(Solano County Super. Ct. No. VCR184797) Trial Judge Honorable Allan P. Carter
The opinion of the court was delivered by: Dondero, J.*fn9
CERTIFIED FOR PUBLICATION
Defendant Anthony Craig Smith (Smith) appeals from a felony narcotics conviction, asserting as error the trial court‟s denial of his motion to suppress evidence unreasonably obtained during a "public strip search." (Pen. Code, § 1538.5) We affirm, concluding that the police officer‟s search, effected by pulling back the waistband of Smith‟s underwear and visually inspecting his crotch area, did not constitute a public strip search and met constitutional standards, in light of Smith‟s parole status and reduced expectation of privacy.
On June 23, 2006, at around 11:30 a.m., Officer Robert Greenberg (Officer Greenberg) and Corporal Brian Estudillo (Corporal Estudillo) of the Vallejo Police Department were on patrol in the area around the Vallejo Inn. Officer Greenberg knew, from prior service calls and his law enforcement experience in the city, that this was a high-crime area. He testified: "There‟s a lot of criminal activity that goes on there, such as people possessing drugs, selling drugs, manufacturing drugs, people possessing stolen property, . . . sexual assaults . . . ." When he and Corporal Estudillo arrived at the Vallejo Inn, they observed a man trying to open a window of a hotel room on the ground floor to gain access to the room. They exited their patrol cars, intending to approach the suspect, and as they did so, they noticed Smith sitting in the driver‟s seat of a car parked directly in front of the same hotel room. Officer Greenberg decided to investigate the situation further. While Corporal Estudillo contacted the suspect at the hotel window, Officer Greenberg approached Smith, who was exiting his vehicle.
Officer Greenberg asked Smith what he was doing at the hotel, whether he was on probation or parole, and whether he could search him. Smith said he was on parole, "go ahead," or "something to that effect." At some point during the incident, Officer Greenberg confirmed through dispatch that Smith was on parole from a conviction for possession of cocaine base for sale. In accordance with his standard safety practice when searching probationers and parolees, Officer Greenberg handcuffed Smith. Officer Greenberg conducted a pat down search of Smith and then a thorough search of his car, but did not discover any contraband.
Because of the high incidence of drug activity in the area and Smith‟s history of selling narcotics, as well as his own feeling that Smith had contraband in his underwear, Officer Greenberg told Smith that he was "gonna check his pants and see if he had anything in there." At that point, Smith became uncooperative, so Corporal Estudillo and another police officer placed him in control holds. Officer Greenberg performed the search inside the crook of the open back door of a patrol car with the other two officers standing around Smith, to protect his privacy. The search took place in the back of the hotel parking lot, which did not face the street, but rather, a fenced-in area. Officer Greenberg could not recall if other people were in the area or if other cars were parked in the lot. He testified, however, that the search was "not on Sonoma Boulevard where cars are consistently driving through the back parking lot" and that "[at] that time of morning, there aren‟t that many people around most of the time. There [are] not a lot of cars there."
Officer Greenberg removed Smith‟s belt, unbuttoned and unzipped Smith‟s pants and pulled them down "a foot or so," then pulled the elastic waistband of Smith‟s underwear "out away from his body" and saw a large bag the size of a baseball "sitting right on top of his penis." Officer Greenberg retrieved the bag, which contained 12 smaller baggies of heroin, cocaine, and methamphetamine. The officers placed Smith in a patrol car and transported him to the police station, where they conducted a more thorough strip search.
In January 23, 2007, the District Attorney of Solano County (the People) filed an information charging Smith with six felony counts, including transportation of heroin, cocaine base, and methamphetamine (Health & Saf. Code, §§ 11352, subd. (a), 11379, subd. (a)) and possession of these substances for sale (Health & Saf. Code, §§ 11351, 11351.5, 11378). For purposes of sentence enhancement, the information also alleged five prior felony convictions, three of which were narcotics convictions, and four prior prison terms. (See Health & Saf. Code, § 11370.2, subds. (a) & (c); Pen. Code, § 667.5, subd. (b).) Smith pleaded not guilty to the charges and denied the enhancement allegations.
Shortly thereafter, Smith filed a motion to suppress the evidence obtained during Officer Greenberg‟s search (Pen. Code, § 1538.5). ~(CT34-39)~ After opposition from the People and an evidentiary hearing, the trial court denied the motion. The trial court concluded that although the People had not proven that Smith was subject to a parole search condition, Smith had essentially acknowledged in his response to Officer Greenberg‟s request to search him that he was subject to this condition. The trial court further concluded that the search of Smith‟s underwear was not arbitrary or capricious or for the purpose of harassment, noting that "[t]here was suspicious activity" and that, under the circumstances, the officers would have been derelict in their duties had they not investigated Smith. The trial court rejected Smith‟s contention that this constituted a public strip search and concluded that Officer Greenberg‟s conduct was reasonable under the circumstances.
In November 2007, after the People amended the information to add allegations of two additional prior narcotics convictions, Smith changed his plea to "no contest" as to all of the charges against him and admitted the prior convictions and prison terms alleged. On November 20, 2007, the trial court sentenced him to 10 years in state prison, imposing the four-year midterm on the third count (transportation of cocaine base) and consecutive three-year terms as sentence enhancements for two of the prior narcotic convictions. The trial court stayed the remaining convictions and enhancements. Smith filed a timely appeal from his conviction, asserting as error the trial court‟s denial of his motion to suppress.
A criminal defendant may move under Penal Code section 1538.5 to suppress evidence obtained as a result of an unreasonable search or seizure. (See Pen. Code, § 1538.5,subd. (a).) When a felony defendant brings such a motion for the first time upon the filing of the information, the trial court sits as a finder of fact with " "the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence[,] and draw factual inferences.‟ "*fn1 (In re Arturo D. (2002) 27 Cal.4th 60, 77.) On appeal, we review the trial court‟s factual findings for substantial evidence and presume their correctness. (In re Arturo D., supra, 27 Cal.4th at p. 77; People v. Leyba (1981) 29 Cal.3d 591, 596-597 (Leyba), superseded by statute on other grounds, as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224.) We review questions of law independently, however, including the trial court‟s application of the law to the facts. (Leyba, supra, 29 Cal.3d at pp. 596-597.) In California, the reasonableness of a police search is a question of law, which we determine under the Fourth Amendment. (Ibid.; see In re Tyrell ...