Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS091275
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Agents discovered drugs and drug paraphernalia while conducting a warrantless parole search at the Salinas residence of defendant Monique Pedroza. She and her codefendant Elton Maurice Lindsey moved to suppress the evidence. Defendant Pedroza contended that the residence was hers, not his; his residence was in a different city in Monterey County and only he was on parole; and therefore the warrantless search of her residence was unlawful. The trial court denied the motion. Thereafter defendant pleaded no contest to a drug offense. On appeal, she renews the contention that the search was unlawful.
We disagree and will affirm the judgment.
A different panel of this court reached the same conclusion in disposing of the appeal of defendant’s codefendant, Elton Maurice Lindsey, earlier this year. (People v. Lindsey (Mar. 24, 2011, H035515) [nonpub. opn.].) That circumstance, however, has no preclusive effect on defendant for law-of-the-case purposes, inasmuch as this is a separate appeal. (People v. Caserta (1971) 14 Cal.App.3d 484, 486.)
PROCEDURAL BACKGROUND AND FACTS
Defendant pleaded no contest to possessing cocaine (see Health & Saf. Code, § 11350, subd. (a)). This was a so-called West plea, i.e., defendant entered a plea and agreed to punishment but to further her best interests did not admit the facts (see In re Alvernaz (1992) 2 Cal.4th 924, 932; People v. West (1970) 3 Cal.3d 595). She entered this plea after her motions to suppress evidence (Pen. Code, § 1538.5, subd. (a)(1)(A)) and to set aside the information (id., § 995, subd. (a)(2)) were denied. The trial court sentenced her to three years’ formal probation, one condition of which was to serve 120 days in the Monterey County jail. She brings this appeal under Penal Code section 1538.5, subdivision (m).
The relevant facts are found in the contested hearing before the magistrate on defendant’s motion to suppress the cocaine evidence. The brief hearing on the motion to set aside the information adduced no additional facts and consisted of a reargument based on the facts adduced at the hearing before the magistrate.
Police visited codefendant Lindsey’s known residence in Marina to conduct a parole search. They had used a ruse to lure Lindsey away from the residence, but Lindsey’s daughter, LaTonya Lindsey, was there. LaTonya Lindsey told an officer that Lindsey’s Marina address, in the officer’s words during the hearing before the magistrate, “was one of his addresses.” She also said, to quote the verb offered by the officer, that Lindsey “stayed” at another location, namely that he “stayed with his girlfriend Monique in the City of Salinas”—referring, officers would learn, to defendant. The officer was not quoting LaTonya Lindsey directly in the foregoing instances, but later he did. Asked what LaTonya Lindsey had said about whether Lindsey “resided” at the Marina address, the officer replied, “[s]he told me that he was back and forth from that address and the Salinas address with Monique.” This, the officer explained, was “her exact quote.”
Other police officers pulled over Lindsey, who was driving his car in Salinas. They found a trace, but not usable amount, of cocaine inside the car and inspected the keys on his key ring. When officers later went to the Salinas address, an apartment complex, they showed these keys to the property manager. She identified one of them as being the type of key issued to the apartment complex’s tenants for their front doors and another as being the type of key issued to the tenants for the laundry room, which apparently was used in common.
Possessing an unusable quantity of a contraband substance is not prosecutable. (People v. Rubacalba (1993) 6 Cal.4th 62, 66.)
By this time, the police had become aware that the apartment of interest belonged to defendant. Her name was on a driver’s license they had found inside a vehicle, registered to Lindsey, at his Marina residence during their visit there. They had also discovered that the GPS device inside another car at Lindsey’s Marina residence, registered to Lindsey’s mother, contained a reference to defendant’s address. Armed with this information, an officer participating in the investigation asked the property manager if a male lived in defendant’s unit. She replied that she did not know and that defendant’s was the only name on the lease. The officer did not ask neighbors whether a man lived in defendant’s apartment. Nor, it appears, did police ask Lindsey whether he lived with defendant. An officer did ask defendant, after the police had entered her apartment, whether Lindsey resided with her, and, she replied “he did not, he just came to visit on and off, ” the last such time being the previous night.
