People v. Sardinas

Opinion

INTRODUCTION

While on parole, defendant and appellant Rolando Palmer Sardinas (defendant) was stopped and searched by the same police officer who had searched him during a traffic stop the night before. During the second search, the officer discovered rock cocaine on defendant’s person and arrested him. Prior to trial,

C. The December 21 Search

On December 21, 2007, about 5:30 p.m., Officer Samuels observed defendant walking through the parking lot of a 7-Eleven convenience store. The area around the store was known for narcotics sales, particularly the apartment complex directly across the street from the store. Officer Samuels had made numerous contacts in that area relating to the sale, use, and possession of narcotics.

As Officer Samuels drove through the convenience store parking lot, he recognized defendant because of his prior contacts with him, including the traffic stop the night before. Officer Samuels knew defendant lived about three and a half to four miles from the store. Officer Samuels did not see defendant come from the apartments directly across the street from the store and did not see anything that made him suspicious of defendant. But, because Officer Samuels wanted to ensure that defendant was in compliance with his parole conditions, he stopped his patrol vehicle, exited, and approached defendant. Before Officer Samuels said anything, defendant said, “What’s up, Samuels?” Officer Samuels asked defendant what he was doing in the area, and defendant replied that he was “just walking through.” According to Officer Samuels, for his own safety and the safety of the public, he conducted a parole search of defendant. Officer Samuels found several pieces of individually packaged rock cocaine in defendant’s front waistband.

PROCEDURAL BACKGROUND

In an information, the Los Angeles County District Attorney charged defendant with possession for sale of cocaine base in violation of Health and Safety Code section 11351.5. The district attorney alleged that defendant had suffered a prior conviction of a serious or violent felony within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b)

Defendant pleaded not guilty and denied the special allegations. Prior to trial, defendant filed a motion pursuant to section 1538.5 to suppress the drug evidence recovered during the December 21, 2007, parole search. After hearing argument, the trial court denied the motion, concluding that the search was not arbitrary, capricious, or whimsical and was not motivated by any animus toward defendant.

Following trial, the jury found defendant guilty as charged. Defendant waived his right to a jury trial on the prior allegations, and the trial court found true three of the four prior convictions. The trial court imposed a seven-year sentence comprised of the low term of three years, doubled to six years pursuant to sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), plus one year pursuant to section 667.5, subdivision (b).

DISCUSSION

A. Standard of Review

Defendant’s challenge to the trial court’s ruling denying his motion to suppress presents a mixed question of law and fact that is subject to a two-tier standard of review. “The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Leyba (1981) 29 Cal.3d 591 , 596-597 [ 174 Cal.Rptr. 867 , 629 P.2d 961 ]; People v. Lawler (1973) 9 Cal.3d 156 , 160 [ 107 Cal.Rptr. 13 , 507 P.2d 621 ].)” (People v. Glaser (1995) 11 Cal.4th 354 , 362 [ 45 Cal.Rptr.2d 425 , 902 P.2d 729 ].) “A ruling on a motion to suppress generally implies ‘a finding of fact favorable to the prevailing party on each ground or theory underlying the motion.’ (People v. Manning (1973) 33 Cal.App.3d 586 , 601-602 [ 109 Cal.Rptr. 531 ].)” (People v. Solorzano (2007) 153 Cal.App.4th 1026 , 1031 [ 63 Cal.Rptr.3d 659 ].) Applying this two-tiered

Recognizing the conflict between the holdings in People v. Burgener, supra, 41 Cal.3d 505 , and In re Tyrell J., supra, 8 Cal.4th 68 , the court in Reyes, supra, 19 Cal.4th 743 , resolved the issue by extending the rationale of Tyrell J. to adult parolees. “The rationale of Tyrell J. can be stated succinctly. When involuntary search conditions are properly imposed, reasonable suspicion is no longer a prerequisite to conducting a search of the subject’s person or property. Such a search is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing. Tyrell J.’s reasoning applies with equal force to adults. In both cases the expectation of privacy is already reduced by the absence of the warrant requirement. As a convicted felon still subject to the Department of Corrections, a parolee has conditional freedom — granted for the specific purpose of monitoring his transition from inmate to free citizen. The state has a duty not only to assess the efficacy of its rehabilitative efforts but to protect the public, and the importance of the latter interest justifies the imposition of a warrantless search condition.” (Reyes, supra, 19 Cal.4th at p. 752.) The court in Reyes concluded that “[wjhere the search is for a proper purpose, we hold that, even in the absence of particularized suspicion, a search conducted under the auspices of a properly imposed parole search condition does not intrude on any expectation of privacy ‘society is “prepared to recognize as legitimate.” ’ ([New Jersey v.] T.L.O. [(1985)] 469 U.S. [325,] 338 [ 83 L.Ed.2d 720 , 105 S.Ct. 733 , 741]; Hudson v. Palmer [(1984)] 468 U.S. [517,] 526 [ 82 L.Ed.2d 393 , 104 S.Ct. 3194 , 3200].)” (Reyes, supra, 19 Cal.4th at p. 754.)

