Opinion
C078048
02-10-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE NAVARRETE et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F02793)
After the trial court denied their motion to suppress, defendants Jose Navarrete and Brenda Salazar each entered a negotiated plea of no contest to possession of heroin for sale (Health & Saf. Code, § 11351) in exchange for dismissal of the remaining counts (defendant Navarrete - assault with a firearm with personal use of a firearm, assault by force likely to cause great bodily injury with personal infliction of great bodily injury, and unlawful possession of a firearm; defendant Salazar - possession of completed currency with intent to defraud, and battery; both defendants - possession of methamphetamine, possession of marijuana for sale, and possession of drug paraphernalia). The trial court sentenced defendant Navarrete to the midterm of three years and defendant Salazar to the low term of two years.
Defendants appeal. They contend the trial court erroneously denied their motion to suppress. The People concede. We agree and will reverse defendants' convictions and remand for further proceedings. In view of our disposition, we need not consider defendants' second contention that there are clerical errors on the sentencing minute orders.
FACTS
The facts are taken from the transcript of the hearing on defendants' motion to suppress the evidence.
About 2:46 a.m. on April 24, 2014, Sacramento Police Officer Balwant Jagur went to 4300 35th Street in response to a 911 call from Ebony Jones claiming she had been threatened by a male neighbor who pointed a gun at her and who had used his dog to attack her when she attempted to retrieve her personal property from the residence. Upon arrival, the officer saw a woman running to a house next door, 4304 35th Street, and Jones coming out of 4300 35th Street. Jones was excited and crying. She showed the officer severe puncture-type wounds on both of her arms, which were consistent with dog bites. Jones claimed that the male neighbor who lived next door at 4304 35th Street had threatened her with a gun and had ordered his dog to attack her.
Officer Jagur went to the house at 4304 35th Street and knocked on the door. Defendant Navarrete answered the door. He was sweating and excited. Defendant Salazar stood behind defendant Navarrete. The officer asked "what was going on." Defendant Navarrete responded that his dog had gotten loose and attacked his next door neighbor. The officer asked to see the dog. Defendant Navarrete either invited the officer inside or "waved" him inside and then escorted the officer to the backyard. Defendant Salazar waited in the living room. In the backyard, the officer saw a large, pit bull, lab mix dog. The dog was tied up but was acting very aggressively.
After seeing the dog, the officer followed defendant Navarrete back into the house. The officer had both defendants as well as another woman and a child who had been in a bedroom all sit on the sofa. Defendant Navarrete said the house belonged to him, he lived in the house with his "wife," defendant Salazar, and no one present was on probation or parole. When the officer asked if he could "look around," defendant Navarrete answered in the negative. Both defendants denied that defendant Salazar was on probation.
Sacramento Police Officer Alexander Giy then entered the house, obtained defendants' names and birthdates, and left to conduct a records search from his patrol car. Defendant Navarrete was not on probation or parole. Officer Giy determined that defendant Salazar was on active probation for a drug violation until 2016. Officer Giy testified that from a probation record, he learned defendant Salazar's name, date of birth, CI&I number, Social Security number, start date of probation, end date of probation, and her probation officer. Officer Giy confirmed the same on the phone with "our records channel" and logged into the car computer's application for the probation system which accessed "the latest and the most accurate probation record" which also showed the charge. Officer Giy denied having access to the rap sheet (CLETS printout) for defendant Salazar.
Defendant Salazar's attorney presented a printout of the rap sheet which reflects the following: in April 2011, defendant Salazar had been convicted of a felony violation of Health and Safety Code section 11377, subdivision (a) and a section 11350, subdivision (a) charge had been dismissed; she received a fine and five years' probation with conditions of probation of a firearm restriction and drug treatment placement; and her conviction was set aside and dismissed pursuant to Penal Code section 1210.1 in November 2011.
Based on Officer Giy's information about defendant Salazar's probation status, the home was searched. In a bedroom, they found drug paraphernalia, heroin, methamphetamine, clonazepam, marijuana, fake $20 bills, $7,000 in cash, and an empty holster. Papers and other items indicated that the bedroom belonged to defendants. A scale and a dish with residue were found in the kitchen. Under an ottoman in the living room, Officer Giy found a loaded revolver in a zippered pouch. The officers seized all items and arrested defendants.
