Summary
reciting and affirming trial court's determination that, although probationer may have been temporarily absent from his usual abode while participating in a drug rehabilitation program, the residence was still subject to probation search
Summary of this case from Thrasher v. County of San DiegoOpinion
H036087
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. AARON PAUL ALVITRE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS101357A)
After his motion to suppress evidence (Pen. Code, § 1538.5) was denied, defendant Aaron Paul Alvitre entered into a negotiated plea agreement whereby he pleaded no contest to possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). Pursuant to the plea agreement, the trial court sentenced defendant to prison for three years eight months. On appeal from the judgment (§ 1538.5, subd. (m)), defendant contends that the trial court erred in denying his motion to suppress. As we find that the detention of defendant and the subsequent search of his property were reasonable under the Fourth Amendment, we will affirm the judgment.
All further unspecified statutory references are to the Penal Code.
BACKGROUND
Defendant was charged by information filed June 7, 2010, with possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1); possessing hydrocodone (Health & Saf. Code, § 11350, subd. (a); count 2); being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 3); unlawfully possessing ammunition (§ 12316, subd. (b)(1); count 4); and receiving stolen property (§ 496, subd. (a); count 5). The information further alleged that defendant had served a prior prison term within the meaning of section 667.5, subdivision (b).
On September 9, 2010, defendant filed a motion to suppress evidence (§ 1538.5), obtained as a result of a warrantless search on May 8, 2010. He contended that he was "illegally detained, searched and arrested by the Salinas Police Department in violation of both the United States and the California Constitutions."
The Hearing on the Motion to Suppress
At the start of the suppression hearing on September 10, 2010, the parties stipulated that the search at issue was not conducted pursuant to a warrant. The parties also stipulated that defendant "had control of that area in the garage," " 'that area' " refer[ring] to a living area divided by a sheet being held up with what appeared to be a white two-by-four, . . . divided off by a bed and miscellaneous pieces of furniture running across the garage, an area that had a television set in it and a wallet with Mr. Alvitre's identification in it . . . ."
The record originally reflected a stipulation by the parties as to the existence of a search warrant, but that was not the intent of the parties as to the stipulation. There was no warrant. Accordingly, on June 10, 2011, at the request of defendant and pursuant to an order changing the record by the trial court, this court ordered the record on appeal corrected.
Salinas Police Officer Anthony Parker testified that on May 8, 2010, he went to a residence on Chaucer Drive in Salinas with several other officers, including Officer Gonzales but not including a probation officer, to conduct a probation search on Robert Aguilera. The address was listed as Aguilera's current residence in the police department's database and Officer Parker had had "multiple contacts" with Aguilera at that residence, the last one being "a couple months prior to that" date. Aguilera was on probation for possession of methamphetamine, and Officer Gonzales had arrested him for possession of methamphetamine and paraphernalia.
Attached to the Chaucer Drive residence is a garage that has on its right-side wall a regular door which has a window in its upper half. Officer Parker, who was wearing his uniform, stood facing this door with his back to the front door of the residence while other officers went to and knocked on the front door. Defendant later told Officer Parker that Aguilera's wife, Marlena Rodriguez, shouted to him that the police were there, so he walked over to the window in the door to the garage to make sure she was not playing a joke on him. Officer Parker saw defendant inside the garage step in front of the window in the door to the garage, look at the officers, and casually walk away. Officer Parker shouted, "Police, open the door." At the time, Officer Parker thought that defendant might be either trying to hide something or notifying another person that the police were there. About 20 to 25 seconds later, defendant returned to the door to the garage, opened it, and walked outside.
The officers at the front door spoke to Rodriguez, who stated that Aguilera was "in a rehab, . . . in Northern California." Some of the officers conducted a "sweep" of the residence to ensure that Aguilera was not there. They did not enter the garage. Officer Magana ran a check on defendant and learned that defendant was on "[a]ctive CDC parole." When Officer Parker returned from conducting the sweep of the residence, Officer Magana informed him of defendant's parole status. Rodriguez told Officer Gonzales that defendant lived there. Knowing that parolees are "searchable," and that they should not be associating with other parolees or probationers, Officer Parker entered and searched the living area of the garage. The television and PlayStation were on and were playing music. Officer Parker saw a wallet on the dresser and determined that it contained defendant's ID. Parker then searched inside the dresser.
Defendant's motion to suppress stated that inside the dresser, "four bindles of suspected methamphetamine along with a yellow pill were found in the top drawer and in a bottom drawer underneath some clothes a firearm was found along with ammunition."
The officers learned from Aguilera's probation officer that he was not living at the residence at the time of the search, that he was "in residential treatment." The officers were not aware of this before they went to the residence to do the search. However, Officer Parker did not know whether they learned this before or after the residence was actually searched.
