P. v. Cosovich

 

 

 

 

 

 

 

 

 

 

Filed 5/6/13  P. v. Cosovich CA5

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

FIFTH APPELLATE DISTRICT

 
>

THE PEOPLE,               Plaintiff and Respondent,                           v.   STEVEN RALPH COSOVICH,               Defendant and Appellant.

F064317   (Super. Ct. No. CRF33134)   O P I N I O N

 

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

            APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tuolumne
County.  Eleanor Provost, Judge.

            Allison
H. Ting, 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, Carlos A. Martinez and
Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

            Following the denial of his href="http://www.fearnotlaw.com/">motion to suppress evidence (Pen. Code,href="#_ftn2" name="_ftnref2" title="">^[1] § 1538.5), appellant, Steven
Ralph Cosovich, pursuant to a plea agreement, pled guilty to href="http://www.mcmillanlaw.com/">transportation of methamphetamine
(Health & Saf. Code, § 11379, subd. (a)) and href="http://www.fearnotlaw.com/">possession of a firearm by a felon
(former § 12021, subd. (a)(1)).  The
trial court imposed a prison term of four years eight months. 

            On
appeal, appellant’s sole contention is that the court erred in denying the
suppression motion.  We affirm.

FACTShref="#_ftn3" name="_ftnref3" title="">^[2]>

At approximately
10:23 p.m. on August 7, 2010, Tuolumne County Deputy Sheriff Alejandro Rivera
was driving northbound on Fifth Avenue in Jamestown when he saw a car traveling
southbound on the same street.href="#_ftn4" name="_ftnref4" title="">^[3]  As he looked in his side
mirror, he saw that the car appeared to have no rear license plate, so he made
a U-turn and “got behind the vehicle.” 
At that point, Rivera saw that the car had a rear license plate.  However, he was unable to read it because it
was faded and one of the license plate lights was not working. 

The car drove
into a store parking lot, and Rivera followed in his patrol vehicle.  As the car came to a stop, Rivera stopped
right behind it and “activated [his] lights.” 
Rivera made contact with the vehicle’s two occupants—appellant, who was
driving, and Morgan Carruth, the passenger—and each, upon the deputy’s request,
provided identification.  With both
persons still seated in the car, Rivera contacted “dispatch,” and was informed
that appellant was on probation for possession of a firearm by a felon
(§ 12021) and was subject to “an open search clause.”  As he was “running this check on [appellant
and Carruth],” Rivera observed that appellant “was making some type of
movements toward the center console area of the vehicle.” 

After speaking
with dispatch, Rivera returned to the car and asked appellant and Carruth if
there was “anything illegal” in the car and for permission to search the
car.  Carruth responded that the car
contained nothing illegal and that she did not want Rivera searching it.  At that point, Rivera explained that
appellant “was on searchable probation” and that he (Rivera) was going to
“perform a search.”  Rivera asked
appellant to exit the car, and he asked Carruth to remain inside. 

Appellant got
out of the car.  Rivera “walked him” to
the rear of the car, where, at the deputy’s direction, appellant placed his
hands on top of his head and interlaced his fingers, and Rivera “started to
search” him.  When Rivera “got to
[appellant’s] left side,” he (Rivera) “felt a lot of items” in appellant’s
shirt pocket.  Rivera “reached in there”
and “felt an envelope, some other papers, and something plastic.”  Rivera removed the items and placed them on
the trunk of the car.  Subsequently, a
police detective arrived on the scene and found, in Carruth’s purse, a scale
and a “pay/owe sheet.” 

Prior to August
7, 2010, Rivera had had “one or two contacts” with appellant, but did not know
him by name. 

DISCUSSION

A search
conducted without a warrant is unreasonable per se under the Fourth Amendment
unless it falls within one of the specially established and well-delineated
exceptions.  (People v. Woods (1999) 21 Cal.4th 668, 674.)  One such exception is for probation searches,
i.e., searches conducted pursuant to a valid search condition of probation.  The Legislature has authorized convicted
criminals be granted probation to promote rehabilitation and reduce recidivism
(§ 1203.1), and to that end has also authorized that convicted criminals be
required to agree to reasonable conditions before granting probation.  (People
v. Bravo (1987) 43 Cal.3d 600, 608 (Bravo);
People v. Lent (1975) 15 Cal.3d 481,
486.)  One such condition is a
probationer’s waiver of his or her Fourth Amendment rights “in exchange for the
opportunity to avoid serving a state prison sentence.”  (People
v. Reyes (1998) 19 Cal.4th 743, 749 (Reyes).)  “‘[A]n adult probationer subject to a search
condition may be searched by law enforcement officers having neither a search
warrant nor even reasonable cause to believe their search will disclose any
evidence.’  [Citation.]”  (Ibid.)  “[T]he purpose of the search condition is to
deter the commission of crimes and to protect the public, and the effectiveness
of the deterrent is enhanced by the potential for random searches.”  (Id.
at p. 753.)

