Opinion
B225430
08-09-2011
THE PEOPLE, Plaintiff and Respondent, v. EDDIE LEE LAND, Defendant and Appellant.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA076174)
APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold and Stuart M. Rice, Judges. Affirmed.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Eddie Lee Land appeals from a judgment following a no contest plea after the trial court denied his motion to suppress evidence under Penal Codesection 1538.5. Following the denial of his suppression motion on the ground that the residential search was justified as a proper parole search, defendant pled no contest to one count of petty theft with a prior (§ 666) and one count of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)). Defendant admitted one prior strike conviction (§§ 667, subd. (b)-(i), 1170.12), and three prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to an aggregate term of six years in state prison. Defendant thereafter filed a notice of appeal. We affirm. Section 1538.5, subdivision (m), in pertinent part provides that "[a] defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for . . . the suppression of the evidence."
All further statutory references are to the Penal Code.
FACTS
The facts as to the crimes are taken from the preliminary hearing transcript.
A. The Crimes
On September 14, 2009, Edwin Mendez (Mendez), who worked security at the Gardena Target store, observed defendant placing fragrance items in a shopping cart. Defendant went to a nearby aisle where he concealed the items in the pockets of his shirt and shorts. Defendant then walked around for a short time, met a woman near the cash registers, and exited the store without paying for the items.
Mendez contacted defendant outside of the store and then brought defendant, his son, and other security personnel to the security office, inside the store. Defendant removed the items from his pockets and placed them on a table. The woman defendant had been with knocked on the door, asking for her son back. As the security personnel were allowing the boy to leave the office, defendant fled. Mendez did not chase him.
Brenda Florence (Florence) was exiting Target when defendant ran into her. Defendant stopped, grabbed her, and threw her to the ground. Defendant ran away without asking if Florence was all right. She was taken to a hospital for evaluation by paramedics. B. The Suppression Motion
On September 22, 2009, Gardena Police Officer Eric Hyde was investigating the theft at Target. Officer Hyde observed a video depicting a man (later identified as defendant) walking into the store with a woman and small child. Based upon the information obtained from a license plate number listed on the Target report concerning the theft, Officer Hyde and Officer Rosales, went to an apartment complex and spoke with the management. The general descriptions Officer Hyde gave matched three people who lived in an upstairs apartment.
The officers went to apartment number 11 and knocked on the door. Ms. Mason answered the door, and Officer Hyde recognized her from the video. He also recognized a boy by his general appearance and age. Officer Hyde asked Ms. Mason if the boy's father was home, although he did not know who the father of the boy was. Ms. Mason indicated the boy's father was home. Officer Hyde asked if the father was on probation or parole, and she said yes. Officer Hyde asked if Ms. Mason minded if he and his partner came inside. She opened the door and allowed the officers to enter the apartment.
The transcript of the officers' conversation was admitted into evidence at the suppression hearing.
Officer Hyde asked if there was anything illegal in the house. Defendant then stepped out from a back room, and Officer Hyde asked if he could talk to him and if he would mind sitting down. After a discussion about the incident at Target and confirming that defendant was on parole, defendant was arrested.
DISCUSSION
After hearing the evidence and argument on the suppression motion, the trial court denied the motion and stated as follows: "Here the officer asked if the male is on parole. The woman says he is. He has a good faith belief in — that the male inside is the — is on parole. He didn't just pick number 11 because he drew the apartment number out of a hat. [¶] He's there for an investigation. He's got a pretty good idea who is living there. And as soon as he sees the woman and she matches the description of the individual on the video, then his suspicions are increased that he's at the right place. [¶] In listening to the CD and following with the transcript, I don't see how the officer did anything that was in contravention of the Fourth Amendment. Again, if there wasn't the information about a parole search, he would be in a lot stronger position. [¶] But the fact that the officer knew that the male inside was on parole prior to going in, it's a lawful parole search. The motion is denied."
The applicable standard of review is well stated in People v. Middleton (2005) 131 Cal.App.4th 732. "In reviewing the denial of a motion to suppress, an appellate court defers to the trial court's express or implied findings of fact that are supported by substantial evidence, but must independently determine the relevant legal principles and apply those principles to the trial court's findings of facts to determine whether the search was constitutionally reasonable. [Citations.] '[T]he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court.' [Citation.] If factual findings are unclear, the appellate court must infer 'a finding of fact favorable to the prevailing party on each ground or theory underlying the motion.' [Citation.] However, if the undisputed facts establish that the search or seizure was constitutionally unreasonable as a matter of law, the reviewing court is not bound by the lower court's ruling." (Id. at pp. 737-738.)
