Monterey
County Superior Court No.: SS131878A The Honorable Julie R.
Culver
Attorney for Defendant and Appellant Leslie Stepheny Carreon:
Monica Stoner under appointment by the Court of Appeal for
Appellant
Attorneys for Plaintiff and Respondent The People: Kamala D.
Harris Attorney General Gerald A. Engler, Senior Assistant
Attorney General René A. Chacón, Supervising
Deputy Attorney General Bruce Ortega, Deputy Attorney General
RUSHING, P.J.
I.
Introduction
Defendant
Leslie Stepheny Carreon and her young son were staying in a
converted garage unit of a residence leased by probationer
Naomi Anderson. Law enforcement officers arrived to conduct a
probation search of the residence. The garage unit was
accessible from inside the house through a laundry room and a
closed but unlocked door. While the officers conducted a
protective sweep, they had defendant remove her young son
from a bed in the converted garage unit and then had the
occupants, including the probationer, wait in the kitchen
while officers searched the house. The probation officer who
entered the garage unit to search it believed it was
defendant's room and not the residence of the female
probationer he had come to search. In that room he found a
pay/owe sheet in a drawer and a plastic bag containing what
appeared to be shards of methamphetamine inside a purse. The
crystalline powder tested presumptively positive for
methamphetamine. Defendant was charged with possession of
methamphetamine for sale (Health & Saf. Code, § 11378)
while released on bail (Pen. Code, §
12022.1).[1] She was on bail and awaiting
sentencing in two earlier cases in which she was convicted by
no contest pleas of two commercial burglaries, one a felony.
After
defendant's suppression motion was denied, she entered a
no contest plea to possessing methamphetamine for sale while
released on bail. In all three cases, the court suspended
imposition of sentence and placed defendant on formal
probation for three years with a number of conditions,
including prohibiting defendant's possession of tools
used for the express purpose of facilitating a burglary or
theft.
On
appeal defendant seeks further review of her suppression
motion and challenges one probation condition. The Attorney
General, while seeking to justify the search, has no
objections to modifying either the burglary tool probation
condition or an order requiring defendant to register as an
offender. We will conclude that a probation search condition
of the residence of a female probationer, without more, did
not authorize law enforcement officers to look into a purse
or drawers located in a separate living unit. Because the
suppression motion and the section 995 motion challenging its
denial should have been granted, we will reverse the
judgment.
II.
Trial Court Proceedings
A.
Earlier Charges
On
April 23, 2013, defendant and her boyfriend took unpurchased
merchandise from a Kohl's store and were apprehended when
they attempted to take speakers from a Target store. This led
to two felony charges of commercial burglary and two
misdemeanor charges of petty theft (§ 484, subd. (a))
against defendant in Monterey County Superior Court Case No.
SS130812B.
While
released on bail, defendant was apprehended after taking
speakers from Target on June 10, 2013. This led to a third
charge of commercial burglary in Monterey County Superior
Court Case No. SS131200A, this crime occurring while she was
on bail.
On
August 29, 2013, defendant signed no contest pleas in both of
these cases, agreeing to felony probation and pleading no
contest to one felony count of commercial burglary in Case
No. SS130812B and one amended misdemeanor count of commercial
burglary in Case No. SS131200A. The court referred the cases
for a pre-sentence probation report due in October 2013.
B.
The Combined Suppression/Preliminary Hearing
On
September 20, 2013, defendant was charged by complaint with
possessing methamphetamine for sale while out on bail two
days earlier.
Defendant
scheduled a motion to suppress evidence (§ 1538.5)
concurrent with the preliminary hearing in the case.
Defendant requested suppression of all observations by the
officers during and after her detention and search, including
any statements she made, and all evidence located during the
search, "including but not limited to the
methamphetamine, alleged pay/owe sheets, and text messages
seized from [defendant's] person or property."
At the
hearing, defendant called no witness. Two officers testified
as follows.
Based
on information that probationer Naomi Anderson was dealing
drugs, officers set out to perform a probation search of a
location in Salinas that Anderson had informed the probation
department was her residence. The search was performed by
several probation officers including Monterey County
Probation Officer Kevin Christian and also a team from the
Peninsula Regional Violence and Narcotics Task Force (PRVNT)
including Seaside Police Detective Frank Salzillo. No
document recording Anderson's probation conditions was
produced at the hearing, but Officer Christian recalled that
the condition authorized searching Anderson, "[a]ny
room... that she has control over or access to, any vehicles
that she has control over or access to."
After
officers knocked at the door of the residence, defendant
answered and opened the door. When Christian entered, he saw
Anderson sitting at a kitchen counter. Salzillo was one of
the last officers in the stack to enter the residence. Their
first priority was a protective sweep of the rooms to secure
potentially hostile occupants. The officers had defendant and
Anderson sit in the kitchen as they swept and searched the
house. Anderson told Salzillo that it was the house of her
and her boyfriend and that defendant was staying in the
converted garage. Salzillo stated, "once she told me
that it was her house, I assumed she had access to the whole
house unless a door was locked." Salzillo believed that
Anderson rented the house. He did not ask if defendant was
renting a room from the probationer.
According
to Christian, "we try every door in the house when we do
a search. If the door is not locked, the probationer has
access." The house had three bedrooms and the converted
garage and another room accessible only from the outside that
appeared to be inhabited. Salzillo recalled that one bedroom
was not swept or searched because the door was locked.
Anderson said it was her son's room and she did not have
a key. Officers observed no one present in that room.
The
garage was accessible from inside the house through a door
off the laundry room. Salzillo and another PRVNT officer were
the first to sweep that room for safety. Salzillo opened the
door, which was closed but not locked. The room was dark.
Defendant told Salzillo that her young son was in bed in that
room and Salzillo had her remove him.
Salzillo
and Christian participated in searching Anderson's
bedroom. Neither was asked whether he found or ...