Opinion
F071026
05-03-2017
THE PEOPLE, Plaintiff and Respondent, v. WESLEY JON HANNA, Defendant and Appellant.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF156440A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
Before Kane, Acting P.J., Poochigian, J. and Franson, J.
-ooOoo-
A jury convicted appellant Wesley Hanna of possession for sale of methamphetamine (count 1, Health & Saf. Code, § 11378) and misdemeanor child endangerment (count 4, Pen. Code, § 273a, subd. (b)). In a separate proceeding, the court found true a prior prison term enhancement (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise indicated.
On February 18, 2015, the court sentenced Hanna to a local aggregate term of four years, a three-year term on his possession for sale conviction, a one-year prior prison term enhancement, and a concurrent term on his child endangerment conviction.
On appeal, Hanna contends the court erred when it denied his suppression motion with respect to some of the evidence recovered during a search of his residence. We affirm.
The court granted the suppression motion with respect to the search and seizure of Hanna's cellphone and wallet.
FACTS
On August 6, 2014, during a search of Hanna's residence, Kern County Sheriff Deputy Joshua Shotwell found three quantities of methamphetamine, with a combined, approximate weight of 27.2 grams. Deputy Shotwell also found a wallet containing $1,140 and a cellphone that each belonged to Hanna.
On October 1, 2014, the Kern County District Attorney filed an information that charged Hanna with simple possession of methamphetamine (count 2, Health & Saf. Code, § 11377, subd. (a)), in addition to the counts Hanna was convicted of, and the enhancement that was found true.
On October 21, 2014, defense counsel filed a motion to suppress the evidence seized during the search of Hanna's residence.
On December 1, 2014, at a hearing on the motion, Deputy Shotwell testified that on August 6, 2014, at approximately 4:24 a.m., he was on patrol when he contacted Martha Mendoza near the intersection of Wofford Boulevard and Woodland Drive. Mendoza told Deputy Shotwell she was on probation for burglary and searchable for stolen property. Shotwell also found probation paperwork on Mendoza that indicated she was on probation and that she lived on Roby Lane. A records check confirmed the above information. However, when Shotwell told Mendoza he was going to search her home and asked where she lived, Mendoza said she did not know.
After speaking with Mendoza, Deputy Shotwell formed the opinion that she was under the influence of methamphetamine. He then took Mendoza to the Roby Lane address, knocked on the door, but no one answered. Deputy Shotwell, again, asked Mendoza where she lived and this time she told him she lived at an address on Starlight Drive and directed him there.
Deputy Shotwell arrived at the Starlight Drive address at approximately 5:00 a.m., and found the lights on at the residence and that Hanna and his four-year-old daughter were up. Hanna answered the door and Deputy Shotwell asked him if he knew Mendoza. Hanna replied that he did and that she was the mother of his daughter. He then asked Hanna if Mendoza lived there. After Hanna replied that she did, Shotwell asked him for identification. Deputy Shotwell told Hanna he was there to conduct a probation search of Mendoza and asked him if he could go inside to search the residence. Hanna replied that he could.
Deputy Shotwell entered the house. On a small table next to the doorway, he found a zipper pouch containing 26.2 grams of methamphetamine, a scale, a spoon, and a paper with Hanna's name on it. Deputy Shotwell then ran a records check on Hanna and was informed that he was on post-release supervision with search terms. The deputy continued searching and found a baggie containing methamphetamine in a drawer and .7 grams of methamphetamine on a mirror in a shed, in the yard. Deputy Shotwell then returned to the house, searched Hanna's wallet, and found $1,140 in cash.
Hanna testified, in pertinent part, that the day Deputy Shotwell went to his residence, his daughter lived with him and Mendoza lived with his grandmother at the Roby Lane residence. According to Hanna, although he told Deputy Shotwell that Mendoza did not live there, the deputy did not ask for permission before entering his house.
After hearing argument, the court granted the suppression motion as to appellant's cellphone and wallet and denied it as to the other items seized during the search of Hanna's residence.
DISCUSSION
Hanna relies on United States v. Knights (2001) 534 U.S. 112 (Knights), People v. Robles (2000) 23 Cal.4th 789 (Robles) and People v. Sanders (2003) 31 Cal.4th 318 (Sanders), to contend that the Fourth Amendment requires that a probation search be reasonable under the totality of the circumstances. He further contends that under this test, the probation search of his residence was unreasonable because it occurred early in the morning, at an address not listed in Mendoza's probation paperwork as her residence, and without any suspicion that Mendoza possessed stolen property, the subject of her probation search condition. We reject these contentions.
"[I]n reviewing the [trial court's ruling on a suppression motion], we consider the record in the light most favorable to defendants as respondents since 'all factual conflicts must be resolved in the manner most favorable to the [superior] court's disposition on the [suppression] motion.' [Citation.] But while we defer to the superior court's express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search on the facts so found." (People v. Woods (1999) 21 Cal.4th 668, 673-674 (Woods).)
"In California, probationers may validly consent in advance to warrantless searches in exchange for the opportunity to avoid service of a state prison term. [Citations.] For nearly three decades, this court has
upheld the legality of searches authorized by probation terms that require probationers to submit to searches of their residences at any time of the day or night by any law enforcement officer with or without a warrant." (Woods, supra, 21 Cal.4th at pp. 674-675, citing People v. Bravo (1987) 43 Cal.3d 600, 602, 607.)
