PEOPLE v. REYES

Reset A A Font size: Print

Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Appellant, v. Rudolfo REYES, Defendant and Appellant.

No. F024006.

Decided: December 30, 1996

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Margaret Venturi and Rachelle A. Younger, Deputy Attorneys General, for Plaintiff and Appellant. William J. Arzbaecher III, under appointment by the Court of Appeal, for Defendant and Appellant.

OPINION

Defendant Rudolfo Reyes appeals from a judgment of conviction imposing a seven-year prison sentence.   The dispositive issues are whether adult parole searches continue to require a reasonable suspicion of criminal or parole-violative activity and, if so, whether the instant search of defendant was justified by this standard.   We conclude the “reasonable suspicion” test still applies to parole searches;  as we will discuss, the present facts do not meet this standard.   Because we will reverse the judgment accordingly, we need not discuss the sentencing issues raised by defendant and by the People in their cross-appeal.

Procedural and Factual Background

Parole agent Gordon McClaskey received a note from his supervisor that an anonymous tipster had informed him that defendant, a parolee under McClaskey's supervision,

“was using narcotics daily.   Quote unquote crank.   He was working at Best Buy but lost his job because he was suspected of stealing.   He had possibly moved to a different residence ․ It indicated he wasn't staying with his wife.   His wife was afraid of him.   She's seven months pregnant and he had threatened to use a gun on her.  [¶ ] The wife had been unable to find out where he kept the weapon and he was also suspected of stealing his own VCR. He made a police report that this was burglarized.   The informant also stated that ․ [a] hype by the name of Shirley ․ was the basis of the information.”

Records available to McClaskey reflected that defendant had been residing in Woodlake.   McClaskey called the Woodlake Police Department in the late afternoon of February 23, 1995, and spoke to Officer Justin Beal. Beal confirmed that defendant had filed a report of a burglary.   There was no indication the police thought the report was false.   McClaskey requested that “if you see [defendant] ․ check him out for being under the influence.”

That evening, Officers Beal and Crowell saw defendant standing in his own back yard shortly after 8 p.m.   They stopped, summoned three marked units as backup, and contacted defendant.   As Beal was interviewing defendant and coming to the conclusion he was not under the influence of drugs, another officer called McClaskey at home and obtained permission to search defendant's person, residence and automobile.   In the search, officers found .9 grams of methamphetamine lying on a bench in a workshop near which defendant was standing when Beal first saw him.

On March 22, 1995, the prosecutor filed an information alleging one count of possession of methamphetamine.  (Health & Saf.Code, § 11377, subd. (a).)  The information additionally alleged two prior felony convictions pursuant to Penal Code section 1170.12, subdivision (c)(2)(A), and a prior prison term pursuant to Penal Code section 667.5, subdivision (b).

Defendant filed a suppression motion in superior court.   At a hearing on April 20, 1995, the trial court denied the suppression motion.   On May 11, 1995, the court reviewed the facts of the case and indicated a term of seven years would be imposed should defendant plead guilty.   The court expressed its feeling that a life sentence under the circumstances would be excessive, and indicated that the court would strike one of defendant's prior felony conviction allegations.   Consequently, defendant entered a plea of guilty to the substantive offense and admitted one prior felony conviction and one prior prison term.   On May 25, 1995, the court sentenced defendant to the upper term of three years, doubled pursuant to Three Strikes, plus one year on the enhancement.   Defendant filed a timely notice of appeal on June 21, 1995.   The People filed a notice of appeal on July 10, 1995.

Discussion

 “[A] parole search is reasonable under the Fourth Amendment ‘if there is a reasonable nexus ․ between the search and the parole process, and a reasonable suspicion, based on articulable facts, that the parolee has violated the terms of his parole or engaged in criminal activity.’ ”  (People v. Stanley (1995) 10 Cal.4th 764, 789, 42 Cal.Rptr.2d 543, 897 P.2d 481.)   In the present case, defendant contends there was no sufficient nexus between the search and the parole process because the search process (detaining defendant in the presence of at least five police officers in four patrol cars) was well underway before the officers sought permission for the search from the parole agent.   He also contends the search, even if properly a part of the parole process, was not based on reasonable suspicion of criminal activity.   The People, on the other hand, argue that neither suspicion nor nexus is required, so long as the search was not for harassment purposes.

