P. v. Otero

Filed 10/16/07 P. v. Otero CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. John T. Doyle, Judge. Affirmed.

Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Oscar Otero appeals his conviction for possessing methamphetamine for sale (Health & Saf. Code,  11378) on the ground that his motion to suppress evidence should have been granted. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A traffic stop for an expired registration led to Oteros arrest for driving with a suspended license. During the inventory search of Oteros car, police discovered an apparently recent photograph of Otero holding an illegal Mach 10 weapon with a silencer. Police ascertained that Otero was on probation and telephoned the Probation Department; a field officer authorized a search of Oteros residence based on a search condition in Oteros terms of probation.

Initial entrance to the house revealed a weapon in the kitchen and a plastic baggie with methamphetamine in the living room. A search warrant was then obtained to search the rest of the house for the specific firearm depicted in the photograph found in Oteros car. Further searching pursuant to the warrant revealed additional methamphetamine, weapons, and ammunition.

Criminal charges were filed against Otero in federal court. In March 2005, the federal district court held a hearing on a motion to suppress the evidence gathered from Oteros home. Based on the evidence presented to the federal court, that court found the search to be unreasonable under the Fourth Amendment and granted the motion to suppress.

An information charging Otero with a number of offenses arising from these facts was filed in state court in July 2005. Pursuant to Penal Code section 1538.5, Otero moved to suppress evidence of all drugs and firearms found as a result of the search of Oteros home. The court held a hearing on the suppression motion and found that reasonable suspicion existed to warrant the probation search.

Otero later pleaded nolo contendere to a violation of Health and Safety Code section 11378. The trial court accepted the plea and found Otero guilty of possession of methamphetamine for sale. Otero admitted the special allegation against him under Penal Code section 12022, subdivision (c). Otero was sentenced to two years in prison for the offense, with a four-year enhancement for the special allegation. Otero appeals the denial of the suppression motion.

DISCUSSION

Otero argues that the suppression motion should have been granted because the search was unreasonable, as the search was not based on reasonable suspicion. He also argues that the doctrine of the law of the case should have been applied here to require suppression of the evidence in light of the earlier federal ruling that the search was unreasonable.[1]

As an initial matter the doctrine of law of the case has no application here. The law of the case doctrine recognizes that certain appellate court rulings are binding in all further court proceedings in a caseclearly that is not the situation presented here. (See, e.g., Kowis v. Howard (1992) 3 Cal.4th 888, 893 [when . . . an appellate court states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal . . .].) Nor do the principles of collateral estoppel apply, as it is established that the public prosecutor representing the People of the State of California is not barred from relitigating in state court the legality of a search or seizure that has been found illegal in federal court, unless the Peoples prosecutors actively participated in the federal proceedings. (People v. Meredith (1992) 11 Cal.App.4th 1548, 1552; see also Stephens v. Attorney General of California (9th Cir. 1994) 23 F.3d 248, 249.) There is no evidence in the record of any participation by the States prosecutors in the federal court proceeding.

The United States Supreme Court has held that when a police officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationers significantly diminished privacy interests is reasonable. (U.S. v. Knights (2001) 534 U.S. 112, 121 (Knights); see also People v. Ramos (2004) 34 Cal.4th 494, 503 [when the officers, as here, have reasonable suspicion that a probationer is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationers privacy is reasonable]; but see People v. Bravo (1987) 43 Cal.3d 600, 607-609 [considering acceptance of probation search condition to be a complete waiver of that probationers Fourth Amendment rights, save only his right to object to harassment or searches conducted in an unreasonable manner]; People v. Woods (1999) 21 Cal.4th 668, 675 [reaffirming that a search condition of probation that permits a search of a probationers home without a warrant also permits a search of the home without reasonable cause].) In reviewing the trial courts ruling on the suppression motion, we accept the trial courts factual findings to the extent they are supported by substantial evidence but independently determine as a matter of law whether the search was reasonable. (People v. Temple (1995) 36 Cal.App.4th 1219, 1224.)

