People v. Rosas

50 Cal.App.5th 17

264 Cal.Rptr.3d 43

The PEOPLE, Plaintiff and Respondent,

v.Lucio Sedeno ROSAS, Defendant and Appellant.

2d Crim. No. B295921

Court of Appeal, Second District, Division 6, California.

Filed June 8, 2020

As Modified on Denial of Rehearing July 7, 2020

Richard B. Lennon, Emma Gunderson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.

PERREN, J.

Lucio Sedeno Rosas appeals the judgment entered after he pleaded guilty to possessing methamphetamine with a prior conviction that required him to be registered as a sex offender. ( Health & Saf. Code, § 11377, subd. (a) ; Pen. Code,¹ § 290, subd. (c).) In exchange for his plea, a misdemeanor charge of possessing drug paraphernalia, i.e., a methamphetamine pipe ( Health & Saf. Code § 11364, subd. (a) ) was dismissed. Imposition of sentence was suspended and appellant was placed on three years formal probation under Proposition 36 (§ 1210.1) with various terms and conditions.

Appellant contends the trial court erred in denying his motion to suppress the evidence obtained from the warrantless searches of his person and vehicle ( § 1538.5 ) because the People did not meet their burden to justify either search under the Fourth Amendment. We agree. Both searches were premised upon erroneous information that appellant was on probation. Even assuming that the officers who conducted the searches reasonably concluded from this information that appellant was on probation, they had no reason to believe he was subject to search terms as a condition of that probation. It is well-settled that the probation exception to the warrant requirement cannot be satisfied under these circumstances. (See, e.g., People v. Thomas (2018) 29 Cal.App.5th 1107, 1114, 241 Cal.Rptr.3d 87.) Moreover, the People offered no evidence to meet their burden of proving that the evidence was nevertheless admissible under the good faith exception to the exclusionary rule. Accordingly, we reverse.

FACTS AND PROCEDURAL HISTORY

The relevant facts are derived from the transcript of the hearing on appellant's suppression motion and other evidence admitted at the hearing. At around 2:00 a.m. on July 3, 2017, Oxnard Police Officers Ignacio Coronel and Christopher Salvio were dispatched to a residential address in the 700 block of Forest Park Boulevard in response to a report of a suspicious person in a passenger truck in front of the residence. When the officers arrived at the location, they saw appellant sitting in the driver's seat of a parked truck with the driver's side door open.

As reflected in video footage captured on Officer Salvio's body cam,² the officer approached appellant and asked him where he lived. Appellant replied that he lived just two houses away and had come outside to smoke a cigarette and listen to music. Appellant gave his name and address, said he did not have a driver's license, and added that he had a state identification card but did not have it on him. During this exchange, Officer Coronel walked over to the front passenger window of the truck, shone a flashlight through the slightly-open window and into the front passenger compartment, and moved the flashlight around to illuminate the compartment.

In response to further questioning, appellant provided Officer Salvio with his date of birth and said the truck belonged to his father Alberto Sedeno, with whom he lived. He also retrieved the truck's registration card from the glove box and gave it to Officer Salvio. The registration card reflected that the truck was registered to Alberto Sedeno who lived at the address appellant had given. The officer asked appellant "Do you have any probation or parole or anything like that?" Appellant replied, "No."

Officer Salvio retained the registration card and called police dispatch to run a records check to confirm appellant's identity and determine if he had any warrants or was on probation or parole. Officer Salvio continued to talk to appellant while waiting for this information. Approximately two minutes into the encounter, Officer Coronel turned off his flashlight but remained in his position by the front passenger window. As Officer Salvio continued to talk to appellant, Officer Coronel turned his flashlight on again, pointed the end of the light through the slightly-open front passenger window, and began moving the light around again to illuminate the interior.

