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NOT TO BE PUBLISHED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.
In 2008, we considered defendant’s appeal, which raised claims that the trial court erred in denying his suppression motion and miscalculated his sentence credits. We affirmed the judgment. In an order filed separately, we denied a petition for writ of habeas corpus. Defendant petitioned for review from the latter determination in the Supreme Court, which granted his petition for review, transferred the matter to this court, and directed us “to issue an order to show cause... why trial counsel was not ineffective for failing to argue before the trial court that the evidence obtained from defendant’s residence should have been suppressed because Jose Hernandez Lopez was not on probation at the time of the search and officers could not reasonably rely upon his probation search condition to justify the search.”
In 2009, we granted the petition for writ of habeas corpus. (In re Lopez (Jun 10, 2009, H032511) [nonpub. opn.].) We remanded the case to superior court with directions to permit defendant to relitigate his suppression motion, which defendant did. We asked the court to determine, if defendant chose to relitigate the issue, whether the police engaged in deliberate, reckless, or grossly negligent conduct with respect to any actions that implicated defendant’s Fourth Amendment rights. We directed that if the court denied the suppression motion, it was to reinstate the judgment. The court denied the motion and reinstated the judgment, and this appeal follows.
Finding the suppression motion properly denied, we will affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
On remand, the case was litigated on the basis of stipulated facts, as follows.
In September of 2006, an individual visited the Seaside police station and told Officer Bruno Dias that Jose Lopez was selling drugs out of his house at 1401 Elm Avenue in Seaside. The complainant advised that Lopez, a short medium-built Latino male with a black mustache, drove a reddish Toyota sport-utility vehicle and had been arrested for domestic violence.
Officer Dias looked in the police department database and confirmed that a Jose Lopez who lived at 1401 Elm Avenue had previously been arrested for domestic violence, resulting in Monterey County Superior Court case number MS241832A.
Officer Dias accessed the Monterey County Superior Court “Justice Partners” criminal database website for case number MS241832A and found that “Jose Hernandez 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. Officer Dias also saw that Jose Hernandez Lopez later violated his probation and on August 10, 2006, was sentenced to 365 days’ confinement, with credit for 43 days already served. Jose Hernandez Lopez’s surrender date was August 17, 2006.
Officer Dias could have clicked on a button on the online database page to access superior court minute orders but did not, nor did he visit the county courthouse to read them. The latter procedure would be unprecedented as far as Officer Dias knew. He did not remember whether he knew in 2006 that he could click on the button and access the minute orders. No one had trained him on how to use the website. He examined the website’s main page to verify Jose Hernandez Lopez’s probationary status and the search and seizure probation condition.
If Officer Dias had read the superior court minute orders, he would have read one of them, dated August 10, 2006, that provided an additional suggestion that Jose Hernandez Lopez was in custody. The minute order reflected that he was already in custody on August 10, had his probation terminated on that date, and was thereupon sentenced to serve the 365-day term.
Officer Dias did not call jail authorities to find out if a Jose Lopez was lodged there. However, on September 11, 2006, before the police visited defendant’s home, Seaside Police Officer Richard Cohon contacted the Monterey County Sheriff’s Department Warrant Division. That office advised that Jose Lopez resided at 1401 Elm Avenue and was subject to a probationary search condition in a separate case, numbered MS241031A. The office sent information to Officer Cohon showing that Lopez’s probation had been revoked on August 10, 2006, and a 180-day jail term imposed.
Later that day, Officers Dias and Cohon drove by the house at 1401 Elm Avenue “just to do some intelligence gathering.” They 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 he had come by to collect something from Lopez. During this conversation, Officer Dias asked Hernandez whether he was carrying contraband. He handed over some marijuana and was arrested.
After another officer arrived to secure Hernandez, one of the officers knocked on the door and defendant opened it. Defendant looked like the person the citizen complainant had described at the inception of the investigation. Defendant answered Officer Dias’s question whether he was “Jose Lopez” in the affirmative. Officer Dias said that he and his partner intended to conduct a probation search of the house. Defendant replied “okay.”
The search uncovered marijuana, cocaine, methamphetamine, and a.22 caliber revolver, which led to these proceedings.
Defendant had leased the 1401 Elm Avenue house on August 15, 2006. On the day of the search, Jose Hernandez Lopez, who once resided there, was serving his one-year term in county jail. Accordingly, the officers were searching the residence of a different Jose Lopez from the one subject to probationary searches at some point in time.
