Opinion
[REVIEW GRANTED BY CAL. SUPREME COURT]
[Reprinted without change in the January 2003 Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Court.]
[Opinion certified for partial publication. ]
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II, III, and IV of Discussion.
See footnote, ante, at page 530.
Superior Court of Kern County, No. 66919, Clarence Westra, Jr., and Kenneth C. Twisselman II, Judges. [Copyrighted Material Omitted] COUNSEL
Judge Westra ruled on the suppression motion; Judge Twisselman presided at trial.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Stan Cross and Patrick J. Whalen, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THAXTER, J.
A jury convicted appellant Gary Wayne Willis of possession of methamphetamine for sale (count 1, Health & Saf. Code, section 11378) and possession of narcotics paraphernalia, a misdemeanor (count 3, Health & Saf. Code, section 11364). In a bifurcated proceeding, appellant waived a jury and the court found true allegations that appellant had suffered two prior serious or violent felony convictions within the meaning of Penal Code section 667, subdivisions (c)-(j), and section 1170.12, subdivisions (a)-(e), and had served two prior prison terms within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise stated.
Appellant was sentenced to a total term of 26 years to life on count 1 and to a concurrent 6-month term in county jail on count 3. In his timely appeal he contends the court erred by denying his motion to suppress evidence and by admitting certain evidence at trial. He also argues the verdict is not supported by sufficient evidence establishing that drugs seized in his motel room belonged to him. Finally, appellant claims the court made a faulty finding and considered improper evidence concerning one of his prior felony convictions. Finding no error, we will affirm.
Facts
On March 27, 1996, after receiving information there was excessive phone and foot traffic into and out of room 221, Bakersfield Police Officers Mullins and Silvius, Kern County Sheriff's Deputy Hood, and State Parole Agent Mora arrived at the E-Z 8 Motel in Bakersfied to conduct a narcotics investigation. Using motel records, Officer Mullins verified the number of phone calls to and from the room and determined appellant was the room's registered occupant. After checking current departmental records, Officer Mullins discovered appellant was a registered sex offender and a transferred parolee. He then confirmed appellant's parole status by showing the department's parole list to Agent Mora. She agreed the list showed appellant was on active parole.
The officers knocked on the door of room 221. Appellant yelled through the closed door, "Who is it?" Deputy Hood answered, "It's BIll." Appellant responded, "Fuck you, Bill who." Deputy Hood announced, "Police, open the door, please." After a short delay, appellant opened the door wide and stood in the doorway allowing Officer Mullins to view a syringe lying on a nearby dresser, a knife sheath on appellant's belt, and a woman occupant. Possession of both the syringe and the knife were violations of appellant's parole conditions. Based on his previous investigation of appellant's history, the information received from the motel clerk, and his own observations of the knife and syringe, Officer Mullins concluded appellant was engaging in narcotics activity and the officers entered the room telling appellant they were there to conduct a parole search. As they did so appellant informed the officers he had been discharged from parole. He showed Mullins a card confirming his discharged status. Officer Mullins did not initially believe appellant and asked Agent Mora to confirm appellant's status via telephone. Mullins testified appellant was not free to leave at this point.
While waiting for the confirmation, Mullins asked appellant to step outside. As Mullins talked to appellant outside the room, Officer Silvius stayed inside with the female occupant, Kathleen Moye. Silvius observed that Moye was under the influence of a narcotic. When questioned, Moye admitted to Silvius she had used methamphetamine and said there was a "speed pipe" in the briefcase located in the room. When Silvius relayed this information to Mullins, Mullins told appellant they had enough information to obtain a warrant to search the room, whether or not appellant was subject to a parole search. After asking and being told that if narcotics were found he would go to jail, appellant consented to a search of the room. Officer Silvius then asked Moye if they could search the briefcase and she said yes. Silvius asked appellant what was in the briefcase and appellant responded, "There's dope in there, what do you think?" The officers searched the briefcase after breaking the combination lock. Inside they found narcotics, syringes, scales, and pay-and-owe sheets. In addition, Officer Mullins found a motel registration slip in appellant's name. A search of appellant netted $879 cash, mostly $20 bills. Appellant told the officers the methamphetamine was for personal use by himself and Moye, not for sale.