We need not reach the nexus issue, because we conclude the search was not based on reasonable suspicion, which remains a requirement for a lawful parole search.

The People's contention that a parole search no longer requires reasonable suspicion is based on the Supreme Court's opinion in In re Tyrell J. (1994) 8 Cal.4th 68, 32 Cal.Rptr.2d 33, 876 P.2d 519.   In that case, the court held, inter alia, that the search condition imposed upon a juvenile probationer is not grounded on the same “consent” rationale that had been held to justify a search condition on an adult probationer in People v. Bravo (1987) 43 Cal.3d 600, 609, 238 Cal.Rptr. 282, 738 P.2d 336.   The court held that, notwithstanding the absence of consent to probation, a juvenile probationer shares with an adult probationer a reduced expectation of privacy necessitated by legitimate governmental demands.  (In re Tyrell J., supra, at p. 85, 32 Cal.Rptr.2d 33, 876 P.2d 519.)   Although the dissenting opinion labeled this a “startling departure from settled principles underlying the Fourth Amendment” (id. at p. 90, 32 Cal.Rptr.2d 33, 876 P.2d 519, dis. opn. of Kennard, J.), we do not believe the court intended the new rationale for standardless searches to apply to adult parolees.

Notwithstanding the People's detailed argument arising from the logic of the Tyrell J. opinion, we reach our conclusion for the simple reason that the court cites People v. Burgener (1986) 41 Cal.3d 505, 224 Cal.Rptr. 112, 714 P.2d 1251 with approval at two places in Tyrell J. (See In re Tyrell J., supra, 8 Cal.4th at pp. 78, 80, 32 Cal.Rptr.2d 33, 876 P.2d 519;  see id. at p. 85, 32 Cal.Rptr.2d 33, 876 P.2d 519.)   In Burgener, the Supreme Court first articulated the requirement for reasonable suspicion in the adult parole context.1

 Accordingly, we are satisfied that reasonable suspicion remains a requirement for conducting a search of a parolee's home.   We are also satisfied that reasonable suspicion was lacking in the present case.   Information from an anonymous informant, such as was provided in the present case, can be the basis for reasonable suspicion of criminal activity.   (Alabama v. White (1990) 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301.)   However, in order to be sufficiently reliable to justify a reasonable suspicion, the anonymous tip must be corroborated at least in significant part.  (Id. at p. 331–332, 110 S.Ct. at pp. 2416–2417;  People v. Ramirez (1996) 41 Cal.App.4th 1608, 1616, 49 Cal.Rptr.2d 311.)

In the present case, the tip was uncorroborated in any significant measure.   The only corroboration was that defendant had made a police report of a burglary of his home.   This wholly innocuous detail did not corroborate the tipster's relevant claim that defendant had somehow staged this burglary so he could use his VCR to buy drugs.

More crucial in this particular case, however, is not the absence of any significant corroboration, but rather the fact that several of the tipster's claims were directly contradicted by the independent knowledge gained by the police.   Thus, despite the caller's claim that possibly defendant no longer lived at his home, the officers found him at that home within a few hours of the tipster's call.   Furthermore, despite the tipster's claim that defendant used methamphetamine daily, the officers immediately determined that defendant was not under the influence of drugs when they detained him.   Under these circumstances, the reliability of the anonymous tip was questionable and further preliminary investigation was required to corroborate the tip.   Without further investigation and further incriminating information, the circumstances of this case were not such as would “warrant a man of reasonable caution” in the belief “criminal activity may be afoot.”  (Terry v. Ohio (1968) 392 U.S. 1, 22, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889.)   The trial court should have granted the suppression motion.

Disposition

The judgment is reversed.

FOOTNOTES

1.   In addition to the references to Burgener in Tyrell J., the court also reiterated the Burgener standard in a more recent case involving the search of the home of an adult parolee.  (See People v. Stanley, supra, 10 Cal.4th at p. 789, 42 Cal.Rptr.2d 543, 897 P.2d 481.)

VARTABEDIAN, Associate Justice.

MARTIN, Acting P.J., and WISEMAN, J., concur.