P. v. Retuta

Filed 9/25/07 P. v. Retuta CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Following the denial of his motion to suppress evidence (Pen. Code, 1538.5),[1] defendant Wendell Retuta pleaded no contest to receiving stolen property ( 496, subd. (a)) and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, 11364). The court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. On appeal, defendant contends that the trial court erred in denying his motion to suppress, as the search of his motel room was unreasonable. As we find the probation search of defendants motel room to be reasonable under the Fourth Amendment, we will affirm the judgment.

BACKGROUND

Defendant was charged by information with receiving stolen property ( 496, subd. (a)) and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, 11364). He filed a motion to suppress all evidence obtained by police officers during a warrantless search of his motel room in the early morning of December 12, 2005. ( 1538.5.) He contended that the search, which was conducted pursuant to a probation search condition, was arbitrary, capricious and harassing. The prosecutor opposed the motion, contending that the search was reasonable.

Milpitas Police Officer Dennis Dong was the sole witness at the suppression hearing held on June 9, 2006. Officer Dong testified that, around 11:20 p.m. on December 11, 2005, he drove his patrol car through the parking lot of the Best Value Inn, and ran the license plate numbers of parked cars looking for stolen vehicles. He also randomly checked the registered owners of the vehicles to determine whether the owners were on probation or parole. He followed this same procedure every night he worked during the fall and winter of 2005 because the owners of the inn had asked the police for an increased presence there during that time period. There were a lot of law enforcement problems, such as drug activity, sexual assaults, and stolen vehicles parked in the parking lot, at the inn during that time.

On the night of December 11, 2005, one vehicle came back registered to defendant. Officer Dong knew nothing about either defendant or his vehicle. He got defendants drivers license information and asked dispatch to check for any wants or warrants. He learned that defendant was on probation with a search condition.[2] He then went to the front desk of the inn and asked if defendant was registered as a guest there. The officer was told that defendant was registered, and he was given defendants room number and a copy of his registration slip. The slip indicated that defendant was the sole registered guest for the room.

Officer Dong left the inn in order to respond to other calls. He returned to the inn with Officer Lopez just before 12:30 a.m. on December 12, 2005. Defendants car was still in the parking lot. When the officers approached defendants room, the curtains were closed and Dong could not hear any noise coming from inside the room, but a light was on so the officer thought that defendant was awake. The officers custom and practice was to not attempt a probation search late at night if the room lights were off, unless he had received a complaint about that specific room.

Officer Dong knocked on the door to defendants room several times, but got no response. He identified himself, called out defendants name, and knocked again several times. Officer Lopez knocked on the window to defendants room, but there was still no response. Officer Dong thought that defendant was either ignoring him or was not in the room.

After about two to three minutes, the lights went off inside defendants room. Officer Lopez went to the front desk of the inn and called defendants room. Officer Dong could hear the phone ringing inside the room, but nobody answered the phone. Officer Lopez returned and Sergeant Maharaj arrived. Dong went to the front desk of the inn, got an electronic pass key for defendants room, and returned. He again knocked on the door to defendants room, identified himself, and said that he wanted to conduct a probation search. Again, he got no answer.

While Officer Dong was attempting to use the pass key and turn the door handle, defendant suddenly opened the door to his room. The officers had been knocking on the door for a minimum of five to ten minutes by this time. The officers entered the motel room. Defendant was wearing street clothes, and Dong asked him if he was Mr. Retuta. Defendant answered that he was. Dong told defendant that he was there to conduct a probation search.

The motel room had one bed, and two women wearing street clothes were sitting on it. The officers searched the room and found several items of mail addressed to various people, including to defendant, and two checks in the nightstand. Other checks in the name of various people and a Wells Fargo Visa check card to yet another person were also found. A glass smoking pipe was found in the trash can near the bathroom sink. Defendant was arrested.

After the conclusion of evidence and the parties rested, defendant argued that the search was a random probation search and that the officers had absolutely no rationale, no reason, no justification for doing it. No information about the defendant, no information about defendants vehicle, no information this particular night that there was anything going on and in fact I guess this is probably the epitome of what random and arbitrary has to do with. The law is really clear, if youre going to do a . . . probation search there should be some reason for doing it. It should be done in such a manner that its not arbitrary and capricious and I dont really see circumstances under which this couldnt be more arbitrary and capricious.

The prosecutor argued that the search was lawful. The defendant was on a valid search and seizure clause which the officer knew about. He conducted the search in what I perceive as being a pretty decent way and the officer indicates that if he knows that theres a search condition and he checks to see if theyre awake. How less harassing can that be? This officer clearly testified that his habit and custom is if theres some indication that the person is awake in the hotel or the residence, then he conducts the search. If theres an indication that theyre not [a]wake and its after midnight or in the evening then he doesnt do the search. So theres absolutely no way that you can look in the facts of this case and decide that it was done in a harassing manner. Also they cant show that Mr. Retuta has been repeatedly searched by this officer, the officer clearly testified that he never met Mr. Retuta before.

The court denied defendants motion to suppress without stating any reasons for its ruling.

On June 15, 2006, defendant accepted a court offer of no State prison with a ten month top and bottom, and entered a no contest plea to both counts of the information. On July 27, 2006, the court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including a 297-day jail term that was deemed served.

Defendant filed a timely notice of appeal. (Cal. Rules of Court rule 8.304(b)(4)(A).)

DISCUSSION

Defendant contends that the search of his motel room was unreasonable because it was admittedly based solely on his status as a probationer. He argues that there must be some law enforcement or rehabilitative reason for conducting a probation search, and no such reason existed in this case. He further argues that the search was unreasonable given the totality of the circumstances.

The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.] (People v. Glaser (1995) 11 Cal.4th 354, 362.)

