P. v. Livingood

Filed 5/30/07 P. v. Livingood CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Plumas)

----

Following the denial of his motion to suppress evidence found during a probation search, defendant Ronald Gene Livingood pleaded no contest to being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)),^[1]admitted a prior conviction within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12), and was sentenced to 32 months in state prison, consisting of the lower term of 16 months, doubled for the strike prior.

Defendant appeals the denial of his motion to suppress. We shall affirm.

Facts and Procedural History

We summarize the facts in the light most favorable to the trial courts ruling. (People v. Jenkins (2000) 22 Cal.4th 900, 969 (Jenkins).)

On or after December 29, 2005, Christine Walls, a deputy probation officer with the Plumas County Probation Department, received a letter from the Sacramento County Probation Department requesting courtesy supervision over defendant, who had moved to Plumas County to care for his mother. A copy of a Minute Order & Order of Probation was attached to the letter. According to that document, on September 13, 2001, defendant was convicted of, among other things, assault with a deadly weapon and making criminal threats, and was placed on five years formal probation. One of the conditions of defendants probation was that he submit his person, property and automobile . . . to search and seizure . . . by any law enforcement officer and/or Probation officer, at any time of the day or night, with or without his consent, with or without a warrant. Defendant was also precluded from possessing any dangerous or deadly weapons.

After receiving the letter, Walls made arrangements to search defendants residence [t]o determine that that was actually his residence and also to insure that he was complying with his conditions of probation.

At 9:18 a.m. on January 9, 2006, Walls, along with Plumas County Sheriffs Deputy Philip Shannon, searched defendants residence (a travel trailer) and found ammunition and a billy club. Walls also searched defendants truck [t]o determine if he had any contraband or any weapons, as he . . . was not allowed to have them in his possession and found guns behind the passenger seat.

Prior to the search, Walls told Shannon that defendant was a felon and he was on probation for assault with a deadly weapon with a firearm and terrorist threats.

Neither Walls nor Shannon had any contact with defendant prior to the search.

Discussion

Defendant claims the trial court abused its discretion in denying his motion to suppress because [t]here was simply no suspicion--reasonable or otherwise--that he was in any fashion out of compliance with his probation.

A probation search based on a properly imposed search condition may be conducted without reasonable suspicion as long as the searching officer is aware of the suspects status as a probationer prior to the search and the search is not arbitrary, capricious, or harassing. (In re Jaime P. (2006) 40 Cal.4th 128, 138; People v. Sanders (2003) 31 Cal.4th 318, 333; People v. Reyes (1998) 19 Cal.4th 743, 752-754 (Reyes).)

We review the trial courts denial of a motion to suppress . . . in the light most favorable to the trial courts ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial courts application of the law to the facts. (Jenkins, supra, 22 Cal.4th at p. 969.)

Defendants person, property and automobile were subject to search as a condition of his probation, and Walls and Shannon were aware of defendants status as a probationer prior to the search. Thus, we must determine whether the search was arbitrary, capricious, or harassing. (Reyes, supra, 19 Cal.4th at pp. 752-754.) As we shall explain, it was not.

The search occurred shortly after 9:00 a.m. It was the first search of defendant conducted by either Walls or Shannon. The purpose of the search was to verify defendants residence and determine whether he was complying with the terms of his probation. There is nothing in the record that suggests the search was conducted for any other purpose, nor does defendant so contend. Given these facts, the trial court properly found the search was valid and denied defendants motion to suppress.

Defendants assertion that his consent to be searched with or without a warrant should not be equated to consent to any search (i.e., without reasonable cause or suspicion) is without merit. Consenting to be searched without a warrant is commonly understood as consenting to be searched without a showing of reasonable suspicion. (See, e.g., Reyes, supra, 19 Cal.4th at p. 753.) In Reyes, the court held reasonable suspicion was not required for a lawful parole search based on the following standard search condition: [Y]ou and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer. (Id. at pp. 746, 753-754, 756.) The search condition at issue here is nearly identical--providing that defendant submit his person, property and automobile . . . to search and seizure . . . by any law enforcement officer and/or Probation officer . . . with or without a warrant. Accordingly, Walls and Shannon did not need reasonable suspicion before searching defendants trailer or car.

Disposition

The judgment is affirmed.

DAVIS , J.

We concur:

SCOTLAND, P.J.

RAYE , J.

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^[1] Hereafter, undesignated section references are to the Penal Code.