Defense counsel argued to the court that the search of the residence was "a probation compliance check," and that "[a]t the time that Mr. Alvitre is contacted, there are officers inside that are being told that the probationer is no longer there." "[O]nce the officers determined that Mr. Aguilera wasn't there during their protective sweep, including their sweep of the garage, there was no further basis for them to do further intrusion into anything else in the house and/or the garage." "[G]iven the circumstances of this particular contact, the fact that [he] was on parole within itself is not sufficient given the standards set by Griffin v. Wisconsin to search and to further go into the garage, pick up the wallet, look into it, to grab identification, then to further go into the drawer area and search - and move things around and search into the area to find the contraband that was eventually found in those areas."
Griffin v. Wisconsin (1987) 483 U.S. 868.
The prosecutor argued, "First of all, it doesn't matter whether Aguilera was there or not, you can still search on a probation search. The probationer doesn't have to be in the house." "Aguilera was on probation, apparently for meth possession, so . . . drug users oftentimes keep drugs in the house." "When this guy walks away, he's doing something. He's not answering the door, we know that. He knows that the cops are there. So I think . . . we do have a reasonable suspicion that something is going on. Clearly, he's a parolee, they find that out, and run him. And they can search him based on what they have there."
The trial court ruled: "First of all, the Court does find that it was Aguilera's residence, and I think the search could have been justified based simply on that. Whether or not Mr. Aguilera was home, whether or not he was temporarily in a program or not, I think the residence itself was subject to a search. There's no indication that it wasn't just generally his residence and that Mr. Alvitre here wasn't just a temporary guest at that residence. And so to that extent, the entire residence would be subject to a probation search.
"More than that though, this situation where the officer sees the gentleman, gentleman walks to the door, is in clearly a position to see the officer, looks out of the -looks out the window, and then leaves the window, moves out of view of anyone looking through the window, stays out of view even after the officer has identified that they are the police and open up, and does not respond to that for a period of time, short - however short, it doesn't make a lot of difference. In the estimation of the officer that was going through that experience it was long enough for him to do something and arouse the suspicions of the officer, particularly when he became aware of his parole status.
"How - and that - although it doesn't really play into the reasonableness of the -into the reasonableness equation but it does confirm that the officer's sense of things was accurate, and that is the defendant's comment that he went to go confirm that the police were there and the next thing you know he walks away from the door. He goes to the door to confirm they were there and then his next step is to walk away. That suggests that he confirmed the police were there and then walked away to do something rather than go outside at the time.
"So it's simply - again, it's not part of the equation, but it does - if you, you know, use hindsight, I suppose, to evaluate things, it just confirms the officer's instinctive analysis of those circumstances in the context of a parolee seeing a police officer outside of a place where the parolee has items, and apparently items to conceal it turns out but has items.
"So there isn't anything unreasonable at all about the officer going in to take a peek to find out what it was that Mr. Alvitre was doing when he went back to that area concealed from the officer's view. That's a perfectly rational, reasonable conclusion and rational and reasonable conduct on the part of the officer.
"So the motion to suppress is denied."
Plea and Sentencing
On September 16, 2010, defendant entered into a negotiated plea agreement whereby he pleaded no contest to count 2 (possessing hydrocodone; Health & Saf. Code, § 11350, subd. (a)), and count 3 (being a felon in possession of a firearm; § 12021, subd. (a)(1)), on condition that the remaining counts be dismissed and that he be sentenced to three years eight months in prison. After accepting defendant's pleas, the court sentenced him pursuant to the plea agreement to three years eight months in prison. The court stated that the sentence consists of the upper term of three years on count 2 (Health & Saf. Code, § 11350, subd. (a)), and a consecutive term of eight months (one-third the middle term) on count 3 (§ 12021, subd. (a)(1).)
The abstract of judgment incorrectly states that defendant was convicted on count 2 pursuant to Health and Safety Code section 11377, rather than Health and Safety Code section 11350, and incorrectly states that the three-year term was imposed on count 3 rather than count 2. We will order the abstract of judgment corrected to reflect the court's oral pronouncement of judgment.
DISCUSSION
Defendant contends on appeal that the trial court erred in denying his motion to suppress because the search and seizure were the product of an unlawful detention. "[T]he officers had no basis to conduct a probation entry and search at the home because their alleged justification - a probation search of a third party - was without lawful authority in that the subject of the search was not currently residing at the residence. Because knowledge of [defendant's] parole status was the direct product of his unlawful detention at the home, the officers could not justify the search of the garage based on [defendant's] parole search terms."
