Opinion
C085514
10-31-2018
THE PEOPLE, Plaintiff and Respondent, v. JERMAINE RIVERS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STKCRFECOD20170006659)
Police pulled over defendant Jermaine Rivers for a vehicle infraction in front of his home. Codefendant Kevin Khem, who was on searchable postrelease community supervision (PRCS), was defendant's passenger. After defendant said Khem slept on his couch and kept some of his belongings in defendant's room, police searched defendant's home and found a firearm inside a dresser in defendant's bedroom.
Defendant moved to suppress the gun, arguing that the search of his bedroom dresser exceeded the scope of Khem's PRCS search condition. After both the preliminary hearing magistrate and the trial court denied his motion to suppress evidence (Pen. Code, § 1538.5), defendant pleaded guilty to being a felon in possession of a firearm (§ 29800, subd. (a)(1)) and admitted a strike prior (§§ 1170.12, subd. (b), 667, subd. (d)). The court sentenced him to four years in state prison.
Further unspecified statutory references are to the Penal Code.
Defendant contends on appeal that the court erred in denying his motion to suppress. He argues that he had a reasonable expectation of privacy in his bedroom dresser even though someone on searchable PRCS resided in his home and stored belongings in his bedroom. We conclude the court properly denied the motion to suppress. Based on the totality of the circumstances, the officers reasonably believed that Khem had joint access or control of defendant's bedroom and therefore searching the dresser inside the bedroom was within the scope of the PRCS search. We therefore affirm.
I. BACKGROUND
Following the gun's discovery during the PRCS search, defendant was charged with being a felon in possession of a firearm. (§ 29800, subd. (a)(1).) It was further alleged that he had a prior serious felony strike conviction (§§ 1170.12, subd. (b), 667, subd. (d)), and had served a prior prison term (§ 667.5, subd. (b)).
Defendant moved to suppress the firearm at the preliminary hearing. The preliminary hearing evidence showed the following:
On the afternoon of May 17, 2017, Stockton Police Officer Robert Allsup observed a vehicle with a nonfunctioning brake light. He pulled the car over in front of a residence on Kirkby Lane, which later turned out to be defendant's home. Defendant was driving the vehicle and Khem was in the front passenger seat. Defendant told Officer Allsup that he did not have a driver's license; he was detained to determine his identity. Khem did not identify himself to Officer Allsup.
Defendant consented to a vehicle search. As Officer Allsup searched the car, other officers arrived on scene, including Sergeant Couvillion. Sergeant Couvillion contacted Khem, who again refused to identify himself. While Sergeant Couvillion attempted to identify Khem, defendant's wife came outside of their adjacent residence and gave Sergeant Couvillion defendant's identification card. She also told him Khem's name.
Sergeant Couvillion relayed Khem's name to Officer Allsup, who was checking defendant's identity. Officer Allsup ran Khem's name in a law enforcement database and discovered that Khem was on active PRCS. Sergeant Couvillion then asked Khem if he was on PRCS, and Khem responded, "yes." Officers detained Khem in handcuffs to search him.
Defendant told Officer Allsup that Khem lived with him. He said Khem slept on the couch and kept some of his belongings in defendant's bedroom. Defendant said a black and green backpack under the television set in the bedroom was Khem's. Defendant's wife also told officers that Khem slept on the couch and kept some of his belongings in their bedroom. She also said Khem did not go in the bedroom often.
Based on Khem's PRCS status, officers searched defendant's residence, including defendant's bedroom where defendant said Khem kept some personal items. Prior to the search, several children and an elderly woman who were also inside the house came outside.
Defendant's bedroom door was open when officers initiated the search. A loaded firearm and ammunition was found inside an unlocked dresser drawer in the bedroom, together with a section 290 registration card for defendant. Officers also found a backpack in the bedroom which contained Khem's clothing and mail. After being read his Miranda rights, defendant admitted the firearm belonged to him and said Khem knew about the firearm, although neither had ever used the gun.
See Miranda v. Arizona (1966) 384 U.S. 436.
A second firearm (a rifle) was located in a separate bedroom inside a locked closet. The elderly woman provided officers with keys to the closet. Based on those circumstances, Officer Allsup did not believe that defendant or Khem had access to the rifle and neither was charged with its possession.
