P. v. Cooper
Filed 6/28/12 P. v. Cooper CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY
DEWAYNE COOPER, JR.,
Defendant and Appellant.
F061868
(Super. Ct. No. RF005900B)
THE COURT
APPEAL from a judgment of the
Superior Court of
Catherine
White, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans
and Clara M. Levers, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
STATEMENT OF THE CASE
On
August 25, 2010, appellant Anthony Dewayne Cooper, Jr., was charged in an
information with receiving stolen property
(Pen. Code, § 496, subd. (a)).
four prior prison term enhancements (§ 667.5, subd. (b)). Cooper filed a suppression motion pursuant to
section 1538.5. The trial court conducted
a lengthy hearing on Cooper’s motion in late October and early November
2010. On November 4, 2010, the
trial court denied Cooper’s suppression motion.
After
the beginning of a jury trial, Cooper waived his constitutional rights pursuant
to Boykin/Tahl
name="_ftnref3" title="">[2] and pled no contest to the
charge.
title="">[3] Cooper also admitted the
special allegations. On February 1,
2011, the trial court suspended imposition of sentence, placed appellant on
probation for three years, and ordered appellant to serve 253 days in jail with
credit for time served.
On
appeal, Cooper contends the trial court erred in denying his suppression
motion. We disagree and affirm the trial
court’s judgment.
A. Preliminary
Hearing
title="">[4]
Detective
Cory Ballestero was on duty on 11:00 a.m. on July 28, 2010, with the
Ridgecrest Police Department. Ballestero
and his partner, Detective Kenneth Merzlak, responded to an address on West
Kinnett to investigate a burglary that had just occurred. The detectives contacted Michael Avery, who
had a video surveillance system at his home showing that someone had entered
his garage and stole several power tools 10 to 15 minutes before the detectives
arrived. Michael Brito was identified as
the person in the surveillance video.
Ballestero
circled a block radius around the victim’s home for about 20 minutes. Ballestero saw Cooper’s car parked on West
Ward, at an address directly behind the victim’s home.
Cooper
was stopped at the Albertson’s parking lot in Ridgecrest. Stolen tools were located in the rear of
Cooper’s car in the rear driver’s side, a foot and a half behind Cooper. Ballestero stated that he stopped Cooper
because his car had a cracked windshield.
Cooper explained that the tools were left in his car by his friend,
Mike, after Cooper gave him a ride. When
the detectives showed Avery the power tools that they had just recovered from
Cooper after a traffic stop, Avery identified the tools as his.
After
Cooper was arrested, he was brought to the police station and read his
the detectives that he thought the power tools in his car had been stolen. When Cooper agreed to give Brito a ride,
Brito placed the tools in the back of Cooper’s car. The tools were located inside an open
backpack.
Detective
Merzlak explained that the stolen tools were found in a black backpack. When Merzlak viewed the video, he identified
Brito wearing a backpack as he walked past the surveillance camera. Merzlak stated that during the interrogation,
he asked for and received permission from Cooper to look at his cellular
phone. Merzlak found an outgoing text
message sent at 11:04 a.m. on Cooper’s cell phone stating that Cooper had some
power tools for sale and asking if anyone was interested.
B. Suppression
Hearing
Prosecution Testimony
The
suppression hearing commenced on October 26, 2010. The preliminary hearing transcript was not
incorporated into the record. Ballestero
testified that he and Merzlak were riding together. The victim had described the burglar as
White. Cooper is African-American. Ballestero explained that he and Merzlak drove
around the area of the burglary for 20 minutes looking for the burglary
suspect, driving in a radius of one block.
When
Ballestero conducted a traffic stop of Cooper, Ballestero was aware that he was
on parole. Ballestero had checked
Cooper’s parole status 12 days earlier on July 16, 2010.
other parolees who had been discharged from parole and there were “mechanismsâ€
by which he was informed when parolees came to the community and when they were
discharged from parole. In the prior
year and a half or so, Ballestero had come into contact with Cooper four
times. Ballestero was not sure of Cooper’s
discharge date from parole or the precise amount of time Cooper had been on
parole. During the July 16th stop,
Ballestero confirmed both from Cooper and the dispatcher that Cooper was still
on parole.
