P. v. Tramutolo

Filed 10/7/08 P. v. Tramutolo CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Sean Tramutolo (appellant) appeals from a judgment after he pled no contest to possession for sale of methamphetamine (Health & Saf. Code,  11378) (count 1) and possession of an assault rifle (Pen. Code,  12280, subd. (b)) (count 2), and admitted as to count 1 that he was personally armed with a firearm (Pen. Code, 12022, subd. (c)). He contends the court erred in denying his motion to suppress evidence, because the prosecution failed to meet its burden of proving that the warrantless search of his residence was a valid probation search. We disagree and affirm.

BACKGROUND

Santa Rosa Police Detective Cude (Cude) testified that on April 11, 2006, he drove to a residence on McGowan Drive to conduct a probation search. Prior to conducting the search, he confirmed that appellant lived at the McGowan Drive address by checking Department of Motor Vehicles records and the police departments in-house record system. On more than one occasion prior to the search, Cude checked the criminal justice computer system to verify that appellant was on probation.

About two hours before the search, Cude looked up appellant in the computer system and saw that he was on court probation in one case, case No. MCR‑418856. He then looked up the court minutes for that case. Cude viewed court minutes from multiple dates, and saw that appellant was on probation and subject to a search condition. Cude printed the document listing the original conditions imposed by the court when it released appellant on supervised own recognizance (SOR) prior to sentencing in case No. MCR‑418856.^[1] Cude explained he printed this document because the court minutes indicated that these original conditions remained in effect.

At around 3:30 p.m., Cude and fellow officers arrived at appellants residence. They knocked on the door and Ms. Vaughn, appellants girlfriend, answered the door and informed them that appellant was in the garage. The officers entered the garage, which had been converted into a bedroom, and told appellant they were there to conduct a probation search. He objected to the search, stating that he was not on probation. The officers searched appellants bedroom and seized a gun from beneath his mattress and drugs from a locked safe, which they opened with a key found in appellants pocket.

On August 7, 2006, appellant filed a motion to suppress evidence (Pen. Code,  1538.5), contending the search of his bedroom was conducted without a warrant and therefore the prosecution had the burden of providing a justification for the warrantless search. The prosecution opposed the motion, arguing the search was a valid probation search. Following a hearing, the court denied appellants motion.

On April 11, 2007, appellant pled no contest to counts 1 and 2 and admitted the firearm allegation. On May 17, 2007, the court sentenced appellant to a total term of six years in state prison. The court suspended execution of the sentence and granted appellant three years of formal probation on the condition that he serve one year in county jail. The court stayed the one-year jail term pending the outcome of appellants appeal.

Appellant filed a timely appeal from the courts order denying his motion to suppress.

DISCUSSION

Appellant contends the court erred in denying his motion to suppress evidence because the prosecution failed to prove the search of his residence was a lawful probation search.

The standard of appellate review of a trial courts ruling on a motion to suppress is well settled. We view the record in the light most favorable to the trial courts ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. (People v. Knight (2004) 121 Cal.App.4th 1568, 1572.) Here, because the search of appellants residence was without a warrant, the prosecution had the burden of establishing a justification for the search. (People v. Williams (1999) 20 Cal.4th 119, 136.)

Our Supreme Court has held that by accepting probation, a probationer consents to the waiver of Fourth Amendment rights in order to avoid incarceration. [A] probationer who has been granted the privilege of probation on condition that he submit at any time to a warrantless search may have no reasonable expectation of traditional Fourth Amendment protection.  (People v. Ramos (2005) 34 Cal.4th 494, 506.)Law enforcement officers may search a probationer subject to a search condition, even if they do not have reasonable suspicion to believe he or she has violated the conditions of probation. (People v. Bravo (1987) 43 Cal.3d 600, 609-611.) However, [a] waiver of Fourth Amendment rights as a condition of probation does not permit searches undertaken for harassment or searches for arbitrary or capricious reasons. (Id. at p. 610.) In addition,an otherwise illegal warrantless search is not justified where, at the time of the search, the searching officer is not aware that the suspect is on probation and subject to a search condition. (In re Jaime P. (2006) 40 Cal.4th 128, 139; People v. Sanders (2003) 31 Cal.4th 318, 333-335.)

