Opinion
A146963
08-17-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL KYLE PRUSSO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FRC310311)
Defendant Michael Kyle Prusso appeals from his conviction, after pleading no contest, of unlawful possession of a controlled substance for sale (Health & Saf. Code, § 11378). The sole issue on appeal is the magistrate's partial denial of defendant's motion to suppress evidence. (Pen. Code, § 1538.5.) We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
A confidential reliable informant (CRI) claimed Tiffany Beckingham (Beckingham) and defendant were selling methamphetamine. The CRI positively identified photos of both Beckingham and defendant, and stated he/she had purchased methamphetamine from Beckingham and seen both Beckingham and defendant sell methamphetamine to others within the past 10 days.
During covert surveillance of Beckingham's apartment, Police Officer Dustin Willis observed both Beckingham and defendant "enter and exit the apartment unencumbered." Although defendant had a different address listed with various government agencies, it appeared to Officer Willis that defendant also resided at the apartment.
Based on this information, officers obtained a warrant authorizing a search of the apartment, Beckingham's and defendant's person, a Chevrolet sedan registered to Beckingham, and any vehicles under control or possession of Beckingham or defendant. The attached statement of probable cause noted defendant was on active post release community supervision (PRCS) for violating Health and Safety Code section 11377, subdivision (a) (unauthorized possession of a controlled substance). Prior to executing the search warrant, the officers planned to locate and detain Beckingham and defendant.
Around 3:30 or 4:00 p.m., as defendant was driving Beckingham's sedan away from the dentist's office where Beckingham worked, Sergeant David Spencer stopped him and told him he was part of a narcotics investigation. The sergeant handcuffed defendant and collected his wallet, identification card, cell phone, and car key, which was on a keyring with apartment keys. The officer's drug-detection dog then sniffed the vehicle. No contraband items were found on defendant or in the car. Defendant agreed to return to Beckingham's workplace.
Meanwhile, officers met Beckingham outside the dentist's office.
On defendant's return to the dentist office premises, Officer Willis asked him whether he resided at the apartment. Defendant initially denied living there, but then identified the specific keys which opened different doors of the apartment. The officer explained they had a search warrant for the apartment and asked if he wanted to go with them to the apartment or if he wanted to remain detained in the parking lot of the dentist's office during the search. Both defendant and Beckingham agreed to go to the apartment while the officers searched for narcotics. During this time, defendant remained in handcuffs.
The search of the apartment began around 4:30 p.m. Within 10 minutes, officers found two Solano County probation slips and a California benefits identification card for defendant in the master bedroom, as well as approximately 58 grams of methamphetamine concentration, cannabis, suspected cannabis concentrate, a digital scale, measuring bowls, and packaging material in a locked safe under the master bed. Text messages on Beckingham's phone from "Mikey" (defendant also goes by "Mikey") further suggested the drugs were possessed for sale.
The text message stated: " 'I have two zips sold, and a ball. So what is taking you so long.' " A "zip" refers to an ounce of methamphetamine, and a "ball" refers to an eighth of an ounce of a controlled substance.
Both Beckingham and defendant were arrested and advised of their rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Beckingham admitted to selling methamphetamine over the past one to two months. Defendant stated he had been selling methamphetamine on a daily basis since being released from prison in July and the safe contained pills he had received in payment for earlier drug transactions.
Defendant was charged with violating Health and Safety Code sections 11378 (possession of a controlled substance for sale), 11351 (possession or purchase for sale of designated controlled substances), and 11357, subdivision (a) (possession of marijuana).
Defendant made a motion to quash the search warrant, which the trial court granted, given the prosecution's decision not to produce the CRI. Beckingham did not join in defendant's motion, nor did she make her own motion to quash.
Defendant then made a motion to suppress that was heard in conjunction with the preliminary hearing. The prosecution maintained the searches and defendant's detention were permissible under the warrant for Beckingham's car and apartment, and also on the basis of defendant's PRCS status. The magistrate granted the motion as to the seizure of defendant's cell phone and its contents, but found "[t]he detention bringing him back to the dentist office . . . [was] not unreasonable," defendant chose to go to the apartment, and the length of detention was not overly long. The magistrate also found defendant was "subject to a search and seizure as a term and condition of his PRCS" and all the officers knew of defendant's PRCS status.
Following the filing of the information, defendant made a section 995 motion, again challenging the searches and seizures. After reviewing the transcript of the preliminary hearing, the superior court concluded that once no contraband was found in the vehicle, defendant was subjected to an unduly prolonged detention. Defendant's ostensible consent to traveling with the officers to the apartment was not consent, said the court, because he was only given a choice between different locales of detention. However, the court ultimately ruled defendant's arrest following the discovery of methamphetamine in the apartment was lawful, applying the three-part Brendlin analysis. (People v. Brendlin (2008) 45 Cal.4th 262, 268-273 (Brendlin).)
