Opinion
H024459.
7-1-2003
IN RE GLORIA G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. GLORIA G., Defendant and Appellant.
Gloria G. appeals from a judgment in a proceeding under Welfare and Institutions Code section 602. ( § 800, subd. (a).) The sole issue raised is the propriety of the courts ruling denying the minors motion to suppress pursuant to section 700.1.
All further statutory references are to Welfare and Institutions Code unless otherwise specified.
On appeal, it is argued that the police violated the minors reasonable expectation of privacy by unlawfully entering the hotel room where she was present. She asserts that the entry and search was illegal because, even though the police relied upon the California Youth Authority (CYA) parole search condition of Victor G. who was also present, the officers lacked reasonable suspicion that criminal activity was occurring in the motel room and their entry and search of the motel room violated provisions of the California Code of Regulations that govern searches of California Youth Authority parolees and her reasonable expectations of privacy. We affirm.
A. Evidence
The section 700.1 motion was submitted based on two March 3, 2001 police reports, one written by Officer Cary and the other by Officer Sass, and a condition of Victor G.s CYA parole. It was stipulated that the copies of police reports and the parole conditions were accurate copies.
Officer Carys report indicated that on March 3, 2001, while he was driving northbound on Monterey Highway, he observed a Green Honda turn northbound onto Monterey Highway from the parking lot of the White House motel. The Honda traveled northbound at approximately 25 to 30 miles per hour in a 50 mile per hour zone. The vehicle began moving back and forth and twice crossed over into the second northbound lane and its brake lights came on for no apparent reason two or three times. Officer Cary stopped the vehicle, which contained three persons.
Officer Cary contacted the driver, who gave off an odor of an alcoholic beverage and said he did not have identification. The officer asked the driver to step out. Other officers arrived to assist.
The driver identified himself as Sergio Ramirez, gave his date of birth, and said he did not have his drivers license with him. A records check revealed no DMV match. The driver appeared very nervous. Officer Cary, who believed the driver was lying about his name, told the driver he was going to be handcuffed. The driver lunged away from the officer and began running northbound. Officer Cary and another officer gave chase and ordered him to stop.
The driver crossed over the median into the southbound lanes, scaled a fence on the west side of the highway, and ran into an adjacent cemetery. Additional officers responded into the area and the police established a perimeter and began searching for the driver. The police received reports from the residents of a mobile home park, located just south of the cemetery, that a shirtless Hispanic male was knocking on doors and asking for help.
An officer spotted the suspect crouching down in the backseat of a white sedan leaving the mobile home park. After a brief foot chase, the suspect, identified later as Sergio Carrillo, was taken into custody. Officer Cary arrived on the scene and handcuffed him.
Officer Cary spoke with the passenger of the white sedan in which Carrillo had attempted to leave the mobile home park. The passenger, identified as Kevin Waltrip, initially told the officer that the suspect had burst through the front door into the home of Carolyn Fincher, his cousin, whom he was visiting, and threatened to hurt him if he did not give the suspect a ride out of the mobile home park. Waltrip said that, fearing for his safety, he woke up his cousin and they all got in the car. As they drove out of the park, the police stopped them and the suspect bolted from the car.
Officer Cary then spoke with Fincher, the driver of the white sedan. She said that she had been awakened and told that the suspect had an emergency and needed a ride. She had agreed to give him a ride. She had not been threatened.
Officer Cary again spoke with Waltrip, who then admitted he had not been threatened. This time he said he had answered a knock on the door and had seen the suspect, whom he claimed he did not know, standing shirtless on the porch. The suspect, who was out of breath, said he had an emergency and needed a ride and he offered money. Waltrip agreed and then woke up Fincher because Waltrip does not drive.
According to Waltrip, as they drove out of the park, they saw police cars and the suspect crouched down in the backseat. Waltrip inquired whether the suspect was "wanted" and was told the suspect was wanted. During an initial vehicle stop inside the mobile home park, officers did not notice the suspect. They were stopped again as they approached the exit and the suspect fled. Waltrip was arrested for violating Penal Code section 32.
Police officers searched the green Honda, the first vehicle stopped, and found narcotics and a glass methamphetamine pipe. They discovered a plastic bag holding a package of approximately 10 grams of cocaine and a package of approximately 1 gram of suspected methamphetamine. An additional four to five grams of methamphetamine was found wrapped in plastic. Both Honda passengers were placed under arrest.