After the close of evidence, defendant argued that the court should suppress the firearm because the search exceeded the scope of Khem's PRCS search condition. While defense counsel acknowledged that the officers could retrieve Khem's backpack from defendant's room and search it, counsel argued that officers had no right to search defendant's bedroom, including the dresser where the gun was found.
The court found the search of the bedroom, including the dresser, was well within the scope of Khem's PRCS search condition, and denied the motion to suppress. According to the court, sufficient evidence existed for the officers to conclude that defendant and his wife occupied the bedroom and that Khem used the bedroom to store his personal belongings and thus had joint access and control of the bedroom.
Defendant subsequently renewed his motion to suppress before the trial court. The trial court reviewed the preliminary hearing transcript and denied the motion.
Defendant pleaded guilty to being a felon in possession of a firearm and admitted the prior strike allegation. The prior prison term allegation was dismissed. The court sentenced defendant to the midterm of two years, doubled to four years for the strike prior. Defendant timely appealed.
II. DISCUSSION
Defendant contends the court improperly denied his motion to suppress because the search of his bedroom dresser violated the Fourth Amendment. In defendant's view, he had a reasonable expectation of privacy in his dresser even though an individual on searchable PRCS resided in his home and kept some of his belongings in defendant's bedroom where the dresser with the gun was located. We disagree. A. Standard and Scope of Review
A criminal defendant may challenge the reasonableness of a search or seizure by moving to suppress evidence at a preliminary hearing. (People v. McDonald (2006) 137 Cal.App.4th 521, 528 (McDonald); § 1538.5, subd. (f)(1).) If the defendant is unsuccessful at the preliminary hearing, he must raise the search and seizure issue before the superior court by a motion to dismiss under section 995 or in a special hearing under section 1538.5 to preserve the issue for appellate review. (People v. Lilienthal (1978) 22 Cal.3d 891, 896; People v. Romeo (2015) 240 Cal.App.4th 931, 941 (Romeo); McDonald, at p. 529; § 1538.5, subds. (i), (m).) Defendant filed a combined section 995 and section 1538.5 motion here.
In such a proceeding, "the evidence is generally limited to the transcript of the preliminary hearing, testimony by witnesses who testified at the preliminary hearing (who may be recalled by the prosecution), and evidence that could not reasonably have been presented at the preliminary hearing." (Romeo, supra, 240 Cal.App.4th at p. 941; see § 1538.5, subd. (i).) "The factual findings of the magistrate are binding on the court, except as affected by any additional evidence presented at the special hearing." (Romeo, at p. 941; see also McDonald, supra, 137 Cal.App.4th at p. 529 [in section 995 proceeding, the superior court's role is similar to that of an appellate court reviewing the sufficiency of the evidence to sustain a judgment: "The superior court merely reviews the evidence; it does not substitute its judgment on the weight of the evidence nor does it resolve factual conflicts"].)
On appeal from the trial court's ruling, we, too, are bound by the magistrate's factual findings so long as they are supported by substantial evidence. (Romeo, supra, 240 Cal.App.4th at p. 941; McDonald, supra, 137 Cal.App.4th at p. 529.) We, in effect, disregard the trial court's ruling and directly review the magistrate's determination. (Romeo, at p. 941.) We must draw all presumptions in favor of the magistrate's factual determination, considering the record in the light most favorable to the ruling. (Ibid.) We then judge the legality of the search by measuring the facts, as found by the trier, against the constitutional standard of reasonableness. (Id. at pp. 941-942.) We exercise our independent judgment to determine whether, on the facts so found, the search or seizure was reasonable. (Ibid.) B. Suspicionless Searches and the Fourth Amendment
"The Fourth Amendment protects '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' " (Utah v. Strieff (2016) ___ U.S. ___ [136 S.Ct. 2056, 2060, 195 L.Ed.2d 400]; U.S. Const., 4th Amend.) "A similar guarantee against unreasonable government searches is set forth in the state Constitution (Cal. Const., art. I, § 13) but, since 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." (People v. Camacho (2000) 23 Cal.4th 824, 830.) The California 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.' " (Ibid.)
