P. v. Logan
Filed 7/23/07 P. v. Logan CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. ANDREW ROBERT LOGAN, Defendant and Appellant. | D048978 (Super. Ct. No. SCD198311) |
APPEAL from a judgment of the Superior Court of San Diego County, Frederick Maguire, Judge. Affirmed.
I.
INTRODUCTION
Defendant Andrew Logan appeals from a judgment of conviction entered after he pleaded guilty to one count of possession of a controlled substance. Logan contends that police officers obtained certain evidence against him as a result of an unlawful search and seizure, and that the trial court should have suppressed the evidence.
Logan raises two grounds for reversal of his conviction. First, Logan asserts that police officers seized him in violation of the Fourth Amendment because the seizure occurred without a warrant, and was not based on reasonable suspicion. Second, Logan contends that the manner in which police officers searched and seized him after they learned of his status as a parolee demonstrates that the search and seizure were arbitrary and capricious, and were undertaken for the purpose of harassment and/or for other improper purposes.
We conclude that the trial court's findings, which are supported by substantial evidence, establish that police officers did not seize and/or search Logan until after they learned that he was on parole. The seizure and search thus were not unreasonable under the Fourth Amendment. Further, there is no basis for concluding that the officers acted arbitrarily, capriciously, or for some improper purpose when they detained and searched Logan after they learned that he was a parolee. We therefore affirm the judgment of conviction.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural background
On May 11, 2006, the San Diego County District Attorney filed an information charging Logan with possession of a controlled substance (Health & Saf. Code, 11350, subd. (a)). The information also alleged that Logan had suffered three prison prior convictions (Pen. Code, 667.5, subd. (b), 668) and four strike prior convictions ( 667, subds. (b) through (i), 1170.12).
On June 30, 2006, Logan pleaded guilty to possession of a controlled substance, and admitted the truth of one prison prior allegation and one strike allegation. The court sentenced Logan to one-third of the middle term, doubled (one year four months) plus one year for the prison prior enhancement. The court ordered that Logan serve the aggregate term of two years four months consecutive to the term imposed for a probation violation in Superior Court of San Diego County case No. SCD193367.
On July 5, 2006, Logan filed a timely notice of appeal.
B. Factual background
On April 15, 2006, San Diego Police Officers Carmen Rivera and Dan Hall were patrolling the City Heights area in a marked patrol car. At approximately 12:30 p.m., Officer Rivera noticed Shervin Sorbi and his girlfriend, Dawn Williams, sitting in a Daewoo that was stopped near the corner of 36th and Dwight Streets. Logan was crouched down next to the front passenger side door of the car. Officer Rivera considered the area to be a high crime area based on his seven years of experience patrolling there. Logan caught Officer Rivera's eye because it appeared to him that Logan was trying to conceal himself from the officers by huddling closer to the vehicle as the officers passed by.
Officer Rivera drove past the Daewoo and ran a records check on the car's license plate. The records check revealed that the vehicle's registration had expired, that the car was owned by a rental company, and that the car had not been reported stolen. This was the first time Officer Rivera had seen a rental car with an expired registration, and he thought this circumstance was unusual and suspicious. Approximately 20 seconds after he first passed the Daewoo, Officer Rivera turned his patrol car around and drove toward the car again. By this time, Logan was no longer in sight, and Sorbi and Williams had gotten out of the car and were walking toward a house on the corner of 36th and Dwight.
Officer Rivera got out of his patrol car and attempted to contact Sorbi and Williams. Williams, who was carrying a purse, entered the house before Rivera could contact her. However, Officer Rivera was able to make contact with Sorbi. Sorbi told Officer Rivera that Logan had called Williams and asked her to pick him up at the corner of 36th and Dwight. Sorbi claimed that he did not know Logan's name or where Logan had gone. Sorbi also told Officer Rivera that a friend of Williams's, whom he did not know, lived at 3608 Dwight Street, but that it was only a coincidence that Williams's friend lived near where Logan had asked to be picked up. Sorbi produced identification and told Officer Rivera that the car was a rental.
While Officer Rivera was talking with Sorbi, Williams came out of the house. She was no longer carrying a purse. Officer Rivera turned his attention to Williams, and began to question her. Williams told Rivera that she and Sorbi were in the area because their friend, Andre, had asked to be dropped off there. She said she did not know where Andre had gone. Officer Rivera asked Williams if she was on probation. She admitted that she was on probation and that she was subject to a Fourth Amendment waiver. Officer Rivera then searched Williams and found no contraband on her. Officer Rivera directed Sorbi and Williams to sit near the Daewoo.
