Opinion
NOT TO BE PUBLISHED
Monterey County Super.Ct.No. SS062661A
Duffy, J.
Following denial of his motion to suppress evidence, Jose Cruz Lopez, the defendant herein, pleaded guilty to possessing cocaine for sale (Health & Saf. Code, § 11351), possessing marijuana for sale (id., § 11359), and possessing a controlled substance while armed with a loaded firearm (id., § 11370.1, subd. (a)). He admitted to a prior conviction that subjects him to increased punishment under the “Three Strikes” law. (Pen. Code, § 1170.12, subd. (c)(1).) The trial court sentenced him to four years in prison. He appeals on the grounds that the court erred in denying his suppression motion and that it miscalculated his sentence credits.
Finding the suppression motion properly denied, we will affirm the judgment with a modification to correct defendant’s sentencing credits. In an order filed today, we have denied a related petition for writ of habeas corpus (In re Jose Cruz Lopez on Habeas corpus, H032511).
FACTS AND PROCEDURAL BACKGROUND
The case was litigated below on the basis of papers filed in court and a police report. The parties rely on those documents on appeal, as do we.
In the first half of September of 2006, a confidential informant of unknown reliability who was known to be a drug user informed Seaside police that a Latino male, known to the informant as Muchito, drove a reddish Toyota truck and was selling methamphetamine. The informant described Muchito as a short Latino male with a medium build and a mustache.
A few days after the confidential informant gave the police the foregoing information a citizen came to the police station to report drug activity at 1401 Elm Avenue in Seaside. The citizen reported seeing marijuana, a white powdery substance resembling cocaine, and a substance resembling shaved ice at the Elm Avenue residence. The citizen said that a man named Muchito was responsible for the drug-related activity and that his real name was Jose Lopez. The citizen described Lopez as “a Hispanic male, short, medium built with a black mustache.” The citizen advised that Lopez drove a reddish Toyota sport-utility vehicle. The citizen asserted that Lopez had been arrested for domestic violence in the past and commented that the police accordingly should have Lopez’s photograph on file.
The police checked their files for a Jose Lopez who lived at 1401 Elm Avenue and learned that a person with that name who resided at that address had previously been arrested. The police consulted the Monterey County Superior Court computer database and found that charges had been filed in the case (case no. MS241832A), and that the foregoing Jose Lopez had been sentenced to probation in that case, one of the conditions being that he submit to the search and seizure of his person, residence, and areas within his control. Seaside Police Detective Richard Cohon contacted the Monterey County warrant control office, which confirmed that Lopez lived at 1401 Elm Avenue in Seaside.
About 9:00 a.m. on September 11, 2006, Detective Cohon and Seaside Police Detective Bruno Dias drove by the house at 1401 Elm Avenue. The two detectives saw a reddish Toyota 4Runner sport-utility vehicle parked in front of the house. Also in front was Johnny Hernandez, who told the officers that Lopez was inside the house. When the police asked Hernandez if he was carrying any illegal substances, Hernandez admitted that he was and pulled some marijuana from his pocket.
After another officer arrived to detain Hernandez, detectives Dias and Cohon knocked at the residence and defendant came to the door. The police perceived that he was a Latino male, five feet four inches tall and about 140 pounds, and that he had a mustache. He said that he was Jose Lopez. Detective Dias explained that he and Detective Cohon planned to conduct a probation search of his house. Defendant replied “okay” and stayed outside as the detectives entered the residence. Defendant did not tell the detectives that he was not on probation or question their intended action in any other way.
A search of the house disclosed two and one-half pounds of marijuana, one and one-half pounds of powder cocaine, and one-half pound of methamphetamine. The officers also found a .22 caliber revolver and evidence of narcotics trafficking, including $4,655 inside a pair of pants in a laundry bag in a closet.
While the detectives were at the residence, Agapito Reyes Flores arrived. Reyes admitted that he was visiting to buy $20 worth of marijuana from Muchito and that he had been buying drugs from Muchito for about six months.
