Opinion
A099374.
7-23-2003
THE PEOPLE, Plaintiff and Respondent, v. VALLI COLLEEN RAMIREZ, Defendant and Appellant.
During a four-month period, Valli Colleen Ramirez was arrested on three separate occasions and charged with drug-related crimes. After the trial court denied her motions to suppress evidence seized in the arrests, Ramirez pleaded guilty to possessing methamphetamine for sale and providing a place for the sale of methamphetamine and admitted related enhancements. Her sole claim on appeal is that evidence found in her bedroom and bathroom during one search should have been excluded as the fruits of an unlawfully extended probation search. We conclude police officers had reasonable cause to believe the probationer had joint control over the areas searched, and we affirm the conviction.
BACKGROUND
On September 26, 2001, agents with the Lake County Narcotics Task Force were conducting surveillance on a house believed to be the scene of narcotics activity. They approached the house when Ramirez and a neighbor walked out the front door. Inside the house, one of the officers saw an individual the police mistakenly believed to be on probation and subject to warrantless searches. The officer searched this individual, found over 47 grams of methamphetamine on his person, and, based on this finding, obtained a search warrant for the residence. During a search of the house, agents found a stolen firearm, digital scales, surveillance equipment, records of narcotics transactions and a pager with the serial number removed.
On December 6, 2001, deputies from the Lake County Sheriffs Department came to Ramirezs house to conduct a probation search on Ramirezs daughter, Jonte Ponce, and to attempt to serve an arrest warrant on an individual believed to be visiting the residence. When Ponce opened the door, the officers advised her they had come to conduct a probation search and asked if anyone else was in the house. Ponce said Ramirez was " in the back. " Deputy Thomas Andrews asked Ponce to stay outside, then he walked into the house. He searched Ponces bedroom but found no contraband. He then proceeded to the master bedroom and asked Ramirez to step out of the room. Looking in the bathroom attached to the master bedroom, Andrews immediately noticed a clear plastic baggie containing methamphetamine, which was sitting on top of the toilet tank. He also saw five hypodermic syringes on a wall shelf opposite the toilet. Inside the drawers of a dresser in the master bedroom, officers found a scale and a camera containing another baggie of methamphetamine. Still in the master bedroom, officers also searched a wicker cabinet that had been turned backward, so its shelves faced the wall, and found more methamphetamine. This cabinet held several photographs and address books that appeared to belong to both Ramirez and Ponce. In all, officers seized a total of approximately 155 grams (one-half pound) of methamphetamine and close to 33 grams of marijuana.
Officers returned to the house on December 13, 2001 to arrest Ramirez and conduct a probation search. Before they visited the house, task force personnel and sheriffs deputies were advised that all common areas were subject to search as a term of Jonte Ponces probation. Officers arrested Ramirez in the master bedroom and conducted a search incident to arrest. They saw a quantity of marijuana and methamphetamine on the shelf of a dresser, approximately one to two feet away from Ramirez, and found a small digital gram scale inside the pocket of a jacket hanging nearby. Police also saw a scanner on the nightstand and a monitor for surveillance equipment. In a search of the guest bathroom, they found two plastic baggies containing methamphetamine under a pile of womens undergarments.
Ramirez was charged with possessing methamphetamine for sale (three counts), maintaining a place for the purpose of selling methamphetamine (three counts), unlawfully possessing a firearm and ammunition, and removing the serial number of a pager. The information also alleged several enhancements. Ramirez moved to suppress evidence found in each of the three searches of her home. After an evidentiary hearing, the court denied the suppression motions. Ramirez then pleaded guilty to possessing methamphetamine for sale (Health & Saf. Code, § 11378) and two counts of providing a place for the sale of methamphetamine (Health & Saf. Code, § 11366), and she admitted enhancements for possessing more than 28.5 grams of methamphetamine for sale (Pen. Code, § 1202.073, subd. (b)(2)), having suffered a prior serious felony conviction (Pen. Code, § 667, subds. (b)-(i)), and committing two of the present offenses while released on bail (Pen. Code, § 12022.1). She was sentenced to a total of eight years in prison.
