Opinion
A116840
8-8-2008
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH PARSONS, Defendant and Appellant.
Not to be Published
Joseph Parsons appeals from a judgment entered following his no contest plea to two counts of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and two prior convictions for sale of methamphetamine (Health & Saf. Code, § 11370.2, subd. (c)). He was sentenced to prison for an aggregate term of nine years eight months. He contends the court erred in admitting certain evidence, and without this evidence the prosecution did not meet its burden of justifying the warrantless search of appellant. We disagree and affirm.
BACKGROUND
On January 24, 2006, Central Contra Costa County Narcotics Enforcement Team (CNET) agents Aaron Roth and Louis Lombardi were conducting surveillance of appellant. California Department of Corrections and Rehabilitation Officer Gregory Renaud was on duty down the street, assisting in the surveillance. Lombardi and Roth contacted Renaud and notified him that they had observed a white male approach appellants car and conduct what they believed to be a "hand-to-hand transaction." Renaud did not personally witness this transaction.
Renaud and the other officers approached appellants vehicle, where appellant was seated in the drivers seat. Appellant was directed to put his hands in the air, ordered out of the vehicle, and handcuffed. Police searches led to the discovery of currency on appellants person and methamphetamine in his vehicle. Police also searched appellants bedroom and recovered additional currency and methamphetamine.
At the time of the search, appellant was on parole and Renaud was aware of appellants parole status. Renaud also knew that appellant had a prior criminal history involving methamphetamine sales.
On April 25, 2006, the prosecution filed an information charging appellant with two counts of possession of methamphetamine for sale (Health & Saf. Code, § 11378), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), and receiving stolen property (Pen. Code, § 496, subd. (a)). As to the charges of possession of methamphetamine for sale, the information alleged that appellant committed the offenses within 1,000 feet of an elementary school (Health & Saf. Code, § 11353.6, subd. (b)). The information further alleged that appellant had served three prior prison terms (Pen. Code, § 667.5, subd. (b)), and had three prior convictions for drug offenses (Health & Saf. Code, § 11370.2, subd. (c)).
On August 8, 2006, appellant filed a motion to suppress the evidence seized from his person, car and bedroom, arguing it was obtained as the result of an unlawful, warrantless search. At the hearing on the motion to suppress, Renaud testified, over appellants Harvey-Madden objection, that Roth and Lombardi had informed him that they observed appellant conduct a hand-to-hand transaction. Also over appellants objection, the court admitted into evidence the transcript of appellants preliminary hearing, in which Roth and Lombardi testified as to their observations of the hand-to-hand transaction. Roth and Lombardi did not testify at the hearing on the motion to suppress.
People v. Harvey (1958) 156 Cal.App.2d 516; People v. Madden (1970) 2 Cal.3d 1017.
The trial court denied appellants motion to suppress, finding the search permissible as a parole search. The court further found that Renaud was entitled to rely on the information provided by Roth and Lombardi, because there was some indicia of its reliability. The court noted that in admitting the preliminary hearing transcript, "Im not receiving it for the truth but only for the purpose of Harvey-Madden that it is reliable. And it allows [Renaud] to rely on information given to him by other peace officers in determining that a parole search was, indeed, appropriate."
Pursuant to a negotiated disposition, on January 31, 2007, appellant pled no contest to the two counts of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and admitted two prior convictions for sale of methamphetamine (Health & Saf. Code, § 11370.2, subd. (c)). The remaining charges and allegations were dismissed. Appellant was sentenced to a total term of nine years eight months in state prison.
Appellant filed a timely notice of appeal from the judgment.
DISCUSSION
Appellant contends the court erred in admitting the preliminary hearing transcript and Renauds testimony as to information relayed to him by other officers; and, without this evidence, the prosecution did not meet its burden of justifying the warrantless search. We disagree. Even without consideration of the testimony of Renaud or the preliminary hearing transcript, the prosecution demonstrated that the parole search of appellant was reasonable.
"The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts 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. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.)