"[However, 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." (People v. Bravo, supra, 43 Cal.3d at p. 610.)
Mendoza was on probation with a search condition that allowed Deputy Shotwell to search her and her residence for stolen property. Although Deputy Shotwell had information indicating Mendoza lived at the Roby Lane residence, after finding the lights off and receiving no response at that location, Mendoza told the deputy she lived at the Starlight Drive residence. When Deputy Shotwell inquired of Hanna, he acknowledged that Mendoza lived there. Deputy Shotwell could reasonably conclude from these circumstances that Mendoza lived at the Starlight Drive residence with Hanna. Further, the timing of the search resulted from the deputy finding Mendoza early in the morning, apparently under the influence of methamphetamine, and her use of drugs reasonably suggested she might be involved in other illegal activities. Thus, the record supports the court's implicit conclusion that the search of Hanna's residence was constitutionally reasonable pursuant to Mendoza's probation search condition because it was not conducted for harassment or for arbitrary or capricious reasons.
Hanna concedes that in People v. Bravo, supra, 43 Cal.3d 600, our Supreme Court held that a search pursuant to a probation search condition does not require any particularized suspicion of criminal conduct by the probationer for it to be constitutionally reasonable. However, he contends Bravo's holding has been undermined by the United States Supreme Court in Knights because in that case the court used "a reasonableness inquiry [in] assessing the totality of the circumstances, in which the probationers [sic] diminished expectation of privacy was but one factor considered by the court in weighing the interest of society and the probationer." Hanna is wrong.
In Knights, a detective, who was aware the defendant was on probation with a search condition, searched the defendant's apartment and found materials linking the defendant to numerous acts of vandalism against a utility company. (Knights, supra, 534 U.S. at pp.114-115.) The defendant conceded that the search was supported by reasonable suspicion. (Id. at p. 122.) In finding the search constitutionally reasonable, the court declined to address the constitutionality of suspicionless probation searches because the search in that "case was supported by reasonable suspicion." (Id. at p. 120, fn. 6.)
Cases are not authority for an issue the court did not consider. (People v. Rusconi (2015) 236 Cal.App.4th 273, 280.) Thus, Knights does not undermine our Supreme Court's holding in Bravo that a probation search does not require reasonable suspicion for the search to be constitutionally reasonable, which is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
Hanna also misplaces his reliance on Robles and Sanders to contend that the probation search of his house required the deputy to have a reasonable suspicion that he was involved in criminal activity. In Robles, the court considered the following issue, "[M]ay the probation search condition of defendant's brother be used to validate the warrantless search of the garage [where contraband was found], where the police did not know of the condition at the time of the search?" (Robles, supra, 23 Cal.4th at p. 794.) In concluding that the condition that was unknown to the officers did not justify the search, the Robles court stated: "Significantly, a search of a particular residence cannot be 'reasonably related' to a probationary purpose when the officers involved do not even know of a probationer who is sufficiently connected to the residence. Moreover, if officers lack knowledge of a probationer's advance consent when they search the residence, their actions are wholly arbitrary in the sense that they search without legal justification and without any perceived limits to their authority." (Robles, supra, 23 Cal.4th at p. 797.)
In Sanders, police officers searched the defendants' apartment and found drugs. (Sanders, supra, 31 Cal.4th at pp. 322-323.) Although one codefendant was on parole, the officers were unaware of his parole status when they conducted the search. (Id. at p. 322.) In concluding the search was unlawful as to the defendant who was not a parolee, the Sanders court held that its conclusion was mandated by its earlier decision in Robles. (Sanders, at p. 331.) Sanders also extended its holding in Robles to parolees, stating: "Accordingly, we hold that an otherwise unlawful search of the residence of an adult parolee may not be justified by the circumstance that the suspect was subject to a search condition of which the law enforcement officers were unaware when the search was conducted." (Sanders, at p. 335.)
Robles and Sanders are inapposite because, unlike the instant case, each of those cases involved a search by an officer who was unaware that the defendant or codefendant was subject to a probation or parole search condition. In any case, even if the reasonableness of the search here were determined under the totality of the circumstances, we would, nevertheless, conclude that the search of Hanna's residence was constitutionally reasonable. In Knights, the court stated: "When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable." (Knights, supra, 534 U.S. at p. 121.)
Here, Deputy Shotwell encountered Mendoza walking on the street very early in the morning and she appeared to be under the influence of methamphetamine. As noted earlier, from these circumstances the deputy could reasonably infer that she might be involved in other criminal activity, including possession of stolen property. Further, since Deputy Shotwell could reasonably believe Mendoza lived with Hanna based on Mendoza's statement to that effect and Hanna's acknowledgement that she did, Deputy Shotwell lawfully searched Hanna's residence based on Mendoza's probation search condition. (Woods, supra, 21 Cal.4th at p. 682 [Probation search may be conducted on portions of residence over which officers reasonably believe probationer had complete or joint control.].) Thus, we conclude that the court did not error when it denied Hanna's motion, in part.
Hanna also contends that his consent to search his residence was vitiated by the deputies "show of authority, magnified by the early hour in the morning, and the fact that multiple officers met [him] at the door[.]" In light of our decision upholding the court's ruling based on Mendoza's search condition, we do not address this contention. --------
DISPOSITION
The judgment is affirmed.