People v. Shores

No. F038596

2002 | Cited 0 times | California Court of Appeal | November 22, 2002

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

OPINION

THE COURT 1

Appellant pleaded nolo contendere and was convicted of possession of marijuana for sale after the denial of his motion to suppress evidence. While questioning appellant in his home regarding another matter, Officer Brian Floyd followed appellant as he went to his bedroom to retrieve identification. In the bedroom, Officer Floyd observed evidence of narcotic sales. During a consensual search of the home, a police dog alerted to a sofa and marijuana was found therein.

Appellant claims here that the denial of his motion to suppress evidence of the marijuana found in his home was error because it was obtained through an unconstitutional search. He argues that Officer Floyd's entry into his bedroom was an unconstitutional search because appellant did not know of and did not consent to the officer's presence in the bedroom. He further argues that the use of a police dog to search for narcotics was not within the scope of appellant's consent to the search of his home.

We find the trial court correctly denied the motion to suppress. We will thus affirm appellant's conviction.

STATEMENT OF THE CASE

After the denial of his motion to suppress evidence (Pen. Code, 2 § 1538.5 3 ), appellant pleaded nolo contendere to possession of marijuana for the purpose of sale. (Health & Saf. Code, § 11359.) He was sentenced to one year in jail and three years of probation.

STATEMENT OF FACTS 4

Prosecution Evidence

During an investigation of a possible stolen vehicle parked in appellant's driveway, Bakersfield Police Officers Floyd and Dossey knocked on appellant's door and requested permission to enter to ask appellant some questions. Appellant opened the door wide and stepped back into the living room, allowing the officers to enter without an express verbal invitation. The officers asked appellant about the identities of those driving the vehicle and living in the house, and whether appellant had any personal identification. Appellant said that his identification was in his bedroom and that he would retrieve it. The officers could not see into the bedroom from where they were located in the living room. Officer Floyd followed about two feet behind appellant into the bedroom. He accompanied appellant in order to ensure the safety of himself and Officer Dossey. On the bedroom dresser Officer Floyd saw a box of sandwich baggies, a small gram scale, and a hunting knife. He believed that the baggies and scale were consistent with narcotic sales or packaging.

Officer Floyd asked appellant "if he would mind if we looked through" the house. Appellant replied, "go ahead," and "there's nothing here." The officers called for a trained police dog. The canine arrived approximately 15 minutes after appellant consented to the search. Appellant was outside the residence with Officer Floyd and another officer when the dog arrived and during the search. He was not wearing handcuffs. At no point did appellant withdraw his consent to the search or request that the dog not be used for the search.

During the search of the house, the dog alerted to the sofa. A baggie containing 111.5 grams of marijuana was found hidden inside the sofa. At that point officers handcuffed appellant. At no point during the search did officers draw their firearms.

Appellant was read and waived his Miranda 5 rights. Officer Floyd testified that appellant stated that the marijuana belonged to him, and that he shared it with friends. Based upon the presence of the scale and baggies, and six pit bull dogs on appellant's property, Officer Floyd opined that the marijuana was possessed for the purpose of sale.

Defense Evidence

Appellant testified that he was giving his two-year-old daughter a bath when the officers knocked on his door. When they asked if they could enter, he opened the door wider and he stepped back into the house. Appellant moved a few feet to the hallway entrance where he could see his daughter in the bathroom, then returned to where the officers were located in the middle of the living room. Appellant testified that after he answered Officer Floyd's questions, Floyd announced that he was going to search the house. Appellant stated that he replied, "not without a search warrant." Officer Floyd responded that he did not need a warrant.

Appellant testified that when he went to retrieve his identification from the bedroom, he "didn't know if [Officer Floyd] was following [him] or not" and did not look back to check. Appellant initially testified that there was no further discussion of searching the home. He later testified that Officer Floyd asked appellant if he could search the home upon seeing appellant's identification and the suspicious materials in the bedroom. Appellant again replied "not without a search warrant." He later described both of the officer's announcements that he was going to search the house as requests for consent.

Appellant testified that he never gave consent to search the home. He claimed he was locked inside a patrol car in handcuffs when the police dog was brought to the residence, and thus would have been unable to protest the use of the dog. Appellant testified that many people could confirm his account. He did not, however, produce any other witnesses.

The court found Officer Floyd's testimony to be more credible than that of appellant. It thus found that appellant's failure to object to Officer Floyd's following two feet behind implied consent to enter into the bedroom. The court further ruled that the search of the house was effected pursuant to appellant's valid, express consent. The motion to suppress the evidence was therefore denied.