Ballestero
never received notification that Cooper had been discharged from parole. Ballestero had weekly contact with Edmond
Cooper, Cooper’s parole agent. Agent
Cooper and the police dispatcher routinely inform Ballestero when parolees have
been discharged from their parole.
Ballestero
pulled over Cooper because he was on parole and had a cracked windshield on the
passenger side of the car.
name="_ftnref8" title="">[7] Ballestero explained that he
pulled over Cooper because the crack in the windshield impeded Cooper’s vision
on the passenger side of the windshield and constituted a violation of Vehicle
Code section 26710.
name="_ftnref9" title="">[8]
Ballestero
contacted Agent Cooper by phone after Cooper was arrested to have a parole hold
placed on him while they were still in the Albertson’s parking lot. Ballestero denied telling Agent Cooper that
he had observed suspect Brito at Cooper’s home and that he had searched
Cooper’s home. At the time Ballestero
spoke to Agent Cooper, he did not discuss reading any text messages on Cooper’s
phone. Ballestero stated that when he
conducted the traffic stop of Cooper he was not sure what he would come across,
but conceded the stop “was probably [a] deviation†from the burglary
investigation.
Defense Testimony
Merzlak
was called as a defense witness and testified that he and Ballestero responded
to a radio call concerning a burglary.
The burglary suspect was a White male on foot wearing a red shirt and
black pants. Merzlak and Ballestero
checked the area for about 20 minutes.
Ballestero was driving the patrol car.
The
burglary victim, Avery, lives on the north side of Ridgecrest. Cooper lives on the south side of
Ridgecrest. The two locations are
between two and four miles apart.
Ridgecrest is not a large city.
The detectives first saw Cooper’s car parked in a trailer park on West
Ward. The north area Albertson’s is
three blocks from the trailer park.
Avery also lives close to that Albertson’s . The detectives continued to conduct an area
check.
The
detectives saw Cooper driving his car, which had a crack in the front
windshield that was about 12 inches long.
Merzlak said that one defense exhibit, a photograph depicting the
windshield of Cooper’s car, appeared to show a crack in the windshield although
it was hard to see because of the dirt and debris on the windshield. The detectives also knew Cooper was on
parole. They followed Cooper a short
distance from the trailer park to the Albertson’s parking lot.
Merzlak
and Ballestero had conducted a traffic stop of Cooper 10 to 12 days
earlier. The detectives did not confirm
Cooper’s parole status during this earlier traffic stop until after Cooper was
stopped. Cooper was stopped on this
occasion because the registration tag on the license plate was not
current. After stopping Cooper, the
detectives discovered there was a temporary registration sticker on the
windshield. Merzlak did not notice a
cracked windshield on that occasion.
During the first traffic stop, the detectives learned from Cooper, and
from dispatch, that Cooper was on parole.
Merzlak
was aware of Cooper’s status as a parolee and had been in regular contact with
Agent Cooper. Merzlak had contacted
Cooper on approximately 10 prior occasions and on each of those occasions,
Cooper was on parole. After briefly
following Cooper’s car, observing a crack in the windshield, and knowing that
Cooper was on parole, the detectives conducted a traffic stop.
There
were several defense photographs of the front windshield of Cooper’s car. Ballestero, Timothy Farris, the tow truck
driver, and Officer Nathaniel Lloyd could not identify the crack from the
photographs because of dirt, sun glare, and the angle from which the pictures
were taken. Merzlak could see the crack
in one photograph.
Agent
Cooper had regular conversations with law enforcement officers in
Ridgecrest. On July 28, Agent Cooper
talked to Ballestero by phone concerning the new criminal allegations that
Cooper had received stolen property following a residential burglary. Ballestero was seeking a parole hold on
Cooper.
Agent
Cooper’s understanding of the facts as recorded in his report was that
Ballestero had observed Cooper at his home, had searched Cooper’s home, and
discovered stolen tools in a backpack.
Agent Cooper also recalled that Ballestero reported that “they†had
discovered a text message on Cooper’s cell phone.
Agent
Cooper later conducted his own investigation, read the arrest report, and
talked to Ballestero and he then realized the information that he recorded in
his report was “a misinterpretation of what Detective Ballestero†had told him. Agent Cooper was not concerned about the
factual discrepancies between his report and the police account of events
because his report is merely an administrative document that states probable
cause for a parole hold. Agent Cooper
did not believe that Ballestero gave him any misleading information and
conceded that his report was not as accurate as it should have been. Mistakes in parole reports often occur.