Approximately four minutes into the encounter, the dispatcher verified appellant's identity and address and stated that appellant was "on probation out of Kern County for [a] 647.6 [and] also a 290 registrant." Officer Coronel, who heard everything the dispatcher was saying, turned off his flashlight and remained in his position by the front passenger window. Officer Salvio questioned appellant about his record and asked "What'd you do to get yourself registered as a 290?" Appellant replied that "[t]his one time [he] was walking the streets and [he] accidentally ... grabbed [a] girl and tried to kiss her." During this exchange, Officer Salvio proceeded to ask appellant for his middle name, height, weight, and eye color, and had him repeat his date of birth. After appellant conveyed this information, Officer Salvio asked Officer Coronel, "Anything on that end, Ignacio?" Officer Coronel replied, "No."

After a brief period of silence, Officer Salvio told appellant "you're on probation, you told me no." Appellant reiterated that he was not on probation and Officer Salvio replied, "You are on probation. They just told me you're on probation." Appellant repeated that he was not on probation and did not have to report to anyone and the officer interjected, "You don't report, then you're on summary probably." After appellant once again verified his address, Officer Salvio said, "So, you don't report to a P.O., but ... you are on probation." Appellant replied, "Oh, okay. I – I didn't know about that." Appellant added that when he had been on probation before he "would go and talk to [his] probation officer but ... they stopped ... a long time ago." At that point, the body cam video footage ended.

At the outset of the suppression hearing, the parties stipulated that appellant was not on probation and that the information conveyed by the dispatcher to the contrary was erroneous. Officer Salvio testified that he decided to conduct a probation search of appellant based upon the information he had received from dispatch. In appellant's pocket, the officer found a bag containing a substance that appeared to be methamphetamine.

Officer Salvio then conveyed that information to Officer Coronel, who subsequently questioned appellant about the "crystalline substance" that had been found on his person.

Under cross examination by defense counsel, Officer Salvio acknowledged that the dispatcher did not tell him that appellant was subject to search terms as a condition of his probation. Following recross-examination by defense counsel, the court questioned Officer Salvio as follows: The court: "[Dispatch] made no mention, one way or the other, whether [appellant] had search terms, I take it; is that correct? [¶] [Officer Salvio]: That is correct, your Honor. [¶] The Court: Did that cause you to assume that he had search terms? [¶] [Officer Salvio]: "Yes, your Honor. [¶] The court: Okay. Why did that cause you to assume that? [¶] [Officer Salvio]: At that time, your Honor, I was fairly – I was a fairly new officer and I believed probation to commonly be associated with supervised release, which usually includes search terms. [¶] The court: Okay. All right. So that was common in your experience, I take it, then? [¶] [Officer Salvio]: Yes, your Honor." The court then asked the prosecutor if she had "[a]nything further on that" and the prosecutor replied, "No, your Honor."

Officer Coronel testified on direct examination that as he was looking through the front passenger window of the truck, he saw "a lot of things on top of a small blanket that was covering the bottom portion of the seat and under that carpet [sic ] there was a bulge." Officer Coronel added "[t]hat bulk—I didn't know—I could tell that there was something under there; however, I was not sure. I suspected it might be ... a weapon or something, contraband." The officer went on to testify that "[w]hen [appellant] directed his attention to Officer Salvio, I took the opportunity to reach through the cracked window and uncover the blanket." Under the blanket, the officer discovered a glass pipe with residue that appeared to be methamphetamine.

In response to further questioning by the prosecutor, Officer Coronel testified that he believed he did not discover the pipe until after the officers had received the information that appellant was on probation. After reviewing his report of the incident, the officer acknowledged that he first questioned appellant about the pipe while appellant "was seated next to the vehicle, somewhere along the sidewalk." At that time, he also asked appellant about "the crystalized [sic ] substance that was found on his person" and appellant confirmed it was approximately one gram of methamphetamine. Appellant was subsequently cited for violations of Health and Safety Code sections 11377, subdivision (a) and 11364, subd. (a), and was released with a notice to appear.

On cross-examination, Officer Coronel was asked to view Officer Salvio's body cam footage. After watching the video, the officer acknowledged conveying to Officer Salvio that he had not seen anything inside the truck that gave him reasonable suspicion or probable cause to search it.

Following the presentation of evidence at the suppression hearing, appellant argued he was unlawfully detained at the inception of the encounter and that he and his father's truck were unlawfully searched. Defense counsel argued among...