At the police station, as Detective Dias prepared to book defendant, he noticed that the date of birth given by defendant did not match the date of birth shown on the probation documents. Detective Dias compared fingerprint return records and realized that there might be two men named Jose Lopez residing at 1401 Elm Avenue. The Jose Lopez on probation had a middle name of Hernandez and the Jose Lopez who had just been arrested had the middle name of Cruz. The police report acknowledged that “Jose Cruz LOPEZ is not on parole or probation” but that “[a]ll of the indicia found in the residence [were] under the name Jose Cruz LOPEZ.”
The police later learned that on August 17, 2006, Jose Hernandez Lopez had reported to the county jail to serve a one-year term. August 17, 2006, was also the date on which defendant moved into the house at 1401 Elm Avenue.
DISCUSSION
I. Denial of Defendant’s Motion to Suppress Evidence
As noted, defendant moved to suppress evidence under Penal Code section 1538.5, which allows a defendant to meet “the initial burden of raising the issue of an unreasonable warrantless search or seizure by ‘simply assert[ing] the absence of a warrant and mak[ing] a prima facie showing to support that assertion.’ [Citation.] After the defendant sufficiently raises the issue, it is the prosecution’s burden to justify a warrantless search or seizure. [Citation.] A defendant then must present any arguments as to why that justification is inadequate.” (People v. Smith (2002) 95 Cal.App.4th 283, 296.) In sum, “the burden of proving the justification for the warrantless search or seizure lies . . . with the prosecution.” (People v. Johnson (2006) 38 Cal.4th 717, 723.)
“In ruling on a motion to suppress [§ 1538.5], 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. [Citation.] 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. Hoyos (2007) 41 Cal.4th 872, 891.)
On independent review of the ultimate question, i.e., the validity of the state’s action under the Fourth Amendment to the United States Constitution, and considering the totality of the circumstances shown in the record (see Hill v. Scott (8th Cir. 2003) 349 F.3d 1068, 1073), we conclude that the trial court correctly denied defendant’s motion to suppress.
California law follows Fourth Amendment standards. (People v. Robles (2000) 23 Cal.4th 789, 794.)
A. Reasonableness of Police Conduct
The People do not dispute that the police erred in confusing Jose Cruz Lopez, the defendant herein and the resident of 1401 Elm Avenue in Seaside, with Jose Hernandez Lopez, a former resident at that address.
When a mistake of fact in conducting a search and seizure is reasonable, however, there is no Fourth Amendment violation (Illinois v. Rodriguez (1990) 497 U.S. 177, 179, 182, 183-186), because by its own terms the Fourth Amendment demands of the state not perfection, but reasonableness, in these circumstances—“[t]he right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated.” As relevant here, “to satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally demanded of . . . determinations . . . made by . . . the police officer conducting a search or seizure under one of the exceptions to the warrant requirement . . . is not that they . . . be correct, but that they . . . be reasonable.” (Rodriguez, at p. 185.)
The trial court correctly found the detectives’ actions reasonable and, accordingly, not an infringement of defendant’s Fourth Amendment rights. The police were operating on these facts: A citizen informant had told the officers that one Jose Lopez, who had suffered a domestic violence conviction, was engaged in unlawful activity at his residence at 1401 Elm Avenue. When detectives went to defendant’s house, Johnny Hernandez told them that Jose Lopez was inside (meaning that Hernandez knew Lopez), and Hernandez admitted that he was carrying marijuana. The Monterey County warrant control office confirmed that Jose Lopez lived at 1401 Elm Avenue. The detectives asked defendant if he was Jose Lopez, and he said he was. Not only did defendant respond to the first and last names the detectives believed to be the person on probation and subject to probation searches, but when they told him they were going to perform a probation search, defendant did not protest that he was not on probation, or express puzzlement about their belief that he was on probation, or ask any questions, but instead ratified their belief by saying “okay” and standing aside as they searched.
By a parity of reasoning with Hill v. California (1971) 401 U.S. 797, defendant cannot prevail. In Hill as here, the police identified the wrong man and thereafter conducted a search of premises based on the misidentification. Hill upheld the validity of the search in such circumstances as long as the misidentification was the product of a reasonable action.
