P. v. Dunn

Filed 11/29/05 P. v. Dunn CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. PAUL R. DUNN, Defendant and Appellant.

B181039 (Los Angeles County Super. Ct. No. LA047069)

APPEAL from a judgment of the Superior Court of Los Angeles County. Martin L. Herscovitz, Judge. Affirmed.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

Appellant Paul R. Dunn challenges his felon in possession of ammunition conviction on the ground the trial court erred by denying his motion to suppress the ammunition as the product of an unlawful search. We conclude the search was justified by appellant’s parole search condition, which was known to the police officers before they searched appellant.

BACKGROUND AND PROCEDURAL HISTORY

Los Angeles Police Department officers patrolling in the vicinity of two crimes committed by “the Reseda Slasher” thought appellant resembled a description and composite sketch of the suspect in those crimes. They stopped to speak to appellant and asked him if he was on probation or parole. Appellant admitted he was on parole. The officers searched appellant and found rifle ammunition in his pocket.

Appellant moved to suppress the ammunition. The magistrate denied his motion, which appellant renewed in the trial court. After the trial court similarly denied the motion, appellant pled nolo contendere to a violation of Penal Code section 12316, subdivision (b)(1) and admitted he had suffered one prior serious or violent felony conviction and served one prior prison term. The court sentenced him to a second strike term of two years eight months in prison.

DISCUSSION

Appellant contends the trial court erred by denying his motion to suppress the ammunition. He argues the search condition of his parole could not justify the search because it was suspicionless, arbitrary and capricious.

A warrantless search is presumed to be illegal. (People v. Frye (1998) 18 Cal.4th 894, 989.) The prosecution always has the burden of justifying the search by proving the search fell within a recognized exception to the warrant requirement. (People v. James (1977) 19 Cal.3d 99, 106.) A parolee subject to a search condition may be searched by a law enforcement officer who knows of the search condition even in the absence of any particularized suspicion, provided that the search is not arbitrary, capricious or harassing. (People v. Sanders (2003) 31 Cal.4th 318, 333; People v. Reyes (1998) 19 Cal.4th 743, 752-753.) A parole search could be constitutionally impermissible if performed too frequently, at an unreasonable hour, if unreasonably prolonged, or if other circumstances established arbitrary or oppressive conduct by the searching officer. (Id. at pp. 753-754.)

In ruling upon a motion to suppress, the trial court judges the credibility of the witnesses, resolves any conflicts in the testimony, weighs the evidence, and draws factual inferences. (People v. Alvarez (1996) 14 Cal.4th 155, 182.) We will uphold the court’s express and/or implied findings on such matters if they are supported by substantial evidence, but we independently review the application of the relevant law to the facts. (Ibid.)

At appellant’s preliminary hearing, Officer Matthew Vannatter testified that he and his partner were patrolling when they saw appellant walking near Saticoy and Vanalden at about 11:00 a.m. on September 23, 2004. Vannatter thought appellant strongly resembled the description and composite sketch of “the Reseda Slasher,” who had killed one person and attempted to kill another. The place where appellant was walking was near the scene of these crimes. The suspect in these crimes was described as a man between 17 and 28 years old; five feet, eight inches to five feet, ten inches tall; and “possibly a very, very light-skinned male Hispanic.” Appellant did not appear to be Hispanic, but Vannatter testified that the detective investigating the crimes had previously told him that the suspect might be a non-Hispanic white man.

Vannatter and his partner parked their car at the curb, and Vannatter’s partner walked toward appellant and asked if the officers could speak to him. The officers had not drawn their guns. Appellant stopped, turned around, and approached the officers. The officers asked appellant whether he was on parole or probation, and he admitted he was on parole. Vannatter verified appellant’s parole status via a computer check. Vannatter’s partner then searched appellant. He found ten live rifle cartridges in appellant’s trouser pocket, and the officers arrested appellant.

The magistrate viewed the composite sketch the officers had at the time of appellant’s arrest and expressly found that appellant resembled the sketch. She also found the officers lawfully and reasonably stopped appellant, then conducted a parole search.

Although it does not appear that appellant challenges the constitutionality of the stop, the undisputed evidence establishes that it was consensual in nature. The officers did not corner or tackle appellant, nor did they threaten him with words or weapons. They asked to speak to him, and he approached them. This was a completely consensual encounter, and did not rise to the level of a detention because a reasonable person in appellant’s position would have believed that he was free to leave. (People v. Boyer (1989) 48 Cal.3d 247, 267 disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824.) Therefore, reasonable suspicion that appellant may have been involved in criminal activity was not required.

The undisputed evidence established that the officers knew appellant was on parole before they searched him. At the trial court hearing on the renewed suppression motion, Vannatter testified that he knew all parolees were subject to a search condition. The officers could therefore lawfully search appellant without particularized suspicion, as long as the search was not arbitrary, capricious or harassing. The record does not support appellant’s claim that the search was arbitrary, capricious or harassing. As far as the record reveals, this was the only time Vannatter and his partner searched appellant, and evidence indicated how frequently appellant had been subjected to parole searches by any other law enforcement officers. The search was conducted at approximately 11:00 a.m. while appellant was walking around in public, and was thus not performed at an unreasonable hour. The record contains no basis for concluding that the search was unreasonably prolonged or conducted in any other fashion that might render it arbitrary, capricious or harassing.

Appellant argues that various precedents indicate the United States Supreme Court is unlikely to find a parole search constitutional in the absence of “some measurable level of suspicion.” However, this court is bound by People v. Sanders, supra, 31 Cal.4th 318, and People v. Reyes, supra, 19 Cal.4th 743, which clearly hold that neither reasonable suspicion nor any other level of particularized suspicion is required to conduct a parole search. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Appellant also argues the officers could not have really believed he was “the Reseda Slasher” because that suspect was dangerous, yet they did not draw their weapons when they stopped him. However, we are bound by the trial court’s finding that appellant actually resembled the composite sketch of the suspect, which was supported by Vannatter’s testimony that appellant strongly resembled the composite sketch at the time the officers saw him on the street and stopped him. The trial court clearly found Vannatter’s testimony both credible and supported by a comparison of the sketch to appellant’s appearance. Moreover, it is reasonable to conclude that the officers’ decision to contact appellant without drawing their guns was based upon the circumstances and appellant’s demeanor and response. Had appellant engaged in any conduct the officers viewed as potentially threatening, the officers most likely would have drawn their weapons. The officer’s failure to do so at the outset or during the encounter as it actually developed does not definitively render Vannatter’s testimony unworthy of belief.

The trial court therefore did not err by denying appellant’s motion to suppress.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J. FLIER, J.

Courtesy of California Legal Resource Directory, a source for providers and consumers of legal resources. Because we know legal.

Campo Lawyers are available and standing by to help you.