Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA319333, William C. Ryan, Judge.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Frank Polk appeals from the judgment entered following a bench trial in which he was convicted of possessing a controlled substance. (Health & Saf. Code, § 11350.) He contends the trial court erred in denying his motion to suppress evidence of the drugs as the fruits of an illegal warrantless search of his motel room based on the motel manager’s coerced, and thus involuntary, statements which led to the search. We affirm.
BACKGROUND
Prosecution Evidence
On March 21, 2007 Los Angeles Police Officer Eliana Tapia and her partner Detective Hodges were in plain clothes in an unmarked police vehicle investigating narcotics activity in the Fifth Street corridor. At the corner of 7th and San Julian Streets Officer Tapia saw what she believed was a drug transaction. She saw a Black male approach a Hispanic male. The Black male handed the Hispanic male money. The Hispanic male then spit out a brown solid item wrapped in plastic and handed it to the Black male. The Black male put the brown solid item into his mouth and walked away.
A few minutes later the Hispanic man was approached by two Hispanic men. Both men handed the Hispanic man money. The Hispanic man again removed a brown solid item wrapped in plastic from his mouth and handed it to the two Hispanic men.
Next a Caucasian male approached the Hispanic man. The Hispanic man lifted his arms with the palms of his hands showing outward. Officer Tapia interpreted this gesture to mean the Hispanic man was out of drugs.
The Hispanic man walked to the corner of 7th and Maple Streets and used a pay phone for a minute or two. Officer Tapia and her partner Detective Hodges followed the Hispanic man in their vehicle. The Hispanic man then walked to Fourth and Wall Streets where he met Polk. The Hispanic man handed Polk some money and Polk put it in his pant’s pocket. Polk then spit out a black solid item and handed it to the Hispanic man who then walked away.
From observing these transactions, Officer Tapia formed the opinion she had witnessed heroin transactions in which the Hispanic male was the seller and Polk was his supplier. Officer Tapia radioed officers to arrest Polk.
Officer John Armando and his partner received the call and arrested Polk. Officer Armando asked Polk whether he was on probation or parole. Polk informed Officer Armando he was on parole. Officers searched Polk’s pant’s pockets and found $300 or so in cash, a set of keys, and nothing else. Polk did not have any drugs or other contraband on his person. Polk told the officers he lived at the Cecil Hotel.
A few minutes later Officer Tapia and Detective Hodges joined the other officers at the arrest scene. Polk was then handcuffed, standing, and facing the wall. Officer Tapia also asked Polk whether he was on either probation or parole. Polk answered that he was on parole. Officer Tapia looked at Polk’s key ring and determined they were not keys to the Cecil Hotel because there were three keys on Polk’s key ring, including a mailbox key, and the keys were square in shape. According to Officer Tapia, keys to rooms at the Cecil Hotel, in contrast, are usually single keys, are round, and with tags identifying them as keys to the Cecil Hotel.
About this time an older Black man approached the officers surrounding Polk. The man’s name was Terrance Badie. Badie said something to the effect, “Frank, what do they got you for?” One of the detectives at the scene asked Badie how he knew Polk. Badie responded Polk was his tenant at the Leon Hotel at Fifth and St. Julian Streets. Badie was not arrested nor was he handcuffed. However, Officer Tapia warned Badie if he interfered with police operations he could go to jail.
Officers went to the Leon Hotel. One of Polk’s keys fit the mailbox for room 210. Another of Polk’s keys opened the door of room 210 of the Leon Hotel. Inside the room officers found documents identifying Polk as the room’s occupant: a certificate of participation awarded to Polk from the California Substance Abuse Treatment Facility at Corcoran and a package of documents from the Social Security Administration addressed to Polk. Detective Hodges also found several items in a nightstand drawer in room 210: $174 in currency, two fairly large pieces of heroin, a small bindle of heroin, a scale, razor blade and a lactose spoon. Another officer found two additional large pieces of heroin in a pocket of a jacket hanging in a closet.
The parties stipulated the substance found in Polk’s room was heroin. Detective Hodges, testifying as an expert, gave his opinion Polk possessed the heroin for purposes of sale. Detective Hodges based his opinion on the quantity of drugs recovered and on the transactions he had witnessed.
Defense Evidence
Terrance Badie testified he was the resident manager of the Leon Hotel and that Polk lived in one of the rooms of the Leon Hotel. Badie said in the late afternoon on March 21, 2007 he was walking to a nearby market when he saw Polk handcuffed and standing against the wall. He saw Polk surrounded by about six police officers and asked them what they were doing and why they had Polk up against the wall. Badie told the officers Polk was a nice guy.
