Opinion
2d Crim. No. B228411 Super. Ct. No. 2010005265
09-26-2011
THE PEOPLE, Plaintiff and Respondent, v. KEVIN DANIEL LYNCH, Defendant and Appellant.
Lyn A. Woodward, under appointment by the Court of Appeal, for defendant and appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Idan Ivri, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
Kevin Daniel Lynch was charged with possession of a firearm by a felon (count 1 - Pen. Code, § 12021, subd. (a)(1)); receiving stolen property (count 2 - § 496, subd. (a)); and possession of ammunition (count 3 - § 12316, subd. (b)(1)). He moved to suppress certain evidence at the preliminary hearing pursuant to section 1538.5. His motion was denied. He later renewed his motion, and it was again denied. Pursuant to a plea agreement, appellant entered a plea of guilty to counts 1 and 2. Count 3 was dismissed. The trial court imposed a total term of two years in state prison. This consisted of concurrent two-year sentences on counts one and two.
All further statutory references are to the Penal Code.
The two-year term was ordered to be served concurrently with other sentences simultaneously imposed in three other cases. Appellant's total aggregate term amounted to two years in state prison.
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FACTS
On February 10, 2010, Ventura police officers received a tip from an informant that appellant might be in possession of a .38 caliber handgun. The informant reported having seen appellant with the gun at a particular address. Later that day, Police Officer Anthony Morales saw appellant riding as a passenger in a car northbound on Ventura Avenue. He had seen a photograph of appellant and knew he was on felony probation and subject to search terms. The terms prohibited him from using or possessing controlled substances or related paraphernalia. He was also prohibited from possessing a firearm or ammunition.
Morales followed the car onto Highway 33 where he paced it as traveling at 70 mph in a 65 mph zone. He conducted a "high-risk" traffic stop, which is customary when there is concern about officer safety. Three or four patrols vehicles initiated the stop. The driver and then appellant were ordered out of the car over a loudspeaker, detained, handcuffed and searched.
Officers searched the car and recovered a glass smoking pipe and methamphetamine. On the front passenger seat was a sunglass case containing a hypodermic needle, a spoon and a "tie"--material used to tie off the arm to reach the vein. The needle and tie are known as a "hype kit" and allows a user to travel with their paraphernalia. Next to the sunglass case was a metal container with several types of pills. There was no ammunition in the car. Morales contacted detectives Adam Delgado and Paul Cain and told them about the items recovered and that appellant was on probation.
Morales and other officers visited a residence, known for narcotics activity, which appellant had been seen frequenting. They spoke to an individual at the home who said appellant had been staying there for several days. The resident consented to a search of the home, but officers found no property belonging to appellant. The resident told officers that appellant stored his property at Oak View Storage. The following day, two detectives visited the storage facility. The manager cut the lock with bolt cutters and the detectives entered the unit. They found numerous items of personal property, including clothing, family pictures, power tools and mail addressed to appellant. On a shelf inside the unit was a .38-caliber revolver with five live rounds. The serial number was scratched and it appeared that someone had tried to make the number 6 into a number 8. Both the firearm and power tools were confirmed as stolen. Detective Delgado testified that, in searching the storage space, he was also searching for narcotics and drug paraphernalia, but searching for the gun was the "main goal."
Motion to Suppress Evidence
Appellant filed a motion to suppress evidence pursuant to section 1538.5. The suppression motion was heard concurrently with the preliminary hearing, presided over by Judge Patricia Murphy. Defense counsel argued that the officers knew that the search terms were restricted to drugs and they exceeded the scope of the search by looking for a gun. Counsel requested that the gun be excluded on this ground. The motion was denied.
Renewed Motion to Suppress Evidence
Appellant later renewed his motion to suppress evidence pursuant to section 1538.5, subdivision (i). He argued that the terms of his probation search included drugs, but not firearms. Appellant asserted that the police used his drug search terms as a pretext to search for the gun, and they had no intention to search for drugs. The People filed opposition, arguing that the search terms were objectively reasonable, notwithstanding the officers' subjective intent to look for a gun.
The hearing on the motion was conducted by Judge Edward F. Brodie. Appellant argued that the search of the car, the residence and the storage locker exceeded the scope of the probation search terms because the officers were looking for a gun, rather than narcotics. Defense counsel argued that the legality of the search is measured by an objective standard and the officers' intent was therefore irrelevant.
The court stated, "I know they were looking for a gun, you know they were looking for a gun, and so do the People, but they found some drug paraphernalia and things of that nature that would allow their second and third searches to continue although I know they were looking for drugs, he was a convicted felon, he couldn't have a gun, somehow the terms of his probation were restricted and probably shouldn't have [included] simply drugs and not possession of a weapon. [¶] "So, for that reason - and the record should remain clear for any appellate review that comes from this case - that I believe that the search terms gave them the authority to do what they did. Their subjective reasoning as to why they did it is not really relevant." The court concluded that the officers did not exceed the scope of the search terms and denied the motion.
DISCUSSION
On appeal, appellant challenges only the search of his storage locker. He acknowledges that police conduct regarding a Fourth Amendment search is determined by an objective, rather than subjective standard, citing People v. Woods (1999) 21 Cal.4th 668. He asserts, however, that the search exceeded the scope of consent specified in the probation search terms which was limited to narcotics and drug-related paraphernalia.
