Filed 4/27/07 P. v. Reed CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Ruth Ann Kwan, Judge. Affirmed.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

___________________

INTRODUCTION

Defendant Larry Reed appeals from a judgment of conviction following a no contest plea entered after the trial court denied his motion to suppress evidence under Penal Code section 1538.5. We affirm.

PROCEDURAL BACKGROUND

Defendant was charged by information with possession for sale of cocaine base (Health & Saf. Code,  11351.5; count one) and possession of heroin (id.,  11350, subd. (a); count two). One prior strike (Pen. Code,  1170.12, 667, subds. (b)-(i)[1]) and four prior prison terms ( 667.5, subd. (b)) were alleged. In proceedings begun during the preliminary hearing and later resumed in order to receive testimony from defense witness Robert Hilson, the trial court heard and denied defendants motion to suppress evidence pursuant to section 1538.5. Defendant pled not guilty and denied the special allegations. Defendant subsequently withdrew his not guilty plea, pled no contest to count two, admitted his prior strike, and was sentenced to 32 months in state prison (the low term of 16 months doubled).

FACTS

A. Prosecution

At about 4:45 p.m. on June 22, 2005, Los Angles Police Officer Todd Ramsey was in the vicinity of Sunset Boulevard and Bronson Street in the County of Los Angeles. Law enforcement had been getting numerous complaints about heavy narcotics activity in the area and had made about 40 arrests in that general area within the past 30 days. Officer Ramsey observed defendant for about 30 to 35 minutes. He saw defendant looking up and down the street, monitoring traffic, frequently meeting with various transients who were known to Officer Ramsey, some of whom he had previously arrested for narcotics violations. Officer Ramsey noticed the numerous contacts defendant made with pedestrians walking by, the secretive manner of defendant when meeting with certain individuals, in that they walked behind other vehicles parked in the lot, their arm movements indicating some form of transaction, and the other person then walking away. Based on his observations and his knowledge of the area, Officer Ramsey formed the opinion that defendant was selling narcotics.

Officer Ramsey approached defendant and learned that defendant was on parole for narcotics violations and had an outstanding misdemeanor warrant. Defendant confirmed to Officer Ramsey that, under the terms of his parole, he was subject to search and seizure conditions. Officer Ramsey decided to conduct a parole search of defendants residence, which was about a half a block away at the St. Moritz Hotel, room 109. The St. Moritz Hotel was a known residence for narcotics dealers. Defendant had a key on his person. Officer Ramsey entered the room using the key.

Officer Ingles, who had been with Officer Ramsey during the observation period and the detention of defendant, also was present for the residence search. Officer Ingles recovered $736 from defendants pants pocket and his sock.

Inside defendants hotel room, Officer Ramsey found five containers filled with a white substance in the floor board area under the carpet. Based on the color and texture of the substance and the packaging, he believed the substance was cocaine base. From the packaging, the cash present and location of the room in a known narcotics sales area, Officer Ramsey formed the opinion that the white substance was possessed for the purposes of sale. Two balloons containing a black tar-like substance with a vinegar smell were recovered from the dresser drawer. Based on his previous experience with this type of substance, Officer Ramsey formed the opinion it was heroin. From the packaging, the cash present and location of the room in a known narcotics sales area, Officer Ramsey formed the opinion that the black substance was possessed for the purpose of sale.

B. Defense

At about 5:20 p.m. on June 22, 2005, Robert Hilson was working as a clerk at the St. Moritz Hotel. He showed the officers defendants hotel registration and spare room key after one officer said he already had a key to the room but wanted to verify that the key was for that hotel. The officers proceeded to the room for about 10 or 15 minutes and then brought defendant to the hotel.

DISCUSSION

Defendant contends that the trial court erred in denying his section 1538.5 motion to suppress, the judgment must be reversed, and the matter must be remanded for further proceedings, because the search of his hotel room was unconstitutional in that it was unreasonable, arbitrary, capricious and conducted for harassment purposes. Defendant does not dispute the legality of the stop or search of his person by the officers. We find no merit in defendants contentions and conclude that the judgment must be affirmed.

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 courts 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 courts 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 courts ruling. (Id. at pp. 737-738.)