The Fourth Amendment protects against arbitrary and unreasonable searches and seizures in a person's residence. (People v. Middleton, supra, 131 Cal.App.4th at p. 738.) A residential search conducted without a warrant is presumed to be unreasonable unless it comes within one of the well-established exceptions. (Ibid.)
One exception established by the California Supreme Court is that a warrantless search of the residence of a parolee who is subject to a valid search condition, "despite the absence of a particularized suspicion," is constitutionally valid as long as the search is not conducted for arbitrary, capricious or harassing purposes. (People v. Reyes (1998) 19 Cal.4th 743, 753-754; accord, Samson v. California (2006) 547 U.S. 843, 850-857 [126 S.Ct. 2193, 165 L.Ed.2d 250].) For example, a warrantless parole search could be determined unconstitutional if such a search was conducted too often, made at an unreasonable hour, or unreasonably prolonged. (Reyes, supra, at p. 753.) It may be arbitrary and capricious if the motivation for the search is unrelated to rehabilitative, reformative or legitimate law enforcement purposes. (Id. at p. 754.) A warrantless parole search which is conducted out of personal animosity toward the parolee or at the whim of law enforcement officers may be a form of harassment. (Ibid.)
The absence of a warrant or a particularized suspicion for a parole search does not run afoul of the protection of privacy interests by the Fourth Amendment, in that a parolee lacks a legitimate expectation of privacy, and the state has a substantial interest in supervising parolees and reducing recidivism. (Samson v. California, supra, 547 U.S. at p. 854.) The warrantless parole search exception is consistent with California legislative policy codified in section 3067, subdivision (a), that "[a]ny inmate who is eligible for release on parole pursuant to this chapter shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause."
In the instant case, substantial evidence supports a finding that the search was a valid parole search of a parolee who was subject to a search condition. Ms. Mason told Officer Hyde that defendant was on probation or parole, and defendant confirmed that he was on parole.
Even though the search of the apartment was conducted without a warrant, there is substantial evidence in the record to support a finding that Officer Hyde had sufficient basis to believe that defendant had committed the theft at Target and the assault on Florence. The officer had observed the video of the Target incident. He had obtained a license plate number that led him to an apartment. He spoke to the manager of the apartment building, and the general description Officer Hyde gave matched three people who lived in the apartment complex. Upon going to the apartment, Officer Hyde recognized Ms. Mason and the boy from the Target store video. Officer Hyde certainly had a legitimate law enforcement purpose to conduct the search. (People v. Reyes, supra, 19 Cal.4th at p. 754.)
Defendant contends "[t]he police action in this instance was evidently an end-run around the [Constitution, that evokes images of police knocking on doors in high crime areas, hoping to discover the presence of a probationer or parolee, to investigate nebulous crime leads." Nothing in the record indicates that the manner in which the search was conducted was unreasonable, arbitrary, capricious or for harassment purposes. The method of entry was reasonable. There was no use of force. The officers went to an apartment with the specific purpose of investigating a crime that had recently occurred. There is certainly no evidence that this was more than an isolated search. It was not a part of a pattern of frequent searches of defendant or his residence. The record simply is devoid of any evidence suggesting animosity on the part of the officers against defendant.
Defendant's reliance on U. S. v. Howard (9th Cir. 2006) 447 F.3d 1257 is not persuasive. Howard simply states that before conducting a warrantless search pursuant to a parolee's condition, law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched. In Howard, the court found that there was no "probable cause to believe that a parolee [resided] at an unreported residence" for several reasons including the fact that "visits to the parolee's reported address suggested that [he] continued to reside there," "the police watched the address in question for a month and did not see the parolee there," and "no credible witnesses had seen the parole at the address in question for some time before the search." (Id. at p. 1268.)
Although lower federal court decisions on federal questions are persuasive and entitled to great weight, they are not binding on state courts. (Flynt v. California Gambling Control Com. (2002) 104 Cal.App.4th 1125, 1132; Smith v. County of Los Angeles (1994) 24 Cal.App.4th 990, 997, fn. 2.)
In the instant case, while the police did not know defendant's name at the time they searched the apartment, they had credible information that he was residing there. Officer Hyde had obtained the address from a license plate in the police report. He talked to the manager of the apartment complex concerning a man, woman and small child living in the apartment. When he went to the apartment, he recognized the woman and the child from the Target video. Ms. Mason indicated that the boy's father was on probation or parole. The officers thus had probable cause to believe that a parolee was a resident of the apartment to be searched.
Since the entry into the defendant's apartment was for a legitimate law enforcement purpose to investigate the Target crime, and it was a valid parole search, the trial court properly denied defendant's suppression motion.
DISPOSITION
The judgment is affirmed.
JACKSON, J. We concur:
WOODS, Acting P. J.
ZELON, J.