Agent Mora discovered thereafter appellant had been discharged from parole and no longer was subject to a search condition.
In defense, appellant testified the officers rushed him after he opened the door announcing a parole search. When told appellant was no longer on parole, Mullins refused to believe him saying the discharge card could be fake. Appellant denied giving consent to enter the room or to open the briefcase.
Testimony of Criminologist
At trial, over defense objection, Criminologist Dan DeFraga testified, in lieu of his colleague David Diosi, that several items confiscated in the search of the motel room and briefcase had been presented to the criminology lab for analysis and the items were determined to contain narcotics. He testified as to the weight and nature of the narcotics found. Diosi, the criminologist who conducted the analysis in this case, was on vacation and unavailable to testify at trial. DeFraga, a senior criminologist with the Kern County Regional Lab, testified as to the method of analysis standard at the lab and, using Diosi's notes, testified as to the result of the analysis performed by Diosi.
Proving the Priors
At the court trial on the issue of priors, the prosecutor submitted a section 969b "priors packet" which included the court transcript of appellant's guilty plea to the 1983 prior conviction and the probation report filed in support of the sentence imposed. The abstract filed on August 15, 1983, shows a conviction for "PC 245(a) ADW." The probation report filed in connection with this conviction includes a report of statements made by appellant that he personally used a firearm in the commission of the assault on his brother, Scott Willis.
Discussion
I. The Motion to Suppress
Appellant contends the search of his motel room and the briefcase found inside violated his Fourth Amendment protection against unreasonable searches and seizures. He argues he opened his door as a result of the exercise of police authority which cannot be supported by the erroneous parole information, the officers' warrantless entry was unauthorized, and the ensuing consent, search, and seizure were tainted and presumptively unreasonable. He further contends the warrantless search cannot be saved by the good faith exception announced in United States v. Leon (1984) 468 U.S. 897[104 S.Ct. 3430, 82 L.Ed.2d 677] (Leon).
Respondent counters that because the officers initiated the search in good faith reliance upon information supplied by the parole agent, the evidence thus obtained should not be excluded. Further, respondent argues that both appellant and his companion gave express, unconditional, and voluntary consent to the searches.
An appellate court's review of a trial court's ruling on a motion to suppress is governed by well-settled principles. The appellate court must defer to the trial court's factual findings, expressed or implied, when supported by substantial evidence. The appellate court must then independently determine whether the facts as found by the trial court establish the search was reasonable under Fourth Amendment standards. (People v. Alvarez (1996) 14 Cal.4th 155, 182 [58 Cal.Rptr.2d 385, 926 P.2d 365]; People v. Glaser (1995) 11 Cal.4th 354, 362 [45 Cal.Rptr.2d 425, 902 P.2d 729]; People v. Leyba (1981) 29 Cal.3d 591, 596-597 [174 Cal.Rptr. 867, 629 P.2d 961].)
It is well established the search of a residence, including an occupied motel room, requires a warrant. A warrantless search of such a place is presumed to be constitutionally unreasonable unless it falls into one of the specifically established and well-delineated exceptions to the warrant requirement. (Katz v. United States (1967) 389 U.S. 347, 357 [88 S.Ct. 507, 514-515, 19 L.Ed.2d 576]; People v. Bravo (1987) 43 Cal.3d 600, 609 [238 Cal.Rptr. 282, 738 P.2d 336]; Pate v. Municipal Court (1970) 11 Cal.App.3d 721, 724 [89 Cal.Rptr. 893].) A probation or parole search is a recognized exception to the warrant requirement so long as the search is not arbitrary, capricious, or harassing. (People v. Reyes (1998) 19 Cal.4th 743, 748-754 [80 Cal.Rptr.2d 734, 968 P.2d 445].) When, however, such a search is later found to be invalid because the probation or parole condition had expired at the time of the search, a Fourth Amendment violation is shown. (People v. Downing (1995) 33 Cal.App.4th 1641, 1651 [40 Cal.Rptr.2d 176].)