The Fourth Amendment protects against arbitrary and unreasonable searches and seizures in a persons residence, including a hotel room in which the person is registered. (People v. Middleton, supra, 131 Cal.App.4th at p. 738.) A residence 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) ___ U.S. ___ [126 S.Ct. 2193, 2199-2200, 2202].) 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, ___ U.S. at p. ___ [126 S.Ct. at pp. 2199-2200].) 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 parole search of the residence of a parolee who was subject to a search condition. Defendant told Officer Ramsey that he was a parolee and subject to a search condition. Even though the search of defendants hotel room was warrantless, there is substantial evidence in the record to support a finding that Officer Ramsey had sufficient basis to form a particularized suspicion that defendant was engaged in unlawful narcotics possession and sale and evidence of such unlawful activity might be found in the room. First, the officer observed defendant for an extended time period, 30 to 35 minutes, engaging in secretive activities with known narcotics offenders in a public area known for a high number of recent narcotics sale-related arrests. Based on the officers training, experience and direct observation of defendant, the officer had a sufficient basis to approach the defendant and ask questions. Defendant does not dispute that his stop by Officer Ramsey was lawful. Defendant voluntarily gave the officer information about his parole status, search condition, and residence location, and the officer obtained a key from defendant. The residence was only half a block from the area of observation and was in a building known by Officer Ramsey as a place of residence for narcotics dealers. Based upon the information available to him, it was reasonable for Officer Ramsey to believe that defendant was violating his parole by possessing controlled substances either on his person or in his nearby residence. A parole search has been deemed constitutional even if there was no reasonable suspicion of illegal activity to support it (People v. Reyes, supra, 19 Cal.4th at pp. 753-754). Office Ramsey had a reasonable particularized suspicion that evidence of illegal activity could be found in defendants residence and thus clearly had a reasonable basis for the search. In short, the officer had a legitimate law enforcement purpose to conduct the search. (Id. at p. 754.)

Further, 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 officer used defendants key after confirming with the hotels clerk that the key was for the room. The search was conducted at a reasonable time, when defendant knew the search was being done. The method of search was reasonable. For two officers knowledgeable and experienced in narcotics-related investigations, the drugs were relatively easy to locate in a drawer and a floor area under the carpet. The officers conducted one isolated search, which was not a part of a pattern of frequent searches of defendant or his residence. For most of the time the officers were in defendants room, defendant was not present and thus, not available for personal harassment by the officers. Nor does the record contain any evidence suggesting animosity on the part of the officers against defendant.

Defendants reliance on People v. Bremmer (1973) 30 Cal.App.3d 1058 based on its facts and its citation by the court in People v. Reyes, supra, 19 Cal.4th at p. 754, is misplaced. As defendant asserts, Reyes cited Bremmer to illustrate that [an] unrestricted search of a probationer or parolee by law enforcement officers at their whim and caprice is a form of harassment. (Reyes, supra, at p. 754, citing Bremmer, supra, at p. 1063.) Bremmer differs from the instant case, however, as to the facts and applicable law. In Bremmer, the defendant was detained on a routine traffic stop for speeding. After determining the defendant was on probation for unlawful drug sales and subject to a search condition, the officer searched her purse and car, and seized the illegal drugs found there. (Id. at p. 1061.) In an opinion later cited as being incorrectly decided (People v. Brown (1987) 191 Cal.App.3d 761, 765), the Bremmer court held that the warrantless search was unconstitutional because of the absence of a particularized suspicion of drug-related unlawful activity. (Bremmer, supra, at pp. 1066-1067.) By contrast, the constitutionality standard applicable in the instant case is set forth in Reyes. Even in the absence of any particularized suspicion of unlawful activity, a warrantless search of a parolee is constitutional unless, for reasons other than absence of such suspicion, the search is arbitrary, capricious or conducted with intent to harass. (Reyes, supra, at pp. 753-754.) As we discussed previously, in the instant case, the officers had ample basis for a particularized suspicion that defendant was engaged in unlawful drug-related activity. The presence of such particularized suspicion negated any question regarding whether, if there had been no such suspicion, the search was arbitrary, capricious or conducted with the intent to harass. (Ibid.)

We conclude that substantial evidence in the record supports a finding that the search of defendants hotel room was based on the reasonable particularized suspicion of Officer Ramsey that defendant was unlawfully in possession of narcotics, and no evidence supports a finding that the search was for arbitrary, capricious or harassment purposes. The search was not in violation of defendants constitutional rights under the Fourth Amendment and therefore, the search was lawful, the evidence obtained in the search was lawfully obtained, and defendants motion to suppress was properly denied. (People v. Reyes, supra, 19 Cal.4th at pp. 753-754; accord Samson v. California, supra, ___ U.S. at p. ___ [126 S.Ct. at pp. 2199-2200, 2202].)

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

VOGEL, Acting P. J.

ROTHSCHILD, J.

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[1] All remaining statutory references are to the Penal Code.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.