In Samson, the United States Supreme Court concluded that "the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee." (Samson v. California (2006) 547 U.S. 843, 857.) "Where the search is for a proper purpose, . . . 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." [Citations.]" (People v. Reyes (1998) 19 Cal.4th 743, 754.) However, this "does not mean parolees have no protection." (Id. at p. 753.) Instead, " `[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 the searching officer. [Citations.]" (Id. at pp. 753-754.) "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 defendant] or his family, execution of the `consent search term would be `arbitrary. " (In re Anthony S. (1992) 4 Cal.App.4th 1000, 1004.)
Appellant contends that "[i]n the absence of any evidence that the surveillance had disclosed any activity, Renauds sudden decision to arrest [appellant], handcuff him, and search his vehicle was unrelated to any rehabilitative or legitimate law enforcement purposes." Appellant errs by equating legitimate law enforcement purposes with particularized suspicion that he was engaged in criminal activity or violation of his parole.
Samson and Reyes squarely held that a parole search may be legitimate even in the absence of particularized suspicion. (Samson v. California, supra, 547 U.S. at p. 857; People v. Reyes, supra, 19 Cal.4th at p. 754.) The purpose of a parole search is to deter crime and protect the public, "and the effectiveness of the deterrent is enhanced by the potential for random searches." (Reyes, at p. 753, italics added.) In re Anthony S., cited favorably by Reyes (at p. 754), held that a suspicionless probation search of several gang members was conducted for legitimate law enforcement purposes. (In re Anthony S., supra, 4 Cal.App.4th at p. 1004.) The trial court found the search impermissibly arbitrary, noting that the search was " `random " and conducted only because, in the trial courts words, " `this would be a convenient day to search gang members. " (Id. at p. 1003.) The Court of Appeal reversed, concluding that the officers were "motivated by a law enforcement purpose, i.e., to look for stolen property, alcohol, weapons, and gang paraphernalia at the homes of `Ventura Avenue GANGSTERS members." (Id. at p. 1004.) Thus, the simple objective of determining whether a parolee is complying with the law and parole conditions is a legitimate law enforcement purpose under Reyes.
Samson is instructive. Samson was on state parole in California, when he was observed by an officer walking down a street with a woman and a child. Based on a prior contact with Samson, the officer was aware that Samson was on parole and believed that he was facing an at large warrant. Accordingly, the officer detained him and asked whether he had an outstanding parole warrant. Samson responded that there was no outstanding warrant and that he "was in good standing with his parole agent." (Samson, supra, 547 U.S. at p. 846.) The officer confirmed Samson was on parole and did not have an outstanding warrant. Nevertheless, based solely on Samsons status as a parolee, the officer searched him, finding a plastic baggie containing methamphetamine. (Id. at pp. 846-847.) The court upheld the search, though the officer lacked any reasonable suspicion of criminal involvement, concluding a condition of parole release can so diminish a released prisoners reasonable expectation of privacy that a suspicionless search by a law enforcement officer does not offend the Fourth Amendment. (Samson, at p. 847; see In re Jamie P. (2006) 40 Cal.4th 128, 133-134.)
Even without Renauds testimony describing the information he received from his fellow officers, the prosecution demonstrated that the parole search was reasonable. At the time of the search, appellant was on parole and Renaud was aware of appellants parole status. Renaud knew that appellant had a prior criminal history involving methamphetamine sales and that CNET agents were conducting a surveillance of appellant, and Renaud assisted in that surveillance. Under these circumstances, Renaud had a legitimate law enforcement purpose in determining whether appellant was complying with the law and the terms of his parole. Although appellant describes the search as "arbitrary harassment," there is nothing in the record to suggest that the search was motivated by personal animosity, an intent to harass, or any other improper purpose. There is likewise no evidence in the record that the search was performed at an unreasonable hour, was unreasonably prolonged, or was otherwise arbitrary or oppressive.
Appellant also contends that "the officers were conducting surveillance rather than doing a parole search . . . and therefore had to comply with the normal constitutional requirements for detentions and searches." Appellant cites no legal authority in support of this proposition, and we deem it waived. (People v. Stanley (1995) 10 Cal.4th 764, 793.) We also note that the record does not support appellants assertion that the officers were "conducting surveillance rather than doing a parole search." Instead, Renaud testified that he went out with the intent to conduct surveillance and see where it led him, and that in his experience surveillance routinely leads to parole searches.
DISPOSITION
The judgment is affirmed.
We concur:
JONES, P.J.
NEEDHAM, J.