In Brendlin, the Supreme Court identified three factors for determining " 'whether the chain of causation proceeding from the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstance so as to remove the "taint" imposed upon that evidence by the original illegality.' " (Brendlin, supra, 45 Cal.4th at p. 269.) These are, "the temporal proximity of the unlawful seizure to the subsequent search of the defendant's person or vehicle, the presence of intervening circumstances, and the flagrancy of the official misconduct in effecting the unlawful seizure." (Ibid.)
Prior to trial, defendant entered into a negotiated disposition and pleaded no contest to possession of a controlled substance for sale (Health & Saf. Code, § 11378) and admitted one prior prison term enhancement under section 667.5, subdivision (b). The trial court sentenced him to a four-year prison term.
DISCUSSION
" 'In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated.' " (Brendlin, supra, 45 Cal.4th at p. 268; see People v. Linn (2015) 241 Cal.App.4th 46, 56 (Linn).) " 'As the finder of fact in a proceeding to suppress evidence [citation], the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable.' [Citation.] 'The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution.' " (Linn, at p. 56.) " 'We review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.' " (Brendlin, at p. 268; see Linn, at p. 56 [reviewing court has the ultimate responsibility " 'to measure the facts, as found by the trier, against the constitutional standard of reasonableness' "].) " '[W]hile we defer to the superior court's express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search on the facts so found.' " (Linn, at pp. 56-57.)
The Fourth Amendment prohibits "unreasonable searches and seizures." Thus, the "central inquiry" is "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." (Terry v. Ohio (1968) 392 U.S. 1, 19.) "In determining whether a particular search is reasonable, we apply a balancing test in which we consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place where it is done. (People v. Smith (2009) 172 Cal.App.4th 1354, 1363, citing Bell v. Wolfish (1979) 441 U.S. 520, 559.) In order to claim protection under the Fourth Amendment, " 'the defendant must show that he or she had a subjective expectation of privacy that was objectively reasonable.' " (People v. Ayala (2000) 23 Cal.4th 225, 255.)
"Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, . . . reasonableness generally requires the obtaining of a judicial warrant." (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 653.) However, the United States Supreme Court has recognized exceptions to the warrant rule when faced with "special needs." (Skinner v. Railway Labor Executives' Ass'n (1989) 489 U.S. 602, 619.) These exceptions include searches to which a defendant consents and searches conducted under a valid parole search condition. (See, e.g., People v. Woods (1999) 21 Cal.4th 668, 674 ["It is 'well settled that one of the specifically established exceptions . . . is a search that is conducted pursuant to consent.' "]; Samson v. California (2006) 547 U.S. 843, 857 (Samson) ["the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee"]; People v. Douglas (2016) 240 Cal.App.4th 855, 860.)
Defendant does not challenge his initial detention. However, he asserts that once no contraband was found in Beckingham's car, which he was driving, he was thereafter unlawfully detained. First, he contends he did not validly consent to be transported to the apartment, and any apparent agreement was merely an acquiescence to the officer's claim of lawful authority. Second, he claims that due to the length and circumstances of his detention, he was unlawfully under de facto arrest for which there was no probable cause. We conclude the searches and seizures were permissible given defendant's PRCS status and his detention was not unduly prolonged while the officers conducted them. We therefore need not, and do not, consider the numerous other arguments defendant and the Attorney General have advanced in challenging and defending the searches and defendant's detention.
By statute, PRCS includes the condition that the "person, and his or her residence and possessions, shall be subject to search at any time of the day or night, with or without a warrant, by an agent of the supervising county agency or by a peace officer." (§ 3453, subd. (f).) As with parolees, this PRCS "search condition is imposed by law, not by consent." (Douglas, supra, 240 Cal.App.4th 855, 865.) This is so because society has a strong interest in ensuring that individuals on PRCS correct their behavior and in protecting citizens against criminal conduct, including recidivist criminal conduct. (See § 3450, subd. (b)(1) [reaffirming Legislature's commitment in enacting PRCS statutory scheme "to reducing recidivism among criminal offenders"]; see also Douglas, at pp. 861-862, 865 [rationale for suspicionless search in parole context is state's compelling interest in supervising parolees and ensuring compliance with the terms of their release; same for PRCS].)
"The Postrelease Community Supervision Act of 2011, adopted as part of the 2011 realignment legislation addressing public safety (Realignment Act), provides for local post-incarceration supervision of less serious offenders released from state prison, transferring their supervision from state parole authorities. (§ 3450 et seq., added by Stats. 2011, ch. 15, § 479.) Thus, among other things, the Realignment Act provides that a defendant sentenced to state prison is 'subject to a mandatory period of supervision following release, either parole supervision by the state (§ 3000 et seq.), or postrelease community supervision by a county probation department. (§ 3450 et seq.)' (People v. Cruz (2012) 207 Cal.App.4th 664, 672 . . . .) The most serious offenders are not eligible for PRCS, such as those who have committed serious or violent felonies (§§ 667.5, subd. (c), 1192.7, subd. (c)) and high risk sex offenders. (People v. Armogeda (2015) 233 Cal.App.4th 428, 434 . . . ; § 3451, subd. (b); Cal. Code Regs., tit. 15, § 3079.1.)" (Douglas, supra, 240 Cal.App.4th 855, 863-864.)