Appellant’s
father, Anthony Dewayne Cooper, Sr. (father), testified that his son was
paroled from prison and lived with him in Ridgecrest. The father explained that his son had been
stopped by the Ridgecrest Police Department 25 or 30 times in the previous year
and was himself present for “a couple†of those stops. According to the father, his son’s car did
not have any cracks in the windshield.
Rebuttal Testimony
Ballestero
was called as a prosecution rebuttal witness and denied lying to Agent Cooper
during their phone conversation.
Regarding the traffic stop on July 16, Ballestero explained that
the temporary registration sticker was not visible until they stopped the
car. Because they knew Cooper was on
parole, the detectives continued to search his car on that occasion. Cooper was not given any traffic citation as
a consequence of that traffic stop. The
crack on Cooper’s windshield was horizontal and between four and six inches
long.
Prior
to the hearing, Merzlak and Ballestero went to the car impound lot and observed
the same crack in the windshield that they saw on July 28. Merzlak did not think the crack on Cooper’s
windshield was easily depicted in the defense photographs, although Merzlak
could see the crack in defense exhibit L.
Merzlak did not take photographs of the windshield of Cooper’s car. About an hour after the July 16th
traffic stop, Merzlak learned from the dispatcher that Cooper would not be
discharged from parole until 2012 and informed the prosecutor of this fact
after his initial testimony.
Farris
towed Cooper’s 1991 Chevrolet Caprice on July 28th. Farris noted in the tow form he executed that
there was a crack on the passenger side of the front windshield. Farris remembered that when the detectives
came to the tow yard to examine Cooper’s car, they took photographs of it.
Officer
Lloyd filled out an impoundment form on Cooper’s car. Lloyd noted that there was damage on the
passenger side of the front windshield.
The crack was a half oval that ran across half of the windshield. The crack was 20 inches long. The crack ran halfway through the windshield.
Ballestero
and Merzlak were called as defense rebuttal
witnesses. Ballestero stated that he
took photographs of Cooper’s car at the tow yard, but had not given them to the
prosecutor because his main reason for stopping Cooper was because Cooper was
on parole. Merzlak stated that he did
not take photographs of Cooper’s car and did not recall whether photographs of
it were taken.
Motion to Reopen Suppression Motion
Defense
counsel filed a motion to reopen the suppression hearing, alleging that the day
after it was completed, the prosecution provided the defense with police
incident logs that purportedly refuted the detectives’ testimony that they were
in the same patrol car when they stopped Cooper on July 16. The court granted the motion.
Ballestero
testified that during the July 16 traffic stop of Cooper, he and Merzlak
were riding in the same patrol car.
Ballestero was driving and Merzlak was communicating with the
dispatcher. Ballestero recalled that
Merzlak conducted all of the radio traffic with the dispatcher that day.
Ballestero’s
call sign is D4. The dispatcher’s “RIMSâ€
report contained a clerical error showing that Merzlak arrived after Ballestero
when, in fact, Merzlak was with Ballestero.
The indication in the dispatcher’s report that Merzlak arrived five
minutes after Ballestero was made in error.
On July 16, Merzlak verified Cooper’s parole discharge date.
Sergeant
Justin Dampier provided incident logs for Cooper’s July 16th traffic stop
and his July 28th arrest. Dampier explained
that there were two problems with the RIMS system. One was input error—how they type in
information—and the other was a software bug reported to the vendor, Sun
Systems, that made input confusing.
Dampier
further explained that time and date entries on dispatch logs do not represent
the times and dates events actually occurred because the RIMS system reflects
the times and dates the information gets entered by the dispatcher. Because dispatchers are also handling 911
calls, it can be five or ten minutes before they record information given to
them by an officer.
The
dispatch tapes and the incident logs are two independent systems. A dispatcher may be handling 50 events at a
time. Dispatchers are watching multiple
computer screens, monitoring radio traffic, and handling 911 calls. When there is a lot going on, dispatchers can
miss things. Dispatch reports reflect
the time dispatchers input information, not the time the incident actually
occurred. During the traffic stop on
July 16, Ballestero and Merzlak were in the same patrol car. The dispatchers are not always aware when two
officers are traveling together or are in two patrol cars.