The officer who interviewed LaTonya Lindsey already suspected that Lindsey might be seen in Salinas. The officer had driven through the area near defendant’s apartment several times in the prior one or two months to see if he could detect that Lindsey lived anywhere in the area. He was looking for such indications as Lindsey’s presence or that of any of his cars. The officer’s observations, however, had proved unavailing. The other testifying officer had also searched the vicinity twice and likewise had failed to see anything significant.
In ruling against the suppression motion, the trial court noted the absence of relevant California law and relied on U.S. v. Howard (9th Cir. 2006) 447 F.3d 1257 (Howard) to determine that the prosecution had to show the police had probable cause to believe that Lindsey was a resident in order to conduct the search. “Although California courts have not ruled specifically on that issue, because of the high privacy expectations in residences and homes, it is expected by most authorities that probable cause is what would be required.”
The trial court, sitting as a magistrate, found that probable cause existed. “[T]he Court does give great weight to the statement of the daughter that [Lindsey] did in fact stay with [defendant] in Salinas back and forth and that [he] basically split time there. [¶] Also, the identification that was found in Mr. Lindsey’s vehicle was that of [defendant], which connects the two.... The Court also finds that the keys to the apartment that were in the possession of Mr. Lindsey are significant, showing his association and time spent and living in that particular apartment.... [T]he standard in fact has been met.”
DISCUSSION
Defendant contends that the trial court erred under state law and acted contrary to the precepts of the Fourth Amendment to the United States Constitution by denying her motion to suppress the evidence obtained at her residence in Salinas. We disagree.
I. Procedural and Substantive Law
A. Procedural Principles
As noted, defendant moved to suppress evidence under Penal Code section 1538.5, subdivision (a)(1)(A), which allows a criminal defendant to meet “the initial burden of raising the issue of an unreasonable warrantless search or seizure by ‘simply assert[ing] the absence of a warrant and mak[ing] a prima facie showing to support that assertion.’ [Citation.] After the defendant sufficiently raises the issue, it is the prosecution’s burden to justify a warrantless search or seizure. [Citation.] A defendant then must present any arguments as to why that justification is inadequate.” (People v. Smith (2002) 95 Cal.App.4th 283, 296.) In sum, “the burden of proving the justification for the warrantless search or seizure lies... with the prosecution.” (People v. Johnson (2006) 38 Cal.4th 717, 723.)
“When, as here, a magistrate rules on a motion to suppress under Penal Code section 1538.5 raised at the preliminary examination, he or she sits as the finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences. In reviewing the magistrate’s ruling on a subsequent motion under Penal Code section 995”—as occurred here—“the superior court sits as a reviewing court—it must draw every legitimate inference in favor of the information, and cannot substitute its judgment for that of the magistrate on issues of credibility or weight of the evidence. On review of the superior court ruling by appeal or writ, we in effect disregard the ruling of the superior court and directly review the determination of the magistrate. In doing so we draw all presumptions in favor of the magistrate’s express or implied factual determinations and must uphold them if they are supported by substantial evidence.” (People v. Shafrir (2010) 183 Cal.App.4th 1238, 1244-1245, fn. omitted.)
We “exercise our independent judgment in determining whether, on such facts, the challenged search was reasonable under the Fourth Amendment.” (People v. Shafrir, supra, 183 Cal.App.4th at p. 1245.) On independent review of that ultimate question, we consider the totality of the circumstances shown in the record. (See United States v. Sokolow (1989) 490 U.S. 1, 8; Hill v. Scott (8th Cir. 2003) 349 F.3d 1068, 1073.)
California law follows Fourth Amendment standards. (People v. Robles (2000) 23 Cal.4th 789, 794.)
B. Search of Place Suspected of Being a Parolee’s Second Residence
The parties dispute whether the Fourth Amendment’s probable cause standard, contained in the text of the constitutional guaranty, applies under decisional law to the validity of a police officer’s decision to search a residence that the officer thinks could be a parolee’s clandestine abode.
