Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. BB620691
McAdams, J.
Following pleas of no contest to possession of cocaine base, misdemeanor battery on a police officer, and resisting arrest (Health & Saf. Code § 11350, subd. (a), Pen. Code §§ 242/243, subd. (b), 148, subd. (a)(1)), and his admission to several prior convictions, defendant was sentenced to state prison for four years. He appeals from the denial of his motion to suppress evidence. We find no error and affirm.
STATEMENT OF FACTS
On May 22, 2006, at 10:45 p.m., Mountain View Police Officer Doreen Hansen was patrolling the parking lot of the San Antonio Inn. This location is known to be frequented by parolees who engage in drug usage inside the hotel. As a result, Hansen regularly checked the parking lot for suspicious activity and the guest registration for possible parolees or probationers and people with outstanding warrants.
On that night, her attention was drawn to an occupied Mazda parked in a stall. Officer Hansen made contact with the occupants, a driver and a front seat passenger (defendant), and asked for their identification cards, which they provided to her. Officer Hansen radioed into dispatch “for a complete check, warrants, probation, parole records check on both of them.” In her report, Officer Hansen stated that the dispatcher responded that defendant was on parole, but she testified that “it is very possible [the dispatcher said] that he was on probation.” She waited for an additional unit to arrive before searching defendant. When Officer Michael Santos arrived, she told him that defendant was on parole; Officer Hansen then proceeded to ask defendant to exit the car so she could conduct a parole search.
Officer Santos confirmed that when he arrived on the scene, Officer Hansen told him that “the subject she had contacted in a vehicle is on parole, and that we were going to do a parole search.”
After defendant got out of the car, he refused to cooperate with the search, and a scuffle ensued. Hansen thought defendant had swallowed some drugs, and called for Santos to assist her. He joined the fray and the three of them struggled on the ground. Hansen managed to lock defendant’s left hand between her upper thigh and her calf after falling to her knees. Another unit arrived, and defendant was eventually restrained and searched by Officers Garcia and Dahl. The search revealed suspected cocaine.
At the hearing, the prosecution produced a copy of the dispatch communication (People’s Exhibit 1) and a tape of the exchanges between the police and the dispatcher, as well as a transcript of the tape. The tape was played for the court. Officer Hansen identified the various voices heard on the tape. On the tape, the dispatcher is heard to say “He’s on active probation for 11351 out of San Mateo.” Officer Hansen testified that the language used by the dispatcher was more consistent with a person on parole than on probation. “[T]he way that she said it, that’s kind of the text of how you would say he’s on parole, because normally they’ll tell you whether there’s a search clause attached to [probation]. So it is a possibility that I misinterpreted the ‘probation’ for ‘parole.’ ” “Normally, they’ll say they’re on probation with search, and they’ll tell you the ‘S clause’ or ‘full search,’ ‘search and seizure.’ ” At the time Hansen initiated the search, she “absolutely” believed that defendant was on parole.
Annie Lohman, the dispatcher, also testified at the suppression hearing. She explained that her job involved handling radio traffic for police units and looking up information about subjects in the field. When the officer gave her a subject’s name and date of birth, she ran that information through the police department’s computer system, which simultaneously ran “a subject through seven different systems and provide[d] me with various returns.” One of those systems is SURF, “which is a parole hit for a driver’s license.”
On the night in question, Officer Hansen gave her defendant’s name and date of birth, and she received a positive parole hit for him out of San Mateo County. A certified copy of the detailed dispatch log showing the parole hit from SURF was identified by her. The log shows the information exactly as it was displayed on Lohman’s “CAD terminal screen” that night. While the message showing that parole hit was displayed on her screen, she misspoke and mistakenly advised the officer “that the subject was on probation out of San Mateo County for H&S 11351.” About a minute and a half after Lohman advised Officer Hansen of that information, she “routed the parole hit to Officer Hansen” and about 30 seconds after that, she routed the hit to Officer Santos, who was on his way to Officer Hansen’s location.