The police recovered Carrillos coat, which Carrillo had thrown off during his flight. Officer Cary found a cell phone in the coat. When turned on, the phone displayed "Colonias 13," a gang name. Carrillo had a "Colonias 13" tattoo on his chest. During the next few hours, the cell phone rang repeatedly and Officer Cary answered many of the calls. The callers asked for Sergio.
The Hondas rear seat passenger told an officer that he and the others in the Honda had come from room 128 at the motel. Officer Cary and other officers went to room 128 at the White House Motel. Officer Cary knocked on the door. The door was opened by Maria Verdusco. Victor G. was standing inside the room. Officer Cary asked, "Whos on parole?" Victor G. raised his hand. The officers entered to conduct a parole search. Two individuals, Arturo G. and appellant, were found in a closet.
Condition 6 of the CYA Conditions of Parole, which Victor G. had signed, provides: "You and your residence and any property under your control may be searched without a warrant by a parole agent of the Department of the Youth Authority, parole agent of the Youthful Offender Parole Board or any peace officer." (Italics added.) A records check disclosed that Victor G. was on CYA parole.
Officer Sasss report indicates that Arturo claimed to be a V.S.M. associate since 1996. Officer Sass found a glass pipe containing residue and a small rock of off-white substance wrapped in a blue bandana. Arturo G. said the bandana, the pipe, and the rock belonged to him and said it was "meth." Victor G. stated he had been V.S.T. for 10 years. Victors backpack contained items with gang writing on them.
Officer Sass asked Glora G. if she had any drugs. She indicated that she did and showed the officer a baggie of white powder that had been in her underwear elastic.
Officer Sass arrested Maria Verdusco for being under the influence of a stimulant. "Verdusco displayed objective signs of stimulant influence, including dilated, non-reactive pupils, fluttering eyelids, rapid heart rate, dry-mouth and accelerated speech." A small baggie of white powder was found during a later strip search.
B. Standard of Review
"In reviewing the trial courts denial of a motion to suppress evidence, we view the record in the light most favorable to the trial courts ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial courts application of the law to the facts. [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 969, 997 P.2d 1044; see In re Gilbert R. (1994) 25 Cal.App.4th 1121, 1124.)
C. Expectation of Privacy in Motel Room
The People assert that appellants claim that she was staying in the room for the evening was insufficient to establish a reasonable expectation of privacy. It appears that the prosecution argued below that appellant did not have a reasonable expectation of privacy because she was in the room with someone subject to a parole condition. The prosecution did not assert below that she lacked a legitimate expectation of privacy because she was not a social guest or not an overnight guest.
The People refer to Officer Carys supplemental police report contained in the clerks transcript. That police report states all suspects told him that they were staying in the room for the evening and Verdusco said that a relative had rented the room for "all those present to `party and spend the evening." However, the motion to suppress was not submitted based upon this report.
"It has long been the rule that a defendant can urge the suppression of evidence obtained in violation of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure. Alderman v. United States, 394 U.S. 165, 171-172, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969); Rakas v. Illinois, supra, at 131, n. 1, 133-134; Rawlings v. Kentucky, 448 U.S. 98, 106, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980)." (United States v. Padilla (1993) 508 U.S. 77, 81, 123 L. Ed. 2d 635, 113 S. Ct. 1936; see Rawlings v. Kentucky, supra, 448 U.S. at p. 104.) "In order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has `a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. [Rakas v. Illinois (1978) 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421], 143-144, and n. 12. See also Smith v. Maryland, 442 U.S. 735, 740-741, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979)." (Minnesota v. Carter (1998) 525 U.S. 83, 88, 142 L. Ed. 2d 373, 119 S. Ct. 469.)
"Defendant bears the burden of showing a legitimate expectation of privacy. (Rawlings v. Kentucky (1980) 448 U.S. 98, 104 [100 S. Ct. 2556, 2561, 65 L. Ed. 2d 633].) Among the factors to be considered are `"`whether the defendant has a [property or] possessory interest in the thing seized or the place searched; whether he has the right to exclude others from that place; whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises." [Citation.]" (People v. Roybal (1998) 19 Cal.4th 481, 507, 966 P.2d 521.)
The evidence of appellants presence in a private motel room with others was sufficient, in the absence of countervailing evidence, to suggest she was there socially. There was no evidence that she was a temporary business visitor or merely an intruder.