DISCUSSION
On appeal, Ramirez challenges only the December 6, 2001 search of her bedroom and bathroom. She argues the warrantless search was not justified as a probationary search because the probationer, her daughter, did not exercise common authority or control over the areas searched. In reviewing the denial of the suppression motion, we defer to the trial courts express and implied factual findings; however, we exercise our independent judgment in determining the legality of the search based on these facts. (People v. Woods (1999) 21 Cal.4th 668, 673-674, 981 P.2d 1019.)
Under the Fourth Amendment, a warrantless search of a private residence is unreasonable per se unless it falls within a recognized exception to the warrant requirement, such as where consent to the search has been given. (People v. Robles (2000) 23 Cal.4th 789, 795; see Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041.) Probationers in California may validly consent in advance to warrantless searches and seizures in exchange for the opportunity to avoid serving a state prison term. (People v. Robles, supra, at p. 795; People v. Woods, supra, at pp. 674-675.) "Warrantless searches are justified in the probation context because they aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation. [Citations.]" (People v. Robles, supra, at p. 795.)
"It is also established a warrantless search, justified by a probation search condition, may extend to common areas, shared by nonprobationers, over which the probationer has common authority. (United States v. Matlock (1974) 415 U.S. 164, 171 [94 S. Ct. 988, 993 [39 L. Ed. 2d 242, 250].) The common authority theory of consent rests on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. (Id. at p. 171, fn. 7 .)" (People v. Smith (2002) 95 Cal.App.4th 912, 916.) Our Supreme Court has explained the limits law enforcement officers must observe in conducting a search of such "common areas" without a warrant: "In all cases, a search pursuant to a probation search clause may not exceed the scope of the particular clause relied upon. [Citation.] Nor may such a search be undertaken in a harassing or unreasonable manner. [Citations.] Moreover, officers generally may only search those portions of the residence they reasonably believe the probationer has complete or joint control over. (Cf. Illinois v. Rodriguez [(1990)] 497 U.S. [177,] 188-189 [110 S. Ct. at pp. 2801-2802] [facts available to officer must give rise to reasonable belief that consenting party has authority over the premises to be searched; if not, warrantless entry without further inquiry is unlawful unless authority actually exists].) That is, unless the circumstances are such as to otherwise justify a warrantless search of a room or area under the sole control of a nonprobationer (e.g., exigent circumstances), officers wishing to search such a room or area must obtain a search warrant to do so." (People v. Woods, supra, 21 Cal.4th at p. 682.)
Deputy Sheriffs Thomas Andrews, Mike Morshek and Gary Hall participated in the December 6, 2001 search. Deputy Morshek testified that, before this search, he had received a copy of a transcript of testimony provided by the probationer, Jonte Ponce, in a recent case against herself and her mother on charges that they possessed methamphetamine for sale. He was also advised of a summary of this testimony, and he discussed it with Deputies Andrews and Hall and other officers with regard to determining the areas of Ramirezs home to which Ponce had access. The trial court took judicial notice of a partial transcript of Ponces prior testimony. On June 26, 2001, in the jury trial of a criminal case against Ramirez and Ponce, Ponce testified as follows:
"Q. . . . On the 26th of October last year, was there any methamphetamine in the house that you owned?
"A. Yes.
"Q. Where was that located?
"A. In my mothers bathroom.
"Q. Why did you put it in your mothers bathroom or why did you keep it there?
"A. Because no one else had access to it.
"Q. That bathroom was not accessible by Rita?
"A. Yeah, but I had it hidden.
. . .
"Q. Did your mother know it was there?
"A. No, she didnt."
Based on this testimony, Deputy Murshek formed an opinion before the December 6, 2001 search that Ponce had access to her mothers bedroom and its adjoining bathroom. He communicated this opinion to Deputy Andrews and other officers and explained he based it on transcripts from Ponces trial.