The Attorney General contends that "[i]t was undisputed at the hearing on the motion to suppress evidence that the search was pursuant to a probation search condition that permitted the officers to enter and search Aguilera's Chaucer Drive residence," and that "[i]t was also undisputed that [defendant] was present at the search site as the search began, that he retreated into the garage when he saw the police, and that he was out of sight for some length of time before finally complying with the order to come out." Therefore, the Attorney General argues, defendant's "detention was not 'unreasonable' under the Fourth Amendment because his suspicious behavior justified a brief detention to ensure police safety during the probation search, to determine his connection to the premises, and to ensure he did not help Aguilera hide or destroy evidence inside the garage."
"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser); People v. Redd (2010) 48 Cal.4th 691, 719.) In assessing the constitutionality of defendant's detention, "we balance the extent of the intrusion against the government interests justifying it, looking in the final and dispositive portion of the analysis to the individualized and objective facts that made those interests applicable in the circumstances of the particular detention." (Glaser, supra, at p. 365.)
"A probationer's home, like anyone else's, is protected by the Fourth Amendment's requirement that searches be 'reasonable.' " (Griffin v. Wisconsin, supra, 483 U.S. at p. 873.) "A State's operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, . . . presents 'special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements." (Id. at pp. 873-874.) The California Supreme Court has held that the warrantless search of a probationer's residence pursuant to a search condition of probation may be conducted without any reasonable suspicion of criminal activity. (People v. Bravo (1987) 43 Cal.3d 600, 602, 607; People v. Woods (1999) 21 Cal.4th 668, 674-675.) Therefore, a search pursuant to a probation search condition, conducted without reasonable suspicion of criminal activity, does not violate the Fourth Amendment so long as the search is not "undertaken for harassment or . . . for arbitrary or capricious reasons." (Bravo, supra, 43 Cal.3d at p. 610.) "But whether the purpose of the search is to monitor the probationer or to serve some other law enforcement purpose, or both, the search in any case remains limited in scope to the terms articulated in the search clause [citation] and to those areas of the residence over which the probationer is believed to exercise complete or joint authority [citations]." (Woods, supra, at p. 681.)
"[I]f persons live with a probationer, common or shared areas of their residence may be searched by officers aware of an applicable search condition." (People v. Robles (2000) 23 Cal.4th 789, 798.) Such "a consent-based search is valid when consent is given by one person with common or superior authority over the area to be searched; the consent of other interested parties is unnecessary." (Woods, supra, 21 Cal.4th at p. 675; People v. Baker (2008) 164 Cal.App.4th 1152, 1158-1159.)
Generally, officers conducting a search of a residence pursuant to a warrant may briefly detain persons present at the location of the search to determine what connection they have to the premises, to ensure officer safety, and to ensure the security of any contraband that may be present. (Glaser, supra, 11 Cal.4th at pp. 360-361, 365; see also Michigan v. Summers (1981) 452 U.S. 692, 693, 702-705; People v. Hannah (1996) 51 Cal.App.4th 1335, 1339-1344.) "When, in the course of initiating a search under warrant of a private residence for illegal drugs or related items, police officers encounter on the premises a person whose identity and connection to the premises are unknown and cannot immediately be determined without detaining the person, the officers may constitutionally detain him or her for the period of time required and in the manner necessary to make those determinations and to protect the safety of all present during the detention. If the person is determined to be an occupant of the home to be searched, he or she may be detained, . . . for the duration of the search. [Citation.] If the person is determined not to be an occupant, further detention is proper only if justified by other specific, articulable facts connecting him or her to the criminal activity suspected to be occurring on the premises or establishing a danger to the officers if the person is released." (Glaser, supra, 11 Cal.4th at p. 374.)
The same rule holds true in the case of a probation search. (See People v. Matelski (2000) 82 Cal.App.4th 837 (Matelski); People v. Rios (2011) 193 Cal.App.4th 584 (Rios).) In Matelski, officers arrived at a residence to conduct a probation search of a probationer who had recently failed a drug test. The defendants, two individuals not including the probationer, were walking out of the residence's front door when the officers arrived. One of the officers ordered the defendants to " 'Come over here.' " (Matelski, supra, at p. 841.) The officers explained that they were performing a probation search and that the probationer was precluded from associating with convicted felons, asked the defendants for their names and dates of birth, and called in this information to the police dispatcher. (Id. at pp. 841-842.) Both defendants had outstanding arrest warrants, both were arrested and searched, and methamphetamine and marijuana pipes were seized from one of them. (Id. at p. 842.)