It was later learned that defendant Salazar was not on probation at the time of the search; instead, her Proposition 36 probation had been terminated in November 2011. At the suppression hearing, a probation department clerical support employee testified that she had failed to enter the data properly into the CJIS database. She claimed it was the first and only time she had failed to enter the data properly.
Defendant Navarrete testified at the suppression hearing. He claimed that Officer Jagur knocked on the door, announced "Sacramento Police Department," and walked in the house. Defendant Navarrete denied inviting the officer inside the house. When the officer stated that he wanted to see the dog that had gotten loose and bit someone next door, defendant Navarrete took the officer to the backyard where the dog was tied up 20 to 30 feet from the back door. When defendant Navarrete went back inside the house, the officer followed him inside without being invited. Defendant Navarrete was detained on the sofa and refused to consent to search. He also informed the officer that no one in the house was on probation or parole. Defendant Navarrete objected when the officer used his flashlight to look around and the officer said, "Shut the fuck up and sit right there." Then Officer Giy entered, also uninvited, and asked everyone for identification. Defendants told the officers that defendant Salazar's Proposition 36 probation had terminated in 2011. Defendant Navarrete claimed that Officer Jagur searched the ottoman before Officer Giy entered the house.
Defendants moved to suppress all evidence seized as a result of the warrantless detention, search, and seizure.
The People opposed defendants' motion, arguing (1) the detention was justified because Officer Jagur had reasonable suspicion to believe that defendants were involved in criminal activity; (2) the search was conducted pursuant to a verified belief that defendant Salazar was on searchable probation; (3) the officers relied in good faith on the inaccurate information received about defendant Salazar's probation status from a records check and probation information; (4) probation searches include common areas shared by nonprobationers; and (5) probable cause supported the arrest of both defendants on multiple controlled substance violations and assault.
In denying defendants' motion, the trial court issued a 13-page written ruling. The court found: (1) the officer told defendant Navarrete that he "had to see the dog" and defendant Navarrete "either consented to [Officer] Jagur entering the house to look at the dog, or acquiesced to Jagur's authority to enter to look at the dog"; (2) Officer Jagur's entry into the house was justified by (a) the victim's report defendant Navarrete had attacked her with his dog and threatened her with a gun, (b) the victim knew where defendant Navarrete lived with his dog, and (c) when defendant Navarrete answered the door, he admitted his dog had attacked the victim; (3) Officer Jagur had a public safety duty to inspect the dog to determine if the dog had to be removed from the home, quarantined, or otherwise inspected for rabies or other illness; (4) when the officer was speaking to defendant Navarrete at the door, the officer had probable cause to arrest defendant Navarrete for violating Penal Code section 245; (5) a warrant was not required to enter defendant Navarrete's home based on the officer's public safety duty and exigent circumstances to ensure the dog was not a danger; and (6) Officer Giy's record search included the probation department's data base which disclosed that defendant Salazar was on "searchable" probation but (a) defendant Salazar's probation had been terminated in 2011, (b) the probation office clerical worker had failed to enter the information into the computerized records of the probation department, and (c) such failure had never happened before or after as far as the worker knew.
Based on the foregoing findings, the trial court concluded that both defendants had a reasonable expectation of privacy in the locations which were searched (both defendants knew that defendant Salazar's probation had been terminated over two years prior to the search). The court found that Officer Giy exercised due diligence in checking defendant Salazar's probation status from the sources available to him at the time of the search. Based on the officers' reasonable subjective belief, they acted in good faith reliance upon the information and conducted a search of appropriate locations pursuant to a "valid probation search condition pertaining to defendant Salazar." The court rejected the defendants' argument that the arrests inside their home required arrest warrants. The court concluded that the exclusionary rule did not apply because the erroneous information provided to the officers by the probation department employee was simple negligence and "not part of systemic error or reckless disregard of constitutional requirements."
DISCUSSION
"The standard of appellate review of a trial court's ruling on a motion to suppress is well settled. We view the record in the light most favorable to the trial court's ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure." (People v. Knight (2004) 121 Cal.App.4th 1568, 1572; accord, People v. Lenart (2004) 32 Cal.4th 1107, 1119.)
