Opinion
B130981.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. JOAQUIN H. CHAVEZ, Defendant and Appellant.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Scott J. Quan, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Joaquin H. Chavez contends the trial court erred by denying his motion to suppress evidence discovered by police in a warrantless search of his apartment. After the superior court denied the motion, Chavez pleaded guilty to possession of cocaine for sale (Health & Saf. Code, § 11351), and was sentenced to a total term of seven years in state prison. Chavez contends that, because the search was unlawful, his conviction must be reversed. We agree.
FACTUAL AND PROCEDURAL BACKGROUND
Because Chavez pleaded guilty, we glean the relevant facts from the evidence presented at the preliminary hearing and the hearing on Chavezs motion to suppress.
A confidential informant told Glendale Police Department Officer Robert Breckenridge that "Jorge," an Hispanic man matching Chavezs description, was selling cocaine from 8750 Owensmouth Avenue, Apartment No. 3. Breckenridge observed Chavez and another person leaving Apartment No. 3 and entering Apartment No. 4. When an officer knocked on the door at Apartment No. 3, there was no answer. Police detained Chavez and others in Apartment No. 4. Without a warrant, the officers entered Apartment No. 3. Inside, they discovered over five ounces of cocaine (with a street value of over $4000), a beeper, a scale, and a cellular telephone. The officers relied on this evidence to telephonically obtain a search warrant.
Chavez was on parole at the time of the search. As a condition of his parole, Chavez was required to submit to a search of his person or property by any law enforcement officer. At the time they entered the apartment, the police officers did not know Chavez was on parole and were unaware of the search condition.
The day after Chavezs arrest, a police officer interviewed Chavez. Chavez was advised of and waived his Miranda rights. Chavez admitted living at Apartment No. 3 and possessing the cocaine.
Miranda v. Arizona (1966) 384 U.S. 436.
Chavez moved to suppress the evidence seized from the apartment pursuant to Penal Code section 1538.5, and to dismiss the information. Relying on People v. Reyes (1998) 19 Cal.4th 743, the trial court denied the motion. It found that, because Chavez was a parolee and was required, as a condition of his parole, to submit to searches by law enforcement officers, the search did not violate the Fourth Amendment. The fact the officers were unaware at the time of the search that Chavez was a parolee was not controlling.
Chavez also moved to quash the search warrant that was obtained as a result of the discovery of the drugs and other items in the initial warrantless search. Chavez argued that the warrant was invalid because the information justifying its issuance was obtained in violation of the Fourth Amendment; consequently, because the search warrant was issued without probable cause, the materials seized should have been suppressed.
Subsequently, Chavez pleaded guilty to possession of a controlled substance for sale and admitted a prior conviction for violating Health and Safety Code section 11351, in exchange for a sentence of seven years and dismissal of allegations he: (1) had suffered a second prior conviction for violating Health and Safety Code, section 11351; and (2) had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The court imposed restitution and parole revocation fines. Chavez appeals.
DISCUSSION
Chavez contends that the People cannot justify a warrantless, unlawful search on the grounds that the police learned, after the search was undertaken, that he was on parole and subject to a search condition. The People maintain that "no search warrant was needed since [Chavez] was a parolee." Thus, this case presents a pure question of law: is a warrantless search of a parolees residence reasonable under the Fourth Amendment when, at the time of the search, the officers were unaware the subject was a parolee? After the parties completed briefing in this matter, People v. Sanders (2003) 31 Cal.4th 318, squarely answered this question in the negative. We therefore agree with Chavez that his conviction must be reversed.
In Sanders, two defendants were charged with possession for sale of cocaine base after police discovered the drug during an unlawful "protective sweep" of the defendants apartment. (People v. Sanders, supra, 31 Cal.4th at pp. 322-323.) Upon discovering the cocaine, the officers learned one of the defendants, McDaniel, was on parole and subject to a search condition. An officer then conducted a parole search of the apartment and seized the cocaine base. The superior court denied the defendants motion to suppress evidence, and the defendants pleaded guilty to drug possession charges. (Id. at p. 323.) The court of appeal reversed the trial courts ruling. It found the initial protective sweep had been unlawful and the search could not be justified as a parole search because the officers were unaware at the time of the search that McDaniel was on parole. (Id. at p. 323.)
The California Supreme Court affirmed the court of appeals decision. (People v. Sanders, supra, 31 Cal.4th at pp. 322, 336.) It reasoned, "`The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim: "[T]he ruptured privacy of the victims homes and effects cannot be restored. . . ." Instead, the rules prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures: "The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it."" (Id. at p. 324.)
Sanders revisited several of the courts prior decisions touching on the issue. In In re Martinez (1970) 1 Cal.3d 641, the court had held that a warrantless search of a residence could not be justified as a parole search if the police did not know of the suspects parole status when they conducted the search. (In re Martinez, supra, at p. 646; People v. Sanders, supra, at pp. 322, 326.)