            The
waiver of Fourth Amendment rights in this context, however, is not
unlimited.  “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.”  (Bravo,
supra, 43 Cal.3d at p. 610; see also >People v. Medina (2007) 158 Cal.App.4th
1571, 1576 [“A probationer’s consent is considered ‘a complete waiver of that
probationer’s Fourth Amendment rights, save only his [or her] right to object
to harassment or searches conducted in an unreasonable manner’”].)  The legal meaning of the words “arbitrary”
and “capricious,” in this context, relates to the executing officer’s
motivation for the search.  (>In re Anthony S. (1992) 4 Cal.App.4th
1000, 1004 (Anthony S.).)href="#_ftn5" name="_ftnref5" title="">^[4]  A search is arbitrary
“[w]here the motivation is unrelated to rehabilitative and reformative purposes
or legitimate law enforcement purposes,” as where, e.g., an officer is
motivated by “personal animosity” toward the person being searched.  (Ibid.)

Appellant
contends the probation search here was arbitrary and therefore constitutionally
unreasonable.  However, as we explain
below, appellant did not raise this claim below and is therefore precluded from
raising it on appeal.

            In People v. Williams (1999)
20 Cal.4th 119 (Williams), our
Supreme Court examined the specificity with which a defendant must make a
motion to suppress evidence pursuant to section 1538.5.  “[W]hen the basis of a motion to suppress is
a warrantless search or seizure, the requisite specificity is generally
satisfied, in the first instance, if
defendants simply assert the absence of a warrant and make a prima facie
showing to support that assertion.  Of
course, if defendants have a specific argument other than the lack of a warrant as to why a warrantless search or
seizure was unreasonable, they must specify that argument as part of their
motion to suppress and give the prosecution an opportunity to offer evidence on
the point.”  (Williams, at p. 130.)  Once
the defendant meets the foregoing specificity requirement, “[t]he prosecution
... has the burden of proving some justification for the warrantless search or
seizure....”  (Id. at p. 136.)

            But,
the court stated further, “once the prosecution has offered a justification for
a warrantless search or seizure, defendants must present any arguments as to
why that justification is inadequate. 
[Citation.]  Otherwise, defendants
would not meet their burden undername="citeas((Cite_as:_20_Cal.4th_119,_*130,__"> section 1538.5 of
specifying why the search or seizure without a warrant was ‘unreasonable.’  This specificity requirement does not place
the burden of proof on defendants. 
[Citation.]  … [T]he burden of
raising an issue is distinct from the burden of proof.  The prosecution retains the burden of proving
that the warrantless search or seizure was reasonable under the
circumstances.  [Citations.]  But, if defendants detect a critical gap in
the prosecution’s proof or a flaw in its legal analysis, they must object >on that basis to admission of the
evidence or risk forfeiting the issue on appeal.”  (Williams,
supra, 20 Cal.4th at p. 130, italics
added.)  “Defendants cannot ... lay a
trap for the prosecution by remaining completely silent until the appeal about
issues the prosecution may have overlooked.” 
(Id. at p. 131.)  “Defendants who do not give the prosecution
sufficient notice of [the] inadequacies [in the prosecution’s proposed
justification for a warrantless search or seizure] cannot raise the issue on
appeal.”  (Id. at p. 136.)  “‘This is an
elemental matter of fairness in giving each of the parties an opportunity
adequately to litigate the facts and inferences relating to the adverse party’s
contentions.’”  (Ibid.)