Whereas here the police believed, albeit incorrectly, that they had the right man because Jose Hernandez Lopez’s name and address appeared to match that of defendant, Jose Cruz Lopez, in Hill v. California, supra, 401 U.S. 797, the police believed, albeit incorrectly, that they had the right man because his address and physical description matched those of the man they were seeking. (Id. at p. 799.) In Hill, the police searched the premises pursuant to a valid search incident to arrest, even though they arrested someone other than the man they were pursuing. (Id. at pp. 802-803.) Here, the police searched the premises pursuant to valid probationary authorization to search, even though it turned out that the validity of that search was premised on a mistaken belief that defendant was Jose Hernandez Lopez. The point of Hill is that if the mistake in identifying the person at the threshold of the house is a reasonable one, then the subsequent search does not offend the Fourth Amendment even though based on a mistake in identity. “It is true that [person B] was not [person A]” (id. at p. 804) and that person A, the defendant both in Hill and here, was convicted because of evidence seized following the police’s reasonable mistake that they were authorized to search the premises. “In these circumstances the police were entitled to do what the law would have allowed them to do if [person B] had in fact been [person A], that is, to search [pursuant to lawful authority] and to seize evidence . . . . When judged in accordance with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act,’ [citation], the arrest and subsequent search were reasonable and valid under the Fourth Amendment.” (Id. at pp. 804-805.)
Defendant asserts that Hill does not apply because the actions of the police were not reasonable. He maintains in sum that reasonable police investigators would have asked him (or otherwise checked) whether his full name was Jose Hernandez Lopez, discovered that he was Jose Cruz Lopez, and made other inquiries to ascertain that they were dealing with someone who was not subject to probation searches before proceeding. Under the circumstances, we think defendant demands a degree of constitutional protection to which the Fourth Amendment did not entitle him. Presumably the police would have had to ask him for his full name and make further inquiries as defendant suggests before informing defendant that they were there to do a probation search. Defendant argues in particular that “Jose Lopez” is such a common Latino name that the detectives’ conduct in not doing more to verify his identity was not reasonable. There is no doubt that Jose Lopez is a common name, common enough that, contrary to the People’s view, it is possible that a single residence could shelter more than one Jose Lopez over time. But we cannot fault the detectives for first telling the Jose Cruz Lopez who lived at the house formerly occupied by Jose Hernandez Lopez that they were there to do a probation search on Jose Lopez, a name defendant acknowledged was his, and, on getting his acquiescence, proceeding to carry out the search. To repeat, the Fourth Amendment demands reasonableness, not perfection, in the carrying out of searches and seizures.
On similar facts, the Montana Supreme Court turned aside a criminal defendant’s Fourth Amendment challenge to the reasonableness of police conduct. In State v. Bateman (2004) 323 Mont. 280 [99 P.3d 656], the police responded to a complaint about suspicious activities at the residence of one “Thomas Bateman.” (Id. at p. 281.) After getting the complainant’s information, a police officer checked and found an outstanding warrant for “Thomas Bateman.” (Ibid.) The officer “did not inquire what the person’s middle name was, but later testified that the warrant probably did include a middle name. . . . [Two officers] returned to Bateman’s residence the next day. After [one] officer knocked, Bateman opened the door and [an officer] asked him if he was ‘Thomas Bateman,’ to which Bateman replied ‘yes.’ ” (Ibid.) At this point, the officers told Bateman they had a warrant for his arrest (erroneously, as it turned out, because they had the wrong Thomas Bateman) and tried to handcuff him. In so doing, they discovered Bateman had a marijuana pipe. Bateman was arrested and charged with eight offenses, at least some of them drug-related. (Id. at pp. 281-282.)
On appeal, Bateman contended that his arrest was illegal because he was not the Thomas Bateman specified in the arrest warrant; the wanted Thomas Bateman apparently had a different middle name. (State v. Bateman, supra, 323 Mont. at pp. 283, 284.) The Montana Supreme Court acknowledged that the police conduct was flawed; “they arrested [Bateman] without a valid warrant” (id. at p. 283) and, as noted, they “did not inquire what [Bateman’s] middle name was” (id. at p. 281) even though “the warrant probably did include a middle name” (ibid.).