Deputy Mursheks uncontroverted testimony establishes that, on December 6, 2001, law enforcement officers believed probationer Ponce had access to her mothers bedroom and bathroom. The question is whether that belief was reasonable. (People v. Robles, supra, 23 Cal.4th at p. 798 [individuals who live with probationers maintain valid expectations of privacy in residential areas subject to their exclusive control "so long as there is no basis for officers to reasonably believe the probationer has authority over those areas"]; People v. Woods, supra, 21 Cal.4th at p. 682.) We must answer this question by examining the facts available to the officers at the time. "As with other factual determinations bearing upon search and seizure, determination of consent to enter must be judged against an objective standard: would the facts available to the officer at the moment . . . warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? [Citation.]" (Illinois v. Rodriguez, supra, 497 U.S. at p. 188.)
Less than six months before the search of Ramirezs residence on December 6, 2001, probationer Ponce testified under oath that she had hidden methamphetamine in her mothers bathroom, and officers who conducted the December 6 search were aware of this testimony. Given that the probationer had previously stored drugs in her mothers bathroom for the express purpose of keeping them hidden from others (i.e., "because no one else had access to" this room), we believe law enforcement officers reasonably concluded Ponce had joint control or authority over the bathroom. Ponce had obviously entered this bathroom before, and the bathroom was only accessible through Ramirezs bedroom. To conclude otherwise, and require police officers to ignore reliable evidence that a probationer had previously used an area to hide contraband, would contravene the purposes served by probation search conditions. These conditions are meant to "deter further offenses by the probationer and to ascertain compliance with the terms of probation: " With knowledge he may be subject to a search by law enforcement officers at any time, [the probationer] will be less inclined to have [contraband] in his possession. " [Citation and footnote.]" (People v. Woods , supra, 21 Cal.4th at p. 675.) Ramirezs household was apparently running a fairly sophisticated drug operation, as evidenced by the previous drug case against the mother and daughter and by the surveillance equipment, firearms and large quantities of contraband that were repeatedly found hidden in different areas of the house. If the police are prohibited from extending a probation search into areas inside a probationers residence where the probationer has admittedly hidden contraband in the recent past, the search condition will be easily evaded by sophisticated probationers like Ms. Ponce. Moreover, although our examination must focus on the circumstances surrounding the challenged search (see People v. Smith, supra, 95 Cal.App.4th at p. 918), our conclusion that the officers belief in Ponces joint authority was reasonable is buttressed by evidence that, during the December 13, 2001 search, Ponce told a law enforcement officer she did indeed have access to her mothers bedroom and bathroom.
The dissent reads too much significance into Ponces testimony that she did not tell her mother she had hidden methamphetamine in the master bathroom. The legality of a probation search should not depend upon a non-probationers knowledge or belief regarding the probationers use of the property. The fact that the probationer has recently used certain areas of the house to store contraband strongly suggests the probationer has authority or control over these areas-regardless of whether a non-probationer resident knows the specific details of the probationers activities. The dissent also infers from Ponces former testimony that she must have entered the master bathroom without her mothers consent because she "hid" drugs inside objects in the bathroom and did not tell her mother about them. In our view, this inferential leap is not supported by the evidence. While Ramirez may not have known about two specific bindles of methamphetamine Ponce had previously hidden in the master bathroom, there was no evidence to suggest she had ever prevented her daughter from entering her bathroom. In contrast, the police had reliable evidence-sworn testimony from the probationer herself-that Ponce had entered this bathroom before to hide contraband.
Considering all the information known to them, we conclude law enforcement officers reasonably believed Ponce had joint control over the areas subject to the December 6, 2001 probation search. Accordingly, the trial court properly denied Ramirezs motion to suppress evidence obtained in the search.
DISPOSITION
Judgment affirmed.
I concur: Corrigan, Acting P. J.