Twenty-four years later, in In re Tyrell J. (1994) 8 Cal.4th 68, the court "declined to follow the reasoning of Martinez and instead upheld the warrantless search of the person of a juvenile who was on juvenile probation and subject to a search condition of which the police were unaware at the time of the search." (People v. Sanders, supra, 31 Cal.4th at p. 322; In re Tyrell J., supra, 8 Cal.4th at p. 74.) Tyrell J. focused on a probationers reduced expectation of privacy, and the circumstance that the suspect was a juvenile, as the rationale for its decision. (In re Tyrell J., supra, 8 Cal.4th at pp. 83-87.) Tyrell J. declined to follow In re Martinez because at the time Martinez was decided, there was no automatic search condition imposed on parolees. (In re Tyrell J., supra, 8 Cal.4th at pp. 88-89; People v. Sanders, supra, 31 Cal.4th at p. 327.) The Tyrell J. decision "received a chilly reception" and was widely criticized by legal scholars. (People v. Sanders, supra, 31 Cal.4th at pp. 328-329.)
In People v. Reyes, supra, 19 Cal.4th 743, the defendant parolee was subject to a search condition. Officers, who were aware of the search condition but lacked reasonable suspicion that the defendant had violated the law or a condition of parole, discovered drugs on the defendants property during a warrantless search. Reyes held that reasonable suspicion was not a prerequisite to a lawful search of a parolee. (Id. at p. 751.) "Where the search is for a proper purpose, we hold that, 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.]" (Id. at p. 754.) Reyes noted that "The `logic of Tyrell J. applies equally, if not more so, to parolees. Because of societys interest both in assuring the parolee corrects his behavior and in protecting its citizens against dangerous criminals, a search pursuant to a parole condition, without reasonable suspicion, does not `intrude on a reasonable expectation of privacy . . . . [Citation.]" (People v. Reyes, supra, at p. 751.)
Tyrell J. was limited in People v. Robles (2000) 23 Cal.4th 789, 800. There, the court held that the warrantless search of a defendants garage could not be justified on the ground that the defendants brother, who resided with the defendant and shared authority over the garage, was on probation and subject to a search condition of which the police were unaware at the time of the search. (People v. Robles, supra, 23 Cal.4th at pp. 797, 800; People v. Sanders, supra, 31 Cal.4th at p. 329.) Robles distinguished Tyrell J. on the ground that while a person subject to a search condition has a severely diminished expectation of privacy, "there is no doubt that those who reside with such a person enjoy measurably greater privacy expectations in the eyes of society." (People v. Robles, supra, at p. 798; People v. Sanders, supra, at p. 329.) It also distinguished Tyrell J. on the ground that it had involved the search of a probationers person, whereas "residential searches present an altogether different situation." (People v. Robles, supra, 23 Cal.4th at p. 800; People v. Sanders, supra, at p. 330.)
Based upon Robles, Sanders concluded the search was unlawful as to defendant Sanders, who was not subject to a search condition. (People v. Sanders, supra, 31 Cal.4th at p. 330.) It then turned to the "more difficult question" of whether the search was unlawful as to defendant McDaniel, who had been on parole and subject to a search condition at the time of the protective sweep. (Id. at p. 331.) The court, echoing its holding in In re Martinez, concluded that "police cannot justify an otherwise unlawful search of a residence because, unbeknownst to the police, a resident of the dwelling was on parole and subject to a search condition. . . . this result flows from the rule that whether a search is reasonable must be determined based upon the circumstances known to the officer when the search is conducted and is consistent with the primary purpose of the exclusionary rule — to deter police misconduct." (Id. at p. 332.) Sanders pointed out that in Reyes, the officer had been aware of the search condition before conducting the search. (Id. at p. 332.) The reasoning of Reyes did not apply unless the officer was aware the suspect was on parole and subject to a search condition. (Id. at p. 333.) "Despite the parolees diminished expectation of privacy, such a search cannot be justified as a parole search, because the officer is not acting pursuant to the conditions of parole." (Id. at p. 333.) Sanders concluded, "the admission of evidence obtained during a search of a residence that the officer had no reason to believe was lawful merely because it later was discovered that the suspect was subject to a search condition would legitimize unlawful police conduct. Accordingly, we hold that an otherwise unlawful search of the residence of an adult parolee may not be justified by the circumstance that the suspect was subject to a search condition of which the law enforcement officers were unaware when the search was conducted." (Id. at p. 335, fn. omitted.)
Sanders is directly controlling here and requires reversal of Chavezs conviction. The police in the instant case did not learn Chavez was on parole and subject to a search condition until after they executed the initial search. The People do not argue that the search of the apartment was lawful under some other exception to the warrant and probable cause requirements. Therefore, the evidence seized during the search must be suppressed and Chavezs conviction reversed.
DISPOSITION
The judgment is reversed.
We concur: KLEIN, P.J., CROSKEY, J.