Appellant first contends, as he did at the hearing below, that the prosecution failed to prove he was subject to a probationary search condition, because Cudes testimony relied solely on the document listing the conditions of appellants presentence SOR. Appellant likewise contends the prosecution did not prove that Cude was aware of the probationary search condition, as opposed to the SOR search condition, prior to conducting the search.

At the hearing below, the court specifically rejected appellants contention that Cude relied solely upon the document listing his SOR conditions: That I do not find. The officer did look through the [c]ourt minutes and found a record and saw his search. He didnt hang his hat strictly on that supervised OR search and seizure order. He told us and he testified he looked up, your client was still on probation, and he was still subject to search. And thats what he went to search the premises for.

Viewing the record in the light most favorable to the trial courts ruling, we conclude that substantial evidence supports the courts finding that theappellant was subject to a probationary search condition and Cude was aware of that condition prior to the search.Cude testified that about two hours before the search, he looked up appellant in the criminal justice computer system and saw that appellant was on court probation in case No. MCR‑418856. He then looked up the court minutes for case No. MCR‑418856, and saw that appellant was on probation and was on search and seizure conditions per the [c]ourt. During cross-examination, Cude reiterated that he looked up appellant in the computer system and saw that he was on probation and had search terms. Cude did testify that he printed the document listing the appellants original SOR conditions. However, Cude made clear that this was not the only document he viewed; instead, he viewed court minutes from multiple dates. He explained that he printed the document with the original SOR conditions because the court minutes indicated that the original terms [were] in effect.

Appellant further contends the prosecution failed to demonstrate that the search of appellants residence fell within the scope of his probationary search term. Appellant notes that Cude never testified that either the SOR search term or the alleged probationary search term contained a residential search clause. Appellant did not raise this issue in his motion below.

In People v. Williams, supra, 20 Cal.4th 119, our Supreme Court considered the specificity required in a motion to suppress evidence. The court held that after a defendant has made a prima facie showing that the police acted without a warrant, [t]he prosecution then has the burden of proving some justification for the warrantless search or seizure, after which, defendants can respond by pointing out any inadequacies in that justification. [Citation.] Defendants who do not give the prosecution sufficient notice of these inadequacies cannot raise the issue on appeal. (Id. at p. 136.) The court cautioned that although [d]efendants need only be specific enough to give the prosecution and the court reasonable notice, they cannot, however, lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked. (Id. at p. 131.)

In the trial court, appellant did not contend, either in his written motion to suppress or at the hearing, that his probationary search condition did not extend to searches of his residence. At the commencement of the hearing, appellants counsel argued he was not on probation at the time of the search, and Cude lacked a good faith belief appellant was on probation. Although Cude testified that he confirmed appellant was on probation and subject to search conditions prior to conducting the residential search, appellant did not question Cude during cross-examination about the scope of the search condition or whether it covered residential searches. There is no evidence in the record before us as to whether the probationary search condition contained a residential search clause. Because appellant did not give the prosecution sufficient notice of this issue below, we deem it waived. Appellant may not lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked. (People v. Williams, supra, 20 Cal.4th at p. 131.)^[2]

DISPOSITION

The judgment is affirmed.

SIMONS, J.

We concur.

JONES, P.J.

REARDON, J.^*

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] According to the reporters transcript of the hearing on appellants motion to suppress, this printed document was marked as Defendants Exhibit B. However, this document was not received into evidence and is not contained in the record on appeal.

^[2] At the hearing below, appellant also appeared to contend that his probation in the underlying case, case No. MCR‑418856, should have terminated by operation of law prior to the search at issue here, and therefore he was not lawfully on probation at the time of the search. Appellant does not raise this contention on appeal and we do not address it.

^* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.