Parolees are automatically subject to the condition that parole agents and other law enforcement personnel may search them (Pen. Code, § 3067, subd. (a)) and their residences (People v. Middleton (2005) 131 Cal.App.4th 732, 735-736, 738-739, 740) without a warrant at any time. The Fourth Amendment is not a bar to this procedure (Samson v. California (2006) 547 U.S. 843, 857), especially inasmuch as a parolee or probationer will have consented to “warrantless searches and seizures in exchange for the opportunity to avoid serving a state prison term.” (People v. Robles, supra, 23 Cal.4th at p. 795.) The question here, of course, is not the ability of the police to search Lindsey, items they know to be his, and any residence they know to be his, but the nature of Fourth Amendment-based restrictions on the authorities’ ability to search defendant’s abode on suspicion that Lindsey, a parolee, may be using it as an additional residence.
The authorities’ freedom to do the latter is not unbounded. In People v. Woods (1999) 21 Cal.4th 668, the court applied a reasonable belief standard for law enforcement personnel’s understanding of the facts regarding a probationer’s dominion and control over a residence before undertaking a probation search of that residence. (Id. at p. 682 accord, People v. Tidalgo (1981) 123 Cal.App.3d 301, 307, 308; People v. Palmquist (1981) 123 Cal.App.3d 1, 11-12, overruled on another point in People v. Williams (1999) 20 Cal.4th 119, 135; see id. at pp. 130-131.)
The reasonable belief standard is not self-evidently equivalent to reasonable suspicion, probable cause, or similar standards, and such standards are themselves malleable; for example, “ ‘probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.’ [Citation.] [¶] The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.” (Maryland v. Pringle (2003) 540 U.S. 366, 370-371; see United States v. Sokolow, supra, 490 U.S. at p. 7.)
Malleability is of necessity in cases like this, in which the police search a residence that is a third party’s abode but perhaps also a parolee’s clandestine additional residence that the parolee uses for nefarious purposes. One of the law enforcement personnel testifying at the suppression hearing described the problem police face in finding such places:
“Q. [By the prosecutor.] Do drug dealers sometimes keep what we call cold pads?
“A. Yes.
“Q. And that’s where they keep drugs so law enforcement won’t find them?
“A. Yes, it’s very common.”
Thus, there is a tension between the need to monitor the parolee while protecting the significant Fourth Amendment rights of a nonparolee with whom the parolee may be sharing a residence. (See People v. Robles, supra, 23 Cal.4th 789, 798; U.S. v. Franklin (9th Cir. 2010) 603 F.3d 652, 657.) That tension is acute in this case. When the police raided defendant’s residence, they did not suspect her of crime. Yet, searching her premises without a warrant, they found material indications of criminal activity and charged her with possessing cocaine (see Health & Saf. Code, § 11350, subd. (a)).
After the parties concluded their briefing in this case, People v. Downey (2011) 198 Cal.App.4th 652, stated that certain federal courts have decided that “ ‘the “reason to believe” standard is satisfied by something less than would be required for a finding of “probable cause.” ’ ” (Id. at p. 661.) Downey stated that this was an “interpret[ation]” (ibid.) of Payton v. New York (1980) 445 U.S. 573, which stated, as described by Downey, that “[a]n arrest warrant ‘founded on probable cause’ that the suspect has committed a crime gives law enforcement officers ‘the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.’ ” (Downey, supra, at p. 660.)
Conversely, recent decisions of the United States Court of Appeals for the Ninth Circuit have decided that the reasonable belief standard is properly interpreted as a probable cause standard in these circumstances. With regard to “whether a person [on parole] lives at a particular residence, the ‘reason to believe’ or ‘reasonable belief’ standard ‘should be read to entail the same protection and reasonableness inherent in probable cause.’ ” (Motley v. Parks (9th Cir. 2005) 432 F.3d 1072, 1080 (en banc).) In short, “law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched.” (Ibid.) Under this standard, “the 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].” (Howard, supra, 447 F.3d at p. 1262 .) “This is a higher standard than a mere well-founded suspicion.” (Ibid.)
The language of Payton v. New York, supra, 445 U.S. 573, to which People v. Downey, supra, 198 Cal.App.4th 652, refers may, however, suggest that reasonable belief should be equated with probable cause. In the paragraph of Payton on which Downey relies, Payton also noted the need “to interpose the magistrate’s determination of probable cause between the zealous officer and the citizen.” (Payton, supra, at p. 602.) For reasons we will explain in the text, however, there is no need to consider the matter further.