In this case it is undisputed appellant was not on parole at the time the officers entered the motel room in order to conduct a "parole search." The authorization they initially believed they had to enter the room without a warrant was nonexistent at the time of the warrantless search.
A. Good faith reliance on erroneous parole information does not, by itself, preclude application of the exclusionary rule.
Respondent relies heavily on two cases in California holding a warrantless probation or parole search, later found invalid, can be saved if the officer acted in good faith. The first case, People v. Tellez (1982) 128 Cal.App.3d 876 [180 Cal.Rptr. 579], predates Leon. Obviously without reference to Leon, the Second Appellate District allowed evidence seized when officers executed a warrantless search of the defendant's home after relying on a representation by the defendant's parole agent that the defendant was presently subject to a parole search condition. This was later found untrue. Nonetheless, the court held the test of legality was the reasonableness of the officers' actions, looking to the totality of the circumstances. The court stated the purpose of the exclusionary rule is to deter unlawful police conduct, and the court could see no purpose in suppressing the evidence obtained in the search where police reasonably relied on information provided by a parole agent. There was no discussion of the role the parole agent played, whether he was an adjunct to law enforcement or whether the officers or the agent bore any responsibility for the inaccurate information concerning the defendant's parole status.
What made the search in Tellez unlawful was the later judicial determination that a statute extending the term of parole could not be retroactively applied to the defendant. At the time of the search, however, both the officers and the defendant reasonably believed the search condition was then valid. The officers had no reason to doubt the accuracy of the information provided by the defendant's assigned parole agent. The facts in this case, however, differ significantly. First, appellant immediately countered the officers' assertion that he was subject to a parole search and Agent Mora was not appellant's parole officer. She, like Officer Mullins, was relying on the computer-generated parole list. The information in that list was erroneous, not because of any later judicial decision, but apparently because it had not been updated. In our opinion, Tellez cannot be reconciled with either Leon or People v. Ramirez (1983) 34 Cal.3d 541[194 Cal.Rptr. 454, 668 P.2d 761] which we discuss later.
The second case relied upon by respondent, People v. Downing, supra, 33 Cal.App.4th 1641, adopts a Leon analysis and concludes the exclusionary rule should not be applied when police reasonably rely on computer-generated information, later proved inaccurate, indicating a defendant is subject to a probation search condition. However, the crux of the court's analysis rests on the distinction made in Leon between reasonable reliance on information or conclusions made by the judiciary as opposed to errors by law enforcement. Under the particular facts in Downing, the records relied upon by the officers were generated by court employees. The court went through a lengthy analysis to show responsibility for any inaccuracies in the system belonged to court employees, not law enforcement agents. Therefore, no remedial purpose could be served by applying the exclusionary rule to the fruits of the search. There is nothing in the record in this case to support the same conclusion. Officer Mullins testified his information came from a departmental "parole list" and his confirmation came from Agent Mora, not a judicial officer or employee.
In re Arron C. (1997) 59 Cal.App.4th 1365 [69 Cal.Rptr.2d 852], decided after respondent's brief was submitted, extended the Leon rationale to a search conducted on the basis of faulty information provided to the searching officers by the supervisor of the probation office. For unexplained reasons, the computer system in the probation office showed the defendant was subject to a search condition which had in fact expired. The court found the exclusionary rule should not apply because the officers acted in good faith reliance on the information. It went on to conduct a Leon analysis, concluding that although probation officers possess some of the duties and responsibilities of peace officers, they are not adjuncts to the law enforcement team. According to Arron C., they have no stake in the outcome of particular criminal prosecutions because they are court employees. Responding to their dissenting colleague, the majority in Arron C. go on to state their holding would not be appropriate when a probation officer "becomes enmeshed in law enforcement activities, such as if he actively participates in a search." In such a case, the majority stated, it would be appropriate to conclude the probation officer is an adjunct to the law enforcement team and any error would be attributable to the searching officers, thereby precluding application of the good faith exception under Leon. (In re Arron C., supra, at p. 1372.)