Lohman explained how the mistake occurred: “We receive returns . . . through entering the information. ‘Probation’ is much more common than ‘parole.’ However, it is a different hit. I would get it either through a different system entirely, or if it was in Santa Clara County, or if it was one of the agencies that participated in the OZ service, the automated warrant service, then it was their probation that way. So, unfortunately, I misspoke and said ‘probation,’ not ‘parole.’ However, I was looking at the parole hit.”
Asked what language she would typically use to inform an officer that someone was on probation versus parole, Lohman explained: “When I give ‘parole,’ I give . . . where it’s out of, whether it’s a city or a county, what it’s for. And when I give probation returns back, I usually say they’re on probation, and what the charges are or why they’re on probation and ‘good search,’ which means they are searchable or ‘negative search.’ So when I give a probation return back, I typically include that information.” The language she used – “He’s on active probation for H&S 11351 out of San Mateo County” – was actually “what I would say when we give back ‘parole.’ ”
A certified copy of defendant’s “969 B prison packet” was admitted into evidence to prove that defendant was actually on parole at the time of his arrest by Officer Hansen. The prosecutor’s other two exhibits were also admitted into evidence.
DISCUSSION
Denial of the Motion to Suppress Evidence (Pen. Code § 1538.5)
Relying on People v. Sanders (2003) 31 Cal.4th 318 (Sanders) and its progeny, defendant contends that the parole search of defendant’s person violated the Fourth Amendment because Officer Hansen was unaware at the time of the search that defendant was on parole or was subject to a search clause. He reasons that, given the evidence that the dispatcher said “probation” when she meant “parole,” and the dispatcher’s practice of relaying information about the jurisdiction and the charge when reporting a subject’s parole status, but adding information about a subject’s search condition when reporting on that subject’s probation status, Officer Hansen simply “guessed the dispatcher meant” defendant was on parole, and this court should not reward officers for guessing rather than confirming information by validating the search here.
He further argues that the trial court erroneously relied on People v. Middleton (2005) 131 Cal.App.4th 732 (Middleton) for the proposition that an officer’s awareness that a person is on parole is sufficient to support a parole search, since California law does not permit a state prison inmate to be released on parole without a search clause. In his reply brief, defendant also argues that People v. Hill (2004) 118 Cal.App.4th 1344 (Hill), which the People urge is dispositive here, is factually distinguishable, because in this case, unlike Hill, “the information actually known to the officer here was that Mr. Young was on probation,” and without actual knowledge that defendant had a search clause, no probation search was authorized. For the reasons we discuss below, we reject defendant’s contentions.
a. Standard of Review
On appeal from the denial of a suppression motion, “we review the evidence in a light favorable to the trial court’s ruling, adopt those express and implied findings of fact that are supported by substantial evidence, and independently determine whether those findings support the court’s legal conclusion that the search was reasonable under the Fourth Amendment. [Citations.] The standard of review recognizes that it is the exclusive province of the trial court to make the factual findings and credibility determinations that support a ruling and the legal theory underlying it.” (People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1197-1198; People v. Ratliff (1986) 41 Cal.3d 675, 686.)
b. Analysis
In Sanders, our Supreme Court held that “an otherwise unlawful search of the residence of an adult parolee may not be justified by the circumstance that the suspect was subject to a search condition of which the law enforcement officers were unaware when the search was conducted.” (Sanders, supra, 31 Cal.4th at p. 335.) “Prohibiting this type of unreasonable search … serves the purpose of the exclusionary rule, which is to deter future police misconduct.” (People v. Moore (2006) 39 Cal.4th 168, 173.) “[A]s Sanders explains, the reasonableness of a search must be determined based on the circumstances known to the officer when the search is conducted.” (In re Jaime P. (2006) 40 Cal.4th 128, 139.) When an officer knows that a person is on parole, he or she needs no additional information that the person is subject to a search clause, because “[a] search condition for every parolee is now expressly required by statute.” (Middleton, supra, 131 Cal.App.4th at p. 739.) The same is not true where probationers are concerned. Some may have search clauses, and some may not. Therefore, following Sanders, it is imperative that before conducting a probation search, the officer have actual knowledge that the probationer is subject to a search clause. (People v. Hoeninghaus, supra, 120 Cal.App.4th at p. 1195.)