This case raises the question whether a social guest in a hosts motel room has a legitimate expectation of privacy in the room. "No less than a tenant of a house, or the occupant of a room in a boarding house, [citation] a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures." (Stoner v. California (1964) 376 U.S. 483, 490, 11 L. Ed. 2d 856, 84 S. Ct. 889.) In addition, a hosts overnight guest has a reasonable expectation of privacy in his hosts home. (Minnesota v. Olson (1990) 495 U.S. 91, 98-99, 109 L. Ed. 2d 85, 110 S. Ct. 1684.) Speaking in regard to an overnight guest, the U.S. Supreme Court in Minnesota v. Olson, supra, 495 U.S. 91, stated: "We will all be hosts and we will all be guests many times in our lives. From either perspective, we think that society recognizes that a house guest has a legitimate expectation of privacy in his hosts home." (Id. at p. 98.)
Nevertheless, the U.S. Supreme Court has determined that individuals present at anothers apartment for the sole purpose of packaging cocaine have no legitimate expectation of privacy in the premises. (Minnesota v. Carter, supra, 525 U.S. 83, 86, 90-91.) In that case, "respondents and the lessee of an apartment were sitting in one of its rooms, bagging cocaine." (Id. at p. 85.) "[Respondents] had never been to the apartment before and were only in the apartment for approximately 2 1/2 hours. In return for the use of the apartment, [respondents] had given [the lessee] one-eighth of an ounce of the cocaine." (Id. at p. 86.) It did not appear that respondents had any previous relationship with the lessee or that there was another purpose to their visit aside from packaging the cocaine. (Id. at p. 90.) Respondents "were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours." (Id. at p. 90.) The court stated that while "an overnight guest in a home may claim the protection of the Fourth Amendment," "one who is merely present with the consent of the householder may not." (Ibid.)
Justice Kennedy in his concurring opinion inMinnesota v. Carter indicated that in his view social guests generally have an expectation of privacy in their hosts home but, in that case, the respondents merely had "a fleeting and insubstantial connection" with the apartment and were using it merely as a "convenient processing station." (Id. at pp. 99-102.) Justice Ginsburg, with whom Justices Stevens and Souter joined, indicated in her dissenting opinion that short-term social guests gain a reasonable expectation of privacy through the hosts invitation. (Id. at pp. 108-109.) Justice Breyer, who concurred in the judgment on an entirely different theory, agreed with Justice Ginsburg that "respondents can claim Fourth Amendments protection." (Id. at p. 103.)
We conclude for purposes of this appeal that appellant made a sufficient showing that she had a reasonable expectation of privacy in the motel room.
D. Validity of the Search Pursuant to Parole Condition
Appellant asserts that the Fourth Amendment requires reasonable suspicion for parole searches under United States v. Knights (2001) 534 U.S. 112, 151 L. Ed. 2d 497, 122 S. Ct. 587 but acknowledges the California Supreme Courts opinion in People v. Reyes (1998) 19 Cal.4th 743, 968 P.2d 445. In People v. Reyes, supra, 19 Cal.4th at page 756, the California Supreme Court determined that "reasonable suspicion was no longer a prerequisite to a lawful search of a parolee." (Id . at pp. 746, 756, disapproving People v. Burgener (1986) 41 Cal.3d 505, 224 Cal. Rptr. 112, 714 P.2d 1251.)
In Reyes, supra, 19 Cal.4th 743, the court stated: "When involuntary search conditions are properly imposed, reasonable suspicion is no longer a prerequisite to conducting a search of the subjects 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." (Id. at p. 752.)
In its earlier opinion of In re Tyrell J. (1994) 8 Cal.4th 68, 876 P.2d 519, the California Supreme Court had concluded that, even though the police officer was unaware that the minor was subject to a probation search condition, "a juvenile probationer subject to a valid search condition does not have a reasonable expectation of privacy over his or her person or property." (Id. p. 86.) The court stated: "We presume he was aware of that limitation on his freedom, and that any police officer, probation officer, or school official could at any time stop him on the street, at school, or even enter his home, and ask that he submit to a warrantless search." (Ibid.)
Subsequently, the United States Supreme Court concluded in United States v. Knights, supra, 534 U.S. 112 that a warrantless search of a probationers apartment, which was authorized by his probation condition and supported by reasonable suspicion, was reasonable within the meaning of the Fourth Amendment. (Id. at p. 122.) It stated: "When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationers significantly diminished privacy interests is reasonable." (Id. at p. 121.)
