Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA056036. Charles L. Peven and Sanjay T. Kumar, Judges.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Anthony Michael Sanchez appeals from the judgment entered following his no contest plea to unlawfully owning or possessing ammunition. (Pen. Code, § 12316, subd. (b)(1).) He was sentenced to prison for the upper term of three years and contends the parole search of his residence was arbitrary, capricious and harassing and the trial court erred in denying his motion to suppress the contraband seized as a result thereof. For reasons stated in the opinion we affirm the judgment.
Penal Code section 12316, subdivision (b)(1) makes it unlawful for a person prohibited from owning or possessing a firearm to own or posses ammunition.
FACTUAL AND PROCEDURAL SUMMARY
On June 15, 2006, at approximately 6:20 p.m., Los Angeles Police Officer Matthew Johnson was working a plainclothes surveillance assignment in the 8300 block of Cedros Avenue in Panorama City. The area was under surveillance because it was a “high-crime gang narcotics location.” Officer Johnson saw appellant riding around on a bicycle, looking up and down the street, “consistent with someone loitering for narcotics activity.”
Los Angeles Police Officer Robert Beaty and his partner were also at the location looking for any “suspicious activity.” The police department had received numerous complaints of narcotics sales and gang activity at an apartment complex in the area. Officer Beaty saw appellant talking to another individual, holding open a security gate to the apartment complex and appearing “to sneak something from one hand to the next.” It was Officer Beaty’s opinion that he was witnessing a narcotics transaction. When the officer and his partner tried to make contact with appellant and three other persons at the location to ask them what they were doing, “they tried to escape.” Appellant ran into a nearby apartment through an open door and Officer Beaty’s partner detained the other individuals. Officer Beaty stood at the open front door of the apartment and tried to order appellant out. When a woman emerged from the apartment, she called out appellant’s name and he exited the apartment. Officer Beaty asked appellant why he ran and appellant responded he ran because he was on parole and was nervous. Searches of appellant and the other individuals detained were conducted but no narcotics, narcotics paraphernalia or indications of drug sales were found. While Officer Beaty was at the scene, Yolanda Aragon, the apartment manager and the mother of one of the individuals detained, told the officer that appellant and the other individuals were doing repairs at the apartment.
After confirming, via a computer in the police vehicle, that appellant was on parole, Los Angeles Police Officer Matthew Johnson conducted a parole search of his residence on Parthenia Street in Panorama City. Liliana Duarte identified as either appellant’s “girlfriend” or “wife” directed the officers to appellant’s room where they found ten rounds of .22 caliber ammunition. Ms. Duarte said the bullets were appellant’s and belonged to a recently disposed of handgun.
In defense, Jeffrey Solet, who was on probation, testified he was doing maintenance work for the apartment complex on Cedros. While he was standing at the back gate with his brother, mother, appellant and Max Aragon, attempting to put tools into a tool shed, police officers approached with guns drawn. Mr. Solet, his brother and mother were handcuffed and searched.
Yolanda Aragon testified she is the manager of the subject apartment building and appellant, her son and Mr. Solet were working there. She spoke to the police officers and told them the detained individuals were working for her. She admitted, however, she had been in her apartment and did not leave it until after the individuals were handcuffed and did not see their activities before they were handcuffed.
Liliana Duarte testified that when the police arrived at her apartment she was downstairs retrieving her ice tray from the neighbor. She had left her apartment approximately two minutes earlier and when she returned, officers were yelling at her for leaving her children alone and threatening “to take [her] children away.” The officers asked several times why the children had been left alone and advised they were going to call Social Services “or whoever, to take the children away.” The officers then asked if they could search the apartment and Ms. Duarte said, “I guess.” After searching Ms. Duarte’s apartment, the police also searched her neighbor’s apartment.
The court denied the motion to suppress finding it was permissible as a parole search. Additionally, the court noted there was nothing in the record to indicate appellant was subjected to repeated searches or that he was being harassed; the search was made at a reasonable hour and not unreasonably prolonged. The court noted that while it would be troubling for anyone to be threatened with having her children removed, it was a reasonable inquiry by the police to question why a child was left unattended.
DISCUSSION
Appellant contends the parole search of his residence was arbitrary, capricious and harassing and the trial court erred in denying his motion to suppress the contraband seized. Appellant observes that while he was contacted in the belief he was engaged in a narcotics transaction, no narcotics or narcotics paraphernalia were found. Additionally, the officers knew appellant had a legitimate purpose for being on the premises.
Our standard of review of a motion to suppress evidence “is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
“[T]he Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.” (Samson v. California (2006) 547 U.S. ___; 126 S.Ct. 2193, 2202.) “[E]ven 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.]” (People v. Reyes (1998) 19 Cal.4th 743, 754.) This “does not mean parolees have no protection. . . . ‘[A] parole search could become constitutionally “unreasonable” if made too often, or at an unreasonable hour, or if unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct by the searching officer.’ [Citations.]” (Id. at pp. 753-754.) “Where the motivation is unrelated to rehabilitative and reformative purposes or legitimate law enforcement purposes, the search is ‘arbitrary.’ For example . . . an officer motivated by personal animosity toward [the defendant] or his family, execution of the ‘consent search term’ would be ‘arbitrary.’” (In re Anthony S. (1992) 4 Cal.App.4th 1000, 1004.)
We find no error in the determination that the parole search was reasonable. Appellant was on parole and the police were aware of his parole status. The officers observed what appeared to be criminal activity between appellant and another individual and had a legitimate purpose in determining whether appellant was complying with the terms of his parole. Appellant’s apartment was searched only once in the early evening and there was no evidence the search was prolonged. There is nothing in the record to suggest the motivation for the search was unrelated to rehabilitative or reformative purposes or legitimate law enforcement purposes. While a witness testified appellant had a legitimate purpose for being at the apartment complex, the witness admitted she had not observed appellant’s activities prior to his detention. Further, as the trial court observed, the police officer’s concern for a child left unattended in the apartment was reasonable and not an indication of harassment or animosity.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., MANELLA, J.