One of the officers said he would arrest Badie unless Badie told him Polk’s name. Badie refused to give Polk’s name and the officer became aggressive. The officer threatened to arrest Badie on five different charges, including obstruction of justice, and then accused Badie of selling drugs. The officer grabbed Badie by the arms and began twisting them. The officer handcuffed Badie as he demanded Badie tell him Polk’s name. Badie claimed not to know Polk, and the officer directed other officers to take Badie to jail. Badie finally told the officer Polk’s name, address and room number. The officer took the handcuffs off Badie and released him.
On cross-examination Badie admitted he had lied to the police about not knowing Polk.
Polk testified on his own behalf. He had been out purchasing dinner when he was grabbed and placed in a choke hold. He blacked out and when he came to he was handcuffed and police officers were pushing him up against a wall. Polk became enraged and started cursing at the officers. Just then Badie walked up and asked the officers what they were doing to Polk. Police officers then grabbed Badie and handcuffed him.
Polk denied he had been selling drugs. He also denied falsely telling the police officers he lived at the Cecil Hotel.
On cross-examination Polk admitted for impeachment purposes (Evid. Code, § 788) he had been convicted of possession of drugs for sale in 2005 (Health & Saf. Code, § 11351), convicted of possession of drugs for sale in 1993 (Health & Saf. Code, § 11352, subd. (a)), and convicted of felony taking or stealing a motor vehicle in 1996 (Veh. Code, § 10851, subd. (a)). Polk also admitted having the heroin in his room but claimed it was for his personal use. Polk testified he could use that much heroin in three days.
Motion to Suppress and Judgment
Polk waived jury and the court held a combined trial on the charged offense and a hearing on Polk’s motion to suppress. (Pen. Code, § 1538.5, subd. (a)(1).) At the conclusion of the presentation of the evidence the court denied the motion to suppress. The court concluded that even assuming for sake of argument Badie was unlawfully coerced into providing the police officers with Polk’s address and room number, Polk nevertheless lacked standing to assert any violation of Badie’s rights. Accordingly, the trial court denied Polk’s motion to suppress.
The court amended the information to add a charge of possession of a controlled substance. (Health & Saf. Code, § 11350.) The court found Polk not guilty of the charged offense of possession of controlled substances for sale (Health & Saf. Code, § 11351) but guilty of the lesser included charge of possession of controlled substances. (Health & Saf. Code, § 11350.) The court imposed a mid-term sentence of two years in state prison and imposed related fines and assessments.
DISCUSSION
Polk claims the trial court erred in denying his motion to suppress. Polk asserts that because Badie’s statements leading to the search of his room were involuntary and the result of police coercion, the search was invalid and thus the fruits of the unlawful search should have been suppressed.
Standard of Review
On appeal from the denial of a suppression motion, “we review the evidence in a light favorable to the trial court’s ruling, adopt those express and implied findings of fact that are supported by substantial evidence, and independently determine whether those findings support the court’s legal conclusion that the search was reasonable under the Fourth Amendment. [Citations.] The standard of review recognizes that it is the exclusive province of the trial court to make the factual findings and credibility determinations that support a ruling and the legal theory underlying it. [Citation.]” (People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1197-1198; see also, People v. Ratliff (1986) 41 Cal.3d 675, 686.)
Warrantless Search
The exclusionary rule “excludes from a criminal trial any evidence seized from the defendant in violation of his Fourth Amendment rights. Fruits of such evidence are excluded as well.” (Alderman v. United States (1969) 394 U.S. 165, 171 [89 S.Ct. 961, 965].) The Fourth Amendment protects “an individual’s reasonable expectation of privacy against unreasonable intrusion on the part of the government. A warrant is required unless certain exceptions apply, . . .” (People v. Jenkins (2000) 22 Cal.4th 900, 971.)
An exception to the Fourth Amendment warrant requirement applies in this case. Polk informed the officers he was on parole before the officers searched his motel room. Consent to a warrantless search was a mandatory condition of Polk’s parole. (Pen. Code, § 3067, subd. (a) [as a condition of parole an inmate must agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time, with or without a search warrant, and with or without cause]; People v. Middleton (2005) 131 Cal.App.4th 732, 737-739 [police officers’ warrantless entry into and search of motel room were legal where officers did not enter until they had determined that room was registered to active parolee; even before being expressly required by statute, every grant of parole included implied search condition, and thus knowledge of parole status is equivalent to knowledge of search condition].)
The police officers learned of Polk’s active parole status directly from Polk before the search, and Polk had, as a condition of parole, expressly consented to warrantless searches of his person and residence. Because of these circumstances, Polk has failed to carry his burden to show he had an actual, personal, and reasonable expectation of privacy in the place that was searched. (Compare Minnesota v. Carter (1998) 525 U.S. 83, 88 [119 S.Ct. 469, 472] [to show a search caused a personal violation of rights, the defendant must establish he had an actual, personal and reasonable expectation of privacy in the place searched].)