Officer Rivera was still suspicious about the Daewoo and whether it was stolen. He was concerned that the license plate attached to the Daewoo might have been taken from a different car. Sorbi consented to a search of the Daewoo.
While Officers Rivera and Hall were speaking with Sorbi and Williams, Maria Gonzalez came out of the house at 3608 Dwight Street. She told the officers that she rented the house. Officer Rivera told Gonzalez that he had seen a man outside of the house earlier, but had been unable to contact him before he disappeared. He asked Gonzalez if she knew where the man was. Gonzalez told Officer Rivera that the man's name was Anthony. She said that he had come into her house asking to use the phone, and that he had walked away a few minutes earlier.
Officer Rivera told Gonzalez that Williams was on probation. Rivera mentioned that Williams had entered the house with a purse, but had come out of the house without the purse, and he asked Gonzalez to retrieve the purse from inside the residence. While Gonzalez was retrieving the purse, Officer Rivera stood outside the front door, on the porch. When Gonzalez returned to the front door, Officer Rivera asked her, "Where is Anthony?" Gonzalez looked through the front door of the house toward a back room and called out, "Anthony." Officer Rivera then saw Logan walk through a door from a back room to the front room. He recognized Logan as the man who had been crouching near the passenger door of the Daewoo when Rivera first drove by.
While Logan was standing in the front room, Officer Rivera asked Logan if he was on parole or probation. Logan responded that he was on parole for armed robbery. Officer Rivera directed everyone to come out of the house, including Logan. Gonzalez, Logan, and a third individual, Charles Tomkins, came out of the house. Officer Rivera patted down Tomkins and found a glass pipe used to smoke controlled substances.
Officer Rivera then searched Logan and found a coin purse that contained .06 grams of an off-white substance, which the officer believed to be methamphetamine or cocaine, in one of Logan's pockets. Officer Rivera arrested Logan for possession of a controlled substance.
III.
DISCUSSION
A. Legal standards
Logan challenges the trial court's denial of his motion to suppress evidence. "In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]" (People v. Ramos (2004) 34 Cal.4th 494, 505.)
B. Officer Rivera's detention and search of Logan was reasonable under
the Fourth Amendment
Logan contends that the court should have suppressed the .06 of a gram of crack cocaine Officer Rivera found on him because the officer "lacked reasonable suspicion to detain or search anyone," was "flaunting [sic] the law," and "was determined to search everyone in the vicinity regardless of any lack of causation." Logan's argument rests on the faulty assumption that Officer Rivera was required to have reasonable suspicion in order to lawfully detain and search Logan.
Logan contends that in ordering him out of the house, Officer Rivera detained him without having reasonable suspicion of criminal activity. Logan maintains that Officer Rivera "had already 'DIRECTED' everyone in the houseincluding appellantto come out before he saw appellant and before he ascertained his parole status." Presuming that officers were not aware of Logan's parole status at the time they ordered him out of the house, Logan asserts on appeal that the officer's search of him was unreasonable under the Fourth Amendment because there was no individualized suspicion of criminality, and the officers were not aware of his Fourth Amendment waiver.
Logan does not dispute that law enforcement officers may conduct a suspicionless detention and search of a parolee without necessarily violating the Fourth Amendment. (See Samson v. California (2006) 126 S.Ct. 2193, 2198 (Samson).)[1] Rather, Logan disputes that officers were aware of his Fourth Amendment waiver at the time they seized him. However, Logan fails to acknowledge the trial court's factual finding that Officer Rivera detained Logan only after discovering that Logan was on parole and realizing that Logan could be subject to a suspicionless detention and search. Specifically, the trial court found that while Officer Rivera was standing outside of the house, he asked Logan, who was still inside the house, whether Logan was on parole or probation. The court further found that Logan informed Officer Rivera that he was on parole before Officer Rivera ordered Logan to come out of the house. The court stated:
"Concerning the initial encounter, the officer testifies that he's outside the house. Through the open door, the officer sees the defendant walking out from the back bedroom into the front room, and this was in response to Ms. Gonzalez requesting that people come out of the house.
"The officer, still outside the house, and the defendant, now in the front room but still inside the house, officer [sic] asked the defendant if he was on parole and the defendant says, 'Yes, I am on parole.'
