PEOPLE v. JACKSON No. B226383.

THE PEOPLE, Plaintiff and Respondent, v. AREN MARCUS JACKSON, Defendant and Appellant.

Court of Appeals of California, Second District, Division Eight.
Filed October 18, 2011.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GRIMES, J.

Defendant and appellant Aren Marcus Jackson appeals from the judgment of conviction entered following his no contest plea to multiple felony charges, asserting as error the trial court's denial of his motion to suppress evidence pursuant to Penal Code section 1538.5.1 We affirm, concluding the search of defendant's residence met constitutional standards in light of defendant's parole status and was not otherwise arbitrary, capricious or harassing.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2007, defendant was on active parole, residing with his wife, Tia Torres, on a multiple-acre, rural property located on Anthony Road in Agua Dulce, California. His parole agent was Larry Dorsey. On the morning of September 6, Agent Dorsey accompanied several Los Angeles County deputy sheriffs to conduct a parole search of defendant's residence.

Based on evidence recovered during the search, an information was filed against defendant, charging him with 11 felonies: one count of second degree burglary of a vehicle (§ 459); one count of unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)); one count of receiving stolen property, vehicle (§ 496d, subd. (a)); three counts of receiving stolen property (§ 496, subd. (a)); one count of grand theft of personal property (§ 487, subd. (a)); and four counts of theft, access cards/account information (§ 484e, subd. (d)). It was also specially alleged that defendant had suffered two prior convictions for serious or violent felonies (attempted murder of two peace officers) within the meaning of California's "Three Strikes" law (§§ 1170.12, subd. (a), 667, subd. (b)), as well as five prior convictions within the meaning of section 667.5.2 Defendant entered a plea of not guilty to all charges.

Defendant filed a motion to suppress the evidence collected during the September 6, 2007 search. We summarize the pertinent facts based on the testimony received during the hearing on the motion, which took place over a period of days and included testimony from multiple witnesses.

Ms. Torres, defendant's wife, operated an animal rescue organization on the property where she and defendant lived. She also worked with various law enforcement entities, hiring parolees to work for her rescue organization. In addition to their home, Torres and defendant's property also had a trailer located on it (where other parolees often lived), as well as kennels for the dogs (primarily pitbulls) and other rescue animals. The property is referred to by the parties as the "southern residence."3 Another house located just to the north on adjacent property had some fencing around it and its own garage. The older children of Torres and defendant, along with several roommates, rented that home, referred to by the parties as the "northern residence." Torres testified that she and defendant never owned or otherwise had any interest in the northern residence, and she denied ever telling Dorsey that they did, as he claimed.

By the summer of 2007, defendant had been living in the southern residence with Torres for approximately 16 months. It was his sole address of record on file with the California Department of Corrections and Rehabilitation (CDCR). Agent Dorsey had been a parole agent with the CDCR for 10 years and had been assigned as defendant's parole agent for a little over six months. Dorsey had been to defendant's property numerous times, to conduct searches or just check in with defendant. Defendant and his wife were aware their home and property were subject to being searched at any time, without a warrant, as an express condition of defendant's parole.

Sometime in August 2007, Danial Dantice, a detective with the Los Angeles County Sheriff's Department, contacted Agent Dorsey and told him he suspected defendant was involved in criminal activity in the Santa Clarita and Antelope valleys. He had been investigating an auto burglary that had taken place in June. A car had been broken into while the owners were watching a soccer game at a public park in the City of Palmdale. Credit cards and other personal property were stolen from the car. Detective Dantice received a report that, on the day of the burglary, someone attempted to use one of the stolen credit cards at a gas station. There was security video footage of the man who attempted to use the card, as well as the truck the man was driving, which had a distinctive sticker in the back window. Working from still photographs Detective Dantice had made from the surveillance video, another deputy working on the investigation discovered that defendant and Torres owned the truck.

When shown the photographic stills from the video footage, Agent Dorsey believed the man was defendant. Detective Dantice asked Agent Dorsey to tell defendant to report to the parole office. They agreed that was the best approach for taking him into custody, given defendant's criminal history, the large size of defendant's property and the fact that other parolees lived or worked there.

On September 5, 2007, Agent Dorsey phoned defendant and told him to report to the parole office that same day. Agent Dorsey testified he told defendant to come in to the office immediately, that defendant claimed he could not do so because he was feeding a large number of animals, and that he tried to reach defendant by phone another couple of times without success. Agent Dorsey said he tried to keep the conversation "light" so as to not "scare him off"— he believed defendant was seeking to avoid parole supervision.

