amendment.   (People v. Bishop, supra, 44 Cal.App.4th at p. 237.)   Saesee told Officer Ferreira that her husband Shoemaker was at their home, and gave him a key to the house and express permission to enter.   Officer Ferreira testified that he believed Saesee had authority to enter the house.   Officer Ferreira's belief in Saesee's authority to consent to him entering her house was reasonable under the Fourth Amendment.

The factual circumstances of this case are similar to People v. Bishop, supra, 44 Cal.App.4th 220.   There, the defendant's wife Heather, who had left their house three weeks earlier and moved to a battered woman's shelter, went with police to the residence to recover her property.   The defendant had changed the locks so Heather entered through a kitchen window and let police in through the front door.  (Id. at p. 236.)   The court found the search lawful.   Heather was forced out of the house she shared with the defendant for her own safety and moved to a temporary residence.   The defendant did not have exclusive right of possession of the house and could not exclude his wife from it.   As defendant's spouse, she remained liable for the rent and for accidents happening on the property in her absence.   And, although she intended to abandon that residence, a substantial amount of her property remained in the house at the time of the search.   That the defendant had changed the locks showed antagonism between the spouses but was not determinative of the wife's continuing authority to consent to a search of the house.  (Id. at p. 239.)

Shoemaker cites two United States Supreme Court cases as controlling authority;  both are distinguishable.   In Georgia v. Randolph (2006) 547 U.S. 103, the court held that a warrantless search based on the consent of one spouse was invalid if the other spouse was present and expressly refused.   (Id. at pp. 122–123.)   The court noted the fine line drawn by that rule:  if the objector is at the door and objects, the cotenant's permission does not suffice for a reasonable search;  whereas the potential objector, who is nearby but not invited to consent, “loses out.”   The court concluded the rule was justified for practical reasons.  (Id. at p. 121–122.)   Here, Saesee consented to the search and Shoemaker did not respond to the officers' knock at the door and invalidate Saesee's consent.

In Illinois v. Rodriguez, supra, 497 U.S. 177, the court held that a former girlfriend, who had lived with appellant for about six months, was without authority to consent to a search of the appellant's apartment.   The evidence showed that the girlfriend had moved out almost a month before the search at issue and had gone to live with her mother.   She took her and her children's clothing with her, but left behind some furniture and household effects.   She sometimes spent the night at appellant's apartment, but never invited her friends there, and never went there herself when he was not home.   Her name was not on the lease nor did she contribute to the rent.   She had a key to the apartment, which at trial she said appellant had given her and at the preliminary hearing said she had taken without appellant's consent.   These facts did not establish that she had “ ‘joint access or control for most purposes.’ ”  (Id. at pp. 181–181.)   However, the court remanded the case to determine whether the officers reasonably believed the girlfriend had the authority to consent.  (Id. at p. 189.)

Two critical factors in this case distinguish it from Illinois v. Rodriguez.   First, Saesee was not a mere live-in girlfriend.   She was Shoemaker's wife and she and the couple's children had shared the residence.   Second, she and Shoemaker apparently had rented the house together and she remained financially liable for damage to the premises.

Accordingly, the trial court did not err in finding that Saesee had authority to consent to the search of their house and that the officers reasonably believed that she had authority to permit them to enter the premises.

DISPOSITION

The judgment is affirmed.

THE COURT