Opinion
C080962
04-27-2017
THE PEOPLE, Plaintiff and Respondent, v. VICENTE CARLOS VARGAS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MF038893A, MANCRFE20150001931)
Defendant Vicente Carlos Vargas appeals from the denial of his suppression motion. While he was on parole, an officer searched his cell phone. Defendant contends the parole search was unlawful under Riley v. California (2014) 134 S.Ct. 2473 (Riley), which held a cell phone searched incident to arrest unlawful. We conclude the parole search was lawful and affirm.
I. BACKGROUND
During a parole search on January 12, 2015, defendant was found with marijuana, a scale, and a cell phone. A search of the phone revealed text messages referring to the sale of contraband. Defendant moved to suppress evidence from the search.
At the suppression hearing, the officer who conducted the search testified. The officer explained he was providing extra patrol to an area following a recent gang fight. On that patrol, the officer saw some people run into an apartment and close the door. He then noticed defendant (who he knew from prior contacts) sitting in the driver's seat of a red Mercedes parked in front of the apartment. Defendant appeared to be concealing something.
When the officer approached, he smelled marijuana coming from the Mercedes. The officer asked defendant what he was doing there. Defendant said he was visiting his aunt. The officer had him exit the car for a parole search.
The officer knew defendant was on parole because he had assisted in the investigation that led to defendant being on parole. Additionally, the officer knew defendant had at least two or three years left on parole.
In the Mercedes, the officer and his partner, who assisted in the search, found a digital scale, marijuana, and a cell phone. The officer searched the phone and found pictures of defendant making gang signs and text messages pertaining to the sale of marijuana and Xanax.
On cross, the officer admitted he had stopped and searched defendant more than 10 times since defendant's release from prison. The officer could not recall if he had ever cited defendant following a search.
The trial court denied defendant's motion to suppress. The court found the officer knew defendant was on parole. The court also relied on Samson v. California (2006) 547 U.S. 843, 846 (Samson), which noted under California law, every person on parole must agree to be subjected to search at any time, with or without cause. The court concluded, "based on the law as I read it and I'm familiar with, really I don't believe that the law prohibits a search under these circumstances."
II. DISCUSSION
On appeal, defendant contends the trial court erred in denying his motion to suppress. He argues the trial court failed to address Riley, supra, 134 S.Ct. 2473, which held unlawful a cell phone searched incident to arrest. Defendant reasons that Riley effectively limited the broad scope of warrantless searches of probationers and parolees allowed under pre-Riley authority. We disagree.
"[P]arolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment." (Samson, supra, 547 U.S. at p. 850.) In California, a parolee "is subject to search or seizure by a probation or parole officer or other peace officer at any time of the day or night, with or without a search warrant or with or without cause." (Pen. Code, § 3067, subd. (b)(3).) The authority to search extends not only to the parolee's residence but also "any property under [his] control." (See Cal. Code Regs., tit. 15, § 2511, subd. (b)(4).) Indeed, "[i]n California, a parolee remains in the legal custody of the Department of Corrections . . . ." (People v. Smith (2009) 172 Cal.App.4th 1354, 1361.)
Here, the cell phone search falls within the broad authority to search parolees under Penal Code section 3067. Riley does not alter this conclusion.
Riley considered the search of a cell phone in a different context: a search incident to arrest. It does not address the context of a parole search. Accordingly, Riley is of no help to defendant. (See United States v. Johnson (11th Cir. 2014) 579 Fed. App'x 920, 926, fn. 6 ["Riley . . . has no application to the instant case because here [the defendant] waived his Fourth Amendment rights as a condition of parole"] (unpublished); United States v. Martinez (N.D. Cal. Aug. 12, 2014, No. CR 13-00794 WHA) 2014 U.S. Dist. LEXIS 112347, at *9, 2014 WL 3956677, at *3-4 [concluding Riley was "inapplicable to [the defendant] because he was on parole and was subject to a parole search condition"] (unpublished); United States v. Luna (9th Cir. 2015) 602 Fed. App'x 363, 365 [holding warrantless search of parolee-defendant's cell phone "was a constitutional parole search"] (unpublished); United States v. Johnson (N.D. Cal. Aug. 13, 2015, No. 14-CR-00412-TEH) 2015 U.S. Dist. LEXIS 106925, at *7, 2015 WL 4776096, at *3 ["every federal court that has addressed the application of the parole search exception in the wake of Riley has found that the exception remains valid"] (unpublished).)
"Unpublished federal cases are not binding authority but they may be cited as persuasive." (Hall v. Goodwill Industries of Southern California (2011) 193 Cal.App.4th 718, 727, fn. 2.) --------
The trial court properly denied defendant's motion to suppress.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J.
We concur:
/S/_________
HULL, Acting P. J.
/S/_________
BUTZ, J.