After considering the foregoing evidence and hearing counsels’ arguments, the trial court denied the motion to suppress and reinstated the judgment. The court stated that it accepted as true Officer Dias’s statement that he may not have known about the button that, if clicked, would lead to superior court minute orders: “[H]e hadn’t [had] any formal training” “on the online thing” and thought he needed to visit the courthouse to read minute orders. The court also noted the physical similarities of the two Jose Lopezes.
The trial court discussed the effect of imposing a commitment to jail on probationary status, and took judicial notice of the fact that a convicted individual can be confined in jail and yet remain on probation. “The fact that somebody gets sentenced to a long sentence doesn’t mean anything about whether or not probation was terminated.... [I]t’s quite frequent that probation is retained, the jurisdiction over probation is retained, until the sentence is finished for the purpose of being able to modify it if need be....”
“[I]s failure to click the view button grossly negligent or worse?” the trial court asked rhetorically. “I just can’t see it as being grossly negligent. Maybe it’s negligent for the police department not to have formal training on something.... [¶] This does go back to [the question whether] this conduct that, by suppressing the evidence, would be deterred in the future. And the Court’s impression there is it’s certainly not an issue anymore, at least with this particular officer.... If he [had been] aware of [the button hyperlinked to minute orders], I suspect this particular officer would have [clicked on] it. So that’s the finding of the Court. It wasn’t gross negligence or worse.”
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, we consider the totality of the circumstances shown in the record. (See Hill v. Scott (8th Cir. 2003) 349 F.3d 1068, 1073) We must determine the validity of the state’s action under the Fourth Amendment to the United States Constitution and the availability of the evidence-suppression remedy. The one does not necessarily lead to the other-“the United States Supreme Court has consistently held that whether the fourth amendment has been violated and whether exclusion is the appropriate sanction for the violation are separate issues.” (People v. Morgan (2009) 388 Ill.App.3d 252, 264 [901 N.E.2d 1049, 1060].) 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.)
The Fourth Amendment does not contain a right to have otherwise admissible evidence excluded from use against oneself. Instead there is a “judicially created rule” (Herring v. United States (2009) 555 U.S. __, __ [129 S.Ct. 695, 699] (Herring)) mandating such exclusion as necessary “ ‘to safeguard Fourth Amendment rights generally through its deterrent effect.’ ” (Ibid.) Because the exclusionary rule is a safeguard based on the policy consideration of deterring police misconduct, it does not confer any personal right (id. at p. 700). It is applied when the cost of applying it is justified by a sufficient likelihood that doing so will deter future particularly undesirable conduct by the state, but only then. (See id. at pp. 700-702.) In other words, whether an individual is entitled to have unlawfully seized evidence excluded in trial proceedings “turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.” (Id. at p. 698.) “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” (Id. at p. 702.)
The standard announced in Herring, supra, 129 S.Ct. 695, is that the use of evidence seized in violation of the Fourth Amendment should be suppressed when, under an objective standard of deterrence and culpability involving a reasonably well-trained officer (id. at p. 703), a court finds that the police have engaged in “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” (Id. at p. 702; see also id. at p. 703; cf. id. at p. 704 [concluding paragraph contrasting systemic error and recklessness with negligence but not mentioning gross negligence].) Recurring or systemic negligence is not at issue here, so whether petitioner is entitled to a remedy turns on whether the action of the police in searching 1401 Elm Avenue in Seaside was grossly negligent or worse.
Defendant argues that Herring does not apply here and that we should reconsider our prior conclusion (In re Lopez (Jun. 10, 2009, H032511 [nonpub. opn.], pp. 13-15) that it does. In defendant’s view, Herring involved only “attenuated” (Herring, supra, 129 S.Ct. at pp. 699, 702) negligence-i.e., the police officer who performed an arrest and seizure of contraband was innocent of any error and acted only because another county’s warrant office had negligently failed to update its records. (Herring, supra, 129 S.Ct. at p. 699.) In essence, defendant argues that Herring should be limited to so-called attenuation cases, i.e., cases in which not the arresting officer but some other person or entity, operating at a remove, was culpable in a fashion that led to an infringement on the Fourth Amendment’s requirements.