DISCUSSION

Appellant claims that Officer Floyd's following appellant into his bedroom abridged his right to be free from unreasonable searches. (U.S. Const., 4th Amend.) He argues that the illegality of this entry tainted his subsequent consent to search and thus required suppression of all resulting evidence. Appellant further claims that even if the initial entry was proper, the use of a trained police dog to search for drugs exceeded the scope of his consent and likewise required suppression of the evidence. We find that neither of these claims prevail.

The Constitutions of the State of California and of the United States bar unreasonable searches and seizures of individuals and their property by government officials. (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13.) Thus, at trial, the prosecution bears the burden of justifying any warrantless search. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272.) Statements and evidence obtained as the result of a criminal defendant's unconstitutional search or seizure may require suppression. (Wong Sun v. United States (1949) 371 U.S. 471, 484-485; In re Tyrell J. (1994) 8 Cal.4th 68, 75; § 1538.5.) Appellant may appeal the denial of his motion to suppress evidence after a subsequent plea of nolo contendere. (See People v. West (1970) 3 Cal.3d 595, 601; § 1538.5, subd. (m); Cal. Rules of Court, rule 31(d).)

During a section 1535.5 hearing, the trial court is vested with the power to judge the credibility of witnesses, resolve conflicts in testimony, weigh evidence, and draw factual inferences therefrom. (People v. Woods (1999) 21 Cal.4th 668, 673.) The court's factual determinations, whether express or implied, will be sustained on appeal unless unsupported by substantial evidence. (People v Needham (2000) 79 Cal.App.4th 260, 265.) All presumptions are drawn in favor of the trial court's factual determinations. (Ibid.) The Court of Appeal then independently determines whether such facts indicate the search fell within the bounds of the federal Constitution. (Ornelas v. United States (1996) 517 U.S. 690, 697; People v. Woods, supra, 21 Cal.4th at pp. 673-674; In re Lance W. (1985) 37 Cal.3d 873, 896.) In evaluating the reasonableness of a challenged search, the court looks to the "totality of the circumstances." (People v. Souza (1994) 9 Cal.4th 224, 230.)

I. The trial court's ruling that Officer Floyd entered the bedroom pursuant to appellant's consent was proper.

Although the home is a location enjoying a heightened level of privacy (United States v. Karo (1984) 468 U.S. 705, 714), this expectation of privacy may be waived by a resident's consent to a government search of the home. (Florida v. Jimeno (1991) 500 U.S. 248, 250-251; People v. Bravo (1987) 43 Cal.3d 600, 605.) Thus, "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." (Katz v. United States (1967) 389 U.S. 347, 351.)

The trial court ruled Officer Floyd's entry into the bedroom was justified by the protective sweep exception to the warrant requirement. It is well established that officers must have reasonable suspicion of a threat before they may effect a protective sweep search of a home in which an individual is arrested. (Maryland v. Buie (1990) 494 U.S. 325, 334-336.) Appellant was not under arrest. He was not one of the individuals officers saw driving the possibly stolen vehicle. He did not say or do anything the officers considered to be threatening to their safety. We thus find that "officer safety" did not justify Officer Floyd's entry into the bedroom.

Consent to enter a dwelling or area within a dwelling may be established by express invitation or by implicit consent to enter. (People v. Camacho (2000) 23 Cal.4th 824, 832; United States v. Mejia (9th Cir. 1991) 953 F.2d 461, 466.) In Mejia, the defendant's wife, Cajigas, allowed the officers to enter the home to discuss their investigation of possible drug trafficking by her husband. (United States v. Mejia, supra, 953 F.2d at p. 466.) When Cajigas told the officers that her husband was asleep in the bedroom, they asked her to awaken him. (Ibid.) The officers followed Cajigas to the bedroom. (Ibid.) The court observed that while her permission to enter the house did not grant them permission to enter every room in the home, her failure to object to the officers following her to a bedroom constituted an implied consent to enter that room. (Ibid.)

