P. v. Prescott

Filed 7/5/07 P. v. Prescott CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Sandra Prescott of possession of methamphetamine for sale. (Health & Saf. Code, 11378.) The trial court sentenced her to the low term of 16 months.

On appeal, defendant contends the trial court improperly denied her motion to suppress evidence seized during a probation search. We reject her contention and affirm.

Background

Because the sole issue on appeal is the legality of the search, we take the facts from the suppression hearing.

Based on personal knowledge and a records check, Sacramento County Sheriffs Detective Jon Eubanks determined that defendant lived at 8083 Willow Glen Court in Citrus Heights, was on probation, and was subject to a probation search condition. On May 11, 2005, around 5:10 p.m., Detectives Eubanks and Dan Donelli went to the Willow Glen Court address to conduct a probation search at defendants residence.

The detectives knocked on the front door and entered after hearing no answer. Detective Donelli conducted a protective sweep on the second floor, while Detective Eubanks encountered a man named Leffingwell seated at the kitchen table on the first floor. Detective Eubanks questioned Leffingwell, who stated that defendant was at work and that an upstairs bedroom discovered by Detective Donelli belonged to John and Sandy. Detective Eubanks searched the bedroom and found 21.9 grams of methamphetamine and $338.

Detective Donelli entered an office area on the second floor. He found a drivers license belonging to defendant in a wicker basket on a desk in the office. He also found a pay/owe sheet on top of the desk and a black digital gram scale underneath the desk. Neither detective knew why the door to the room across from defendants bedroom had been kicked in.

The trial court denied defendants motion to suppress the items seized in the search, finding Detective Eubanks had reason to believe defendant lived at the Willow Glen Court residence and was subject to a probation search condition.

Discussion

The search of defendants residence was conducted without a warrant, and the record contains no evidence showing that the detectives suspected defendant of wrongdoing. Defendant contends the search violated the Fourth Amendments general standard of reasonableness.

The standard of review on appeal following denial of a motion to suppress such as the one before us is well settled. We defer to the trial courts findings of fact if supported by substantial evidence, but employ our independent judgment as to the constitutional reasonableness of the search. (People v. Miranda (1993) 17 Cal.App.4th 917, 922.)

The Fourth Amendment confers the right against unreasonable searches and seizures. (U.S. Const., 4th Amend.) [B]y accepting probation, a probationer consents to the waiver of Fourth Amendment rights in order to avoid incarceration. (People v. Ramos (2004) 34 Cal.4th 494, 506.) Police do not need a warrant or suspicion to search someone who has submitted to a probation search condition. (People v. Bravo (1987) 43 Cal.3d 600, 609-610 (Bravo).)

Defendant questions the continuing viability of this holding of Bravo in light of the United States Supreme Courts decision in United States v. Knights (2001) 534 U.S. 112 [151 L.Ed.2d 497] (Knights).

In Knights, the appellant and a friend were suspected of committing arson and vandalizing Pacific Gas & Electric (PG&E) property. A detective saw appellants friend leaving appellants apartment around 3:00 a.m. one morning carrying three cylinders that appeared to be pipe bombs. When the detective looked in the back of the friends truck, he saw PG&E padlocks and various explosive materials. Based on his observations, the officer searched appellants apartment pursuant to a probation search condition. (Knights, supra, 534 U.S. at pp. 114-115.) The Ninth Circuit Court of Appeals found the search was invalid because it was motivated by investigatory rather than probationary purposes. (Id. at p. 116.) The United States Supreme Court noted that nothing in the appellants search condition suggested it was confined to searches bearing upon probationary status. (Ibid.) Determining that probation searches need not be justified by probable cause, Knights held the warrantless search of [appellants apartment], supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the Fourth Amendment. (Id. at p. 122.)

Although Knights found the search was supported by reasonable suspicion and, therefore, passed constitutional muster, this does not lead to the conclusion that reasonable suspicion is required in all cases. An opinion upholding a particular search does not necessarily hold unconstitutional any different search. (Knights, supra, 534 U.S. at pp. 117-118.) Because the search in Knights was supported by a reasonable suspicion, the Supreme Court expressly declined to decide whether a probation search by a law enforcement officer without reasonable suspicion satisfies the reasonableness requirement of the Fourth Amendment. (Id. at p. 120, fn. 6.)

Since Knights did not reach this issue, the holding in Bravo--that a probation search does not require a warrant or particularized suspicion of criminal activity--is controlling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Defendant also claims the California Supreme Courts decisions in People v. Robles (2000) 23 Cal.4th 789 and People v. Sanders (2003) 31 Cal.4th 318 undermine support for suspicionless probation searches. In both cases the California Supreme Court held a search condition could not be used to justify a search when the searching officers did not know about the probation search condition. (Robles, supra, at pp. 792-793, 800; Sanders, supra, at p. 335.) Since the detectives knew about defendants search condition, Robles and Sanders are inapplicable to the search in this case.

There are limits to the probationers consent to a search condition. A waiver of Fourth Amendment rights as a condition of probation does not permit searches undertaken for harassment or searches for arbitrary or capricious reasons. (Bravo, supra, 43 Cal.3d at p. 610.) Defendant contends the search was illegal under Bravo because it was arbitrary, capricious, and harassing.

Defendant claims the manner in which the search was conducted shows it was intended to harass rather than serve a legitimate law enforcement or rehabilitative purpose. In support of her contention, defendant notes the detectives entered the residence after no one answered their knock on the door, the locked doors of two bedrooms were kicked in, the detectives tore the place apart when searching the home, and the prosecutions . . . offer of a protective sweep as an alternative basis for entering the study and breaking down a bedroom door which did not belong to defendant.

In People v. Reyes (1998) 19 Cal.4th 743, the California Supreme Court clarified what constituted an arbitrary or harassing probation or parole search. The Supreme Court held that a parole search could become constitutionally unreasonable if made too often, or at an unreasonable hour, or if unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct by the searching officer. [Citations.] (Id. at pp. 753-754.) The court cited as examples cases finding that a search is arbitrary and capricious when motivated by personal animosity or by purposes unrelated to rehabilitation or legitimate law enforcement. (Id. at p. 754.)

Probation searches are subject to the knock notice requirement. (People v. Mays (1998) 67 Cal.App.4th 969, 973, fn. 4.) The record indicates that one of the officers knocked on the door and the detectives entered after no one answered. Merely knocking without notice does not support an inference of harassment.

Defendants contention that the officers were responsible for kicking down doors in the residence is not supported by the record. The detectives who testified at the suppression hearing both stated they were not responsible for any door being kicked in.

There is also no support for the assertion that the search left the house in a shambles. Defendant cites to photographs of the upstairs bedroom or study that were admitted at the suppression hearing. These photographs are not in the record. Even if the photos were in the record, there is no evidence indicating the state of the rooms before the search.

Nothing in the record shows the search was motivated by personal animosity or was conducted in a harassing manner. Applying Bravo, the probation search was legal and the trial court properly denied the suppression motion.

Disposition

The judgment is affirmed.

DAVIS , J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

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