We have not agreed with that interpretation of Herring in the past and do not agree with it now. The question has since been removed from our purview anyway (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) because our Supreme Court holds the same view. In People v. Robinson (2010) 47 Cal.4th 1104, the court stated of Herring that “the Supreme Court’s general holding regarding what conduct triggers the exclusionary rule does not focus on the issue of attenuation, and we find that issue has no relevance to our analysis in this particular case. [Citation.] Instead, the high court requires us to focus on whether the facts presented warrant application of the exclusionary rule ‘to deter deliberate, reckless, or grossly negligent conduct, or... recurring or systemic negligence.’ ” (Id. at pp. 1125-1126.) Defendant argues that the foregoing is a dictum, a “strange passage, ” and, he implies, at odds with the determination of the United States Supreme Court, and for those putative reasons Robinson does not bind us. We agree with none of these reservations and caveats.
The resolution of this case comes down to whether the officers’ conduct was grossly negligent or worse. Citing two post-Herring cases from other jurisdictions and this court’s recent decision in People v. Leal (2009) 178 Cal.App.4th 1051, which also relied on Herring, defendant argues that if we must adhere to Herring, then it was grossly negligent for Officers Dias and Cohon not to check the Monterey County Superior Court minute orders or inquire sufficiently with the county jail authorities to determine that Jose Hernandez Lopez was in jail and could not be subject to a probationary search at his residence because he was not there. He further argues that the police needed and lacked probable cause to perform the probationary search. We agree with the trial court that there was no gross negligence and find no other Fourth Amendment rationale for suppressing the evidence.
The trial court correctly found that the detectives’ actions were not grossly negligent or worse and, accordingly, suppressing the evidence that the police recovered at defendant’s residence would be contrary to Herring. The police were operating on these facts: A visitor to the police station had told Officer Dias that Jose Lopez, who had suffered a domestic violence conviction, was engaged in unlawful activity at his residence at 1401 Elm Avenue. The computer data that Officer Dias examined were equivocal. On the one hand, a Jose Lopez lived at 1401 Elm Avenue and was subject to probationary searches; on the other hand, a Jose Hernandez Lopez of that address had violated his probation and had been sentenced to 365 days’ confinement, with a surrender date of August 17, 2006. No one had trained Officer Dias to click on a button that would activate a hyperlink leading to superior court minute orders, one of which would have cast additional doubt on the location and status of Jose Hernandez Lopez, and he did not explore the website sufficiently to locate this information. The Monterey County Sheriff’s Department Warrant Division also supplied equivocal information. That office advised that Jose Lopez resided at 1401 Elm Avenue and was subject to a probationary search condition in a separate case, numbered MS241031A, and further that Lopez’s probation had been revoked on August 10, 2006, and a 180-day jail term imposed. The officers decided to reconnoiter the area to see if they could clarify the situation. Once there, they happened upon Johnny Hernandez, who told them that this was the Lopez residence, that he was there to collect something from Jose Lopez, and that he, Hernandez, was carrying marijuana. The officers then asked defendant if he was Jose Lopez, and he said he was. 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, or ask any questions, but said “okay” and stood aside as they searched. Under these circumstances, the police did not act with gross negligence.