Appellant claims he did not give Officer Floyd consent to enter the bedroom where the scale, baggies and knife were found. We disagree. Here, appellant concedes that "Officers Floyd and Dossey entered appellant's house pursuant to his consent." When asked to produce his identification, appellant stated that it was located in the bedroom and went to retrieve it, with Officer Floyd following about two feet behind him. The immediacy with which Officer Floyd followed indicates that appellant would have known that Floyd was right behind him. The fact that appellant did not object to his entry into the bedroom indicates he implicitly consented to the officer's entry into the bedroom. In light of appellant's testimony that he did not know whether Officer Floyd was following him to the bedroom, his lack of action to limit the officer's movement indicates that Officer Floyd may reasonably have believed he had consent to follow. The trial court's conclusion that appellant implicitly consented to Officer Floyd's entry into the bedroom was thus legally and factually supported.

II.The use of a canine to assist in the search of appellant's home was proper in this case.

Appellant argues that officers must obtain a subject's express consent to the search of a home by a canine, citing Dominguez v. Florida (Fla. 1993) 616 So.2d 506 and Florida v. McLeod (Fla. 1995) 664 So.2d 483. He thus argues that the use of a canine to assist in the search is not within the scope of his consent. We disagree.

When a consensual waiver of Fourth Amendment privacy rights occurs, the resulting search may extend only as far as the consent supporting it. (Walter v. United States (1980) 447 U.S. 649, 656-657.) The scope of a warrantless search is generally defined by the objective of the search. (Florida v. Jimeno, supra, 500 U.S. at p. 251; United States v. Ross (1982) 456 U.S. 798, 824.) Any expressed limitations on his consent may further circumscribe the scope of a search. (Florida v. Jimeno, supra, 500 U.S. at p. 251.) Whether a search remained within the boundaries of such consent is a question of fact to be determined by the trial court. (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408; United States v. Sierra-Hernandez (1978) 581 F.2d 760, 764.) This finding will be upheld on appeal unless clearly erroneous. (People v. Crenshaw, supra, 9 Cal.App.4th at p. 1408; United States v. Mejia, supra, 953 F.2d at p. 466.)

An officer may search anywhere it is objectively reasonable for him to believe falls within scope of consent. (Florida v. Jimeno, supra, 500 U.S. at p. 251; People v. Jenkins (2000) 22 Cal.4th 900, 974.) An unlimited consent to search normally suggests that the person consenting expects the search not to be limited in any way. (People v. Jenkins, supra, 22 Cal.4th at p. 975.) Closed areas and containers within the area to be searched may be opened if the items sought may be concealed within. (People v. Miller (1999) 69 Cal.App.4th 190, 203; People v. $48,715 United States Currency (1997) 58 Cal.App.4th 1507, 1515; U.S. v. Stewart (5th Cir. 1996) 93 F.3d 189, 192; U.S. v. Snow (2d Cir. 1995) 44 F.3d 133, 135; U.S. v. Zapata (1st Cir. 1994) 18 F.3d 971, 977.)

Here, appellant testified that Officer Floyd became more interested in searching the home after observing the plastic baggies, gram scale, and knife. Appellant did not ask what Officer Floyd would be searching for. These facts tend to indicate appellant would have known the officers were searching for narcotics.

In the case at bar, appellant would be hard pressed to point to any way in which the use of a canine to search his home for drugs was unreasonable. The use of the canine required less actual intrusion into private areas, such as cabinets, drawers, nooks, and crannies than a manual search by officers. The canine was trained to alert to narcotics, and did not alert to other items that may have proven embarrassing or inculpatory to appellant. The dog "sniff" was limited to appellant's home, and thus did not invade intimate areas of his or anyone else's body.

Even if specific consent to a canine search were necessary, the facts here reveal implicit consent. Officers may use their sense of smell to detect evidence. (United States v. Pierre (5th Cir. 1992) 958 F.2d 1304, 1310; United States v. Rivera (5th Cir. 1979) 595 F.2d 1095, 1099; United States v. Martinez-Miramontes (9th Cir. 1974) 494 F.2d 808, 810.) Canines are now also commonly used to search for contraband in public areas of heightened security, such as airports and international borders. With this in mind, Officer Floyd testified that appellant was outside the residence with him when the canine was brought into the home. Appellant offered no objection to the dog's entry into the home. His consent to the canine search may thus be implied.

DISPOSITION

The judgment is affirmed.

1. * Before Vartabedian, Acting P.J.; Harris, J.; and Levy, J.

2. All further statutory references shall be to the Penal Code unless specified otherwise.

3. Section 1538.5 provides in relevant part: "(a)(1) A defendant may move ... to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure [if the] ... [¶] ... search or seizure without a warrant was unreasonable."