As far as our research discloses and the parties inform us, the United States Supreme Court has not spoken definitively on the applicable standard to justify this type of search. Payton v. New York, supra, 445 U.S. 573, itself stated that among the “related problems that are not presented today” (id. at pp. 582-583) is “the authority of the police, without either a search or arrest warrant, to enter a third party’s home to arrest a suspect” (id. at p. 583). Here, as noted, the trial court chose to apply the probable cause standard. It may have had in mind that the Fourth Amendment requires probable cause with regard to issuance of warrants: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” It may also have had in mind that this was a search of a residence, and “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed....” (United States v. United States District Court (1972) 407 U.S. 297, 313.) In other words, “ ‘ “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion” ’ stands ‘ “[a]t the very core” of the Fourth Amendment....’ ” (Groh v. Ramirez (2004) 540 U.S. 551, 559.)
We need not decide whether the reasonable belief standard equates to probable cause, reasonable suspicion, or some other standard, because the trial court was correct that, even assuming that the probable cause standard applies, the police had probable cause.
The probable cause standard is essentially an objective one. (See People v. Robles, supra, 23 Cal.4th at p. 796 & fn. 3; Motley v. Parks, supra, 432 F.3d at p. 1080; see also Michigan v. Fisher (2009) __ U.S. __, __ [2009 U.S. Lexis 8773, **3-8] (per curiam); Safford Unified School Dist. #1 v. Redding (2009) __ U.S. __, __ [2009 U.S. Lexis 4735, *14].) It permits a police officer to act if a reasonable police officer would believe probable cause exists that a parolee lives in a particular residence.
Under the probable-cause standard, a search of a dwelling that the police suspect may be a parolee’s additional clandestine residence “conducted without consent or a search warrant is permissible only when the officers have some heightened knowledge that they are at the address where... the parolee... resides.” (Motley v. Parks, supra, 432 F.3d at p. 1079.) “Generally, a condition of parole that permits warrantless searches provides officers with the limited authority to enter and search a house where the parolee resides, even if others also reside there. But they have to be reasonably sure that they are at the right house. Nothing in the law justifies the entry into and search of a third person’s house to search for the parolee. ‘The Fourth Amendment’s protection against unreasonable searches in a person’s home is not diminished by the mere presence of a guest in the home.’ [Citation.] In other words, the parole condition indicates only the parolee’s acquiescence to a warrantless search of his own residence. Absent this provision and the existence of exigent circumstances, officers must obtain consent or a warrant to enter a house.” (Ibid.)
Howard, supra, 447 F.3d 1257, identified four factors that support a conclusion that police had probable cause to believe that a parolee was residing somewhere. Howard reviewed prior decisions and observed, as summarized in a later Ninth Circuit decision: “ ‘First, in each of these cases the parolee did not appear to be residing at any address other than the one searched. In three of these four cases, the parolee had reported a different address, but officers had good reason to believe that he was not actually residing at the reported address.... [¶] 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[.]... [¶] Third, in each of [these cases] the parolee had a key to the residence in question.... [¶] 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.’ ” (Cuevas v. de Roco (9th Cir. 2008) 531 F.3d 726, 734 (per curiam), quoting Howard, supra, 447 F.3d at pp. 1265-1266.)
We glean from the foregoing that a “ ‘residence’ does not have to be an old ancestral home, but it requires more than a sleepover at someone else’s place. ‘It is insufficient to show that the parolee may have spent the night there occasionally.’ [Citation.] That a house or apartment belonging to someone else is also the ‘residence’ of a probationer”—or a parolee—“is not an inference that can be drawn simply because the probationer happens to be seen there.” (U.S. v. Franklin, supra, 603 F.3d at p. 656.)
We now return to the facts of this case, keeping in mind that we must defer to the magistrate’s factual findings. As noted, “we draw all presumptions in favor of the magistrate’s express or implied factual determinations and must uphold them if they are supported by substantial evidence.” (People v. Shafrir, supra, 183 Cal.App.4th 1238, 1244-1245, fn. omitted.)
The magistrate found that Lindsey lived in both Marina and Salinas. The court credited the evidence that LaTonya Lindsey told the police that Lindsey divided his time between the two residences and that the property manager identified the apartment and laundry room keys. It also credited the officers’ testimony that they found indicia of a link between the Marina and Salinas apartments at the Marina premises.