Since defendant did not report to the office on September 5, Agent Dorsey filled out a form known as a "miscellaneous decision." Agent Dorsey testified that his caseload as a parole officer included "second-strikers"— parolees facing a third strike if they reoffended. Agent Dorsey explained he was authorized to execute a miscellaneous decision if he believed a "second-strike" parolee, like defendant, was avoiding supervision or was suspected of criminal activity. The miscellaneous decision form is presented to a commissioner who makes a decision whether or not to sign off on the form, including whether to make the suspension of parole effective on the date of signature or on an earlier date. Dorsey said it usually took from 24 to 48 hours after submission to get back a signed miscellaneous decision form.

The miscellaneous decision Agent Dorsey prepared on September 5 stated that defendant's whereabouts were unknown, that he was avoiding supervision, and requested that an arrest warrant be issued. Dorsey testified that a miscellaneous decision does not formally suspend a parolee's status until executed by a commissioner. Once executed, parole is deemed suspended and the parolee is considered a "parolee at large."

Defendant denied that Agent Dorsey ever asked him to report on the afternoon of September 5, 2007. He said Dorsey told him to report at 8:00 in the morning the next day and he said he would do so. Defendant then called Agent Dorsey back a few minutes later and asked if he could come in a little later than 8:00 because that was when he would be feeding all of the rescue animals, and Dorsey said no. Defendant said he did report to the parole office on September 6 as agreed and checked in around 8:15 a.m., but Dorsey was not there. He waited for a while out in his truck in the parking lot and then left.

Torres and Jose Angeles, defendant's parole agent before Dorsey, testified they were present during the phone calls between defendant and Agent Dorsey on September 5, 2007. They both said they heard the telephone conversations because defendant was using the speaker phone and they corroborated defendant's version of the conversations. Angeles further testified that he was at Torres and defendant's home that day to talk with them about the reality television show being filmed at their property. Angeles was acting as a consultant on the program which was about Torres's pitbull rescue organization and her related work with parolees. Torres testified that when Agent Dorsey became defendant's parole agent several months earlier, he had asked whether he was going to be a part of the television show, but Torres said the producers wanted to keep using Angeles.

On the morning of September 6, 2007, Agent Dorsey had not yet received the miscellaneous decision signed by a commissioner and still believed defendant was avoiding supervision, having been unable to reach him by telephone. Agent Dorsey therefore accompanied Detective Dantice and a search team of deputies to defendant's residence to conduct a search. When they arrived, the garage door to the southern residence was open. Agent Dorsey and Detective Dantice entered the garage. Torres met them in the garage and asked what they wanted. Agent Dorsey told her they were there to conduct a parole search.

Torres responded that she had just spoken with defendant by phone and that he had said he was waiting for Dorsey at the parole office. Torres testified that Agent Dorsey and Detective Dantice just laughed. Agent Dorsey testified that he believed defendant had gone in to the office on September 6, knowing he had been ordered to report earlier, and played the "I-came-into-the-office-signed-in game" and left. Agent Dorsey said parolees often do that to claim they complied with instructions to report. Agent Dorsey said it appeared defendant did that because there was no record defendant checked in with the officer of the day as he was required to do or waited in the office until instructed otherwise; he only signed the sign-in sheet and left. Had defendant complied with the correct procedure, he would have been placed in custody that day in the office by the officer in charge.

Agent Dorsey and Detective Dantice both testified that, after the initial conversation with Torres in the garage, they then proceeded into the house with Torres, who acquiesced in the search. They searched various rooms in the home. The door to a room near the master bedroom was locked. Torres explained it was an office she and defendant used, but she did not have the keys. She also stated they were using it to store some of the film equipment for the television show and they did not want the kids or animals to get into the room and damage anything, so they were keeping it locked. She used a kitchen knife to pry open the lock to allow Agent Dorsey and Detective Dantice access to the room to continue their search. She was upset she was expected to do that and that her efforts had resulted in damage to her door.

Detective Dantice noticed two locked boxes in the office. Torres said the boxes belonged to defendant and that she believed they contained defendant's prison records and similar documentation, as well as medical marijuana she takes by prescription for migraine headaches. Torres also told him that defendant had the keys. Detective Dantice took both boxes with him. Torres testified that she unambiguously told Detective Dantice that she and defendant would bring the keys to the station to unlock the boxes for him.