4. The following evidence is adduced from the transcript of the section 1538.5 hearing.

5. Miranda v. Arizona (1966) 384 U.S. 436.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

OPINION

THE COURT 1

Appellant pleaded nolo contendere and was convicted of possession of marijuana for sale after the denial of his motion to suppress evidence. While questioning appellant in his home regarding another matter, Officer Brian Floyd followed appellant as he went to his bedroom to retrieve identification. In the bedroom, Officer Floyd observed evidence of narcotic sales. During a consensual search of the home, a police dog alerted to a sofa and marijuana was found therein.

Appellant claims here that the denial of his motion to suppress evidence of the marijuana found in his home was error because it was obtained through an unconstitutional search. He argues that Officer Floyd's entry into his bedroom was an unconstitutional search because appellant did not know of and did not consent to the officer's presence in the bedroom. He further argues that the use of a police dog to search for narcotics was not within the scope of appellant's consent to the search of his home.

We find the trial court correctly denied the motion to suppress. We will thus affirm appellant's conviction.

STATEMENT OF THE CASE

After the denial of his motion to suppress evidence (Pen. Code, 2 § 1538.5 3 ), appellant pleaded nolo contendere to possession of marijuana for the purpose of sale. (Health & Saf. Code, § 11359.) He was sentenced to one year in jail and three years of probation.

STATEMENT OF FACTS 4

Prosecution Evidence

During an investigation of a possible stolen vehicle parked in appellant's driveway, Bakersfield Police Officers Floyd and Dossey knocked on appellant's door and requested permission to enter to ask appellant some questions. Appellant opened the door wide and stepped back into the living room, allowing the officers to enter without an express verbal invitation. The officers asked appellant about the identities of those driving the vehicle and living in the house, and whether appellant had any personal identification. Appellant said that his identification was in his bedroom and that he would retrieve it. The officers could not see into the bedroom from where they were located in the living room. Officer Floyd followed about two feet behind appellant into the bedroom. He accompanied appellant in order to ensure the safety of himself and Officer Dossey. On the bedroom dresser Officer Floyd saw a box of sandwich baggies, a small gram scale, and a hunting knife. He believed that the baggies and scale were consistent with narcotic sales or packaging.

Officer Floyd asked appellant "if he would mind if we looked through" the house. Appellant replied, "go ahead," and "there's nothing here." The officers called for a trained police dog. The canine arrived approximately 15 minutes after appellant consented to the search. Appellant was outside the residence with Officer Floyd and another officer when the dog arrived and during the search. He was not wearing handcuffs. At no point did appellant withdraw his consent to the search or request that the dog not be used for the search.

During the search of the house, the dog alerted to the sofa. A baggie containing 111.5 grams of marijuana was found hidden inside the sofa. At that point officers handcuffed appellant. At no point during the search did officers draw their firearms.

Appellant was read and waived his Miranda 5 rights. Officer Floyd testified that appellant stated that the marijuana belonged to him, and that he shared it with friends. Based upon the presence of the scale and baggies, and six pit bull dogs on appellant's property, Officer Floyd opined that the marijuana was possessed for the purpose of sale.

Defense Evidence

Appellant testified that he was giving his two-year-old daughter a bath when the officers knocked on his door. When they asked if they could enter, he opened the door wider and he stepped back into the house. Appellant moved a few feet to the hallway entrance where he could see his daughter in the bathroom, then returned to where the officers were located in the middle of the living room. Appellant testified that after he answered Officer Floyd's questions, Floyd announced that he was going to search the house. Appellant stated that he replied, "not without a search warrant." Officer Floyd responded that he did not need a warrant.

Appellant testified that when he went to retrieve his identification from the bedroom, he "didn't know if [Officer Floyd] was following [him] or not" and did not look back to check. Appellant initially testified that there was no further discussion of searching the home. He later testified that Officer Floyd asked appellant if he could search the home upon seeing appellant's identification and the suspicious materials in the bedroom. Appellant again replied "not without a search warrant." He later described both of the officer's announcements that he was going to search the house as requests for consent.

Appellant testified that he never gave consent to search the home. He claimed he was locked inside a patrol car in handcuffs when the police dog was brought to the residence, and thus would have been unable to protest the use of the dog. Appellant testified that many people could confirm his account. He did not, however, produce any other witnesses.

The court found Officer Floyd's testimony to be more credible than that of appellant. It thus found that appellant's failure to object to Officer Floyd's following two feet behind implied consent to enter into the bedroom. The court further ruled that the search of the house was effected pursuant to appellant's valid, express consent. The motion to suppress the evidence was therefore denied.