In evaluating a lower court’s factual findings during a suppression hearing for substantial evidence, we examine the record to determine whether the evidence on which the lower court relied was “ ‘solid, credible evidence.’ ” (People v. Miller (2004) 124 Cal.App.4th 216, 224.) With regard to each factual determination here, the evidence was solid and credible; therefore, substantial evidence supports the magistrate’s findings.
Defendant relies on Howard, supra, 447 F.3d 1257, to argue that of the four factors the case identified as supporting a probable cause finding, only one is present here. She is, strictly speaking, correct. The only Howard factor directly applicable was that officers had reason to believe—because the property manager identified it—that Lindsey had the key to defendant’s apartment.
Howard, supra, 447 F.3d 1257, did not state, however, that all or any particular subset of the factors it took note of are necessary to a finding that probable cause existed to support a parole search in a residence. If it may be read as so doing, we would disagree with it to that extent.
The Howard court stated that “[w]hen presented with weaker facts” than those present in prior cases it discussed in listing its four-factor test, “we have not hesitated to rule” against the government (Howard, supra, 447 F.3d at p. 1265). We do not see the facts here as being weaker than in Howard, but if Howard would argue in favor of such a conclusion, we would decline to follow it. It is well established that California courts are not bound by the decisions of the federal circuit and district courts. (People v. Whaley (2007) 152 Cal.App.4th 968, 984.)
The following factors, in addition to the Howard factor satisfied by the property manager’s identification of the apartment key, persuade us that the magistrate ruled correctly. Lindsey’s daughter, who from all we can discern on this record was not at odds with her father, gave the officers to understand that Lindsey lived in both Marina and Salinas. In addition, the property manager identified another key as the key to the apartment complex’s laundry room. Both of these circumstances weigh in favor of probable cause. The first does so for obvious reasons. The second one does so because, although nonresidents may possess a key to an abode’s front door for a number of reasons—our Supreme Court has noted that “residences frequently are occupied by several people living together, including immediate family members and perhaps other relatives or friends, as well as guests” (People v. Robles, supra, 23 Cal.4th at p. 800)—it is less likely that a visitor, someone who perhaps “spent the night there occasionally, ” (U.S. v. Howard, supra, 447 F.3d at p. 1262), would have a key to the laundry room. Unless one owns, manages, or maintains the property, possessing a laundry room key is emblematic of residency. And, although such possession does not establish residential status definitively, it need not do so. It bears emphasizing that the probable cause standard is not the standard needed for conviction of a crime, but one based on the Fourth Amendment yardstick of reasonableness. “ ‘ “[T]he term ‘probable cause, ’ according to its usual acceptation, means less than evidence which would justify condemnation.” ’ ” (Maryland v. Pringle, supra, 540 U.S. at p. 371.)
The other three Howard factors are not present. The police officers knew that defendant had a residence in Marina; the officers, despite concerted efforts, had failed to observe directly that Lindsey lived in Salinas as well as in Marina; and neither Lindsey nor defendant acknowledged that Lindsey lived in Salinas with her. Defendant would deny cohabiting with Lindsey after the police confronted her during their warrantless search of her residence. That denial, however, would not bear on the probable cause question, which rests on the reasonableness of the officers’ action based on what they knew at the moment they effected the entry, not afterward. (People v. Sanders (2003) 31 Cal.4th 318, 332, 334, 335.)
We cannot agree with defendant that the foregoing facts provide probable cause to believe only that Lindsey spent time at defendant’s residence but did not live there. The investigating officers were aware of facts that provided probable cause to believe that Lindsey resided at defendant’s apartment and thus the premises were subject to parole search. We again emphasize that we do not decide whether the police needed probable cause, but only that if they did, they had it.
The parties dispute whether People v. Palmquist, supra, 123 Cal.App.3d at pages 11-12, and People v. Icenogle (1977) 71 Cal.App.3d 576, 583-585, support the result in the courts below. Neither case is sufficiently informative to require discussion, however, and Icenogle is outdated to a certain degree. It is not necessary to rely on either decision in reaching ours, and we do not do so.
CONCLUSION
We conclude that defendant’s claim is without merit.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J.Mihara, J.