People v. LewisPeople v. Lewis
A jury found defendant Perro Peter Lewis guilty of kidnapping for robbery (
This is defendant‘s second appeal. His first resulted in an unusual reversal. We concluded that a lost transcript of some of the proceedings conducted on a suppression motion required other contentions in effect to be held in abeyance until this
We first conclude that the suppression motion was correctly denied. In so concluding we join with other jurisdictions that have held that a police officer need not obtain an arrest warrant before entering a parolee‘s house for the purpose of taking the parolee into custody. We then consider and find without merit the contentions made by defendant on his initial appeal but not addressed by us at that time. In light of these conclusions, we affirm the judgment of conviction.
REVIEW
I
The basic issue of the suppression motion, insofar as it was impacted by the missing transcript, was whether defendant‘s warrantless arrest in his home by Oakland Police Officer Grubensky violated People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, which generally forbids warrantless home arrests. We noted that the only evidence we had on this issue in the remaining transcript came from defendant himself and strongly supported his Ramey claim. Unwilling to order a complete retrial, we opted for the “less drastic measure” of giving the trial court and the parties the opportunity in effect to recreate the missing transcript by reconvening that part of the suppression hearing reported in the missing transcript. This is pretty much what occurred. The same two witnesses who had testified on the missing day of the first suppression hearing testified again following our remand. It also appears that the prosecution made new arguments that had not been raised at the first hearing. Wholly apart from the Ramey issue, the prosecutor also argued that defendant‘s arrest was supported by probable cause.
The essential facts are not in dispute. On September 30, 1991, Oakland police were looking for defendant. They were looking very hard because there had been a rash of robberies in the vicinity of the address defendant had given as his residence to his parole agent. A number of victims had already identified defendant as the robber. In the late afternoon of the 30th, there was another robbery. Officer Grubensky, who earlier that day had told a superior that he was looking for defendant, was the first officer to speak with the victim. After getting a description, he went immediately to defendant‘s address. Grubensky knocked at the door, which was answered by defendant‘s mother. She asked who was there, and Grubensky answered “Oakland Police.” Defendant‘s mother opened the door, at which defendant asked who it was. She told him “The police.” Grubensky entered the house and arrested defendant. After several minutes the latest victim was brought to the scene, where she identified defendant (who was in the back of Grubensky‘s vehicle) as the man who had just robbed her. Defendant‘s parole officer had unsuccessfully tried to arrest defendant at his home earlier that month. Grubensky‘s superior officer, Sergeant Delgadillo, was not positive he had informed Grubensky of defendant‘s status as a parolee, but it would have been Delgadillo‘s practice to have done so.
Defendant‘s position at the hearing conducted pursuant to our remand was quite precise; although conceding that Officer Grubensky had probable cause to arrest him and that his parole search condition1
Defendant renews this argument. As will be shown, it is riddled with factual and legal weaknesses. To be fair, a large measure of the legal deficiencies reflect a sea change in the governing law since defendant first made his suppression motion in 1992. Moreover, that change is continuing, and has largely overtaken defendant‘s approach to the topic.
The change began after defendant was arrested and while he was being tried. In In re Tyrell J. (1994) 8 Cal.4th 68, 32 Cal.Rptr.2d 33, 876 P.2d 519, our Supreme Court held that a juvenile probationer subject to a search condition of probation could be searched by an officer who was unaware of the condition at the time of the search. Drawing extensively upon federal precedent, the Court noted the principle that “the government may dispense with the warrant requirement in situations when ` “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable“‘” and how the operation of a probation system presented special needs of speed, deterrence, and deference to a separate administrative system. (Id. at pp. 77-78, 32 Cal.Rptr.2d 33, 876 P.2d 519, quoting Griffin v. Wisconsin (1987) 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709.) Following the approach of this court in In re Marcellus L. (1991) 229 Cal. App.3d 134, 279 Cal.Rptr. 901, the Court concluded that “a juvenile probationer subject to a valid search condition does not have a reasonable expectation of privacy over his or her person or property” unless the search is arbitrary, capricious, or intended to harass. (In re Tyrell J., supra, at pp. 83-84, 86-89, 32 Cal.Rptr.2d 33, 876 P.2d 519, original italics.)