"To this point, the contact is consensual. The defendant is then ordered out of the house by the officer, and I find this is part of a parole search detaining the defendant. There is a search of the defendant which is authorized because the defendant is on parole subject to a Fourth [Amendment] waiver search."
Although Logan does not directly challenge the court's findings, he does suggest that the evidence demonstrates that Officer Rivera detained Logan before Rivera ascertained Logan's parole status. However, there is substantial evidence in the record to support the trial court's finding that Logan was neither detained nor searched until after he informed Officer Rivera that he was on parole. Officer Rivera testified as to what occurred when Gonzalez called out for "Anthony" after Rivera asked her where "Anthony" was:
"A. At that point Mr. Logan came or presented himself from
the back room, and I immediately recognized him as the
same person that had been that I had seen crouching
outside Mr. Sorbi's rented car.
"Q. When you say he came out of the back room, did he come
all the way up to the door, or did he come into the front
room?
"A. Initially. Not all the way out to the front door, not
initially.
"Q. Did you have any conversation with the defendant when
you saw him appear from the back room?
"A. Yes.
"Q. What did you say?
"A. I asked him if he was on probation or parole.
"Q. Did he reply?
"A. Yes.
"Q. What did he say?
"A. He told me he was on parole for armed robbery.
"Q. How many people were in the front room at this time?
"A. Well, Ms. Gonzalez was there. She may have been right
outside with me. And then a male by the name of Charles
Tomkins that had opened the door and then Mr. Logan."
The court later asked Officer Rivera additional questions to further clarify the order in which events occurred that day:
"The Court: Officer Rivera, where was the defendant when you first saw him inside the house?
"The Witness: In the back room towards the northwest part of the house. The back.
"The Court: Where was he when you asked him if he was on parole?
"The Witness: Somewhere inside the house.
"The Court: Now, after you asked him was he on parole, what was his response?
"The Witness: That he's on parole for armed robbery.
"The Court: And what did you say, if anything, after that to him?
"The Witness: I don't remember. I might have asked him if he had weapons, but I don't remember if I specifically did ask him those questions.
"The Court: Where did you conduct your initial search of the defendant?
"The Witness: Outside the house.
"The Court: How was it that the defendant got from inside the house to the outside of the house?
"The Witness: Because I directed him outside the house.
"The Court: And when did you make that direction? At what point in the sequence of events?
The Witness: When he was still inside the house.
The Court: Had he told you that he was on parole?
The Witness: I believe so, yes.
The Court: And then you ordered him out of the house?
The Witness: Yes."
Finally, in response to the prosecutor's follow-up question, "And are you certain that you did not order the defendant out of the house until after he told you he was on parole?" Officer Rivera responded, "Yes."
Thus, assuming that Officer Rivera "detained" Logan when Rivera directed Logan to come out of the house, the evidence supports the trial court's finding that Officer Rivera had already determined by that time that Logan was on parole, and that he was subject to suspicionless detention and search. The trial court did not err in concluding that Logan's Fourth Amendment rights were not violated by the detention and search, because the detention and search were based on his status as a parolee. Consequently, the trial court did not err in denying Logan's motion to suppress the drug evidence on the basis of a lack of individualized suspicion as to Logan.
C. The detention and search were not conducted arbitrarily, capriciously,
or for an improper purpose
Logan further contends that the totality of the circumstances establishes that Officer Rivera acted arbitrarily, capriciously, and/or for the purpose of harassment when Officer Rivera detained and searched Logan. We disagree.
As Logan acknowledges, the Fourth Amendment does not prohibit police officers from conducting suspicionless searches of parolees. (Samson, supra, 126 S.Ct. at p. 2202.) However, a suspicionless search may nevertheless violate the Fourth Amendment if it is " 'arbitrary, capricious or harassing.' " (Ibid., citing People v. Reyes (1998) 19 Cal.4th 743, 752 [a suspicionless search "is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing"] (Reyes).) For instance, " '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.' " (Reyes, supra, 19 Cal.4th at pp. 753-754, citing People v. Clower (1993) 16 Cal.App.4th 1737, 1741.)
There is nothing in the record to support the assertion that Officer Rivera's detention of Logan was arbitrary, capricious, or harassing. The detention and search occurred at midday. There is no suggestion that the detention was unreasonably prolonged, or that officers had been detaining and searching Logan "too often." Logan nevertheless suggests that "the sequence of events leading up to the actual search of appellant illustrate[s]" that officers searched and seized "several individuals . . . despite the lack of any reasonable suspicion of criminal activity." Logan asserts that Officer Rivera's "unrelenting pursuit of appellant and others" was a "scatter-shot approach" that "should be deemed arbitrary and capricious and harassing."
