Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB022611, Arthur Harrison, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKinster J.
INTRODUCTION
Defendant appeals from the denial of his motion to suppress evidence after the case was remanded by this court to conduct a new suppression hearing so that the prosecutor could justify the search in conformity with People v. Sanders (2003) 31 Cal.4th 318 (Sanders), “... or under any alternate grounds contained in defendant’s original moving papers or the prosecutor’s original opposition thereto.” Our remand for a new suppression hearing was compelled by our Supreme Court when it determined that we had originally erred in simply reversing the judgment outright. It ordered a remand for the purpose of conducting a new suppression hearing to include any alternate grounds contained in the original suppression motion and any opposition thereto and consistent with the views expressed in its opinion. (People v. Moore (2006) 39 Cal.4th 168, 178 (Moore).)
Sanders held that if the People seek to justify the warrantless search of a paroled felon with a search term, the officer conducting the search must actually know that the person is a felon with a search condition at the time the search is conducted. It is insufficient that a person is in fact a felon who has agreed to a search term as a condition of parole. (Sanders, supra, 31 Cal.4th at p. 335.) Previously, the court in In re Tyrell J. (1994) 8 Cal.4th 68 had upheld the warrantless search of a juvenile probationer by officers unaware of a search condition of probation. The suppression hearing in this case occurred in 2000, long before the decision in Sanders, and at that hearing on the motion to suppress, apparently everyone proceeded on the assumption that the officers did not need to present proof that they knew defendant was a paroled felon with a search term.
Moore reasoned that because “... the trial court and the parties acted with the understanding that they were not required to present evidence whether the officers knew of defendant’s parole search condition. In that situation, where the parties understandably did not present arguments and evidence relating to search issues, a reviewing court should remand to the trial court to consider any alternate grounds for or against suppression.” (Moore, supra, 39 Cal.4th at p. 174.)
At the original suppression hearing the prosecutor only introduced a certified copy of defendant’s parole terms which included a search term. Based on the valid search term alone, the trial court denied the motion to suppress. No evidence was presented concerning whether either of the officers was aware that defendant was a paroled felon with a search term; although, the Supreme Court correctly noted that the prosecution’s opposition to the suppression motion suggested that at least one of the officers had such knowledge. (Moore, supra, 39 Cal.4th at p. 172.)
Defendant contends that at the new suppression hearing the court erroneously limited the scope of the hearing to the initial detention of defendant. Defendant objected and stated that he wanted to litigate the circumstances surrounding the seizure of the contraband from his mouth. He stated that he was entitled to a full hearing, including any alternate grounds raised in the moving papers and opposition as was directed in the remand order. The court remained firm in limiting the scope of the hearing and ultimately denied the motion to suppress.
The Attorney General has filed a letter brief with this court conceding that the court erred in limiting the scope of the hearing and did not follow the directions contained in our dispositional order remanding the case for a new suppression hearing on any alternate grounds raised by the original moving papers and opposition thereto.
We have conducted a review of the record and agree that the Attorney General’s concession of error is correct. The court did err in limiting the suppression hearing to the circumstances of defendant’s detention. Accordingly, we will reverse the judgment and remand the case to the trial court with directions to conduct a new suppression hearing based on the issues raised in the original moving papers and opposition thereto, including, but not limited to, whether the methods employed to seize the bindle of cocaine by the police and hospital personnel were reasonable.
Because the facts of the case and most of the procedural history are largely irrelevant to the issue raised in this appeal, we will state them in abbreviated fashion.
On May 5, 1999, two San Bernardino City police officers on bike patrol approached a female, who appeared to be looking at something in her hands, and defendant who was on the street outside an apartment holding a can of beer in his right hand. Apparently seeing the officers, the female said something to defendant and walked quickly back into the apartment complex.
One officer contacted defendant who offered to throw away the can of beer. Defendant appeared to be agitated and nervous. The officer noticed what appeared to be a black bindle in defendant’s left hand. A struggle ensued when defendant refused to open his hand. At some point defendant put the bindle in his mouth. The officer applied pressure to defendant’s larynx and jaw to prevent him from swallowing the bindle and to dislodge the bindle. Other officers and parole agents arrived at the scene where defendant continued to struggle and resist the officers’ efforts to control him and to prevent defendant from chewing and swallowing the bindle.
Defendant was later taken by ambulance to a hospital where he refused to surrender the bindle in his mouth and struggled with personnel who attempted to remove it by various means including the introduction of a suction device that allegedly broke off, perhaps causing him to bleed. Ultimately, he was sedated and a bindle of cocaine was removed.
A jury found defendant guilty, and defendant was sentenced to 25 years to life pursuant to the three strikes law.
DISCUSSION
After we remanded to the trial court, it conducted the second suppression hearing. One of the alternate bases for suppression alleged in the original moving papers was that the forcible search by police at the scene of detention and medical personnel at the hospital was unreasonable and by means that shock the conscience even if conducted pursuant to defendant’s valid search term or incident to lawful arrest. (People v. Bracamonte (1975) 15 Cal.3d 394, 400-405, citing Rochin v. California (1952) 342 U.S. 165 (Rochin), and Schmerber v. California (1966) 384 U.S. 757.) The prosecution admitted in its opposition that force was used to extract the cocaine bindle but that the officers and medical personnel used reasonable force to recover it.