The court in Reyes, supra, 19 Cal.4th 743 , recognized that a parolee subject to a warrantless search condition retained at least some measure of protection under the Fourth Amendment. “However, our holding that particularized suspicion is not required in order to conduct a search based on a properly imposed search condition does not mean parolees have no protection. As explained in People v. Clower (1993) 16 Cal.App.4th 1737 [ 21 Cal.Rptr. 2d 38 ], ‘a parole search could become constitutionally “unreasonable” if made too often, or at an unreasonable hour, or if unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct by

“ ‘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 (1987)] 43 Cal.3d. [600,] 610 [ 238 Cal.Rptr. 282 , 738 P.2d 336 ], italics added.) [][] The legal meaning of the word, ‘arbitrary,’ when considered in the context of the previous sentence of Bravo, supra, [43 Cal.3d at page 610,] must relate to the executing officer’s motivation. Where the motivation is unrelated to rehabilitative and reformative purposes or legitimate law enforcement purposes, the search is ‘arbitrary.’ For example, had the officer been motivated by personal animosity toward [the probationer] or his family, execution of the ‘consent search term’ would be ‘arbitrary.’ ” (In re Anthony S., supra, 4 Cal.App.4th at p. 1004.)

In this case, the trial court heard the testimony of Officer Samuels at the hearing on defendant’s motion to suppress and concluded that the December 21 search in the convenience store parking lot was conducted for a legitimate law enforcement purpose and not to harass. There is substantial evidence in the record to support that conclusion. The search in question was conducted directly across the street from an apartment complex known to Officer Samuels as a location where drug trafficking occurred. Officer Samuels also knew defendant was on parole for a drug possession conviction and had observed defendant associating with known drug addicts in the past. According to the trial court, there was no evidence that Officer Samuels harbored any animus toward defendant, and there was evidence that part of Officer Samuels’s job was to know the identities of parolees in the city and to patrol areas known for drug trafficking. Therefore, the evidence presented at the hearing on the motion to suppress supported a reasonable inference that Officer Samuels was acting with a legitimate law enforcement purpose when he searched defendant on December 21.

Defendant focuses on the traffic stop the night before the search in question, the ensuing searches of defendant’s person, van, and house, and the

Although Officer Samuels admitted that he had six or seven prior contacts with defendant prior to the December 20 traffic stop, there is no evidence in the record concerning the details of those contacts or whether one or more of them involved a search of defendant. Moreover, there is no evidence as to the timing of those contacts, which occurred over the five year period that Officer Samuels was employed as a City of Pomona police officer. From the record, it cannot be determined whether those prior contacts occurred close in time to one another or sporadically over a five-year period. Thus, absent more information about those six or seven contacts, they do not, as defendant suggests, require a conclusion that Officer Samuels harassed defendant.

Moreover, the December 20 search occurred at least a month after Officer Samuels’s last contact with defendant and was the result of a legitimate traffic stop for a Vehicle Code violation. Officer Samuels did not know defendant was driving the van when he made the traffic stop, and he verified defendant’s parole status before searching him.

There was no evidence that Officer Samuels was following defendant or searching specifically for him on either December 20 or 21. To the contrary, on both occasions Officer Samuels was on routine patrol performing his duties as a member of the major crimes task force, which duties included knowing and making routine contact with parolees in his jurisdiction. Based on the evidence presented, it was reasonable for the trial court to infer that the two searches within 24 hours were conducted for legitimate law enforcement purposes. The facts found by the trial court concerning Officer Samuels’s knowledge and motives and the circumstances surrounding the two searches are supported by substantial evidence. That being so, the December 21 search was not arbitrary or capricious, but rather was conducted for a legitimate law enforcement purpose. No constitutional violation occurred, and the trial court properly denied defendant’s motion to suppress.

The judgment of the trial court is affirmed.

Armstrong, Acting P. J., and Kriegler, J., concurred.

Appellant’s petition for review by the Supreme Court was denied April 22, 2009, S170824. Corrigan, J., did not participate therein.