Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. H46703, H46800
Marchiano, P.J.
After his motions to suppress evidence were denied, defendant Antonio Velasquez Gomez pleaded no contest to drug and weapons charges, admitted related enhancements and prior convictions, and was sentenced to serve eight years eight months in prison. His appeal challenges the rulings on the suppression motions. We uphold the rulings and affirm the judgment.
I. SEARCH OF THE ELGIN STREET RESIDENCE
A. Background
In December 2007, San Leandro Police Officer Brian Anthony searched a duplex on Elgin Street in San Leandro where he believed codefendant Dena Lampitok was living. Lampitok was on probation with a condition permitting her residence to be searched. Defendant moved to suppress the fruits of the search on the ground that Officer Anthony lacked probable cause to believe that Lampitok resided at the Elgin Street duplex. Anthony and San Leandro Police Officer Daniel Fernandez testified at the hearing on the motion.
During the month before the search was conducted, Anthony and Fernandez investigated information that Lampitok was dealing methamphetamine at an apartment on Preda Street in San Leandro. DMV records listed Lampitok at the Preda Street address. One of Anthony’s informants said that defendant was involved in drug trafficking with Lampitok, and that defendant and Lampitok drove a silver Chrysler Sebring. On November 28, 2007, Fernandez saw Lampitok drive the Sebring to the Preda apartment, and let herself into the apartment with a key. However, during 50 hours of surveillance, Anthony never saw Lampitok at or near the Preda apartment. Anthony knew from his training and experience that drug dealers operate from multiple locations, and he suspected from his observations of the Preda apartment that Lampitok might have another residence.
On December 3, 2007, Anthony ran Lampitok’s name through a LexisNexis database that supplied people’s addresses based on information such as applications for utilities, cell phones, and credit cards. Anthony testified that the LexisNexis service was commonly used by law enforcement, and that he had used the service 30 times and found it to be helpful. Based on utility information, the service identified the Elgin Street duplex as Lampitok’s current primary residence. Anthony spent less that 10 hours surveilling the Elgin duplex, but saw the Sebring parked in front of it four or five times; Fernandez also observed the Sebring at the Elgin duplex two or three times. Anthony saw Lampitok standing by the Sebring in front of the duplex on one occasion about a week before the search, but never saw her enter or leave the duplex, which he said was difficult to surveil.
The Sebring was parked in front of the duplex on December 17, 2007, the day of the search. Anthony observed a man, later identified as Reuben Chavez, drive up to the duplex, enter and leave it, and drive away. Anthony had a patrol unit detain Chavez, and asked Chavez where he had been before he was stopped. Chavez said that he was coming from his friend Dena’s house. He said that he brought Dena a pair of shoes she wanted to buy for her boyfriend, but Dena was not there, so he left the shoes with a babysitter. When Anthony returned to the duplex, he saw defendant leave it and drive away in the Sebring.
Anthony testified that he had five reasons for believing that Lampitok resided at the Elgin Street duplex: (1) the information he obtained from the LexisNexis database; (2) the information he received from Chavez; (3) not seeing Lampitok during his surveillance at Preda Street; (4) seeing Lampitok once at the duplex; (5) seeing the Sebring parked more frequently on Elgin than on Preda.
The court found that Anthony had probable cause to believe that Lampitok was living at the duplex, but remarked that the evidence was “slim, ” and agreed with defense counsel that the issue was “close” in this case.
B. Discussion
People v. Palmquist (1981) 123 Cal.App.3d 1, 11−12, disapproved on another point in People v. Williams (1999) 20 Cal.4th 119, 135, held that a probationer’s home could be searched without a warrant if law enforcement personnel “reasonably believed” that the probationer was residing there. More recently, the Ninth Circuit has determined with respect to parole searches that “law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched.” (Motley v. Parks (9th Cir. 2005) 432 F.3d 1072, 1080, italics added.) “This is a higher standard than a mere well-founded suspicion.” (U.S. v. Howard (9th Cir. 2006) 447 F.3d 1257, 1262 (Howard).) “[T]he facts known to the officers at the time of the search must have been sufficient to support a belief, in ‘a man of reasonable caution, ’ that [the parolee] lived at [the place to be searched].” (Ibid.) The prosecution conceded below that probable cause, rather than reasonable suspicion, was the proper standard. We will assume that this higher standard applies, and we conclude that probable cause was shown here.