Hill, decided on similar facts, is instructive here. (Hill, supra, 118 Cal.App.4th 1344.) In that case, defendant Hill and his girlfriend were suspects in a burglary. Police located the girlfriend’s car in the parking lot of a motel, went to her room and asked her for permission to search it. She refused. The police officer could see that defendant was in the room and asked to speak with him. Hill came outside to speak with the officer. In the meantime, the officer had radioed the police dispatcher and asked whether defendant or his girlfriend were on probation. The dispatcher erroneously told the officer no. While waiting for a detective to arrive to write a search warrant, the dispatcher called the officer again and this time erroneously told him that defendant was on active parole. “Apparently, the dispatcher misread the printout.” (Id. at p. 1348.) Relying on the misreport of defendant’s parole status, the officer searched the motel room and found property stolen in the burglary. Two days later, the officer found out that defendant’s parole had expired, but that he was on probation with a search clause. (Ibid.)
On these facts, the Hill court found Sanders distinguishable and declined to suppress the evidence against defendant, reasoning as follows. “In examining the ‘totality of the circumstances,’ the Sanders court identified the ‘salient circumstances’ before it to be McDaniel’s parole search condition and the officer’s ignorance of that condition. Citation. By contrast, the ‘salient circumstances’ here are more complex. The officer’s conduct was not that of an officer unlawfully invading a residence, and then seeking to justify his conduct by a belatedly discovered search condition. The officer took all the proper steps to ensure that his search of the motel room was lawful. He first asked for consent. When refused, he contacted the dispatcher to determine if defendant or Gregory was on probation. Defendant was indeed on probation, but, for unexplained reasons, the dispatcher reported to the contrary. The officer then dutifully began the process of securing a search warrant. As he waited for the warrant to be prepared and approved, the dispatcher contacted the officer with more misinformation. This time the dispatcher erroneously informed him that defendant was on parole. Only then did the officer enter and search the room. ¶We are mindful that erroneous parole status information will not validate an otherwise unlawful search. ‘[T]he good faith exception does not apply where law enforcement is collectively at fault for an inaccurate record that results in an unconstitutional search.’ (People v. Willis (2002) 28 Cal.4th 22, 49.) … [¶] Under the ‘collective knowledge principle’ discussed in Willis, the evidence would have been excluded if defendant’s erroneously reported parole status had been the only basis for the search. In examining the totality of the circumstances, however, we cannot turn a blind eye to the undisputed fact that defendant was actually on probation and consented to a search condition. But for the dispatcher’s misinformation to the contrary, [the officer] would have searched defendant’s motel room on the basis of that valid search condition. [¶] While Sanders precludes an officer from justifying a search by later-acquired knowledge of the suspect’s parole status, the circumstances of defendant’s search represent a variation on that theme. For example, if the dispatcher had misspoken at the outset, incorrectly stating that defendant was on parole when in fact he was on probation, suppression of the evidence would serve no deterrent purpose. In such a situation, the dispatcher’s error would produce ‘no impingement on Fourth Amendment rights.’ [Citation.] Nor would ‘ “judicial integrity” ’ be impugned in upholding the search. (See Sanders, supra, 31 Cal.4th at p. 334.) While the exclusionary rule exists to safeguard Fourth Amendment rights, it should not devolve into a game, the outcome of which depends on a terminological discrepancy. [¶] Here, the officer believed he was conducting a parole search when in fact defendant was on probation and had waived his Fourth Amendment privacy rights, except for freedom from arbitrary or harassing searches. Applying the same ‘totality of the circumstances’ test employed by the Sanders court, we cannot conclude that the exclusionary rule dictates suppression of the evidence. The exclusionary rule serves ‘to compel respect for the constitutional guaranty in the only effectively available way – by removing the incentive to disregard it.’ [Citation.] Nothing in this officer’s conduct manifests any such disregard. [The officer’s] actions do not present us with the danger of ‘legitimiz[ing] unlawful police misconduct.’ (Sanders, supra, 31 Cal.4th at p. 335.) To punish the responsible officer and the inept dispatcher in these circumstances creates a windfall for the defendant who was legitimately subject to a search condition.” (Hill, supra, 118 Cal.App.4th at pp. 1349-1351.)
