People v. Delrio

45 Cal.App.5th 965

259 Cal.Rptr.3d 301

The PEOPLE, Plaintiff and Respondent,

v.Alejandro Manuel DELRIO, Defendant and Appellant.

A154848

Court of Appeal, First District, Division 3, California.

Filed February 28, 2020

John Alexander Halley, Redwood City, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Ronald E. Niver, Deputy Attorney General and Bruce Ortega, Deputy Attorney General, for Plaintiff and Respondent.

Fujisaki, J.

This case arises out of a warrantless search of the contents of a cell phone belonging to defendant Alejandro Manuel Delrio. At the time of the search, defendant was a convicted felon in the legal custody of the California Department of Corrections and Rehabilitation (CDCR) as he served out the remainder of his term on parole. As a parolee, defendant was subject to a statutorily mandated parole term that required him to submit to warrantless and suspicionless searches of his person, his residence, and any property under his control by a parole officer or other peace officer at any time. At the time of the cell phone search, police officers knew defendant was on parole and had specific, articulable reasons to suspect he was involved in a residential burglary.

Defendant pleaded guilty to first degree burglary after the trial court denied his motion to suppress evidence obtained from the search of his cell phone. On appeal, defendant claims the search violated his Fourth Amendment rights because his written parole conditions gave him a reasonable expectation of privacy in the contents of his cell phone. We conclude that any expectation of privacy defendant may have had did not outweigh the government’s interest in conducting the search because the officers had specific reasons to suspect he was involved in a residential burglary. The judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2014, a residential burglary was committed in Redwood City. A surveillance video from a neighbor’s house showed two individuals walking from a black truck to the burglarized house and then walking away, each carrying a sack. After the residents of the home reported the burglary, Sheriff’s Deputy Robert Willett contacted defendant and told him that a vehicle registered to him had been involved in a burglary. Defendant denied any involvement, told the deputy that he had loaned the truck to a coworker, and further claimed that if the truck was involved with a burglary, it must have been used without his permission. Defendant then completed paperwork to report the vehicle stolen.

Deputy Willett then viewed the surveillance video and concluded that one of the two individuals shown in the video had "a very close resemblance to the defendant." Thus, Willett recommended that defendant be re-contacted as a suspect.

Sergeant Hector Acosta conducted a records check on defendant and determined that he was on active parole. At around 10:30 a.m. on September 26, 2014, Acosta and several officers went to defendant’s house to conduct a parole search. While the officers searched the house, Acosta interviewed defendant and his girlfriend. Acosta showed defendant a still photo from the surveillance footage and said one of the suspects looked like him, but defendant denied involvement in the burglary. During the search of the house, officers located a cell phone that belonged to defendant. Acosta later testified at the suppression hearing that he believed defendant’s parole obligations required him to surrender his password, and Acosta may have told defendant, " ‘you’re on parole. I need the passcode[,]’ " or "give me your passcode." Defendant complied, and Acosta gave the cell phone to a detective who used a Cellebrite device to download the contents of the phone before returning it to defendant.

A few minutes after the officers left his house, defendant called Sergeant Acosta and asked him to return to the house. Upon the officers’ return, defendant showed Acosta a photograph from his cell phone in which defendant was holding five $100 bills. Defendant said the money was the proceeds from selling the stolen jewelry from the burglary. Defendant also told Acosta about his involvement in the burglary and said he should not have reported his vehicle stolen.

Defendant was charged by information with first degree burglary ( Pen. Code, § 460, subd. (a) ; count one); grand theft (id. , § 487, subd. (a); count two); perjury (id. , § 118, subd. (a); count three); and making a false report of a criminal offense (id. , § 148.5, subd. (a); count four). As to count one, the information alleged a number of sentencing enhancements.

Defendant moved to suppress the evidence obtained from the cell phone search and all statements made by him as fruit of that search. The trial court denied the motion. Defendant then pleaded guilty to count one and admitted enhancements for being on parole after imprisonment for a prior serious or violent felony ( Pen. Code, § 1203.085, subd. (b) ); commission of a prior serious felony while on parole ( id. , § 1203.085, subd. (b) ); having a prior strike (id. , §§ 667, subds. (a)(1), 1170.12, subd. (c)(1)); and having a prior serious felony conviction (id. , § 667, subd. (a)(1)). The trial court sentenced defendant to seven years in state prison. Defendant appealed from the judgment based on the trial court’s allegedly erroneous denial of his motion suppress (id. , § 1538.5, subd. (m)).

