IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
July 11, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAMES HENRY THOMAS, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F05472)
The opinion of the court was delivered by: Butz , J.
P. v. Thomas
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5),*fn1 defendant James Henry Thomas, Jr., pleaded no contest to possession of cocaine base for sale (Health & Saf. Code, § 11351.5). He also admitted one prior prison term (Pen. Code, § 667.5, subd. (b)) and a previous conviction of a serious felony (id., §§ 667 subds. (b)-(i), 1170.12). Defendant was sentenced to an aggregate term of seven years in state prison.
On appeal, defendant contends that the officers acted unreasonably by searching his residence in the course of serving an arrest warrant on a third party, and that the search was invalid because the officers were unaware that his parole status included a parole search condition. For the reasons below, we reject these claims and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of July 3, 2008, Sacramento police officers Dustin Smith and Sarah Butler arrived at an address on May Street to serve an arrest warrant on Ignocencio Lopez, Jr. Officer Butler watched the back of the house while Officer Smith approached the front door and knocked. Cornell Muldrow III and his wife answered the door and stated that Lopez did not reside there. As Muldrow explained that he and his wife were the only people in the residence, Butler saw a hand appear at the back window of the house, move the blinds, and withdraw. Butler notified Smith, who asked Muldrow whether he was certain there was nobody else inside. After a brief hesitation, Muldrow said he would double check.
At this point, defendant's brother, Michael Thomas (Michael), appeared in the kitchen and walked toward the front door. When Officer Smith asked if anyone else was home, Michael replied that his brother, defendant, was in the bedroom. Smith inquired if defendant was on parole and Michael responded that he was. Smith then asked Michael to check whether defendant was in his bedroom. Michael walked to the bedroom, knocked on the door, and defendant emerged.
In response to questioning, defendant denied that he knew Lopez, but admitted that he was on parole. Defendant provided the officers with his parole identification card, and a records check confirmed that he was on active parole. Officer Smith then informed defendant that the officers were going to conduct a parole search of the home based on his parole status.
In searching defendant's bedroom, the officers recovered 6.11 grams of cocaine base packaged in plastic sandwich baggies and medication bottles from the top shelf of his closet, and found a wallet with $196 in cash and a cell phone on his person.
A second amended complaint, deemed the information, charged defendant with possession of cocaine base for sale and possession of cocaine base (counts one & two), with special allegations of a prior serious felony (§ 664/187, subd. (a)) and two prior prison terms.
Defendant pleaded not guilty and filed a motion to suppress all items recovered from his closet, arguing the parole search was invalid because the officers did not have advance knowledge that he was subject to a parole search condition. The trial court denied this motion. Defendant subsequently renewed his motion in the superior court, where it was also denied.
Defendant thereafter agreed to a stipulated sentence and pleaded no contest to possession of cocaine base for sale (count one) and admitted one of the two prior prison terms and the serious felony allegation. The trial court sentenced defendant to an aggregate term of seven years in state prison. Defendant appeals from the denial of his suppression motion pursuant to section 1538.5, subdivision (m).
I. Reasonableness of the Search
Defendant claims that the search violated the Fourth Amendment because (1) the officers acted unreasonably in attempting to serve a third party arrest warrant at an outdated address, and (2) the search exceeded the scope of what was necessary to determine whether the third party (Lopez) was present. Defendant, however, has forfeited these claims by failing to raise them in the trial court.
"[A] section 1538.5 motion 'must specify the precise grounds for suppression of the evidence in question . . . .'" (People v. Oldham (2000) 81 Cal.App.4th 1, 12, quoting People v. Williams (1999) 20 Cal.4th 119, 130.) "'Defendants who do not give the prosecution sufficient notice of these inadequacies cannot raise the issue on appeal.'" (Oldham, at p. 11, quoting Williams, supra, 20 Cal.4th at p. 136.) In each of defendant's motions to suppress, he argued only that the search was invalid because the officers lacked knowledge of defendant's parole search condition. At no point did defendant claim that the officers acted unreasonably in going to the May Street residence first to look for Lopez, nor that the scope of the search was unreasonable. Because these arguments were not raised at the trial court level, the prosecution had no opportunity to rebut them, and they cannot be raised for the first time on appeal. (Oldham, supra, 81 Cal.App.4th at pp. 11-12.)
II. Knowledge of Defendant's Parole Status
Defendant concedes that suspicionless parole searches are broadly authorized by Samson v. California (2006) 547 U.S. 843 [165 L.Ed.2d 250] (Samson). However, he contends the parole search of his bedroom was unreasonable because the officers did not know that his parole status included a search condition. We disagree.
The United States Supreme Court has determined that suspicionless searches of California parolees pursuant to section 3067, subdivision (a), do not violate the Fourth Amendment. (Samson, supra, 547 U.S. at pp. 856-857 [165 L.Ed.2d at p. 262].) Accordingly, "[a] law enforcement officer who is aware that a suspect is on parole and subject to a search condition may act reasonably in conducting a parole search even in the absence of a particularized suspicion of criminal activity, and such a search does not violate any expectation of privacy of the parolee." (People v. Sanders (2003) 31 Cal.4th 318, 333, italics added.)
Citing the italicized language, as well as the Ninth Circuit case of United States v. Caseres (2008) 533 F.3d 1064, 1076, defendant argues that the officers must have advance knowledge, not only of the subject's parole status, but also that he is subject to warrantless search as a condition of his parole, before commencing a parole search.
The Ninth Circuit interprets the law and decides cases from 13 states, including California. Thus, it is plausible that in some jurisdictions a grant of parole may not include a search condition. In California, however, every inmate who is released on parole must agree in writing to a warrantless search condition prior to release. (§ 3067, subd. (a).)*fn2
In People v. Middleton (2005) 131 Cal.App.4th 732 (Middleton), the defendant challenged the denial of his motion to suppress evidence of cocaine base discovered in the course of a parole search of a motel room not registered in his name. (Id. at p. 737.) As defendant argues here, Middleton claimed that the search was not justified "because the officers did not verify that the terms of [a third party's] parole included a search condition" prior to entering the room. (Ibid.)
The Court of Appeal, First Appellate District, Division Three, rejected the argument, noting that section 3067, subdivision (a) provides that an inmate shall not be released on parole until he agrees to a warrantless search condition. (Middleton, supra, 131 Cal.App.4th at pp. 739-741.) In fact, section 3060.5 requires the parole authority to revoke the parole of any prisoner who refuses to sign a parole agreement. (Middleton, supra, 131 Cal.App.4th at pp. 738-740.) Therefore, the appellate court concluded, since "'every grant of parole included an implied search condition, . . . an officer's knowledge of parole status was equivalent to knowledge of a parole search condition.'" (Id. at p. 739.)
Middleton disposes of defendant's argument. Under sections 3067, subdivision (a) and 3060.5, there is no plausible scenario under which an inmate could be released on parole without being subject to a search condition. Thus, once the officers confirmed that defendant was on active parole, it was reasonable to infer that his parole included a search condition. (Middleton, supra, 131 Cal.App.4th at p. 740.) Knowledge of defendant's parole status was tantamount to knowledge of a search condition, and thus provided sufficient justification for the officers to conduct the search. Defendant's suppression motion was properly denied.
The judgment is affirmed.
We concur: RAYE , P. J. HOCH , J.