The deputies also searched the northern residence on Detective Dantice's instructions to determine whether or not defendant was in that house. A motorcycle belonging to defendant, as well as a stolen motorcycle, were located in the garage. Kanani Chock, one of the young men who lived in the northern residence, but who was not a parolee, was detained during the search and ultimately arrested for possessing illegal drugs.4

Once back at the station, Detective Dantice opened the boxes taken from defendant's home without waiting for Torres as defendant had still not been located. The smaller tan box contained heroin, marijuana and various drug-related paraphernalia, including a scale. The larger box contained three driver's licenses, two Social Security cards and a payroll check, all bearing the names of persons other than defendant or Torres, as well as related "profiles" which included account numbers, PIN numbers and the like. The items and personal information were later determined to be stolen from various individuals.

Defendant denied stealing, receiving or using any stolen credit cards or account information in 2007. Defendant admitted he owned the black truck depicted in the security video footage from the gas station, but said the man shown in the video was not him and that approximately seven other males, living or working at the property, had access to, or could have driven his truck. Defendant said he tried reaching Agent Dorsey several times by phone after missing him at the parole office on September 6, but was unsuccessful. He testified he turned himself in to Agent Dorsey at the parole office on September 11, 2007.

Agent Dorsey testified that the miscellaneous decision regarding defendant was finally executed on September 7, 2007. The commissioner who signed off on the decision wrote the effective date of suspension of defendant's parole as September 5, the day the form was filled out by Dorsey.

After hearing the testimony and arguments of counsel, the court issued its ruling on defendant's motion, granting it in part and denying it in part. The court granted the motion as to the evidence seized from the northern residence (namely the stolen motorcycle), finding insufficient evidence that home was properly considered a part of defendant's residence for purposes of a parole search. The court otherwise denied the motion, finding the search of the southern residence was a proper parole search conducted at defendant's residence of record. The court also ruled the search was not performed in an arbitrary or harassing manner.

Sometime after the court's ruling, defendant entered into plea negotiations. A plea agreement was ultimately worked out providing for global resolution of all three criminal cases pending against defendant. Defendant agreed to withdraw his plea of not guilty and to enter a plea of no contest to count 1 (second degree burglary), counts 4 through 6 (receiving stolen property), and count 7 (grand theft of personal property) in the main case (No. MA040064). Defendant further agreed to enter a plea of no contest to count 1 in case No. MA048449 (custodial possession of a weapon) and to count 2 in case No. MA048450 (vandalism). All remaining counts were dismissed. Defendant admitted to one prior conviction of attempted murder. The negotiated sentence was 15 years 8 months. The court awarded custody credits and imposed various fines, as well as victim restitution. This appeal followed.

DISCUSSION

Defendant contends the trial court should have granted his motion to suppress and excluded the evidence recovered at his home because at the time the warrantless search was conducted, his parole had been suspended. Defendant further argues that even if a warrantless parole search was still legally permissible at that time, the search nonetheless fails to pass constitutional muster because it was arbitrary, capricious and harassing. "`The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]'" (People v. Weaver (2001) 26 Cal.4th 876, 924, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.) We are not persuaded by either of defendant's arguments.

1. The Parole Search of Defendant's Residence on September 6, 2007.

Under California law, the exclusionary rule requires exclusion of relevant evidence in criminal proceedings only to the extent it is "compelled by federal constitutional law." (People v. Wilkinson (2008) 163 Cal.App.4th 1554, 1565; see also Cal. Const., art. I, § 28, subd. (f)(2); In re Lance W. (1985) 37 Cal.3d 873, 886-887.) The touchstone of Fourth Amendment jurisprudence is reasonableness. (Samson v. California (2006) 547 U.S. 843, 855, fn. 4 (Samson ); Motley v. Parks (9th Cir. 2005) 432 F.3d 1072, 1083 (Motley).) A warrantless search is unreasonable per se in the absence of a recognized exception to the warrant requirement. (People v. Smith (2009) 172 Cal.App.4th 1354, 1360 (Smith).) "A search pursuant to a valid parole search condition constitutes such an exception." (Ibid.)

Defendant concedes that while on active parole, a parolee's residence is subject to search without a warrant and without any particularized suspicion. (§ 3067, subd. (a) ["[a]ny inmate who is eligible for release on parole pursuant to this chapter shall agree in writing to be 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 and with or without cause"]; see also People v. Reyes (1998) 19 Cal.4th 743, 753-754 (Reyes).) It is undisputed defendant's parole terms contained a section 3067 search provision.