" '[T]he "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." ' " (People v. Troyer (2011) 51 Cal.4th 599, 602.) Searches and seizures inside a home without a warrant are therefore " 'presumptively unreasonable.' " (Ibid.) There are several exceptions to the warrant requirement, however. (Ibid.) Probation, parole, and PRCS searches are among those exceptions. (People v. Douglas (2015) 240 Cal.App.4th 855, 860, 865.)
Suspicionless searches are lawful in California for probationers and parolees, so long as they are not conducted arbitrarily, capriciously, or for harassment. (People v. Bravo (1987) 43 Cal.3d 600, 610.) The same is true for those released on PRCS. (People v. Douglas, supra, 240 Cal.App.4th at p. 865.) "[A]n individual who has been released from custody under PRCS is subject to search (and detention incident thereto) so long as the officer knows the individual is on PRCS." (Ibid.; § 3453, subd. (f) ["The person [released on postrelease community supervision], and his or her residence and possessions, shall be subject to search at any time of the day or night, with or without a warrant, by an agent of the supervising county agency or by a peace officer"].) The officer's belief in the subject's status as a person subject to PRCS must have been objectively reasonable in the totality of the circumstances. (Douglas, at p. 865.)
A warrantless search, justified by a probation search condition (or, by analogy, a PRCS search condition), "may extend to common areas, shared by nonprobationers, over which the probationer has 'common authority.' " (People v. Smith (2002) 95 Cal.App.4th 912, 916 (Smith).) The "common authority theory" 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.)
A search of "common areas," however, is not unlimited. (Smith, supra, 95 Cal.App.4th at p. 916.) " 'In all cases, a search pursuant to a probation search clause may not exceed the scope of the particular clause relied upon.' " (Ibid.) Officers, moreover, generally may only search those portions of a residence they reasonably believe the probationer has complete or joint control over. (Ibid.) Before searching those areas that are under the sole control of a nonprobationer, officers must obtain a search warrant or some other exception to the warrant requirement, such as exigent circumstances, must apply. (Ibid.)
"[T]he need to supervise those who have consented to probationary searches must be balanced against the reasonable privacy expectations of those who reside with probationers." (Smith, supra, 95 Cal.App.4th at pp. 916-917.) While a person subject to a search condition has a severely diminished expectation of privacy over his or her person and property, "there is no doubt that those who reside with such a person enjoy measurably greater privacy expectations in the eyes of society." (People v. Robles (2000) 23 Cal.4th 789, 798.) If there is no basis for officers to reasonably believe a probationer residing with a nonprobationer has authority over a certain area of a residence, the nonprobationer retains a valid expectation of privacy in that area. (Ibid.)
Yet, "[w]hat is, or reasonably appears to be, within a probationer's common authority will depend on the specific factual setting of each search." (People v. Carreon (2016) 248 Cal.App.4th 866, 877 (Carreon).) "Searching officers are entitled to rely on appearances. In searching a probationer's residence, officers are not required either to inquire about the ownership of or access rights to each item on the premises or to believe the probationer's statements on this topic." (Id. at pp. 877-878.) With these concepts in mind, we turn to the present matter. C. Searching Officers Reasonably Believed Khem Had Joint Access or Control over Defendant's Bedroom, Including the Dresser
Based on the preliminary hearing evidence, the trial court found that officers reasonably believed that the bedroom defendant and his wife occupied was also used by Khem to store his personal belongings, and, as such, that Khem had access to and control over the bedroom. The court reasoned: "Where would you keep your possessions but in an area in which you have permission and in an area in which you have access?" Not only did the court find that searching the bedroom was reasonable, but also that Khem could have kept items in the dresser and therefore searching the dresser drawer was likewise reasonable. The record amply supports the trial court's conclusions.
Defendant told Officer Allsup that Khem lived with him at the Kirkby Lane house. He also said Khem kept some of his belongings in defendant's bedroom. Those belongings included a black and green backpack that was located below a television in the bedroom. Based on this testimony, the court could reasonably conclude that Khem had access to the bedroom and its contents because he kept some of his own belongings in the room.