This case differs from both People v. Downing, supra, 33 Cal.App.4th 1641 and In re Arron C., supra, 59 Cal.App.4th 1365 in that here the faulty information was supplied by a parole agent, not a probation officer. Parole agents, rather than being judicial employees, are employed by the California Department of Corrections (section 2400 et seq.) and are peace officers with limited authority (section 830.5). More importantly, Agent Mora actively participated in the search of appellant's room, so even under the Arron C. analysis she would be considered an adjunct of the law enforcement team.
The facts which distinguish each of the above cases with the one at hand are particularly pertinent in light of the United States Supreme Court's most recent pronouncement on the application of Leon to these types of cases and the governing California Supreme Court authority. People v. Ramirez, supra, 34 Cal.3d 541 held the collective knowledge rule espoused by the United States Supreme Court and federal authority imposes a duty upon police to disseminate only accurate information. It refused to apply a good faith standard (pre-Leon) to save evidence obtained as a result of an officer's reliance on inaccurate report that there was an outstanding arrest warrant for the defendant. Ramirez is still valid law in California. (See Miranda v. Superior Court (1993) 13 Cal.App.4th 1628, 1636 [16 Cal.Rptr.2d 858].) In addition, although the United States Supreme Court has applied Leon to inaccurate information attributable to court employees, it is unlikely it would do the same when inaccurate information comes from police sources. In Arizona v. Evans (1995) 514 U.S. 1 [115 S.Ct. 1185, 131 L.Ed.2d 34], the court applied Leon to save an arrest and search conducted after police computer records erroneously indicated an outstanding arrest warrant. However, as inPeople v. Downing, supra, 33 Cal.App.4th 1641, the court found the inaccurate record was the product of court clerks, not the police department. The majority concluded when an officer's conduct is otherwise objectively reasonable, excluding evidence obtained as a result of a court clerical error would not deter future police misconduct, nor would applying the exclusionary rule deter court employees from making clerical mistakes. (Arizona v. Evans, supra, 514 U.S. at p. 15 [115 S.Ct. at pp. 1193-1194].)
The concurring opinion in Evans by Justice O'Connor, joined by Justice Souter and Justice Breyer, is instructive in determining Leon's application to the present case. Justice O'Connor comments on the narrow applicability of the majority opinion—to cases in which the error is found to be a court employee error. She also discusses the need for police to take responsibility for ensuring the information they rely on is accurate. Justice O'Connor closes her concurrence with the following: "In recent years, we have witnessed the advent of powerful, computer-based recordkeeping systems that facilitate arrests in ways that have never before been possible. The police, of course, are entitled to enjoy the substantial advantages this technology confers. They may not, however, rely on it blindly. With the benefits of more efficient law enforcement mechanisms comes the burden of corresponding constitutional responsibilities." (Arizona v. Evans, supra, 514 U.S. at pp. 17-18 [115 S.Ct. at p. 1195] (conc. opn. of O'Connor, J.).)
Justice Souter, writing a separate concurrence in which Justice Breyer joins, stated: "I add only that we do not answer another question that may reach us in due course, that is, how far, in dealing with fruits of computerized error, our very concept of deterrence by exclusion of evidence should extend to the government as a whole, not merely the police, on the ground that there would otherwise be no reasonable expectation of keeping the number of resulting false arrests within an acceptable minimum limit." (Arizona v. Evans, supra, 514 U.S. at p. 18 [115 S.Ct. at p. 1195] (conc. opn. of Souter, J.).)