When reviewing the trial court's ruling on a motion to suppress evidence, we defer to its factual findings if they are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) We independently review the reasonableness of a search or seizure under the Fourth Amendment. (Ibid.)"A search conducted pursuant to a valid consent does not violate the Fourth Amendment unless the search exceeds the scope of the consent." (People v. Bravo (1987) 43 Cal.3d 600, 605.) Probation is a privilege granted to a defendant on the condition that he submit to a warrantless search. His consent is a complete waiver of his Fourth Amendment rights. (Id. at p. 607.) "Warrantless searches are justified in the probation context because they aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation. [Citations.]" (People v. Robles (2000) 23 Cal.4th 789, 795.)
The terms of appellant's probation are stated in the minute orders concerning two Ventura county cases. The order for case number 2009005240 read in part, "You shall not use or possess any narcotics, dangerous drugs, controlled substances, including marijuana . . . . [You shall] consent to a search of your person, vehicle, residence, business, or any other personal or real property under your control for controlled substances, including marijuana and related paraphernalia, by a peace officer or probation officer at any time, with or without a search warrant, warrant of arrest, or reasonable cause." The order also provided that "[y]ou shall not own, possess, have under custody or control or immediate access to any firearm, ammunition, oleocapsicum pepper spray, or tear gas pursuant to Section 12403.7, [subdivision] (a)(1) of the Penal Code."
The minute order relating to case No. 2008012742 provided the same terms cited above concerning consent to a search for controlled substances and paraphernalia; the use of same; and contained the same prohibition against possession or access to any firearm or ammunition.
Appellant's argument that the search terms were limited to narcotics and drug-related paraphernalia is without merit. The plain language of the search terms prohibited appellant's possession of a firearm or ammunition. Moreover, the weight of the law is against him.
It is immaterial that the officers' goal was to find a gun because an officer's subjective intent in conducting the search is irrelevant. (People v. Sanders (2003) 31 Cal.4th 318, 334.) The officer must have knowledge of a basis to conduct the search (ibid.),and the search must not exceed the area in which the contraband might be found. (People v. Gomez (2005) 130 Cal.App.4th 1008, 1017.) "Even where the officers are searching for something else, as long as the search is confined to areas where firearms might be found, the search condition has not been exceeded." (Ibid.)
In Whren v. United States (1996) 517 U.S. 806, police officers conducted a traffic stop in an area of high drug activity. When they approached the car, they saw two bags of narcotics in the driver's hands. It was argued that the stop was improper because it was a pretext to search for criminal activity. (Id. at p. 810.) The Supreme Court held that an officer's subjective intent "'does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.' [Citation.]" (Id. at p. 813.)
Appellant asserts that the case is controlled by Woods and Bravo. Woods extended the holding in Whren to probation searches. In Woods, the police received a tip concerning suspected narcotics activity involving the defendant. They visited his home, but found nothing. The police discovered that the defendant's housemate was on felony probation and returned to conduct a probation search. The trial court made a factual finding that the officer's subjective intent in searching the home was to find evidence against a third party, not to determine whether the probationer violated her probation. (People v. Woods, supra, 21 Cal.4th at p. 674.) Our Supreme Court held that an officer's subjective intent does not invalidate a probation search where the circumstances, viewed objectively, justified the officer's action. The search was justified because the house was occupied by a probationer who was subject to a probation condition. (Id. at pp. 678-679.)
In People v. Bravo, supra, 43 Cal.3d 600, police officers surveilled a defendant's home based on a tip concerning suspected narcotics activity. The officers saw nothing suspicious, but later learned that the defendant was on probation subject to search terms. They returned to his home and searched it, recovering cocaine, firearms and cash. The defendant moved to suppress the evidence seized from his home, arguing that the search was unlawful because the officers lacked reasonable cause to believe he was involved in criminal activity. The motion was denied and he entered a plea of guilty. (Id. at pp. 603-604.)
The reviewing court concluded that determining the scope of consent to a probation search must be interpreted objectively by reference to the probation order. (People v. Bravo, supra, 43 Cal.3d at p. 606.) "The search condition must therefore be interpreted on the basis of what a reasonable person would understand from the language of the condition itself, not on the basis of appellant's subjective understanding, or under a strict test in which a presumption against waiver is applied." (Id. at p. 607.) The court determined that the search was authorized because the condition was worded almost identically to a search condition articulated in a minute order.(Ibid. & fn. 5)
The search of appellant's storage unit was not invalidated by the officers' statements that they were looking for a gun. Appellant had consented to a warrantless search of any of his personal or real property for drugs without reasonable cause. He was prohibited from owning a gun or ammunition. While on probation, he was arrested in a car with narcotics and paraphernalia. A search of the house where he was living resulted in the information that he kept his personal property in a storage unit. The unit was under his control and was a place in which it was likely the narcotics or paraphernalia could be found. An objectively justifiable basis existed for the officers to search the storage unit. Their seizure of the firearm did not exceed the scope of appellant's consent. We need not address appellant's argument concerning the officers' specific knowledge of the search terms, because we conclude the search was lawful.
DISPOSITION
The order denying appellant's motion to suppress evidence is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
YEGAN, Acting P.J.
PERREN, J.
Edward F. Brodie, Judge
Superior Court County of Ventura
Lyn A. Woodward, under appointment by the Court of Appeal, for defendant and appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.