            Here,
appellant, in his moving papers, challenged the warrantless search on a variety
of grounds, including that Deputy Rivera, prior to stopping the car appellant
was driving, did not “entertain an objectively reasonable suspicion that
[appellant] was involved in criminal activity,” and therefore the stop of the
car violated appellant’s Fourth Amendment rights and evidence seized as a
result of the illegal stop must be suppressed. 
However, appellant did not attack the probation search as
arbitrary.  The People, in their
responding papers, addressed the arguments raised by appellant and, in
addition, argued that Rivera conducted a valid probation search.  Appellant made no response to this argument
at the hearing on the suppression motion, and he filed no papers in response to
the People’s written opposition.  Now for
the first time, on appeal, appellant asserts, in effect, that he has
“detect[ed] a critical gap in the prosecution’s proof” and/or “a flaw in [the
prosecution’s] legal analysis” (Williams,
supra, 20 Cal.4th at p. 130), i.e.,
he claims the search here was arbitrary and therefore cannot be justified as a
valid probation search.  However, as
indicated above, appellant did not raise this point in the trial court.  Therefore, because he was “completely silent
until the appeal” (id. at p. 131) on
the one issue he raises on appeal, under Williams,
he may not now challenge the search on that basis.

            In any event, even if appellant’s
claim were properly before us, it would fail. 
As indicated above, appellant contends the instant search was arbitrary,
and therefore cannot be justified as a valid
probation search.  This conclusion is
compelled, he argues, as best we can determine, because (1) Deputy Rivera did not “articulate” or “advance[]” a “legitimate
law enforcement reason” for conducting the search, and (2) the record does not
establish such a reason.  In support of
these claims, he asserts that in the instant case, “there was no evidence the
officers were looking for anything at all,” and “the deputy never said … he was
looking for anything, or that he wanted to find anything.”  He contrasts the instant case to other cases,
representative of which are Anthony S.,
supra, 4 Cal.App.4th 1000 and >Reyes, supra, 19 Cal.4th 743, that, he argues, do not suffer from such
purported defects.  

            In
Anthony S., the court upheld a search
of the bedroom of the minor (Anthony).  Anthony was a gang member, he was on
probation, and one of the terms of his probation required him to submit to a
search of, inter alia, his residence, “‘for: ... stolen property/ alcohol ...
gang graffiti, gang paraphernalia.’”  (>Anthony S., supra, 4 Cal.App.4th at p. 1002, fn. omitted.)  “When asked what he was looking for at
Anthony’s home, [one of the officers who conducted the search] said: ‘We were
looking for items listed on the terms of his probation; one being stolen
property, alcohol, weapons ... and gang paraphernalia ....’”  (Ibid.) 

            In
Reyes, where the court upheld the
warrantless search of a shed located in the backyard of a parolee whose parole
agreement contained a provision that “‘any property under [his] control’” could
be searched without a warrant, the defendant’s parole agent “contacted [police]
after receiving an anonymous telephone tip, and asked the officers to evaluate
defendant to see if he was under the influence of drugs.”  (Reyes,
supra, 19 Cal.4th at pp.
746-747.)  The court concluded:  “Where the search is for a proper purpose, we
hold that, even in the absence of particularized suspicion, a search conducted
under the auspices of a properly imposed parole search condition does not
intrude on any expectation of privacy ‘society is “prepared to recognize as
legitimate.”’”  (Id. at p. 754.)

            Nothing
in these cases, or in the other cases cited by appellant, suggests the court
here erred in denying appellant’s suppression motion.  Admittedly, Deputy Rivera did not articulate
his reason(s) for searching appellant. 
This is not surprising.  Rivera was
not examined regarding his motivation, presumably because, as demonstrated
above, although his motivation would have been relevant to a claim that the
search was arbitrary, appellant did not raise this claim below.  For the same reason, the People had no reason
to present other evidence regarding the deputy’s motivation.  None of the cases appellant cites supports
the proposition that law enforcement personnel must articulate the reason(s)
for a search, nor has our research uncovered any authority for such a
proposition.  Moreover, as in >Reyes, the record here suggests “rehabilitative and reformative purposes or legitimate law
enforcement purposes” (Anthony S., >supra, 4 Cal.App.4th a p. 1004) for the
search.  First, Rivera knew appellant was
on probation for a gun-related offense. 
The search served the legitimate law enforcement purpose of helping
insure the deputy’s safety.  Second, the
search served the purpose of helping the deputy determine whether appellant was
in compliance with the terms of his probation, also a legitimate purpose.  (See Bravo,
supra, 43 Cal.3d at p. 610 [“dual
purpose of [a probation search condition is] ‘to deter further offenses by the
probationer and to ascertain whether he is complying with the terms of his
probation’”].)  On this record, where
proper motivations for the search are reasonably inferable from the record and
the record contains no indication that the deputy acted out of personal
animosity or for any other arbitrary reason, a warrantless and suspicionless
search of a probationer subject to a search condition of probation does not
violate the probationer’s Fourth Amendment rights.

DISPOSITION

            The judgment is affirmed.