The cases on which defendant relies are distinguishable. In People v. Leal, supra, 178 Cal.App.4th 1051, we found that the defendant was entitled to the evidence-suppression remedy in light of Herring because the police violated “basic Fourth Amendment principles, ” specifically “bedrock Fourth Amendment law that the police may not rummage through a person's home without a warrant.” (Id. at p. 1066.) Even further removed from this case is the United States District Court’s decision in United States v. Ryan (D.Vt. 2009) 2009 U.S. Dist. Lexis 53644. Ryan, the district court began, “involves a unique and narrow set of circumstances.” “[T]he search warrant was invalid on its face, ” the decision explains. “It contained only Ryan’s address, with no specific description of the items to be seized. Thus, the warrant plainly reflected its illegality, and it was impossible for any reasonable officer who had seen the warrant to believe that this warrant was valid. The agents who searched Ryan’s home admitted that they did not read the warrant prior to executing the search. ‘[E]ven a cursory reading of the warrant in this case-perhaps just a simple glance-would have revealed a glaring deficiency that any reasonable police officer would have known was constitutionally fatal.’ [Citation.] The agents’ failure to read the warrant was not mere negligence.” (Id. at p. *9.) The officers here were not remotely as clumsy and derelict in their basic Fourth Amendment duties as the agents in Ryan. And in People v. Morgan, supra, 388 Ill.App.3d 252 [901 N.E.2d 1049], the court found gross negligence or even more culpable conduct by police because they disregarded their own procedures and relied on an out-of-date warrant list that they knew was out of date. “The officers testified that they typically obtained a warrant list printed the same day as their visit to the police department. In this instance, they knew they were relying on a warrant list that was up to three days old. They made no attempt to verify the continued existence of the warrant before approaching defendant’s residence.” (Id. at p. 265 [901 N.E.2d at pp. 1060-1061].) In this and other respects, Morgan is an egregious case quite different from this one. Unlike this case, in which defendant seemed to acknowledge to Officers Dias and Cohon, albeit incorrectly, that he was on probation, in Morgan the defendant’s father testified that he “answered a knock on the ‘back door by the kitchen.’ The officer at the door stated he had a warrant for defendant’s arrest. [The defendant’s father] explained he had bailed defendant out of jail that morning and had the paperwork to show this.” (Id. at pp. 253-254 [901 N.E.2d at p. 1052].) The officers allegedly disregarded this contention and engaged in invasive and improper behavior. As the defendant’s father and an officer waited for defendant to return with the paperwork, “[t]he officer asked [the defendant’s father] if he could enter the house. [He] asked the officer if he had a warrant, and when the officer said he did not, [he] told him to get a warrant if he wanted to enter the house. [He] told the officer he would get defendant. As [the defendant’s father] shut the door, the officer shoved the door open, knocking [the father] into the kitchen. Three officers came running in and chased defendant upstairs.” (Id. at p. 254 [901 N.E.2d at p. 1052].) “This case, ” the Morgan court summarized, “involves a situation where the officers knowingly obtained an up-to-three-day-old list and did not verify the continued validity of defendant’s warrant, even though their standard police procedure was to obtain a current list. The officers provided no explanation during their testimony why they accepted an old list, failed to request a newer list, and failed to verify the continued validity of the warrants on the list.” (Id. at p. 266 [901 N.E.2d at p. 1061].)
The officers’ conduct here may well have been negligent. They had received conflicting information about the probationary and commitment statuses of Jose Hernandez Lopez. One of the officers could have asked defendant, “Mr. Lopez, why aren’t you in jail?” At that point, defendant would likely have expressed bafflement, and the officers could have disambiguated the two Jose Lopez names before conducting the search. Had the officers undertaken more extensive inquiries, defendant’s house might not have been searched in violation of the Fourth Amendment. But the officers were not grossly negligent or possessed of an even more culpable mental state. In the tort context, which we invoke here for reasons we explain post, footnote 2, “ ‘Gross negligence’ long has been defined in California and other jurisdictions as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’ ” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754.) The first criterion may be put otherwise, so that gross negligence is “(1) a failure to exercise even slight care, or (2) an extreme departure from the ordinary standard of conduct.” (Id. at p. 765; accord, id. at p. 778.) For the reasons we have set forth at length above, we conclude that, in light of the ordinary standard of conduct expected of a reasonably well trained officer (see Herring, supra, 129 S.Ct. at p. 703), Officers Dias and Cohon did not fail to exercise even slight care, nor did they depart in an extreme fashion from that standard of conduct.
We rely on City of Santa Barbara v. Superior Court, supra, 41 Cal.4th 747, rather than on criminal cases defining gross negligence because our research discloses that criminal cases define gross negligence in the context of particular crimes, filtering the definition in sometimes statutorily influenced ways that limit those cases’ general applicability. Regarding grossly negligent discharge of a firearm (Pen. Code, § 246.3, subd. (a)), the standard is “ ‘that the defendant’s act was “ ‘such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences.’ ” ’ [Citation.]” (People v. Overman (2005) 126 Cal.App.4th 1344, 1361.) Regarding gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)), the standard is “the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citations.] ‘The state of mind of a person who acts with conscious indifferences to the consequences is simply, “I don’t care what happens.” ’ [Citation.]” (People v. Bennett (1991) 54 Cal.3d 1032, 1036.) Arguably, Bennett could apply in other contexts, but equally arguably, it is limited to unlawful homicides involving motor vehicles. Moreover, the officers are not charged with criminal conduct. We think it suitable to invoke the generic (see City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at p. 778) definition of gross negligence contained in Santa Barbara even though it is a tort case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.