After remand, at the second suppression hearing, the court precluded defendant from inquiring into anything other than the circumstances of his detention, stating, “The only issue for this full 1538.5 is whether or not you were lawfully detained, were your 4th Amendment rights violated in the initial contact with law enforcement....” “I’m going to leave this motion to whoever was on the scene. If somebody’s in a hospital,... this Court is not going to entertain that.” Defendant, proceeding in propria persona, responded, “Okay. Your Honor, I’m -- only reason I’m bringing that up is because the acts in securing the suspected evidence involved conduct is [sic] that shocks the conscious [sic]. Rocks [sic, Rochin?] versus California, 172, and defendant has a due-process [sic] right to suppression of the evidence. I can prove, I have a medical record expert to establish that my stomach was pumped. They’re indicating the evidence was taken out of my jaw.... [T]hey pumped my stomach for over an hour and a half while I was in the hospital.” He later stated that, “... so while I was sedated, unconscious, my stomach was pumped. I was injured.”
The court then asked the prosecutor to respond, and he advised the court that “... the only relevant thing that we need to decide is, did law enforcement or did they not have a lawful basis to conduct a search. Whether or not it gets to the point of a hospital and stomach pump, if there’s no probable cause or there is no basis to get there, then the motion should be granted and the case should be dismissed.” The court then asked, “So let me get this straight, are you saying that the initial contact of the officers will suffice for a 1538.5 and any subsequent search is deemed irrelevant?” The prosecutor responded, “That is what I’m saying.” The court responded, “Then that’s my understanding of a 1538.5, too, Mr. Moore. [¶]... [¶] Like I said, you can call your officer, but hospital personnel, criminalists, people at the jail, people in the ambulance, all of these people are superfluous to the motion.” Defendant again argued that he should be allowed to challenge the constitutionality of the search at the hospital as being unconscionable and therefore unreasonable. He further argued that the remand directed the court to conduct a new hearing “... at which the prosecutor may present evidence justifying the search under any alternate grounds contained in a moving or opposing paper.”
At the continued suppression hearing, on June 13, 2008, during argument, defendant again cited Rochin and stated his desire to litigate the constitutionality of the seizure of the cocaine at the hospital and that he was precluded from introducing evidence concerning a stomach pump and the seizure at the hospital. The court reiterated that the motion did not cover any conduct at the hospital.
Judge Cara Hutson limited the scope of the motion to suppress on November 30, 2007, but then continued the motion. It was ultimately heard and decided by Judge Arthur Harrison on June 13, 2008.
The court denied the motion to suppress and ruled that the search was permissible due to defendant’s parole status and, as an alternate basis, because the officer had probable cause to arrest defendant and search incident to his arrest.
Certainly, if the search was conducted pursuant to a valid search term that the officers were not aware of, or if defendant were unlawfully detained or not lawfully searched incident to an arrest, the motion to suppress would have to be granted. Then everything occurring subsequently would be irrelevant as the prosecutor stated. But what the prosecutor and the court apparently failed to understand was that if there was probable cause to search incident to arrest or pursuant to a known valid search term, the search may still violate the Fourth Amendment if it is conducted unreasonably or in a manner that shocks the conscience. That was what defendant was attempting to show. (People v. Williams (1999) 20 Cal.4th 119, 130.) Once the court found that the officers were conducting a search pursuant to a search term that the officers were aware of, or, alternatively, that the search of defendant could be justified as incidental to his arrest, there still remained the question of whether the manner of seizure was unconscionable and therefore unreasonable.
The court, with the encouragement of the prosecutor, denied defendant a hearing that addressed all of the issues raised by the original moving papers and the prosecution’s opposition. We therefore must reverse the judgment and remand the case for a hearing that allows defendant a hearing that addresses all of the issues raised by the original moving papers and opposition thereto.
DISPOSITION
The judgment is reversed, and the case remanded to the trial court to conduct a new suppression hearing consistent with the views expressed in this opinion. If the motion to suppress is denied, the court shall reinstate the judgment.
We have recited the facts as alleged in the moving papers. We obviously take no position as to the truth of any of the facts alleged in the papers filed in support or opposition to the motion or to the merits of defendant’s contentions regarding the motion to suppress, and none should be inferred from anything stated in this opinion.
We concur: Ramirez P.J., King J.
We only hold that defendant has a right to a fair hearing on the merits of any issues raised by the original moving papers and any opposition thereto which have not yet been adjudicated. Some of the offers of proof made by defendant at the second hearing do not appear to be relevant to the issues remaining to be litigated at the next hearing on the motion to suppress. A fair hearing does not preclude the court from limiting evidence to evidence relevant to the remaining unlitigated issues. (Evid. Code, § 350.)