DISCUSSION

"Challenges to the admissibility of evidence obtained by a police search and seizure are reviewed under federal constitutional standards." ( People v. Schmitz (2012) 55 Cal.4th 909, 916, 149 Cal.Rptr.3d 640, 288 P.3d 1259 ( Schmitz ).) "The ‘touchstone of the Fourth Amendment is reasonableness,’ " which "is measured in objective terms by examining the totality of the circumstances." ( Ohio v. Robinette (1996) 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347.) In determining reasonableness, courts assess the degree to which the search "intrudes upon an individual’s privacy," as well as "the degree to which it is needed for the promotion of legitimate governmental interests." ( United States v. Knights (2001) 534 U.S. 112, 118–119, 122 S.Ct. 587, 151 L.Ed.2d 497 ( Knights ).)

A warrantless search is per se unreasonable under the Fourth Amendment absent a recognized exception. ( U.S. Const., 4th Amend.; Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576.) Both the United States Supreme Court and the California Supreme Court recognize that a parole search conducted pursuant to California Penal Code section 3067, subdivision (b)(3), constitutes one of those exceptions. ( Samson v. California (2006) 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 ( Samson ); Schmitz , supra , 55 Cal.4th at p. 916, 149 Cal.Rptr.3d 640, 288 P.3d 1259.) Under that statute, "every inmate eligible for release on parole ‘is subject to search or seizure by a ... parole officer or other peace officer at any time of the day or night, with or without a search warrant or with or without cause.’ " ( Schmitz , at p. 916, 149 Cal.Rptr.3d 640, 288 P.3d 1259.) Upon release from incarceration, parolees are notified: "You and your residence and any property under your control may be searched without a warrant at any time by any agent of the Department of Corrections [and Rehabilitation] or any law enforcement officer." ( Cal. Code Regs., tit. 15, § 2511, subd. (b)4.) Because such searches are mandated as a term of every parolee’s release, "an officer’s knowledge of a parolee’s status is equivalent to knowledge of the applicable search condition." ( Schmitz , at p. 922, fn. 13, 149 Cal.Rptr.3d 640, 288 P.3d 1259, citing People v. Middleton (2005) 131 Cal.App.4th 732, 739–740, 31 Cal.Rptr.3d 813.) As the California Supreme Court has emphasized, "[w]arrantless, suspicionless searches are a vital part of effective parole supervision" in California. ( Schmitz , at p. 924, 149 Cal.Rptr.3d 640, 288 P.3d 1259 ; accord, Samson , supra , at p. 854, 126 S.Ct. 2193.)

In examining whether a warrantless search of a parolee’s cell phone is constitutionally valid, we find it helpful to review the analysis of the United States Supreme Court in Samson , supra , 547 U.S. 843, 126 S.Ct. 2193, which preceded the California Supreme Court’s decision in Schmitz , supra , 55 Cal.4th 909, 149 Cal.Rptr.3d 640, 288 P.3d 1259. In Samson , the issue was whether the warrantless and suspicionless search of a parolee’s person was reasonable within the meaning of the Fourth Amendment. In analyzing that issue, Samson looked to the totality of circumstances and weighed the privacy expectations of parolees against the interests of the government in conducting such searches. ( Samson , at pp. 848–857, 126 S.Ct. 2193.)

Samson deemed it significant that California parolees, like parolees elsewhere, "have severely diminished expectations of privacy by virtue of their status alone" ( Samson , supra , 547 U.S. at p. 852, 126 S.Ct. 2193 )—even below that of individuals on probation—because "parole is more akin to imprisonment than probation is to imprisonment" ( id. at p. 850, 126 S.Ct. 2193 ). That is, "an inmate-turned-parolee remains in the legal custody of the California Department of Corrections through the remainder of his term ... and must comply with all of the terms and conditions of parole" ( id . at p. 851, 126 S.Ct. 2193 ), including the term permitting warrantless and suspicionless searches at any time ( Pen. Code, § 3067, subds. (a), (b)(3) ). Samson noted the additional circumstance that when the petitioner there signed the order submitting to the parole search term, he "thus was ‘unambiguously’ aware of it." ( Samson , at p. 852, 126 S.Ct. 2193.) "Examining the totality of circumstances pertaining to petitioner’s status as a parolee, ‘an established variation on imprisonment,’ [cita...