Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MF030928B
SIMS, Acting P. J.Defendant Julius Victor Butler appeals following his conviction of manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), and possession of a controlled substance for sale (Health & Saf. Code, § 11378). Defendant contends the trial court erred in denying his motion to suppress evidence found during a probation search of the apartment in which he was living. We conclude that the police acted reasonably in verifying defendant’s residence prior to the search, and therefore affirm the judgment.
FACTUAL BACKGROUND
The evidence introduced during the hearing on the motion to suppress showed that sometime prior to October 12, 2007, Detective Cavin conducted a probation search of defendant’s residence at 190 Lupton Street in Manteca. After the probation search, the building was demolished.
On October 9, 2007, a confidential informant told Detective Cavin that defendant was living in an apartment with Tom Collins where they were manufacturing methamphetamine. Several people had told the informant about the methamphetamine production at the apartment. One of the informant’s sources had been inside the apartment with defendant and Collins. The detective asked the informant to gather more information, including the apartment number.
The detective knew the informant had previously used methamphetamine, but observed the informant to have been sober for four to six months. In exchange for the information, the detective would pay the informant about $200 to $300.
On October 11, 2007, the informant told Detective Cavin that defendant was living with Tom Collins in apartment 16 at 250 North Union Road. Police records confirmed that Tom Collins resided at apartment 16.
To further confirm the informant’s information, the detective drove the informant by the rear of the apartment complex. The informant pointed to a second-story apartment in one of the buildings. The apartment turned out to be apartment 20, which was on the opposite side of the building from apartment 16. One apartment separates them.
The detective conducted a records check and found that defendant was still on searchable probation. The terms of probation included consent to search defendant’s residence for drugs and paraphernalia.
On October 12, 2007, Detective Cavin and three other police officers went to the apartment complex office. The police asked the two employees who was living in apartment 16. The employees stated that Tom Collins was the only person on the lease. When shown defendant’s photo, the employees noted seeing him around apartment 16. The employees referred to defendant by his first name.
Detective Cavin informed them that defendant was on searchable probation, and asked for a key to the apartment. The employees refused to hand over a key because defendant’s name was not on the lease agreement.
The police went to apartment 20. The occupant did not know either defendant or Collins. The officers then went to apartment 16.
The officers knocked on apartment 16’s door. No one responded. A phone rang inside the apartment, but went unanswered. The officers decided to return to the office to get the apartment key.
At the office, one employee asked the other, “Did you call Tommy’s apartment again, we have his number.” The officers suspected that the employees personally knew Collins and defendant, and might be trying to alert them to the officers’ presence. The officers returned to apartment 16.
Detective Cavin knocked and twice announced, “Police department, probation search, open the door.” The officer repeated the announcement a third time, and added that he would kick the door in.
The detective heard movement inside the apartment, as well as the phone ringing again. The detective kicked the door open. He saw Collins and another man standing directly in front of him in the living room. Defendant emerged from the southwest bedroom. The detectives encountered a woman standing at the entryway to the bathroom.
During their protective sweep of the two-bedroom apartment, the officers opened a closet in the northwest bedroom. There, they saw three quart-size containers of denatured alcohol and acetone along with a trash bag containing tubing. These items are used to produce methamphetamine.
The police detained the four people in the apartment, and asked who lived in the northwest bedroom. The police sought to ascertain which areas of the apartment they could search consistent with defendant’s probation agreement. Omitting the northwest bedroom, the officers searched the southwest bedroom, living room, kitchen, and dining area.
In the southwest bedroom, the officers found defendant’s wallet and a glass methamphetamine pipe on a nightstand next to the bed. They found mail addressed to defendant. The bedroom also yielded iodine crystals and a container with numerous pseudoephedrine pills. Iodine and pseudoephedrine cold pills are commonly used to produce methamphetamine. The bedroom also contained a pocket-size scale commonly used in the sale of narcotics.
In the kitchen, the officers found a coffee grinder containing white residue and stained tubing consistent with methamphetamine production. A drawer contained surgical masks labeled “Tom” and with defendant’s initials, “JB.”