At
the conclusion of the hearing, the court found that it did not appear that if
there was a crack in the windshield, it would impair one’s vision through the
windshield. The court observed parolees
are subject to random searches and that the detectives here were aware that
Cooper was on parole. The court noted
that random, or arbitrary, searches are those that are unrelated to
rehabilitative, reformative, or legitimate law enforcement purposes. Viewing the matter objectively, the court
found that the parole stop was legal and denied the suppression motion.
DISCUSSION
Cooper
asserts the detectives did not have a legitimate law enforcement or parole
objective in conducting the traffic stop, and there was not substantial
evidence to support the trial court’s finding that the detectives conducted a
valid parole search. Cooper contends
that the trial court ignored the detectives’ motivation in conducting the
traffic stop and improperly relied on the detectives’ knowledge that he was on
parole. We reject Cooper’s contentions
and affirm the trial court’s ruling.
Standard of Review
In
ruling on a motion to suppress, the trial court finds the historical facts,
selects the law, and applies it to determine if the law, as applied, has been
violated. We review the trial court’s
resolution of the factual inquiry under the deferential standard of substantial
evidence. The ruling by the trial court
is a mixed question of law and fact subject to independent review. On appeal, we do not consider the correctness
of the court’s reasons for its decision, only the correctness of the ruling
itself. (People
v. Letner and Tobin (2010) 50 Cal.4th 99, 145.)
We
review a trial court’s ruling on a motion to suppress evidence as a mixed
question of law and fact. We accept the
trial court’s findings of fact, whether express or implied, as long as they are
supported by substantial evidence. We
exercise independent judgment, however, upon the legal question of whether a
search is constitutionally reasonable. (
327; People v. Glazer (1995) 11 Cal.4th 354, 362.)
We determine de novo whether the search was arbitrary, capricious, or
harassing, and thus unreasonable and unconstitutional. (People
v. Sardinas (2009) 170 Cal.App.4th 488, 493-494.)
Section
3067, subdivision (a) provides, “Any inmate who is eligible for release on
parole … 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.â€
In
Samson v. California (2006) 547 U.S.
843, 846 (Samson), the court held that
a suspicionless parole search, conducted under the authority of section 3067,
was not unreasonable under the Fourth Amendment. The court reasoned that a parolee remains in
the custody of correctional authorities during the remainder of the parolee’s prison
term and must comply with the terms and conditions of parole. (Samson, at p.
850.) The California parole search
condition required the parolee to submit to a search by a parole or police
officer at any time without suspicion. (
have a legitimate expectation of privacy that society would recognize. (Ibid.)
In
contrast, the legitimate governmental interests involved in suspicionless
parole searches were substantial. (
Statistics showed that parolees were likely to commit future crimes, and
most parolees required intense supervision to combat recidivism and promote
positive citizenship. (
would give parolees greater opportunity to anticipate searches and conceal
at pp. 854-855.)
People
v. Reyes (1998) 19 Cal.4th 743, which
Samson cited with apparent approval (
parolee’s property without reasonable suspicion based on the parole search
condition as long as the search was not arbitrary, capricious, or
harassing. (People v. Reyes, supra,
at pp. 753-754.) A parole search may be
arbitrary, capricious, or harassing if it is made too often, at an unreasonable
hour, if unreasonably prolonged, or for other reasons amounting to arbitrary or
oppressive conduct by searching officers.
(Ibid.) For example, a search is arbitrary when its
motivation is unrelated to rehabilitative, reformative, or legitimate law
enforcement purposes, or when the search is motivated by personal animosity
toward the parolee. (
Substantial Evidence and Officer Motivation
Cooper argues it was unreasonable for the trial court to find that
the detectives knew he was on parole during the July 28th traffic stop
because they did not know his parole release date and, during the preliminary
hearing, Ballestero originally relied on the cracked windshield on Cooper’s car
as the basis for stopping him. Cooper
challenges Merzlak’s credibility when Merzlak testified in rebuttal that
shortly after the July 16th traffic stop, Merzlak confirmed that Cooper
was scheduled for release on parole in 2012.
Cooper further argues the detectives’ “deviation†from the burglary
investigation to stop him indicated the detectives were not engaged in a
legitimate law enforcement purpose.
The
premise of Cooper’s attack on the validity of the parole search rests on his
argument that the detectives stopped a burglary investigation to arbitrarily
stop him. Cooper attacks the credibility
of the detectives, alleging that they kept changing their testimony concerning
the actual purpose of the traffic stop.