The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions. [Citations.] (In re Tyrell J. (1994) 8 Cal.4th 68, 76, overruled on another point by In re Jaime P. (2006) 40 Cal.4th 128, 139.) In Griffin v. Wisconsin (1987) 483 U.S. 868, the United States Supreme Court recognized an exception to the warrant requirement for searches conducted by probation officers of probationers with search conditions. The court held that the usual requirement that a search be undertaken only pursuant to a warrant was excused based upon the special need to supervise probationers. (Id. at p. 873-874.) It found that probationers and parolees do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special . . . restrictions. [Citation.] (Id. at p. 874.) The court concluded that [s]upervision . . . is a special need of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large, but that the permissible degree of impingement upon privacy is not unlimited. (Id. at p. 875.)

The California Supreme Court has held that the search of a probationer pursuant to a search condition of probation may be conducted without any reasonable suspicion of criminal activity. (People v. Bravo (1987) 43 Cal.3d 600, 602, 609 (Bravo); accord People v. Woods (1999) 21 Cal.4th 668, 675; cf. People v. Reyes (1998) 19 Cal.4th 743, 751 (Reyes) [same with respect to searches of parolees].) This is so because a probationer consents to waiver of his Fourth Amendment rights in order to avoid serving a state prison term. (Bravo, supra, 43 Cal.3d at p. 608.) [W]hen [a] defendant in order to obtain probation specifically agree[s] to permit at any time a warrantless search of his person, car and house, he voluntarily waive[s] whatever claim of privacy he might otherwise have had. [Citation.] (Id. at p. 607.)

Therefore, a search pursuant to a probation search condition, conducted without reasonable suspicion of criminal activity, does not violate the Fourth Amendment so long as the search is not undertaken for harassment or . . . for arbitrary or capricious reasons. (Bravo, supra, 43 Cal.3d at p. 610.) Nonetheless, defendant contends that United States v. Knights (2001) 534 U.S. 112 (Knights) stands for the proposition that a search based on nothing but ones status as a probationer, with no other objectively verifiable facts indicating a legitimate law enforcement need or rehabilitative purpose is an unreasonable intrusion.

In Knights, the defendant and a friend were suspected of committing arson and vandalizing Pacific Gas & Electric (PG&E) property. A detective saw defendants friend leaving defendants apartment around 3:00 a.m. carrying three cylinders that appeared to be pipe bombs. When he looked in the back of the friends truck, the detective saw PG&E padlocks and various explosive materials. Based on his observations, the detective searched the defendants 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 an investigatory search rather than one conducted for probationary purposes. (Id. at p. 116.) The Supreme Court rejected this distinction, noting that nothing in the defendants search condition suggested it was confined to searches bearing upon probationary status. (Ibid.) Determining that probation searches need not be justified by probable cause, the court held that the warrantless search of [the defendants 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 the Knights court found the search in that case was supported by reasonable suspicion and, therefore, passed constitutional muster, this does not unavoidably lead to the conclusion that reasonable suspicion is required in all cases. An opinion upholding a particular search does not necessarily hold unconstitutional any search that is not like it. (Knights, supra, 534, U.S. at p. 117.) 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.)

More recently, in Samson v. California (2006) 547 U.S. ___ [126 S.Ct. 2193] (Samson), the Supreme Court held that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. (Id. at p. 2202.) The high court has not yet addressed whether reasonable suspicion is a constitutional prerequisite for a valid probation search. Absent any direct authority from the United States Supreme Court, we are bound to follow Bravo. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; accord, People v. Woods, supra, 21 Cal.4th at p. 675; Bravo, supra, 43 Cal.3d at p. 607.) Bravo held that probationers have consented to the waiver of their Fourth Amendment rights (Bravo, supra, 43 Cal.3d at p. 608), and concluded that [t]he reasonable-suspicion standard . . . for parole searches, therefore, has no application to searches conducted pursuant to a consensual probation order. (Id. at p. 609.)

Bravo further held that [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; see also Reyes, supra, 19 Cal.4th at pp. 753-754.) A search is arbitrary and capricious when the motivation for it is unrelated to rehabilitative, reformative or legitimate law enforcement purposes, or when it is motivated by personal animosity toward the parolee or probationer. (Reyes, supra, at p. 754.) In addition, such searches could become unconstitutionally unreasonable if conducted too often or at an unreasonable hour, or if unreasonably prolonged, or if conducted for other reasons establishing arbitrary or oppressive conduct by the searching officer. (Reyes, supra, at pp. 753-754.)

In this case, the trial court impliedly found that the probation search was not arbitrary, capricious, or harassing, and the record supports that finding. Officer Dong had no previous contact with defendant or his car, and the search of his motel room was not motivated by personal animosity. There was no evidence of harassment and there was no claim that the search was unreasonably prolonged. Although the search was conducted at a late hour, Dong saw the lights were on in defendants motel room, so he thought defendant was awake, and Dong testified that he would not have attempted the search had the lights been off. In addition, the search was undertaken for legitimate law enforcement purposes, given the problems occurring at the inn at the time and the request by the inns owners for an increased law enforcement presence there. We agree with the trial court that the probation search of defendants motel room was reasonable under the Fourth Amendment. (Bravo, supra, 43 Cal.3d at p. 610; Reyes, supra, at pp. 753-754.) The court did not err in denying defendants motion to suppress.

DISPOSITION

The judgment is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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MIHARA, J.

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MCADAMS, J.

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[1] Further statutory references are to the Penal Code unless otherwise specified.

[2] A certified copy of a sentencing hearing minute order in superior court case No. EE221838, showing that defendant was placed on probation with a search condition on May 15, 2003, was admitted into evidence as exhibit No. 3.