While the other officers maintained control of the apartment, Detective Cavin returned to the police department to apply for a search warrant. Detective Cavin returned with a warrant, and the officers searched the entire apartment. In the process, they discovered additional items indicating methamphetamine production.
DISCUSSION
Defendant concedes that he was on searchable probation when the police entered the apartment. Nonetheless, he contends that “warrantless entry into the apartment based on an uncorroborated rumor related by a confidential informant was unreasonable under the Fourth Amendment.” We conclude that his prior consent to searches of his residence for narcotics and drug paraphernalia, as part of his probation agreement, justified the warrantless entry in this case.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” (U.S. Const., 4th Amend.) “Under the Fourth Amendment, a warrantless search of [a residence] is unreasonable per se unless it falls within a recognized exception to the warrant requirement, for example, where consent to the search has been given. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219; People v. Bravo (1987) 43 Cal.3d 600, 609 (Bravo); People v. Mason (1971) 5 Cal.3d 759, 765, disapproved on another ground in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.) In California, probationers consent in advance, as a condition of their probation, to warrantless searches and seizures in exchange for the opportunity to avoid serving a state prison term. (Bravo, supra, 43 Cal.3d at p. 608; People v. Mason, supra, at pp. 764-766.) Warrantless searches of probationers are justified because they aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation. (People v. Mason, supra, at pp. 763-764; see Bravo, supra, at p. 610.) By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers.” (People v. Robles (2000) 23 Cal.4th 789, 795.)
“A probationer's consent is considered ‘a complete waiver of that probationer's Fourth Amendment rights, save only his right to object to harassment or searches conducted in an unreasonable manner.” (People v. Medina (2007) 158 Cal.App.4th 1571, 1575-1577 , citing Bravo, supra, 43 Cal.3d at p. 607, footnote and parallel citations omitted.)
“[T]here are some limitations on the probation search. First, ‘[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.) 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 probationer. It must be reasonably related to the purposes of probation. (People v. Robles, supra, 23 Cal.4th at p. 797; Bravo, supra, at pp. 610-611.) In addition, a search 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. (See People v. Reyes (1998) 19 Cal.4th 743, 753-754.) Finally, the officer must be aware of the search condition before conducting the search; after-acquired knowledge will not justify the search. (See People v. Sanders (2003) 31 Cal.4th 318, 335 [suspicionless parole search of residence not justified by search condition of which officer was unaware].)
“In summary, under California law, a search conducted pursuant to a known probation search condition, even if conducted without reasonable suspicion of criminal activity, does not violate the Fourth Amendment as long as the search is not undertaken for harassment or for arbitrary or capricious reasons or in an unreasonable manner.” (People v. Medina, supra, 158 Cal.App.4th at p. 1577, fn.3, parallel citations omitted.)
In this case, Detective Cavin pursued the legitimate law enforcement goal of investigating illicit methamphetamine production. Probation searches for drug use and production can discourage recidivist substance abuse. (Cf. People v. Robles, supra, 23 Cal.4th at p. 795.) Indeed, a detective charged with narcotics enforcement would be remiss in totally ignoring a report of a methamphetamine lab.
Prior to the search of apartment 16, Detective Cavin checked that defendant was still on searchable probation. The detective also took reasonable steps to corroborate the informant’s information. The detective checked the home address for Collins, which matched that given by the informant. And, the detective asked the informant to gather more information than presented in the first report about the methamphetamine production.
At the apartment complex, the police received further corroborating evidence about Collins’s residence from the apartment’s office employees. The employees also connected defendant with apartment 16 by having seen him there and knowing his first name. At the time, Detective Cavin knew that defendant could not still reside at his old address on Lupton Street because that building no longer existed. We agree with the trial court that the officers reasonably believed that defendant resided at apartment 16.