We think the Hill court’s approach to the problem of applying Sanders to a mix-up situation has much to recommend it. Application of the exclusionary rule to the facts here would not serve a deterrent purpose, nor would upholding the search impugn judicial integrity. Here, the dispatcher said probation when she really meant parole, based on the correct information on her computer screen. The officer who “heard” the dispatcher, however, took in the entire context of what the dispatcher said and actually understood “parole.” This information was sufficient to convey to the officer in the field that defendant was searchable. And, in fact, defendant was on parole, and searchable. The only mistake here was the dispatcher’s misspoken word; the underlying information actually received by the dispatcher and actually conveyed by the dispatcher one and one-half minutes later to the two officers’ computers was accurate. Under the totality of these circumstances, we cannot conclude that Dispatcher Lohman and Officer Hansen were collectively at fault for an inaccurate record that resulted in an unconstitutional search under Willis, or that Officer Hansen’s actions constituted misconduct.
To be sure, if Officer Hansen had actually heard and understood the dispatcher to say “probation” and nevertheless proceeded to search defendant, without confirming that defendant had a search clause, a different case would be presented. Indeed, defendant’s arguments proceed from the factual premise that Officer Hansen did, in fact, hear and understand “probation” and proceeded to search anyway. However, as an appellate court, we are not at liberty to adopt that view of the facts. “ ‘[T]he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court.’ [Citation.] If factual findings are unclear, the appellate court must infer ‘a finding of fact favorable to the prevailing party on each ground or theory underlying the motion.’ ” (Middleton, supra, 131 Cal.App.4th at p. 738.) Here, Officer Hansen testified that given the context of the dispatcher’s words, she thought the dispatcher said “parole.” Other evidence supported the veracity of her testimony. Hansen testified that she put in her police report that the dispatcher said “parole,” although she readily admitted at the hearing that it was entirely possible the dispatcher said “probation.” Hansen also testified that she told her back-up officer, Santos, that defendant was on parole which Santos confirmed. Finally, Hansen testified that the type of information relayed by the dispatcher – jurisdiction and charge – was more consistent with parole than probation. The dispatcher also confirmed that what she said was more consistent with her report of a parole hit than a probation hit, since she would have included information about a search clause, whether positive or negative, if the subject were on probation. The trial court evidently accepted this evidence as credible and was entitled to conclude from it that Hansen was operating from an actual awareness that defendant was on parole. In our view, ample substantial evidence supports that finding. Therefore, we conclude the trial court did not err in denying the motion to suppress.
CONCLUSION
The trial court accepted as credible Officer Hansen’s testimony that, despite the dispatcher’s erroneous misstatement that defendant was on probation, she actually understood the dispatcher to say that defendant was on parole; and he actually was on parole. From this factual premise, which is supported by substantial evidence, the trial court concluded that the officer searched defendant with the requisite awareness that defendant was subject to search as a result of his parole status. Under these circumstances, no purpose would be served by application of the exclusionary rule to suppress the suspected cocaine found on his person. The trial court did not err in denying the motion to suppress.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.