We conclude that under the totality of the circumstances (Knights, supra, 534 U.S. at p. 118), reasonable suspicion supported the search of Oteros home. Otero was on probation for a weapons offense, his probation included a search condition, and the police had found a photograph of Otero holding an illegal firearm with an illegal silencer. The photograph, moreover, bore a date stamp that indicated the photograph had been taken eight days earlier, and the appearance of the defendant and the photograph itself tended to confirm that it was a very recent photograph.[2] In light of the fact of Oteros status as a probationer subject to a search condition and the diminished expectation of privacy he therefore enjoyed, these facts were enough to give the officers a reasonable suspicion that Otero was engaged in criminal activity. (Id. at pp. 119-120, 121.) The trial court did not err in holding the search reasonable under the Fourth Amendment.

We recognize that the federal district court, reviewing the same evidence, came to a different conclusion than did the state trial court. Particularly salient to the federal court was the fact that the police officers concluded before entering Oteros home that the photograph found in Oteros car was not taken at the residence they were about to search. The federal court concluded that once it appeared that the photo was not taken in the house, the police lacked any reasonable suspicion that there were weapons in that house. The federal court also considered the fact that probation search consents were routinely given by the probation department, rendering approval automatic and meaningless. From our understanding of the Supreme Courts statements in Knights, supra, 534 U.S. at page 121, these factors are not determinative. Unlike a probable cause determination, in which it is important that officers tie a particular location to the suspected criminal conduct, the reasonable suspicion standard, at least when involving a probationer with a search condition, does not seem to be focused on a location at all. The Supreme Courts statement in Knight instead centers on the probationer himself or herself: the requisite reasonable suspicion is the suspicion that the probationer is engaged in criminal activity, not that the probationer is engaged in criminal activity at a specific place. (Ibid.)

Similarly, it is not the ease or difficulty of obtaining probation department approval for a search that makes a persons status as a probationer significant in the Fourth Amendment analysis; rather, probation status informs the analysis of both an individuals privacy expectations and the governments interests. As the Supreme Court has explained, The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individuals privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. [Citation.] Knights status as a probationer subject to a search condition informs both sides of that balance. . . .  Probation is one point . . . on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service. [Citation.] Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled. [Citation.] Just as other punishments for criminal convictions curtail an offenders freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens. (Knights, supra, 534 U.S. at pp. 118-119.)

Moreover, on the governmental interest side of the balance, the Supreme Court has explained, it must be remembered that the very assumption of the institution of probation is that the probationer is more likely than the ordinary citizen to violate the law. [Citation.] The recidivism rate of probationers is significantly higher than the general crime rate. [Citations.] And probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply, [citations]. [] The State has a dual concern with a probationer. On the one hand is the hope that he will successfully complete probation and be integrated back into the community. On the other is the concern, quite justified, that he will be more likely to engage in criminal conduct than an ordinary member of the community. . . .  Its interest in apprehending violators of the criminal law, thereby protecting potential victims of criminal enterprise, may therefore justifiably focus on probationers in a way that it does not on the ordinary citizen. (Knights, supra, 534 U.S. at pp. 120-121.) As we read Knights, whether the probation department routinely authorizes probation searches is not determinative in this analysis of the searchs reasonableness. What is significant is the fact that Oteros probation status diminishes his expectation of privacy and heightens the governments interest in focusing on him more intensely than it would a citizen who was not on probation.

Accordingly, we respectfully differ with the conclusion of the federal district court and conclude that under prevailing Supreme Court authority, the search of Oteros home was reasonable for purposes of the Fourth Amendment. The photograph depicting Otero engaged in criminal activity that was both recent and similar to the very offense for which he was on probation, coupled with his diminished reasonable expectation of privacy as a probationer and the heightened governmental interest in monitoring him given his probation status, provided reasonable suspicion sufficient to support the search of his home. The search was reasonable, and the motion to suppress was properly denied.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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[1] We take judicial notice of the transcript Otero submitted of the federal court proceedings concerning suppression. (Evid. Code,  452, subd. (e).)

[2] The trial court acknowledged that a handwritten entry on the back of the photograph indicated a possible alternative date, but evaluated the photograph, its condition, its content, and the date stamp and concluded that It can readily be said that this photo was taken at a fairly contemporaneous time of the stop. This finding is supported by substantial evidence.