P. v. Kekaula

Filed 4/17/07 P. v. Kekaula CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Louis P. Etcheverry, Judge.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. Mclean and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Appellant.

Frank Butkiewicz, for Defendant and Respondent.

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INTRODUCTION

On March 1, 2006, the People filed an information charging Kwame Kekaula (Respondent) with a violation of Health and Safety Code section 11359 (possession of marijuana for sale), Health and Safety Code section 11378 (possession of a controlled substance for sale), and Penal Code section 12021, subdivision (a)(1) (possession of a firearm by a felon). After a hearing, the court granted Respondents motion to suppress evidence seized from Respondents residence. The court dismissed the case on its own motion and the People now appeal.

Respondent was subject to a condition of probation requiring him to submit to warrantless searches for stolen property. At issue is whether the search that yielded the contraband exceeded the scope of the search permissible under his probation condition. We find Respondent did not have a reasonable expectation of privacy in the areas where police searched for and seized the suppressed evidence. The officers legally entered Respondents residence and conducted the search in a reasonable, non-harassing manner. We now reverse.

FACTUAL BACKGROND

On May 13, 2005, members of a Kern County methamphetamine task force received an anonymous tip alleging Respondents involvement in some type of narcotics activity. The officers learned Respondent was on probation for a recent misdemeanor theft charge and subject to search for stolen property.^[1] Based on this knowledge, three officers entered Respondents residence without a warrant. There they seized cash, a glass smoking pipe, two digital scales, several bags of marijuana, a baggie of methamphetamine, and a firearm. The officers testified they only searched for and seized evidence in areas where Respondent could have hidden stolen property.^[2]

STANDARD OF REVIEW

Under California law, issues relating to the suppression of evidence derived from police searches and seizures must be reviewed under federal constitutional standards. [Citations.] (People v. Robles (2000) 23 Cal.4th 789, 794 (Robles); People v. Ayala (2000) 23 Cal.4th 225, 254-255.) We defer to the trial courts factual findings if supported by substantial evidence. (People v. Woods (1999) 21 Cal.4th 668, 673 (Woods).) However, we exercise our independent judgment in determining the legality of a search on the facts so found. (Id. at pp. 673-674.)

DISCUSSION

We divide our analysis into two parts: (1) whether, leaving aside any limit on the probation search condition, officers could legally enter Respondents residence based on the search condition, and (2) once in, whether the officers conducted their search in a reasonable, non-harassing manner in light of the probation search condition being limited to searches for stolen property.

A. LEGALITY OF THE ENTRY TO SEARCH.

The Fourth Amendment affords people the right to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures by government officials. (U.S. Const., 4th Amend.) A search conducted without a warrant is unreasonable per se under the Fourth Amendment unless it falls within one of the specifically established and well-delineated exceptions. (Woods, supra, 21 Cal.4th at p. 674, quoting Katz v. United States (1967) 389 U.S. 347, 357.) Consent through a probation search condition is one such exception. (Woods, supra, 21 Cal.4th at p. 674.) In California, a person may validly consent in advance to warrantless searches and seizures in exchange for the opportunity to avoid serving a state prison term. (Robles, supra, 23 Cal.4th at p. 795.) Still, a search condition may diminish, but does not entirely preclude, a reasonable expectation of privacy, i.e., a reasonable expectation that officers will not undertake a random search supported by neither evidence of criminal activity nor advance knowledge of the search condition. (In re Jaime P. (2006) 40 Cal.4th 128, 134.)

Here, the officers legally entered Respondents residence without a warrant. Respondent waived his Fourth Amendment protection against warrantless searches and seizures when he agreed to the terms of his probation. Those terms made Respondent subject to search by any law enforcement officer, day or night, without the necessity of a warrant or probable cause. The officers did not violate any diminished privacy expectation Respondent may have retained despite the search condition. Before entering, they had both knowledge of the search condition and evidence implicating Respondent in possible criminal activity. The officers did not undertake the search on a random or otherwise improper basis.

B. NATURE OF THE SEARCH.

Once the officers legally entered Respondents residence, they still had to conduct the search in a reasonable, non-harassing manner. (People v. Gomez (2005), 130 Cal.App.4th 1008, 1017, (Gomez); People v. Reyes (1998) 19 Cal.4th 743, 749.) Inasmuch as a search or seizure pursuant to a valid consent does not violate the Fourth Amendment, it is not unreasonable unless it exceeds the scope of the consent. (People v. Bravo (1987) 43 Cal.3d 600, 609.) In the context of probation searches , the question is whether the circumstances, viewed objectively, show a proper probationary justification for an officers search; if they do, then the officers subjective motivations do not render the search invalid. (Robles, supra, 23 Cal.4th at p. 796, fn. omitted; Woods, supra, 21 Cal.4th at pp. 678-681.) Under this objective analysis, whether a search is reasonable must be determined based upon the circumstances known to the officer when the search is conducted. (People v. Sanders (2003), 31 Cal.4th 318, 334.)

This case is similar to the Gomez decision. (Gomez, supra, 130 Cal.App.4th 1008.) In Gomez, a police officer learned he would find stolen property at probationers residence. When asked, probationer acknowledged he had the stolen goods in a garage behind his house. The officer learned probationer was subject to a search condition allowing warrantless searches for narcotics and weapons, entered the garage without a warrant, then searched for and seized the stolen property from within two storage boxes. In holding the evidence admissible, the court noted: [I]n order for a search to be limited in scope to the terms of the search clause, it is only necessary that the search not exceed the areas that could be searched pursuant to the clause. (Id. at p. 1017.) Probationer waived his privacy rights with respect to areas where property subject to a search condition might be found, and ha[d] no cause to complain when those areas [were] searched, whatever the reason for the search. (Ibid.) The objective circumstances indicated the officer did not act in an arbitrary, capricious, or harassing manner. (Id. at p. 1013.)

We reach a similar conclusion here. Objectively, based on the totality of the known circumstances, the officers did not exceed the scope of the search condition. The scope allowed searches for stolen property. By consenting to this search term, Respondent no longer enjoyed a reasonable expectation of privacy in the areas in which he might keep stolen property. The officers limited their search to these areas. Objectively, they acted in a reasonable, non-harassing manner. Any subjective motivations to the contrary would not alter this fact. The evidence seized by the officers resulted from a permissible search and seizure.

DISPOSITION

The judgment is reversed and remanded with directions to the superior court to vacate its order granting the motion to suppress and to reinstate the action.

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^* Before Ardaiz, P.J., Harris, J. and Kane, J.

^[1]The precise wording of the probation search condition made Respondent subject to a search of [his] person, vehicle or residence by any peace officer or probation officer, day or night, without the necessity of a search warrant or probable cause for stolen property .

^[2]The two scales measured roughly four inches by four inches. One was discovered on a desk and the other discovered on the floor of a closet. Officers discovered two of the bags of marijuana on the closet floor, each measuring 12 inches by 12 inches. They discovered a three-by-six inch ziplock baggie of marijuana between the mattresses in a bedroom. They discovered a similar baggie of methamphetamine in the same location. The officers seized the money from a fanny pack on a speaker box and in an adjacent small cardboard box.