In a split decision, a majority of the appellate court found that the magistrate erred in granting a suppression motion. (Matelski, supra, 82 Cal.App.4th at p. 853.) The majority reasoned that the detention was brief, there was no particular embarrassment or stigma attached to the detention, there was a need to determine the connection of the defendants to the probationer in performing the probation search, and there was a related need to ensure officer safety at the site of the search. (Id. at pp. 849-850.) The court "emphasize[d] that the officers were not acting randomly, but rather had specific articulable reasons for entering the home and detaining [the] defendants. After ascertaining the identity of [the] defendants and learning that they were the subject of outstanding warrants, the officers properly arrested them and discovered the contraband . . . ." (Id. at p. 853.)
In Rios, six probation officers went to a juvenile probationer's residence. The juvenile's probation conditions included search terms and orders not to associate with gang members, and drug paraphernalia and gang tagging had been found at the residence two months before. When the officers were admitted into the residence, one of them made contact with the defendant, who was not the probationer and who was sitting on a couch. The officer asked the defendant his name and address, whether he was on probation or parole, and his purpose for being at the residence. The defendant answered each question by saying that he was not doing anything. The defendant had what the officer believed to be gang-related tattoos over one eyebrow and on the web of one hand. (Rios, supra, 193 Cal.App.4th at p. 589.) The officer informed the defendant that he was being detained and that the officer was going to check the defendant's identification through the sheriff's department. A handgun and a switchblade were subsequently recovered from the defendant during a pat-search conducted for officer safety reasons. (Id. at pp. 589-590.)
The appellate court found that the defendant was lawfully detained. "In our view, Matelski is factually similar and legally persuasive. Although the probation officers in Rios's case had no arrest or search warrant, they were conducting a valid home visit to a probationer who had violated his probation in the recent past. They had the right to enter and search for him, he was subject to gang and drug conditions, and Rios had what reasonably appeared to be visible gang tattoos on his face and hand. Under the circumstances, they could briefly detain him to ascertain his identity and relationship to the probationer and the probationer's residence." (Rios, supra, 193 Cal.App.4th at p. 595.)
In this case, defendant did not dispute in the trial court that Aguilera was on probation at the time the officers arrived at the Chaucer Drive residence to conduct a probation search, or that Aguilera had a probation search condition that allowed a general warrantless search of his residence. Therefore, he cannot challenge these assumptions on appeal. (See People v. Scott (1993) 17 Cal.App.4th 405, 410-411; Rios, supra, 193 Cal.App.4th at p. 591.) The trial court found that the Chaucer Drive residence was Aguilera's residence, and substantial evidence supports that finding. Aguilera had been contacted there as recently as two months before the search, the residence was listed as Aguilera's residence in the police department's database, and Aguilera's wife was at the residence when the officers arrived. That Aguilera was temporarily participating in a residential treatment program did not require a finding that the Chaucer Drive residence was not his permanent residence.
Once properly at the residence to conduct a probation search, the officers were able to reasonably and briefly detain other persons at the residence to determine their identity, their connection to Aguilera, and their connection to the residence. (Matelski, supra, 82 Cal.App.4th at p. 853; Rios, supra, 193 Cal.App.4th at p. 595.) Therefore, Rodriguez and defendant were properly detained at the residence while some of the officers conducted a sweep of the inside of the residence for the presence of Aguilera, the subject of the probation search. While the sweep was being conducted, other officers learned that defendant was on active parole, and they informed Officer Parker of defendant's parole status when Officer Parker returned from conducting the sweep. Another officer learned that defendant was residing in the residence, and Officer Parker had seen defendant in the garage. Parolees are automatically subject to the condition that parole agents and other law enforcement personnel may search them and their residences without a warrant at any time. (§ 3067, subd. (a); People v. Middleton (2005) 131 Cal.App.4th 732, 735-736, 738-740.) The Fourth Amendment is not a bar to this procedure (Samson v. California (2006) 547 U.S. 843, 846, 857), and Officer Parker was aware of defendant's parole status before he conducted a search of the garage.
As defendant was properly detained at the time the officers learned that he was on parole and resided at the Chaucer Drive residence, and the officers had seen defendant in the garage of the residence, the subsequent parole search of his property in the garage of the residence was reasonable under the Fourth Amendment. (Samson v. California, supra, 547 U.S. at p. 857.) Accordingly, the trial court did not err in denying defendant's motion to suppress.
DISPOSITION
The judgment is affirmed. The clerk of the superior court is ordered to correct the abstract of judgment to indicate that defendant's conviction on count 2 was pursuant to Health and Safety Code section 11350, subdivision (a), that the three-year term was imposed on count 2, and that the eight-month consecutive term was imposed on count 3; and to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
BAMATTRE-MANOUKIAN, ACTING P. J. WE CONCUR: DUFFY, J. WALSH, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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