Probable cause is determined from the totality of the circumstances. (Illinois v. Gates (1983) 462 U.S. 213, 238 (Gates).) No single fact Officer Anthony cited for believing Lampitok lived in the Elgin Street duplex might have been enough to establish probable cause for that belief. However, those facts in combination—a database showing the address as Lampitok’s principal residence; frequent observations of her car at that address; and Chavez’s statement that the address was “Dena’s house”—were sufficient to support a belief in a person of reasonable caution that she, in fact, lived there. The belief was well founded on information the officers obtained during the considerable time they spent investigating the case before the search.
Defendant’s argument for a contrary conclusion is based primarily on the Howard case, where the court identified four fact patterns in four cases where there was probable cause to believe that a parolee was living at a particular address. “First, in each of these cases, the parolee did not appear to be residing at any address other than the one searched.” (Howard, supra, 447 F.3d at p. 1265.) “Second, in each of these four cases, the officers had directly observed something that gave them good reason to suspect that the parolee was using his unreported residence as his home base.” (Id. at pp. 1265−1266.) “Third, in each of [the four cases], the parolee had a key to the residence in question.” (Id. at p. 1266.) “Lastly, in two of these cases, either the parolee’s co-resident or the parolee himself identified the residence in question as that of the parolee.” (Ibid.) Defendant contends that probable cause was lacking here because none of these factual scenarios was present.
However, two of the four facts were established: The officers had directly observed something that gave them good reason to suspect that Lampitok was living at the Elgin Street duplex. They had seen her car there on multiple occasions, and had spoken with a visitor to the duplex who informed them that it was Dena’s house. And the situation here was analogous to those where a parolee did not appear to be living at any address other than the one searched; Anthony had determined from hours of surveillance at the address Lampitok reported to the DMV that she was very likely living elsewhere.
Defendant relies on a statement in United States v. McAdoo (C.D.Cal. Mar. 6, 2008, No. CR 07-00860 SJO) 2008 U.S. Dist. Lexis 22231 (McAdoo), that while the fact patterns identified in Howard “are not required elements... cases upholding a search typically contain at least three of the Howard patterns.” (McAdoo, supra, at p. *8.) But the existence of probable cause turns on the totality of the circumstances, not any mechanical three-out-of-four factor test. (See McAdoo, supra, at p. *15 [ultimately addressing the totality of the circumstances after discussing the Howard fact patterns].) Cases presenting the issue must be evaluated on their own particular facts, which in this case included an apparently reliable database identifying the place searched as the probationer’s primary residence. Probable cause was present under the totality of the circumstances here, even if the facts did not fall within “typical” patterns.
Accordingly, we hold that the motion to suppress the fruits of the Elgin Street search was properly denied.
The prosecution below did not contest defendant’s standing to contest the search of Lampitok’s apartment, and we do not reach that issue.
II. SEARCH OF THE HAYWARD RESIDENCE
The trial court sealed all documents relevant to defendant’s motion to suppress the fruits of the search and closed all hearings on the motion. In accordance with the Rules of Court, the sealed documents and transcripts of the closed hearings were filed under seal in this court. (See Cal. Rules of Court, rule 8.46(c).) We have filed both a redacted and sealed opinion. Our redacted opinion, which is part of the public record, does not include names or identifying facts in part II. Our unredacted, sealed opinion is filed concurrently with this redacted opinion.
[REDACTED]
The motion to suppress the fruits of the Hayward search was also properly denied.
II. CONCLUSION
The judgment is affirmed.
We concur: Dondero, J., Banke, J.
Consistent with prior practice in this case, this portion of the opinion is unsealed only as to counsel for the parties.