Badie’s Involuntary Statements
Polk contends Badie’s statements informing police of his address and room number which led to the search were products of unlawful police coercion. Because Badie’s statements were involuntary, Polk asserts, Badie’s coerced cooperation with the police vitiated the validity of the search.
The vicarious exclusionary rule has been abolished in California. (See In re Lance W. (1985) 37 Cal.3d 873, 890 [state vicarious exclusionary rule abrogated by Cal. Const., art. 1, § 28, subd. (d)].) Accordingly, Polk may not seek to suppress evidence on the ground it was obtained in violation of another person’s rights. (People v. Badgett (1995) 10 Cal.4th 330, 343 [“defendants must allege a violation of their own rights in order to have standing” to complain a third party’s pretrial statements were coerced].) He is entitled to suppress evidence only if it was obtained in violation of his own Fourth Amendment rights. (See Rakas v. Illinois (1978) 439 U.S. 128, 133-134 [99 S.Ct. 421, 425] [“‘Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted’”].)
Polk acknowledges these principles. However, citing the decision in People v. Llamas (1991) 235 Cal.App.3d 441, Polk claims the rule is different when a defendant instead challenges the consent given to search as involuntary as the result of police coercion. In Llamas a police officer unlawfully detained the co-occupant of a motel room as he drove out of the motel parking lot. The officer asked the co-occupant for permission to check the room for contraband and the co-occupant replied, “Go ahead.” Using a key he found in the co-occupant’s car, the officer entered the room, saw the defendant and narcotics in plain view on a counter in the room and arrested the defendant. (Id. at p. 444.) The defendant conceded he lacked standing to contest the warrantless search of the motel room based on the illegal detention and arrest of his co-occupant. Instead, the defendant sought to suppress evidence of the drugs on the ground the co-occupant’s consent to the warrantless search was involuntary, induced by the illegal detention and therefore invalid. (Id. at p. 446.) The Llamas court rejected the defendant’s argument because there was no evidence other than the unlawful detention itself (which the defendant had no standing to challenge) to show the co-occupant’s consent to enter had been anything other than freely given. (Id. at p. 448.) To emphasize the point, the Llamas court noted there was “no evidence that [the co-occupant] was threatened or tricked into acceding to the officer’s request, or any other indication that [the co-occupant] was led to believe he could not withhold his consent.” (Ibid.)
Polk’s reliance on the Llamas decision is misplaced. The Llamas court’s dictum regarding the circumstances which may give rise to a defendant’s right to challenge the voluntariness of a third party’s consent to search is inapplicable to this case. (Compare Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222, 248-249 [93 S.Ct. 2041, 2059] [to justify a search based on consent, consent must have been voluntarily given].) Llamas is inapplicable because there the third party gave consent to search. Badie did not give consent to search Polk’s residence. Nor, as noted, was Badie’s consent to search necessary. As a condition of parole, Polk had already given his express written consent to conduct warrantless searches, and by implication, to provide information concerning his current residence address. Even without Polk’s cooperation, police officers would have inevitably discovered Polk’s address either through the Department of Corrections or through his parole officer.
In addition, the basic premise underlying Polk’s argument is flawed. The trial court did not make a factual finding the police officers had coerced Badie into revealing Polk’s address and room number. Indeed, the trial court even commented “I don’t think it was pretty rough and tumble.” It was the exclusive province of the trial court to make this credibility determination. (People v. Ratliff, supra, 41 Cal.3d at p. 686.) However, the court was willing to assume for sake of argument Badie’s statements had been coerced and nevertheless found Polk could not show any violation of his own Fourth Amendment rights to warrant suppression of the drug evidence.
We agree. Even assuming police improperly coerced Badie into revealing Polk’s residence address, Polk lacks standing to complain of a violation of Badie’s rights. (Alderman v. United States, supra, 394 U.S. at p. 171 [89 S.Ct. at p. 965] [“The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence”]; see also, People v. Badgett, supra, 10 Cal.4th at p. 344 [pretrial coercion of a third party’s statements presents no basis for relief to the defendant unless the defendant can show the witness’s trial testimony is similarly coerced].) If the police treated Badie unlawfully he is entitled to pursue his own remedies against the government. (Rakas v. Illinois, supra, 439 U.S. at p. 134 [99 S.Ct. at p. 426] [if a person whose rights were infringed is not a defendant in the action, he may be able to recover damages for the violation of his own constitutional rights or may seek redress under state law].)
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.