"The Fourth Amendment to the federal Constitution guarantees against unreasonable searches and seizures by law enforcement and other government officials." (People v. Parson (2008) 44 Cal.4th 332, 345, fn. omitted.) " 'It is a "basic principle of Fourth Amendment law" that searches and seizures inside a home without a warrant are presumptively unreasonable.' " (People v. Thompson (2006) 38 Cal.4th 811, 817, quoting Payton v. New York (1980) 445 U.S. 573, 586 .) When police conduct a search or seizure without a warrant, the prosecution has the burden of showing the officers' actions were justified by an exception to the warrant requirement. (People v. Simon (2016) 1 Cal.5th 98, 120.)
An exception to the warrant requirement is a search conducted pursuant to a probation search condition. "[A] probationer who has been granted the privilege of probation on condition that he submit at any time to a warrantless search may have no reasonable expectation of traditional Fourth Amendment protection." (People v. Mason (1971) 5 Cal.3d 759, 765, fn. omitted.) Thus, " 'when defendant in order to obtain probation specifically agreed to permit at any time a warrantless search of his person, car and house, he voluntarily waived whatever claim of privacy he might otherwise have had.' " (People v. Ramos (2004) 34 Cal.4th 494, 506; see also People v. Bravo (1987) 43 Cal.3d 600, 607.) The consent is a "complete waiver of that probationer's Fourth Amendment rights, save only his right to object to harassment or searches conducted in an unreasonable manner." (Bravo, at p. 607.)
The People argued the search was conducted pursuant to a belief that defendant Salazar was on searchable probation and that the officers relied in good faith on the inaccurate information received about defendant Salazar's probation status from a records check. The evidence adduced at the hearing reflects that at the scene, Officer Giy determined that defendant Salazar was on active probation until 2016 for a drug violation which he confirmed based on other records. Based on Officer Giy's information about defendant Salazar's probation status, the home was searched. Defendant Salazar was not, in fact, on probation at the time of the search; her Proposition 36 probation had been terminated in November 2011. A probation department employee testified that she had failed to enter the data properly into the database. The trial court determined that based on the officers' reasonable subjective belief that the probation department's database disclosed that defendant Salazar was on "searchable" probation, they acted in good faith reliance upon the information and conducted a search pursuant to a "valid probation search condition pertaining to defendant Salazar."
While the evidence supports the trial court's finding that Officer Giy relied on records which disclosed that defendant Salazar had been on probation, defendants contend that there was not any evidence whatsoever that defendant Salazar's probation included a "search" condition. The People concede. We agree.
' "[W]hether a [juvenile or adult probation or an adult parole] search is reasonable must be determined based upon the circumstances known to the officer when the search is conducted." ' (In re Jaime P. (2006) 40 Cal.4th 128, 132-133; see also People v. Sanders (2003) 31 Cal.4th 318, 332; People v. Robles (2000) 23 Cal.4th 789, 800.) "Unlike the parole context, where the scope of permissible search is imposed by law—and deemed known to the searching officer from nothing more than the fact that someone is on parole—a probationer's expectation of privacy, and hence the reasonableness of a warrantless search, may vary depending on the scope of advance consent. And in determining the scope of consent, we must use an objective test, evaluating the terms of the operative search clause in objective terms, without regard to either the subjective understanding the probationer might have [citation] or the searching officer's subjective intent in conducting the search [citation]." (People v. Romeo (2015) 240 Cal.App.4th 931, 950, fn. omitted.) A search condition is not necessarily a condition of Proposition 36 probation. (See Pen. Code, § 1210.1, subd. (a).)
The trial court's conclusion that the search of the home was conducted based on the officers' belief that defendant Salazar was on "searchable" probation was not supported by any evidence. The People did not prove the officers' search was justified by another exception to the warrant requirement. Thus, the search was unlawful and all evidence seized should have been suppressed. Based on this determination, we need not address whether the entries into the home and the detentions were justified. We will reverse and remand for further proceedings.
DISPOSITION
The trial court's order denying defendants' motion to suppress the evidence is reversed. The case is remanded with directions to vacate defendant Salazar's and defendant Navarrete's convictions for possession of heroin for sale.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Robie, J. /s/_________
Mauro, J.