The U.S. Supreme Court reasoned: "The State has a dual concern with a probationer. On one hand is the hope that he will successfully complete probation and be integrated back into the community. On the other hand is the concern, quite justified, that he will be more likely to engage in criminal conduct than an ordinary member of the community. . . . [The States] interest in apprehending violators of the criminal law, thereby protecting potential victims of criminal enterprise, may therefore justifiably focus on probationers in a way that it does not on the ordinary citizen." (Id. at pp. 120-121.)
Although the court recognized that the probation condition "significantly diminished Knights reasonable expectation of privacy" (id. at pp. 119-120, fn. omitted), the court did not decide whether "the probation condition so diminished, or completely eliminated, Knights reasonable expectation of privacy (or constituted consent . . .) that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment." (Id . at p. 120, fn. 6.) It noted: "The terms of the probation condition permit such a search, but we need not address the constitutionality of a suspicionless search because the search in this case was supported by reasonable suspicion." (Ibid.)
Since Knights, the United States Supreme Court has stated, in context of an investigatory vehicle stop, that reviewing courts making reasonable-suspicion determinations "must look at the `totality of the circumstances of each case to see whether the detaining officer has a `particularized and objective basis for suspecting legal wrongdoing. [Citation.]" (United States v. Arvizu (2002) 534 U.S. 266, 273, 151 L. Ed. 2d 740, 122 S. Ct. 744.) "A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct. [Citation.]" (Id. at p. 277.)
The Ninth Circuit has recently concluded that Knights mandates a threshold of reasonable suspicion for parole searches and determined that a FBI search of a parolees home pursuant to a parole condition but without reasonable suspicion violated the Fourth Amendment. (U.S. v. Crawford (9th Cir. 2003) 323 F.3d 700, 702, 722.) The Ninth Circuit declared that it was "not free to adopt the Reyes `suspicionless standard." (Id. at p. 715.) Since the U.S. Supreme Court has not yet determined that the Fourth Amendment requires reasonable suspicion to conduct a search pursuant to a parole condition, we are not bound to follow Crawford. (People v. Avena (1996) 13 Cal.4th 394, 431, 916 P.2d 1000.) However, as appellant recognizes, we are bound by the California Supreme Courts decision of People v. Reyes. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Finally, we agree that whether or not police actions pursuant to that search condition were consistent with the states administrative regulations is irrelevant for purposes of the Fourth Amendment exclusionary rule. (See People v. McKay (2002) 27 Cal.4th 601, 605, 609-619; see also Cal. Const., art. I, § 28, subd. (d); In re Lance W. (1985) 37 Cal.3d 873, 886-887, 210 Cal. Rptr. 631, 694 P.2d 744.) "The United States Supreme Court has never ordered a state court to suppress evidence that has been gathered in a manner consistent with the federal Constitution but in violation of some state law or local ordinance. [Fn. omitted.] To the contrary, the high court has repeatedly emphasized that the Fourth Amendment inquiry does not depend on whether the challenged police conduct was authorized by state law." (McKay, supra, 27 Cal.4th at p. 610, fn. omitted.)
Appellant cites to regulations of the California Department of the Youth Authority, specifically California Code of Regulations, title 15, sections 4846 and 4847, contained in an article entitled "Parole Violation, Detention and Revocation." California Code of Regulations, title 15, section 4846, provides: "A parole agent, or any peace officer designated by a Youth Authority parole agent for a specific purpose, may search the person, property or residence of a ward as a necessary adjunct to parole supervision and surveillance. The purposes of such searches are to: [P] (a) Discover evidence of a law or parole violation. [P] (b) Assure that evidence indicating a law or parole violation is not destroyed. (c) Assure that no dangerous weapon is possessed by a ward arrested by the agent." California Code of Regulations, title 15, section 4847, entitled "Guidelines for Search," states: "(a) Searches shall be conducted pursuant to a parole agent having reasonable cause to believe that evidence indicating a law or parole violation will be disclosed. [P] (b) A request from another agency or person to search a ward or his premises shall include supportive evidence or information to constitute reasonable cause for a parole agents search. [P] (c) Lawful searches that would otherwise violate any policies as prescribed in Sections 4846-4848 may be conducted under unusual circumstances upon approval of the supervising parole agent."
The judgment is affirmed.
WE CONCUR: Wunderlich, J., and Mihara, J.