Nevertheless, the mistake was reasonable and the arrest did not violate the Fourth Amendment. The “officers had evidence that Bateman and the ‘Bateman’ on the outstanding warrant had similar ages, lived in the same area, and had similar physical characteristics. . . . It appears that the two Batemans had different middle names, but the officers were not aware of that fact ahead of time. In such circumstances, where all other indications point toward a congruence of the arrestee and the person described in the warrant, we cannot expect police officers to verify every detail that might reveal mistaken identity prior to confronting the suspect.” (State v. Bateman, supra, 323 Mont. at p. 284.)
Similarly, in Hill v. Scott, supra, 349 F.3d 1068, an officer asked a dispatcher if there were any warrants for a man with the first name of “Brian” and the last name of “Hill.” (Id. at p. 1070.) The dispatcher said there was one for a “Brian Walter Hill.” (Ibid.) The officer did not ask Brian Hill what his middle name was, nor did he ask if was born on August 19, 1972, the date of birth for the wanted man that the dispatcher provided. (Id. at pp. 1070, 1073.) The police took Brian Hill into custody, but later discovered that this Brian Hill had a birthdate of April 24, 1970, and contacted their dispatch center with that new information. The dispatcher responded that the person with that birthdate was Brian Arthur Hill, not Brian Walter Hill, and there were no warrants for Brian Arthur Hill, the man the police had just arrested. (Id. at p. 1071.) The majority in Hill held, however, that the Fourth Amendment did not compel the police to investigate at the level of detail of asking Hill or his family for Hill’s middle name or birthdate and found no violation of Hill’s constitutional rights. (Id. at pp. 1073-1074; cf. id. at pp. 1076-1077 (dis. opn. of Heaney, J.).)
In addition to following the guidance provided by Hill v. California, supra, 401 U.S. 797, we agree with the reasoning of State v. Bateman, supra, 323 Mont. 280, and Hill v. Scott, supra, 349 F.3d 1068, and find no Fourth Amendment violation here.
B. Permitted Scope of Probation Searches for Jose Hernandez Lopez
Next, defendant claims that the Fourth Amendment was violated because Jose Hernandez Lopez’s probation search condition did not include his residence and therefore the detectives executed the search of defendant’s residence under a mistaken understanding of the scope of their authority, rendering the search an invalid warrantless search.
On the basis of his inquiries before proceeding to defendant’s house, Detective Dias believed that Jose Hernandez Lopez, the probationer whom police mistakenly believed to be defendant, was required to “submit his person/residence and areas over his control to search and seizure.” The record shows that a web page from a Monterey County Superior Court database states that the probationer was subject to “Search & Seizure” generally. Defendant argues that the database did not show authorization to search the residence at 1401 Elm Avenue in Seaside.
Defendant is correct that when the police rely on a probation search condition, they “must confine the scope of their search to the terms articulated in the clause and to those areas of the residence over which they reasonably believe the probationer has access or control.” (People v. Robles, supra, 23 Cal.4th at p. 796, fn. 3.) The superior court web page, however, shows that they had the authority to search and seize generally. We perceive the unqualified probation condition clause authorizing “Search & Seizure” to set forth words of inclusion, not limitation (accord, U.S. v. Gallo (1st Cir. 1994) 20 F.3d 7, 11), particularly because (1) otherwise the probation condition for Jose Hernandez Lopez, for want of specifying what may be searched and seized, would have no effect whatsoever, which could not have been the superior court’s intent, and (2) a probation search condition that did not cover a search of a probationer’s residence would be anomalously toothless. Defendant’s claim is without merit.
II. Calculation of Sentencing Credits
Defendant’s four-year prison term was reduced by the trial court’s order that he receive 409 days’ sentencing credits. The parties agree that defendant is entitled to 426 days of credit. We will direct that the trial court cause the abstract of judgment to be modified accordingly.
DISPOSITION
The judgment is modified to reflect that defendant is entitled to 426 days of sentencing credits. As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare a corrected abstract of judgment and to forward a copy of it to the Department of Corrections.
WE CONCUR, Rushing, P. J., McAdams, J.