Even
if we accept arguendo that the detectives’ traffic stop of Cooper was a
deviation from the burglary investigation, we still conclude that there was a
legitimate, parole-related purpose in conducting the stop. This is especially so because both detectives
were well aware of Cooper’s status as a parolee.
We
reject Cooper’s contention that the detectives’ testimony lacked credibility
because according to him they kept changing their reason for conducting the
July 28th traffic stop. This is not an
accurate depiction of the detectives’ testimony. There is little relevance to the fact the
Ballestero did not mention Cooper’s parole status as a reason for stopping him
during his preliminary hearing testimony.
The preliminary hearing did not include a suppression motion and was a
relatively short evidentiary hearing.
Furthermore,
neither party sought to incorporate the preliminary hearing transcript into the
suppression hearing, and different judges presided over the preliminary and
suppression hearings. Without a
stipulation by the parties that the trial court may consider the preliminary
hearing transcript, we do not consider it on appeal. (People
v. Fisher (1995) 38 Cal.App.4th
338, 341.) The accurate depiction of
Ballestero’s testimony at the suppression hearing was that he stopped Cooper
both because of the crack in the windshield of Cooper’s car and because Cooper
was a known parolee.
name="_ftnref11" title="">[10] We therefore reject Cooper’s
assertion that the detectives kept changing their rationale for conducting the
traffic stop.
name="_ftnref12" title="">[11]
There
is nothing in the record to suggest that the detectives’ search of Cooper’s car
was motivated by animus rather than a legitimate law enforcement purpose. The record indicates the detectives had
conducted a records check 12 days earlier and learned from the dispatcher and
Cooper himself that Cooper was on parole at that time. Although the detectives received regular
communications from Agent Cooper regarding changes in the status of parolees,
they received no such update between July 16th and July 28th.
About
an hour after the July 16th traffic stop, Merzlak learned from the
dispatcher that Cooper’s discharge date from parole was in 2012. Cooper provided no evidence to the contrary
at the suppression hearing. We conclude
there was substantial evidence that the detectives knew of, and verified,
Cooper’s status as a parolee, and they could reasonably rely on their knowledge
of that status as a basis for the July 28th traffic stop.
We
find Cooper’s argument that the detectives could not have known he was on
parole because they did not know the length of his parole or his parole release
date to be devoid of any merit under the facts of this case. The only reasonable inference from this record is that the search was
directly related to the rehabilitative, reformative, and legitimate law
enforcement purposes of protecting the public and monitoring whether Cooper was
complying with the terms of his parole.
The
suspicionless search of Cooper’s car is entirely consistent with the deterrent
purposes of the warrantless search condition.
(People v. Reyes,
served by the officers’ search of Cooper’s car were to determine whether he was
complying with the terms of his parole and to protect the public. The search served both of these purposes
because it showed that Cooper was breaking the law by possessing stolen
property, and it protected the public from Cooper’s illegal acts. (Id.
at p. 752.)
Cooper
finally argues that the trial court improperly failed to evaluate the officers’
motivation in stopping him. Cooper
submits the search was arbitrary: the
officers articulated no legitimate law enforcement purpose for searching his
car because they deviated from the burglary investigation to conduct the
traffic stop. There is no evidence in
this record that this brief parole search of Cooper, in broad daylight while
Cooper was driving on a public street, was arbitrary or capricious. (See People
v. Middleton, supra, 131
Cal.App.4th at pp. 738-740 [knowledge of suspect’s parole status sufficient to
justify parole search of hotel room known to be registered to suspect];
1000, 1004-1006 [probation search for stolen property, weapons, and gang
paraphernalia not arbitrary and had legitimate law enforcement objective].)
Although
In re Anthony S. found that where a
law enforcement search is unrelated to rehabilitative, reformative, or law
enforcement purposes it is arbitrary, it did not hold that officers had to
articulate a legitimate law enforcement purpose to justify a suspicionless
search. We therefore reject Cooper’s
assertion that the trial court erred in finding that a suspicionless parole
search of him was valid.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">*Before Wiseman, Acting P.J., Gomes, J. and Detjen, J.
name="_ftn2" title="">[1]Unless otherwise designated, all statutory references are to the
Penal Code.