POLLAK, J.
I respectfully dissent. While the outcome of this appeal may be entirely academic, the underlying principle I believe is an important one. In my view, the majority opinion misstates and misapplies the standard for determining the permissible scope of authority to search the property of another person based upon a search condition to which an individual on probation has consented. Whatever the consequences in this case, the criterion used by the majority in many other situations will produce results that plainly are unacceptable, and in violation of governing constitutional standards.
The result here may be academic because the defendant is challenging only one of the three searches that produced incriminating evidence against her. If the court were to conclude that the motion to suppress the evidence obtained from the search in question should have been granted, defendant would be given the opportunity to withdraw her guilty plea. (People v. Miller (1983) 33 Cal.3d 545, 550-556, 189 Cal. Rptr. 519, 658 P.2d 1320; People v. Hill (1974) 12 Cal.3d 731, 768-769, 117 Cal. Rptr. 393, 528 P.2d 1, overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5.) However, in view of the evidence obtained in the other two searches, it is far from certain that defendant would wish to withdraw her plea, much less that the consequences to her would be more favorable were she to do so.
In all events, the majority upholds the search of defendants bedroom and attached bathroom pursuant to the probationary search condition to which her daughter (Ponce), who occupied a separate bedroom and used a separate bathroom in her home, had consented. The majority does so based on the fact that "Deputy Murshek formed an opinion before the December 6, 2001 search that Ponce had access to her mothers bedroom and its adjoining bathroom." (Maj. opn. ante, at p. 6, italics added.) I do not quarrel with the majoritys conclusion that in view of Ponces prior testimony, with which the officers were familiar, their belief was reasonable. The problem, however, is that a reasonable belief of access is not the constitutional standard.
"Officers generally may only search those portions of the residence they reasonably believe the probationer has complete or joint control over. [Citation.] That is, unless the circumstances are such as to otherwise justify a warrantless search of a room or area under the sole control of a nonprobationer (e.g., exigent circumstances), officers wishing to search such a room or area must obtain a search warrant to do so." (People v. Woods (1999) 21 Cal.4th 668, 682, 981 P.2d 1019, italics added.) As noted in People v. Robles (2000) 23 Cal.4th 789, 798 , "Even though a person subject to a search condition has a severely diminished expectation of privacy over his or her person and property, there is no doubt that those who reside with such a person enjoy measurably greater privacy expectations in the eyes of society. For example, those who live with a probationer maintain normal expectations of privacy over their persons. In addition, they retain valid privacy expectations in residential areas subject to their exclusive access or control, so long as there is no basis for officers to reasonably believe the probationer has authority over those areas. [Citations.] That persons under the same roof may legitimately harbor differing expectations of privacy is consistent with the principle that ones ability to claim the protection of the Fourth Amendment depends upon the reasonableness of his or her individual expectations." (Italics added.)
The probationer in this case, defendants daughter, lived with defendant in defendants home. Consequently, the probationary search condition undoubtedly gave the police the right to conduct a warrantless search of the daughters bedroom and of common areas of the home, such as the kitchen or a common bathroom. (People v. Woods, supra, 21 Cal.4th at pp. 675-676; Young v. Superior Court (1976) 57 Cal. App. 3d 883, 887, 129 Cal. Rptr. 422.) However, the evidence presented at the hearing on the motion to suppress made clear that the daughter had her own bedroom and used a separate bathroom in defendants home. The property that was seized on December 6, 2001 was found in a search of the defendants private bedroom and private half bathroom that could be accessed only through defendants bedroom. There was no evidence that defendant shared this space with her daughter, or had ever authorized her daughter to use her bedroom or bathroom for storage or for any other purpose. The daughters prior testimony that she had previously hidden drugs in her mothers bathroom may indicate that the daughter had access to that part of the house, but it does not support a reasonable belief that the daughter had joint control or authority over defendants bathroom, let alone her bedroom. If anything, the prior testimony demonstrates that the daughter did not have authority over those rooms because she had previously hidden her drugs in the room without her mothers knowledge or consent. The Fourth Amendment does not require a mother to lock her bedroom door to prevent her daughter from entering without permission in order to protect her expectation of privacy. Moreover, the officers did not restrict their search to the areas identified previously by the daughter, or which they reasonably could have believed were within the joint control of defendant and her daughter. Instead, they searched for contraband inside dresser drawers and in a cabinet that was intentionally placed so that it was not easily accessible. Under the circumstances, it is not reasonable to believe that defendant had ceded joint control over her clearly differentiated private living space in her home to her daughter, as one might reasonably assume of common areas within the home. (SeePeople v. Woods, supra, 21 Cal.4th at pp. 685-686 (dis. opn. of Brown, J.); People v. Ledesma (2003) 106 Cal.App.4th 857, 867.)