In asserting the court nonetheless erred in denying his motion to suppress the evidence recovered from the southern residence, defendant argues that on the date of the search, September 6, 2007, his parole status was no longer active, but suspended. He urges this court to find the scope of the residential search unreasonable based on an internal CDCR guideline. Defendant contends the parole department guidelines specify that a parolee who has absconded is no longer deemed a resident of his address of record and an ordinary warrantless residence search is no longer allowed. Agent Angeles testified consistently with defendant's position, asserting his opinion that the guidelines provide that once a parolee is deemed to have "absconded" or his or her whereabouts are unknown as Agent Dorsey claimed, there is no longer a right to do a full-scale, warrantless parole search of a parolee's residence.

Even assuming it is the internal policy of the CDCR to have its agents refrain from performing a warrantless parole search of a parolee's residence if he or she is deemed to have absconded or their status has been suspended, defendant fails to articulate how this translates into a legal basis for finding that the September 6, 2007 search offends the Fourth Amendment. We find no logical reason for concluding that it does. People v. Hunter (2006) 140 Cal.App.4th 1147 (Hunter) is squarely at odds with defendant's argument and we find Hunter persuasive.

In Hunter, a parole agent was unable to locate a parolee under his supervision. He had an arrest warrant issued, changing his status to a "parolee at large." After the agent located the parolee, he placed him in custody on a parole hold for narcotics violations and absconding from supervision. The agent was then contacted by a detective who had been investigating a residential burglary and believed the parolee had been involved. While the parolee remained in custody, a warrantless parole search of the parolee's storage unit was conducted by the agent and the detective. Inside the storage unit, they discovered items taken from the burglary victim's home. Based on that evidence, the detective interviewed the parolee in prison and obtained incriminating statements from him about the burglary. (Hunter, supra, 140 Cal.App.4th at pp. 1150-1151.) After charges were filed, the parolee moved to suppress the evidence obtained from the search, as well as his incriminating statements, contending the warrantless parole search of the storage unit was improper and unreasonable as it was conducted while he was in prison on a parole hold and no longer on active parole. (Ibid.)

In affirming the trial court's denial of the motion to suppress, the Court of Appeal held that the parole agent retained authority to perform a parole search while the parolee was incarcerated because "he was still a parolee until his parole was formally revoked." (Hunter, supra, 140 Cal.App.4th at p. 1152.) Merely because the parolee had been placed in custody did not operate to automatically revoke his parole. Parole revocation does not occur under California law until after a formal hearing by the Board of Prisons. In Hunter, that revocation proceeding did not take place until almost a month after the search had been conducted. (Ibid.) "We conclude that when there has not yet been a formal decision on parole revocation, a parole agent's ability to obtain information through a parole search furthers the goals of parolee supervision, and such a search should be governed by the same Fourth Amendment rules that apply to all searches performed on parolees." (Id. at p. 1155.)

In so concluding, the court analogized People v. Barkins (1978) 81 Cal.App.3d 30, where the court held that a probation search was still properly conducted, regardless of the probationer's custodial status, up until a formal probation revocation hearing took place. (Hunter, supra, 140 Cal.App.4th at pp. 1154-1155, citing Barkins, at pp. 32-33.) The court reasoned that given the strong state interests involved in properly and adequately supervising both probationers and parolees alike, a parole agent's authority to conduct a parole search should likewise survive until a parolee's status is formally revoked after a hearing and decision by the Board of Prisons. (Hunter, supra, at pp. 1154-1155; see also Motley, supra, 432 F.3d at p. 1083, fn. 9 ["We have consistently recognized that there is no `"constitutional difference between probation and parole for purposes of the fourth amendment"'"].)

The Hunter rationale is sound. Both the United States and California Supreme Courts have acknowledged the "overwhelming" state interest in supervising parolees. (Samson, supra, 547 U.S. at pp. 853-854; Reyes, supra, 19 Cal.4th at pp. 752-753.) Warrantless parole searches, without any need for particularized suspicion, serve the state's vital interest in deterring the commission of crimes and protecting the public, as well as its interest in meaningful parole supervision. The need to serve those interests is intensified, not diminished, in circumstances, like here, where a parolee is suspected of criminal activity and/or may be attempting to avoid parole supervision. (Hunter, supra, 140 Cal.App.4th at p. 1155.) Maintaining authority for a parole search even after a parolee is "at large" or in custody on a parole hold is necessary, at a minimum, to facilitate the collection of information relevant to the parole revocation process and to determine the extent and nature of any parole violations or new crimes. (Ibid.)