Thus, extending Leon to shield parole searches later found to be invalid from application of the exclusionary rule as a matter of course is unsupported by the governing authority. Parole officers are not court employees and may act as part of the law enforcement team. When they participate in such a capacity, they fall within the collective knowledge rule of Ramirez, and inaccurate information concerning a search condition is attributable to the police executing the search. (See also People v. Ivey (1991) 228 Cal.App.3d 1423, 1426-1427 [279 Cal.Rptr. 554]; People v. Howard (1984) 162 Cal.App.3d 8, 20-21 [208 Cal.Rptr. 353]; Miranda v. Superior Court, supra, 13 Cal.App.4th at pp. 1634-1636 and federal authorities cited therein.) Moreover, as confirmed by the language of the concurring opinions in Arizona v. Evans, supra,514 U.S. 1, there is a substantial police responsibility to ensure the accuracy of the records upon which they rely. The deterrent effect of the exclusionary rule arguably remains valid when misinformation is used to justify a Fourth Amendment intrusion.
Based on the foregoing, we hold that the officers' good faith reliance on the erroneous parole information does not, by itself, preclude application of the exclusionary rule. That conclusion, however, does not end our inquiry.
B. The initial illegal entry did not taint the officers' subsequent reasonable actions in "freezing" the situation and obtaining appellant's voluntary consent to search.
The Fourth Amendment forbids only unreasonable searches and seizures. (Segura v. United States (1984) 468 U.S. 796, 806 [104 S.Ct. 3380, 3386, 82 L.Ed.2d 599].) Thus, the focus in cases such as this is whether the police officer's action was objectively reasonable. " 'Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part.' " (Illinois v. Rodriguez (1990) 497 U.S. 177, 186 [110 S.Ct. 2793, 2800, 111 L.Ed.2d 148].) We conclude Officer Mullins acted reasonably and his actions thus dispel any taint from the original unlawful entry which might otherwise be attributed to the consensual searches that followed.
Initially, appellant voluntarily opened the motel room door once the officers announced their presence. They had not yet demanded entrance or asserted their right to conduct a parole search. There had been no coercion or show of force, simply a request to open the door and speak with the officers. Officers are permitted to seek interviews with citizens suspected of violating the law, and what they see through a partially opened door is not seen as a result of a "search." (People v. Boone (1969) 2 Cal.App.3d 66, 69 [82 Cal.Rptr. 398]; People v. Torres (1961) 56 Cal.2d 864, 867 [17 Cal.Rptr. 495, 366 P.2d 823]; see also Horton v. California (1990) 496 U.S. 128, 133, fn. 5 [110 S.Ct. 2301, 2306, 110 L.Ed.2d 112]; People v. Breault (1990) 223 Cal.App.3d 125,131-132 [273 Cal.Rptr. 110].) Once appellant opened the door, Officer Mullins was able to see the knife on appellant's belt and the syringe on the dresser. These items were in plain view seen from a vantage point where the officer had a lawful right to be. This information becomes significant during the course of the later interaction between Mullins and appellant. The officers then entered the room without a warrant. This is the activity that raises Fourth Amendment concerns and, under different circumstances, would cause us concern in the absence of a valid parole condition. However, when appellant told Mullins he was no longer on parole, Mullins asked Agent Mora to confirm this via a telephone check. He did not disregard appellant's assertion, neither did he accept it at face value. During the wait, Mullins essentially froze the status quo. Neither he nor any of the other officers continued with the intended parole search. This conduct was reasonable in light of the information they received.
Officer Mullins testified that in addition to conducting a narcotics investigation, one of his purposes in contacting appellant was to see if his registration as a convicted sex offender under section 290 was current. There is no indication of any error in the police records insofar as appellant's status as a registered sex offender is concerned.
The idea that an officer may need to "freeze" a situation until further information is obtained is not unique to this situation and certainly not new. Such a necessity happens frequently in the context of investigative stops and the execution of arrest warrants. For example, People v. Conway (1990) 222 Cal.App.3d 806[271 Cal.Rptr. 832] held there is nothing unreasonable about detaining an individual to check on the status of an outstanding warrant so long as the delay is reasonable. In Conway, during the delay the officer gathered additional information which supported the subsequent arrest. The court found no Fourth Amendment violation. (Id. at p. 815.)