The conduct about which Logan complains, however, is the same conduct underlying his previous argument as to why the detention and search were unreasonablei.e., that there was a detention and search despite a lack of reasonable suspicion of criminal activity. We have rejected this argument on the basis that Officer Rivera was not required to have any suspicion of criminal activity when he seized and searched Logan because, as the trial court found, the detention and search were completed pursuant to Logan's Fourth Amendment waiver. Those who agree to the terms of parole also agree to be subject to suspicionless searches and seizures. The fact that a search of a parolee is conducted in the absence of suspicion does not render that search arbitrary or capricious, nor does it provide evidence that the search was in order to harass the parolee.
To the extent that Logan is suggesting that Officer Rivera's search and seizure of Sorbi and Williamssearches and seizures that Logan contends were unreasonable because the officers lacked reasonable suspicion that either of those individuals were engaged in criminal activityindicates that Officer Rivera's detention and subsequent search of Logan was arbitrary and capricious, we reject the argument. By asserting that Officer Rivera acted unreasonably in detaining and searching other individuals at the scene, Logan suggests that the unreasonable detentions of others demonstrates an overarching "unreasonableness" in Officer Rivera's conduct with regard to detaining and searching him. However, the fact that an officer may have engaged in suspicionless detentions[2] and searches of others at the scene prior to encountering Logan does not affect the analysis of the reasonableness of their detention and search of him.
Logan cites no precedent to support his suggestion that an individual who may lawfully be searched even in the absence of suspicion of criminal activity based on his status as a parolee, can establish that such a suspicionless search is rendered arbitrary or capricious because the same officer conducted contemporaneous suspicionless searches of other individuals who were not parolees.[3] Fourth Amendment rights are personal. The fact that an officer may have violated the rights of someone other than the defendant does not affect the analysis of whether that officer violated the Fourth Amendment rights of the defendant. (See Rakas v. Illinois (1978) 439 U.S. 128, 133-134 [" 'Fourth Amendment rights are personal rights which . . . may not be vicariously asserted.' [Citation.]"].)
Logan contends that he is not attempting to assert the Fourth Amendment rights of other individuals, but, rather, that he is describing what occurred in order for this court to consider the "totality of the circumstances" in determining the reasonableness of his detention. Although we agree with Logan that we are to look to the "totality of the circumstances" to determine whether a search and/or seizure is reasonable under the Fourth Amendment, the circumstances relevant to that that determination are those circumstances that are specifically related to the individual who is seeking to suppress the evidence. Under the particular circumstances of this case, the fact that police officers may have illegally seized and searched others at the same time they seized and searched Logan, does not render the officers' detention and search of Logan arbitrary or capricious.
We conclude that the trial court did not err in declining to suppress the drug evidence found on Logan on the basis that the detention and search were arbitrary, capricious, and/or harassing.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
AARON, J.
WE CONCUR:
NARES, Acting P. J.
HALLER, J.
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[1] In Samson, the United States Supreme Court concluded that a suspicionless search of a parolee did not violate the Constitution because the parolee had, pursuant to California law, agreed to be subject to searches and seizures conducted without a warrant and/or without cause. (Samson, supra, 126 S.Ct. at p. 2198.) The Samson court noted that reasonableness under the Fourth Amendment does not always require individualized suspicion: "The touchstone of the Fourth Amendment is reasonableness, not individualized suspicion. Thus, while this Court's jurisprudence has often recognized that 'to accommodate public and private interests some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure,' [citation], we have also recognized that the 'Fourth Amendment imposes no irreducible requirement of such suspicion,' [citation]. Therefore, although this Court has only sanctioned suspicionless searches in limited circumstances, namely programmatic and special needs searches, we have never held that these are the only limited circumstances in which searches absent individualized suspicion could be 'reasonable' under the Fourth Amendment. In light of California's earnest concerns respecting recidivism, public safety, and reintegration of parolees into productive society, and because the object of the Fourth Amendment is reasonableness, our decision today is far from remarkable. Nor, given our prior precedents and caveats, is it 'unprecedented.' [Citation.]" (Id. at p. 2201.)
[2] Without deciding the issue, we presume for the sake of argument that there was no reasonable suspicion or Fourth Amendment waiver justifying the original detention of Sorbi and Williams.
[3] We note that officers could have lawfully detained and searched Williams without suspicion upon learning that she was a parolee.