Thus, given his PRCS status, defendant did not, at the time of the searches, have any significant expectations of privacy in his person, property or the premises in which he resided. (See Douglas, supra, 240 Cal.App.4th at pp. 862, 864 [parolees have fewer expectations of privacy than probationers because parole is more akin to imprisonment than probation; PRCS is comparable to parole, rather than to probation]; People v. Reyes (1998) 19 Cal.4th 743, 751 (Reyes) [parolee subject to search has no reasonable expectation of privacy].)
Accordingly, so long as the officers had knowledge of defendant's PRCS status, which the trial court found that they did, reasonable suspicion was not required to conduct the searches permissible under the PRCS statutory scheme. (See Douglas, supra, 240 Cal.App.4th at p. 865; see also Reyes, supra, 19 Cal.4th at p. 752; Samson, supra, 547 U.S. at p. 857 ["the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee"].)
In Douglas, the defendant maintained the officer who detained him and conducted the challenged search did not have sufficiently current knowledge of his PRCS status, as he had not run a check immediately prior to detaining defendant and had most recently checked the computer database within the preceding two months. (Douglas, supra, 240 Cal.App.4th at pp. 858-859.) The appellate court rejected this assertion and ruled the officer had an " 'objectively reasonable' " belief the defendant was on PRCS. (Id. at pp. 865-868.) This case presents no such issue, as the probable cause statement supporting issuance of the warrants identified (and, thus, confirmed) defendant's PRCS status.
A search of an individual on PRCS "is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing." (Reyes, supra, 19 Cal.4th at p. 752; see Douglas, supra, 240 Cal.App.4th at p. 861.) A PRCS search can 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.' " (Reyes, at pp. 753-754.)
That the officers detaining defendant and conducting the searches were doing so pursuant to the warrants, rather than because they were focused on defendant's PRCS status, does not affect our legal analysis of whether, under all the circumstances actually known to the officers (which included defendant's PRCS status), the searches and defendant's detention were constitutionally permissible. (See People v. Adams (1985) 175 Cal.App.3d 855, 862-863 [in examining legality of search and seizure, courts are concerned with officers' actual factual knowledge, not with their belief as to the legal significance of what they know].)
Even taking into account his PRCS status, defendant maintains he was subjected to arbitrary and oppressive conduct because his detention was unduly prolonged after the officers failed to find any contraband in the car. The magistrate found, however, that "the circumstances of the detention were not outrageous."
In undertaking independent review of a search permissible under the PRCS statutory scheme, " 'we consider the totality of the circumstances known to the officer and balance the intrusion of the search upon the suspect's privacy with the need for such intrusion to promote legitimate government interests.' " (Douglas, supra, 240 Cal.App.4th at p. 872, quoting People v. Smith, supra, 172 Cal.App.4th at p. 1360.) On the one side of the scale is defendant's "greatly diminished" expectations of privacy given his PRCS status. (Douglas, at p. 872.) On the other side is the officer's knowledge about Beckingham's criminal activity (as we have recounted, the search warrant for Beckingham was not challenged), and their independent knowledge based on Officer Willis's surveillance that defendant was associated with Beckingham and appeared to reside at the apartment, as well as their immediate knowledge that defendant was driving Beckingham's car. These circumstances more than warranted PRCS searches of defendant's person, the car he was driving, and the apartment in which he appeared to be residing.
Defendant does not claim he could not be detained during a permissible search, or that the fact he was handcuffed ipso facto transformed the detention into an arrest. (See Muehler v. Mena (2005) 544 U.S. 93, 95-96, 99-100 [two-to three-hour detention in handcuffs while officers were executing search warrant was reasonable]; People v. Celis (2004) 33 Cal.4th 667, 675 [handcuffing during detention did not convert into arrest].)
As for the period of time defendant was detained before he was arrested, approximately an hour or less, it was not unreasonable, given the logistics of conducting searches of his person, the car he was driving, and the apartment where he was residing. " 'There is no rigid time limitation imposed on a detention.' " (People v. Huerta (1990) 218 Cal.App.3d 744, 751.) Rather, the question is one of reasonableness. Here there was no undue delay between the searches of defendant's person and the car he was driving, and the search of the apartment where he was residing.
Officers stopped defendant as he was driving Beckingham's car around 3:30 or 4:00 p.m. The apartment search began around 4:30 p.m. Within 10 minutes, the officers found indicia of defendant's occupancy and evidence of drug dealing.
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.