It is true that a probationer may avoid police detection of contraband by means of a warrantless search by hiding the contraband in what is plainly an unsuspecting co-inhabitants bedroom or other private living space. But this risk exists whether the probationer hides contraband in the bedroom of a co-inhabitant or in someone elses home, and the Supreme Court has emphasized that a person sharing a residence with a probationer retains "valid privacy expectations." (People v. Robles, supra, 23 Cal.4th at p. 798.) There is nothing to prevent the police from obtaining a warrant to search the private room of another when there is probable cause to suspect that evidence of crime may be hidden there. Enforcing this constitutional mandate would not, as the majority states, "require police officers to ignore reliable evidence that a probationer had previously used an area to hide contraband." (Maj. opn. ante, at p. 5.) Rather, it would require them to recognize the greater right to privacy enjoyed by the non-probationer in whose living space the probationer may have secreted contraband, and to obtain a warrant before searching those portions of the house over which the probationer does not have authority.
The pernicious effect of extending the scope of a probationary search condition to any area to which a probationer is believed to have access is readily apparent. Initially, there is no logical reason why this standard is limited to the house in which the probationer resides. A probationer, for example, may be given a key to his or her place of employment, or to the home of a close relative with whom the probationer does not live. The key of course reflects access, but it does not reflect authority or control. Yet, under the majoritys approach, the probationers place of work or relatives home would be subject to a warrantless search, at least if the police knew that the probationer had ever hidden anything there.
Moreover, even if this courts holding were somehow limited to the home in which the probationer resides, the result is still unacceptable, and contrary to the mandates of our Supreme Court. Youths who are adjudicated wards of the juvenile court but are permitted to continue living in their parents home typically are placed on probation with the increasingly common condition that they consent to the warrantless search of their person or property. (See, e.g., People v. Balestra (1999) 76 Cal.App.4th 57, 67.) 22 Is there a child who has never hidden something in their parents home? Must parents of a child who is on such juvenile probation now place locks on their bedroom doors to avoid subjecting their entire homes to warrantless searches? This should not be necessary, because the Supreme Court has told us that the probationary search condition authorizes the search of only "those portions of the residence [the police] reasonably believe the probationer has complete or joint control over." (People v. Woods, supra, 21 Cal.4th at p. 682.) Access is not enough, although that is the import of the present decision, from which I dissent. --------------- Notes: Deputy Thomas Andrews testified that he conducted the search of the master bedroom and bathroom with Deputy Morshek. He testified that he began his search in the master bathroom, which is accessible only through the master bedroom. Immediately he noticed a clear plastic baggie of methamphetamine on the back of the toilet, and five hypodermic syringes on the shelf opposite the toilet. He thereafter searched the bedroom where he found a small scale and another small baggie of methamphetamine in a dresser drawer. The dresser drawer contained photos and address books that appeared to him to belong to both defendant and her daughter. Finally, he searched a cabinet that was turned the wrong way facing the wall. He pulled the cabinet away from the wall and recovered a large amount of methamphetamine and some marijuana in the cabinet.