DISCUSSION

Appellant claims that Officer Floyd's following appellant into his bedroom abridged his right to be free from unreasonable searches. (U.S. Const., 4th Amend.) He argues that the illegality of this entry tainted his subsequent consent to search and thus required suppression of all resulting evidence. Appellant further claims that even if the initial entry was proper, the use of a trained police dog to search for drugs exceeded the scope of his consent and likewise required suppression of the evidence. We find that neither of these claims prevail.

The Constitutions of the State of California and of the United States bar unreasonable searches and seizures of individuals and their property by government officials. (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13.) Thus, at trial, the prosecution bears the burden of justifying any warrantless search. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272.) Statements and evidence obtained as the result of a criminal defendant's unconstitutional search or seizure may require suppression. (Wong Sun v. United States (1949) 371 U.S. 471, 484-485; In re Tyrell J. (1994) 8 Cal.4th 68, 75; § 1538.5.) Appellant may appeal the denial of his motion to suppress evidence after a subsequent plea of nolo contendere. (See People v. West (1970) 3 Cal.3d 595, 601; § 1538.5, subd. (m); Cal. Rules of Court, rule 31(d).)

During a section 1535.5 hearing, the trial court is vested with the power to judge the credibility of witnesses, resolve conflicts in testimony, weigh evidence, and draw factual inferences therefrom. (People v. Woods (1999) 21 Cal.4th 668, 673.) The court's factual determinations, whether express or implied, will be sustained on appeal unless unsupported by substantial evidence. (People v Needham (2000) 79 Cal.App.4th 260, 265.) All presumptions are drawn in favor of the trial court's factual determinations. (Ibid.) The Court of Appeal then independently determines whether such facts indicate the search fell within the bounds of the federal Constitution. (Ornelas v. United States (1996) 517 U.S. 690, 697; People v. Woods, supra, 21 Cal.4th at pp. 673-674; In re Lance W. (1985) 37 Cal.3d 873, 896.) In evaluating the reasonableness of a challenged search, the court looks to the "totality of the circumstances." (People v. Souza (1994) 9 Cal.4th 224, 230.)

I. The trial court's ruling that Officer Floyd entered the bedroom pursuant to appellant's consent was proper.

Although the home is a location enjoying a heightened level of privacy (United States v. Karo (1984) 468 U.S. 705, 714), this expectation of privacy may be waived by a resident's consent to a government search of the home. (Florida v. Jimeno (1991) 500 U.S. 248, 250-251; People v. Bravo (1987) 43 Cal.3d 600, 605.) Thus, "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." (Katz v. United States (1967) 389 U.S. 347, 351.)

The trial court ruled Officer Floyd's entry into the bedroom was justified by the protective sweep exception to the warrant requirement. It is well established that officers must have reasonable suspicion of a threat before they may effect a protective sweep search of a home in which an individual is arrested. (Maryland v. Buie (1990) 494 U.S. 325, 334-336.) Appellant was not under arrest. He was not one of the individuals officers saw driving the possibly stolen vehicle. He did not say or do anything the officers considered to be threatening to their safety. We thus find that "officer safety" did not justify Officer Floyd's entry into the bedroom.

Consent to enter a dwelling or area within a dwelling may be established by express invitation or by implicit consent to enter. (People v. Camacho (2000) 23 Cal.4th 824, 832; United States v. Mejia (9th Cir. 1991) 953 F.2d 461, 466.) In Mejia, the defendant's wife, Cajigas, allowed the officers to enter the home to discuss their investigation of possible drug trafficking by her husband. (United States v. Mejia, supra, 953 F.2d at p. 466.) When Cajigas told the officers that her husband was asleep in the bedroom, they asked her to awaken him. (Ibid.) The officers followed Cajigas to the bedroom. (Ibid.) The court observed that while her permission to enter the house did not grant them permission to enter every room in the home, her failure to object to the officers following her to a bedroom constituted an implied consent to enter that room. (Ibid.)

Appellant claims he did not give Officer Floyd consent to enter the bedroom where the scale, baggies and knife were found. We disagree. Here, appellant concedes that "Officers Floyd and Dossey entered appellant's house pursuant to his consent." When asked to produce his identification, appellant stated that it was located in the bedroom and went to retrieve it, with Officer Floyd following about two feet behind him. The immediacy with which Officer Floyd followed indicates that appellant would have known that Floyd was right behind him. The fact that appellant did not object to his entry into the bedroom indicates he implicitly consented to the officer's entry into the bedroom. In light of appellant's testimony that he did not know whether Officer Floyd was following him to the bedroom, his lack of action to limit the officer's movement indicates that Officer Floyd may reasonably have believed he had consent to follow. The trial court's conclusion that appellant implicitly consented to Officer Floyd's entry into the bedroom was thus legally and factually supported.