The record here unequivocally establishes that on September 6, 2007, when defendant's residence was searched, his parole status had not been formally revoked. At most, it was deemed to be suspended when, on the day after the search, the commissioner who signed the miscellaneous decision noted the effective date of suspension was September 5, 2007. The officers conducting the search on September 6 were operating on the valid belief that defendant was still a parolee subject to supervision, that he was suspected of criminal activity and that a residential parole search was therefore proper. The effective date of the miscellaneous decision does not alter the lawful nature of the officers' conduct on September 6, 2007.

As defendant acknowledges, the primary purpose of the exclusionary rule is to deter future police conduct that runs afoul of the Fourth Amendment; it is a "judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." (United States v. Calandra (1974) 414 U.S. 338, 348.) No deterrent purpose would be served by applying the exclusionary rule here, to a warrantless parole search of a parolee's residence of record before the formal revocation of parole. The trial court properly declined to do so.

2. The Search Was Not Arbitrary, Capricious or Harassing.

Even though particularized suspicion or a warrant is not required to justify the search of a parolee's residence, a parolee is nonetheless entitled to be free from searches undertaken for reasons of personal animus or without any legitimate rehabilitative, reformative or law enforcement purpose. (Reyes, supra, 19 Cal.4th at pp. 753-754; Smith, supra, 172 Cal.App.4th at pp. 1361-1362.) In other words, a parole search may offend the Fourth Amendment if undertaken in an arbitrary, capricious or harassing manner. (Samson, supra, 547 U.S. 843.)

Defendant argues that even if we conclude the suspended status of his parole did not render the warrantless search of his residence improper, there is evidence showing the search was conducted for an improper purpose and solely to harass him, and the motion should therefore have been granted on that alternative basis. Defendant primarily relies on his own testimony and that offered by his wife and Agent Angeles. He contends the evidence suggests, among other things, that Agent Dorsey was lying about when he told defendant to report and that defendant's whereabouts were unknown; that he bore ill will towards defendant and Torres for not being included in the television show; that he had engaged in repetitive, harassing searches at their property in the past; that the officers asked Torres where their "trailer" was to search, purportedly implying they were "trailer trash"; and, that the miscellaneous decision form appears to have had the September 5 submission date altered to reflect September 7 to conceal the suspended status of defendant's parole.

Defense counsel duly argued those inferences from the testimony to the court. It was for the trial court to decide the credibility of the witnesses, and the court plainly rejected the improper motives defendant sought to ascribe to Agent Dorsey and Detective Dantice. (People v. Superior Court (1974) 10 Cal.3d 645, 649 [trial court is trier of fact and resolves credibility of witnesses in ruling on motion to suppress under section 1538.5].) The court explained that, based on the facts supporting a reasonable suspicion defendant was engaging in criminal activity and the demeanor of the witnesses who testified, none of the issues or inferences raised by defendant demonstrated personal animus by Agent Dorsey or some other improper motive as the sole reason for conducting a search of his residence.

The evidence in the record is more than sufficient to support the court's finding that the search was not conducted in an arbitrary, capricious or harassing manner. Defendant had a lengthy criminal record, including two prior attempted murder convictions of peace officers, and there was credible evidence from Detective Dantice indicating defendant had been engaging in criminal activity. Therefore, there were proper rehabilitative and law enforcement purposes for going to defendant's residence of record and conducting a parole search to determine if defendant was there, had in fact left the area or absconded from supervision, and/or was engaged in new criminal activity in violation of the terms of his parole.

DISPOSITION

The judgment is affirmed.

BIGELOW, P. J. and FLIER, J., concurs.

FootNotes


1. All further undesignated section references are to the Penal Code, unless otherwise noted.
2. The 11 felonies were charged in the main case (No. MA040064). Additional charges were later filed against defendant in case No. MA048449 for custodial possession of a weapon (§ 4502); and, in case No. MA048450 for commercial burglary (§ 459) and vandalism (§ 594, subd. (a)). We note for the record that defendant's notice of appeal only references case Nos. MA040064 and MA048450.
3. For privacy reasons, we use the designations "southern residence" and "northern residence" set forth in the record to distinguish the two homes and properties involved in the search, instead of identifying the numbered street addresses.
4. During a later interrogation, Chock made certain incriminating statements against defendant. Some of the charges relating to the stolen motorcycle against both defendant and Chock were dismissed following the court's partial granting of defendant's motion to suppress the evidence collected from the northern residence.

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