During the wait, Officer Mullins received additional information constituting sufficient probable cause to support a search warrant. Probable cause exists when given the circumstances there is a fair probability that contraband or evidence of a crime will be found in a particular place. (Illinois v. Gates (1983) 462 U.S. 213, 238 [103 S.Ct. 2317, 2332, 76 L.Ed.2d 527].) Moye made voluntary statements to Officer Silvius indicating narcotics were in the room and that she had recently used. She was observed to be under the influence of a narcotic. Together with the information obtained and confirmed earlier, the excessive traffic to and from the room and appellant's criminal history, Officer Mullins now had probable cause to believe the two were engaged in narcotic sales. This information came not from any parole search but during the hiatus in which the officers were waiting for confirmation of parole status and as a result of voluntary statements made to them during the wait.
Armed with probable cause, Mullins was constitutionally permitted to reenter the room and secure it until a search warrant could be obtained. Thus, even if there were a limit to the action he could take while awaiting confirmation of appellant's parole status, he now had additional constitutional authority to secure the room and detain the two occupants, appellant and Moye. Officers are permitted to secure a dwelling in order to prevent destruction of evidence while waiting for a search warrant to issue so long as they have probable cause to support the warrant and there are exigent circumstances suggesting the contraband is at risk of being destroyed or removed. (Segura v. United States, supra, 468 U.S. at pp. 806, 810 [104 S.Ct. at pp. 3386, 3388]; People v. Hull (1995) 34 Cal.App.4th 1448, 1456 [41 Cal.Rptr.2d 99]; People v. Koch (1989) 209 Cal.App.3d 770, 779 [209 Cal.App.3d 1345a, 257 Cal.Rptr. 483]; People v. Ramey (1976) 16 Cal.3d 263, 276 [127 Cal.Rptr. 629, 545 P.2d 1333]; People v. Lanfrey (1988) 204 Cal.App.3d 491, 508 [251 Cal.Rptr. 189].) Finding exigent circumstances is easy on these facts; appellant and Moye knew the officers suspected them of narcotics sales. It is common knowledge that those who sell and/or possess drugs will often attempt to destroy them once they are convinced the police are on their trail. (See People v. Ortiz (1995) 32 Cal.App.4th 286, 293 [38 Cal.Rptr.2d 59]; People v. Bracamonte (1975) 15 Cal.3d 394, 405, fn. 6 [124 Cal.Rptr. 528, 540 P.2d 624].) It was certainly reasonable for Mullins to conclude it was necessary to secure the motel room in order to prevent the destruction of evidence until such time as he either had the parole condition confirmed or was able to obtain a warrant.
When faced with evidence their information about appellant's parole status might be inaccurate, the officers did exactly what we would wish. They were authorized to "freeze" the motel room while they waited to confirm appellant's assertion that no parole condition existed. Thereafter, as the result of further interaction with appellant and Moye, they received additional information which amounted to probable cause. With this, they were authorized to secure the room to prevent destruction of evidence until a search warrant could be obtained, but before steps could be taken to obtain one, the officers obtained consent to search the room and the briefcase.
That Officer Mullins correctly informed appellant there was sufficient probable cause to obtain a search warrant regardless of appellant's parole status did not render appellant's consent involuntary. (People v. Ratliff (1986) 41 Cal.3d 675, 687 [224 Cal.Rptr. 705, 715 P.2d 665]; People v. Mayberry (1982) 31 Cal.3d 335, 343 [182 Cal.Rptr. 617, 644 P.2d 810]; People v. Goldberg (1984) 161 Cal.App.3d 170, 188 [207 Cal.Rptr. 431].)
The evidence appellant sought to have suppressed was not the fruit of an unlawful parole search, but instead of prudent lawful police work. Thus, even though the officers' original entry of the motel room was unconstitutional, the evidence later obtained was not necessarily tainted and inadmissible. In recent years the United States Supreme Court has consistently limited application of the exclusionary rule to those situations in which its remedial objectives are most efficaciously served. This is not one of them. When the high cost of the exclusionary rule does not result in an appreciable deterrent of police misconduct, its use is not warranted. (Leon, supra, 468 U.S. at p. 909 [104 S.Ct. at p. 3413].) II. -IV.*
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Disposition
Affirmed.
Ardaiz, P. J., and Buckley, J., concurred.