Based on the information about the apartment being used to produce methamphetamine, the officers reasonably acted without delay in entering the apartment when they heard the phone ring a second time. The police had just come from the apartment complex office where they heard one employee ask the other, “Did you call Tommy’s apartment again, we have his number.” Having observed that the employees knew both Collins and defendant by first name, the police had reason to suspect that the employees might alert the occupants to the officers’ presence. To prevent the destruction of methamphetamine lab evidence, the police had reasonable grounds to enter immediately. (People v. Williams (1989) 48 Cal.3d 1112, 1139; People v. Fernandez (1967) 255 Cal.App.2d 842, 845.)
Despite the evidence from the informant and the apartment complex employees indicating defendant’s residence at apartment 16, defendant nonetheless suggests that “the officers could have staked out the apartment.... They still could have waited outside the apartment to see if [defendant] existed” before entering. In so arguing, defendant relies on People v. Tidalgo (1981) 123 Cal.App.3d 301 (Tidalgo), where the Court of Appeal for the Fifth District affirmed the trial court’s granting of defendant’s motion to suppress.
In Tidalgo, supra, 123 Cal.App.3d 301, the police went to a residence where the defendant, a searchable probationer, was present and they searched it. (Id. at p. 304.) Immediately prior to the search, the defendant told the police that the residence was not his, but belonged to his sister-in-law. (Id. at p. 303.) The officers had earlier been informed by a witness that she had seen defendant sell marijuana at the residence. (Ibid.) The only other evidence tying defendant to the residence was a parrot and some fishing equipment that the officers thought belonged to the defendant. (Id. at p. 307) Acknowledging that “the evidence was susceptible of different interpretations,” the Court of Appeal noted that it was “bound by the factual resolution of the lower court.” (Id. at p. 308.)
In the same way that the Tidalgo court deferred to the trial court on the factual findings, we too accept the factual findings of the trial court in this case. (People v. Camacho (2000) 23 Cal.4th 824, 830.) This means, however, that we must draw the opposite inferences as in Tidalgo, supra, 123 Cal.App.3d 301, because the trial court here denied the motion to suppress. And, as we have explained, the confidential informant and apartment complex employee provided reasonable confirmation of defendant’s residence at apartment 16. That the officers in this case could have conducted surveillance to verify defendant’s residence at apartment 16 does not undermine our conclusion that the officers acted reasonably.
Defendant admits that “the officers had some reason to believe [he] might be living in the apartment,” but contends that “it was not enough to justify kicking in the door. At most, the officers were justified in doing a consensual ‘knock and talk.’ The police may rely on an anonymous uncorroborated tip to seek consent to enter and search a residence.” In so arguing, defendant forgets that he already gave consent to search of his residence when he was placed on probation. The police did not need to seek redundant consent from defendant in order to search his residence. (People v. Medina, supra, 158 Cal.App.4th at pp. 1575-1577.)
Although defendant argues that applying Tidalgo, supra, 123 Cal.App.3d 301, compels reversal, a literal application of that decision’s language would compel us to affirm without having to independently assess the reasonableness of the police conduct. Tidalgo defers to the trial court even on the question of reasonableness: “Whether the officer's belief is objectively reasonable would usually be a factual question to be resolved by the court hearing the suppression motion.” (Id. at p. 307.) Because we must defer to the trial court on factual questions, the Tidalgo approach would necessarily lead to affirmance of the suppression motion ruling. Here, it would mean that defendant’s challenge would necessarily fail.
We have instead followed the well established rule that “[i]n reviewing the action of the lower courts, we will uphold those factual findings of the trial court that are supported by substantial evidence. The question of whether a search was unreasonable, however, is a question of law. On that issue, we exercise ‘independent judgment.’” (People v. Camacho, supra, 23 Cal.4th at p. 830, citing People v. Leyba (1981) 29 Cal.3d 591, 597 & People v. Memro (1995) 11 Cal.4th 786, 838.) Thus, we have given defendant a more complete review of his claim than his reliance on Tidalgo, supra, 123 Cal.App.3d 301, would require. And, as explained above, we conclude that the police acted reasonably in identifying apartment 16 in conducting a probation search based on defendant’s prior consent to residential searches. Accordingly, we will not disturb the trial court’s ruling.
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., ROBIE, J.