Defendant's contention that he told Officer Allsup that the only item of Khem's in the bedroom was the backpack, and, thus, it was only reasonable for officers to locate and search the backpack—and nothing more—is not persuasive. We reject such an unduly narrow reading of Officer Allsup's testimony. Defense counsel asked Officer Allsup: "[Defendant] told you that Mr. Khem kept some of his possessions in the bedroom that was shared by [defendant] and his wife . . . [¶] . . . [¶] [a]nd then he told you specifically what those items were, didn't he?" Officer Allsup responded, "He gave me one of the items as a green and black backpack." When defense counsel asked him, "So the only property he mentioned was the backpack and its contents," Officer Allsup testified, "Yes. I mean he said he kept some of his things in the bedroom and then specifically identified the backpack. I didn't ask to what other things might also be in the bedroom." As the officer explained, while defendant mentioned the backpack he did not exclusively limit Khem's belongings in the bedroom to the backpack.
Officer Allsup's subsequent testimony further confirms this conclusion. He was asked: "Isn't it true, sir, that what was said to you by [defendant] was that Mr. Khem kept a green backpack in his bedroom because he had asked permission as he didn't want to leave that backpack in the living room?" Officer Allsup responded, "I don't believe that was what was said." When counsel continued to insist that defendant had said the only thing Khem kept in the bedroom was the backpack, Officer Allsup replied: "I'm not sure if that was said or not. I don't believe so." Given Officer Allsup's testimony, defendant's attempt to characterize the evidence as showing that the only property Khem kept in the room was the backpack is unavailing.
Furthermore, the door to defendant's bedroom was open when it was searched, and the dresser drawer where the gun was found was not locked. A reasonable inference from this evidence is that Khem, who defendant admitted kept his things in the room, could easily access the room and the contents of the dresser. This contrasts sharply with evidence showing that officers found a second gun in a locked closet in the home, to which officers concluded neither defendant nor Khem had access to or control over that area of the house.
Defendant's reliance on Carreon, supra, 248 Cal.App.4th 866 to support his position that searching the dresser drawer was illegal is misplaced. The defendant in Carreon and her young son were staying in a converted garage unit of a residence leased by a probationer subject to a search condition. (Id. at p. 870.) When law enforcement arrived to conduct a probation search, they had defendant remove her son from a bed in the converted garage unit. (Ibid.) The probation officer who entered the garage unit to search it believed it was defendant's room and not the residence of the probationer he had come to search. (Ibid.) While searching the garage, the officer found a pay/owe sheet in a drawer and a plastic bag containing methamphetamine inside a purse. (Ibid.) The appellate court held that the trial court erred in denying the defendant's suppression motion because the probation search condition of the female probationer, without more, did not authorize officers to look into a purse or drawers located in a separate living unit. (Id. at pp. 870-871.)
Unlike the separate living unit in Carreon, which the searching officer believed to be the defendant's and not the probationer's subject to the search condition before the search, defendant here told the searching officers that Khem slept on the couch and kept some of his belongings in defendant's bedroom. Based on defendant's own statement, the officer could reasonably believe that Khem had joint access to his bedroom, including the furniture in the bedroom, to store his belongings.
As previously noted, Carreon itself noted that "officers are not required either to inquire about the ownership of or access rights to each item on the premises . . . ." (Carreon, supra, 248 Cal.App.4th at p. 878.) Because defendant told officers that Khem kept some of his belongings in his bedroom, the officers reasonably searched the bedroom and the dresser drawers without asking defendant if Khem had access to each drawer.
"[T]he critical issue was whether officers reasonably believed the item was one under [Khem's] control or one to which he at least had access." (Smith, supra, 95 Cal.App.4th at p. 919; People v. Woods (1999) 21 Cal.4th 668, 682 [officers may search those portions of the residence over which they reasonably believe the probationer has complete or joint control].) Based on defendant's statement that Khem kept some of his belongings in defendant's bedroom, the record contains sufficient evidence that the searching officers reasonably believed Khem had joint control or at least access to defendant's bedroom, including the unlocked dresser where the gun was found.
" 'Those associating with a probationer assume the ongoing risk that their property and effects in common or shared areas of a residence may be subject to search.' " (Smith, supra, 95 Cal.App.4th at p. 919.) Once it was determined that defendant's bedroom was also used by Khem to store his belongings, there was no reason for the officers to believe that Khem did not have at least joint control or access to that room. Conducting a search of furniture like a dresser located in the bedroom, which people customarily use to store their belongings, was not unreasonable given the totality of the circumstances. The court therefore properly denied the suppression motion.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
MAURO, J.