People v. Carreon

248 Cal.App.4th 866

203 Cal.Rptr.3d 857

The PEOPLE, Plaintiff and Respondent

v.Leslie Stepheny CARREON, Defendant and Appellant.

H040632

Court of Appeal, Sixth District, California.

Filed June 30, 2016

Monica Stoner, San Jose, under appointment by the Court of Appeal, for Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Senior Assistant Attorney General, René A. Chacón, Supervising Deputy Attorney General, Bruce Ortega, Deputy Attorney General, for Plaintiff and Respondent.

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 searched a purse belonging to Anderson.

The interior door to the garage was open when Christian entered it. Christian and Salzillo believed that the converted garage was defendant's room before Christian searched it. Christian was unaware of any tenancy arrangements in the house. He noticed a purse on top of something a couple of feet inside the room. He did not say its contents were in plain view. He searched other areas before opening up the purse, which was not fastened or otherwise closed. Christian did not ask the occupants whose purse it was and he was not asked at the hearing whose purse he thought it was. Inside the purse he found a plastic bag containing shards of what appeared to methamphetamine, which a test by Salzillo presumptively confirmed. Salzillo recalled that Christian also found a pay/owe sheet in a plastic drawer within a couple of feet of the purse.

Neither officer saw signs of restricted access to the converted garage or noticed if there was a lock on the door. Neither officer asked defendant or Anderson who had access to the garage or whether Anderson had a key. There was no testimony about an occupant objecting to any stage of the search.

Christian testified that he had participated in another search where a son had put a pound of cocaine in his father's room and shut the door when the officers arrived. Salzillo stated: “[I]t's a common practice for us, especially when it's a drug related search, you know, in this type of household, that I would consider it more of a flop house, where there's in and out—people in and out of the dwelling, primarily drug users. And it's been common practice that they will, you know, stash drugs in other party's rooms to deter law enforcement. So based on that, the door was unlocked, which gave us access to that room.”

After the search, defendant was arrested on a misdemeanor warrant and for possessing methamphetamine with intent to sell. After Salzillo advised her of her rights, she said that the methamphetamine was hers and that she had turned from shoplifting to selling methamphetamine to provide for her child. Neither officer was asked if Anderson was arrested for constructive possession of the methamphetamine or conspiring to possess it.

At a continued hearing, having considered the parties' briefing and oral argument, the magistrate denied defendant's motion to suppress and held her to answer on the charge of possession for sale of a controlled substance in Monterey County Superior Court No. Case SS131878A. The magistrate reasoned: “So what the Court finds in this matter is that the entry into the home was a probation search. It was based on reasonable suspicion of drug activity. There was information that the officers had, probation officers, and that the [PRVNT] team had, that there was drug activity at the residence. And as part of Ms. Anderson's terms of probation and her agreeing to the benefit of probation, she gave up her right to search and seizure. And...