II.The use of a canine to assist in the search of appellant's home was proper in this case.

Appellant argues that officers must obtain a subject's express consent to the search of a home by a canine, citing Dominguez v. Florida (Fla. 1993) 616 So.2d 506 and Florida v. McLeod (Fla. 1995) 664 So.2d 483. He thus argues that the use of a canine to assist in the search is not within the scope of his consent. We disagree.

When a consensual waiver of Fourth Amendment privacy rights occurs, the resulting search may extend only as far as the consent supporting it. (Walter v. United States (1980) 447 U.S. 649, 656-657.) The scope of a warrantless search is generally defined by the objective of the search. (Florida v. Jimeno, supra, 500 U.S. at p. 251; United States v. Ross (1982) 456 U.S. 798, 824.) Any expressed limitations on his consent may further circumscribe the scope of a search. (Florida v. Jimeno, supra, 500 U.S. at p. 251.) Whether a search remained within the boundaries of such consent is a question of fact to be determined by the trial court. (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408; United States v. Sierra-Hernandez (1978) 581 F.2d 760, 764.) This finding will be upheld on appeal unless clearly erroneous. (People v. Crenshaw, supra, 9 Cal.App.4th at p. 1408; United States v. Mejia, supra, 953 F.2d at p. 466.)

An officer may search anywhere it is objectively reasonable for him to believe falls within scope of consent. (Florida v. Jimeno, supra, 500 U.S. at p. 251; People v. Jenkins (2000) 22 Cal.4th 900, 974.) An unlimited consent to search normally suggests that the person consenting expects the search not to be limited in any way. (People v. Jenkins, supra, 22 Cal.4th at p. 975.) Closed areas and containers within the area to be searched may be opened if the items sought may be concealed within. (People v. Miller (1999) 69 Cal.App.4th 190, 203; People v. $48,715 United States Currency (1997) 58 Cal.App.4th 1507, 1515; U.S. v. Stewart (5th Cir. 1996) 93 F.3d 189, 192; U.S. v. Snow (2d Cir. 1995) 44 F.3d 133, 135; U.S. v. Zapata (1st Cir. 1994) 18 F.3d 971, 977.)

Here, appellant testified that Officer Floyd became more interested in searching the home after observing the plastic baggies, gram scale, and knife. Appellant did not ask what Officer Floyd would be searching for. These facts tend to indicate appellant would have known the officers were searching for narcotics.

In the case at bar, appellant would be hard pressed to point to any way in which the use of a canine to search his home for drugs was unreasonable. The use of the canine required less actual intrusion into private areas, such as cabinets, drawers, nooks, and crannies than a manual search by officers. The canine was trained to alert to narcotics, and did not alert to other items that may have proven embarrassing or inculpatory to appellant. The dog "sniff" was limited to appellant's home, and thus did not invade intimate areas of his or anyone else's body.

Even if specific consent to a canine search were necessary, the facts here reveal implicit consent. Officers may use their sense of smell to detect evidence. (United States v. Pierre (5th Cir. 1992) 958 F.2d 1304, 1310; United States v. Rivera (5th Cir. 1979) 595 F.2d 1095, 1099; United States v. Martinez-Miramontes (9th Cir. 1974) 494 F.2d 808, 810.) Canines are now also commonly used to search for contraband in public areas of heightened security, such as airports and international borders. With this in mind, Officer Floyd testified that appellant was outside the residence with him when the canine was brought into the home. Appellant offered no objection to the dog's entry into the home. His consent to the canine search may thus be implied.

DISPOSITION

The judgment is affirmed.

1. * Before Vartabedian, Acting P.J.; Harris, J.; and Levy, J.

2. All further statutory references shall be to the Penal Code unless specified otherwise.

3. Section 1538.5 provides in relevant part: "(a)(1) A defendant may move ... to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure [if the] ... [¶] ... search or seizure without a warrant was unreasonable."

4. The following evidence is adduced from the transcript of the section 1538.5 hearing.

5. Miranda v. Arizona (1966) 384 U.S. 436.

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