The fundamental shift occurred in 1998, after the trial court had complied with our remand and while defendant‘s current appeal was pending in this court. In People v. Reyes (1998) 19 Cal.4th 743, 80 Cal. Rptr.2d 734, 968 P.2d 445, the Court overruled a previous decision, People v. Burgener (1986) 41 Cal.3d 505, 224 Cal.Rptr. 112, 714 P.2d 1251, and held that an adult parolee subject to a search condition could be searched even if the searching officers did not have a reasonable suspicion that the parolee had violated or was planning to violate either the law or the conditions of parole. Subject to the same proviso from Tyrell J. about arbitrary, capricious, or harassing searches, “[w]here 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.“’ [Citations.]” (People v. Reyes, supra, at pp. 753-754, 80 Cal. Rptr.2d 734, 968 P.2d 445.) Moreover, in the course of holding that its decision was fully retroactive, the Court noted that “even if suspicionless searches ... remain illegal in the abstract, the evidence they produce need not be excluded from subsequent criminal proceedings.” (Id. at p. 755, 80 Cal.Rptr.2d 734, 968 P.2d 445.)
Almost 30 years ago, in In re Martinez (1970) 1 Cal.3d 641, 646, 83 Cal. Rptr. 382, 463 P.2d 734, our Supreme Court held that search of a parolee could not be upheld if the searching officers are unaware that the person is subject to a
Even without such a finding, defendant‘s argument would fail because its legal premise has been undermined. The Martinez holding cited above can no longer be regarded as controlling. The Tyrell J. court noted that “at the time that decision was rendered, there existed no automatic search condition imposed on parolees....” (In re Tyrell J., supra, 8 Cal.4th 68, 88, 32 Cal.Rptr.2d 33, 876 P.2d 519.) Such conditions are now automatic, and imposed on every parolee. (See
Although Tyrell J. and Reyes dealt with warrantless searches, we believe their logic will extend to warrantless arrests. The privacy interests concerning searches and arrests stand on an equal constitutional footing. (E.g., Payton v. New York (1980) 445 U.S. 573, 589-590, 100 S.Ct. 1371, 63 L.Ed.2d 639.) By parity of reasoning, a parolee‘s protection against warrantless arrests should not be greater than the protection against warrantless searches.
In California, parolee status carries distinct disadvantages when compared to the situation of the law-abiding citizen. Even when released from actual confinement, a parolee is still constructively a prisoner subject to correctional authorities. (E.g., In re Marzec (1945) 25 Cal.2d 794, 797, 154 P.2d 873; In re Taylor (1932) 216 Cal. 113, 115, 13 P.2d 906; Matter of Application of Stanton (1915) 169 Cal. 607, 610, 147 P. 264; Prison Law Office v. Koenig (1986) 186 Cal.App.3d 560, 566-567, 233 Cal.Rptr. 590; cf. People v. Reyes, supra, 19 Cal.4th 743, 752, 80 Cal. Rptr.2d 734, 968 P.2d 445 [characterizing parolee as “a convicted felon still subject to the Department of Corrections“].) The United States Supreme Court has characterized parole as “an established variation on imprisonment” and a parolee as possessing “not ... the absolute liberty to which every citizen is entitled, but only ... the conditional liberty properly dependent on observance of special parole restrictions.” (Morrissey v. Brewer (1972) 408 U.S. 471, 477, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484; accord, Griffin v. Wisconsin, supra, 483 U.S. 868, 873-875, 107 S.Ct. 3164, 97 L.Ed.2d 709.) Our own Supreme Court holds a like opinion: “Although a parolee is no longer confined in prison his custody status is one which requires ... restrictions which may not be imposed on members of the public generally.” (People v. Burgener, supra, 41 Cal.3d 505, 531, 224 Cal.Rptr. 112, 714 P.2d 1251; see People v. Reyes, supra, at p. 753, 80 Cal.Rptr.2d 734, 968 P.2d 445 [“parolees ... are subject to limitations not applicable to ordinary citizens“].)
Thus it has been held that by virtue of the parolee‘s status as one who remains in custodia legis of correctional authorities, “standard concepts of arrest and probable cause have little relevance,” and a parolee‘s “apprehension, although outwardly resembling arrest,” is simply a return from constructive to actual custody, regardless of whether the apprehension is effected by police or parole officers. (People v. Giles (1965) 233 Cal.App.2d 643, 647, 43 Cal.Rptr. 758; People v. Hernandez (1964) 229 Cal.App.2d 143, 148, 40 Cal. Rptr. 100; People v. Denne (1956) 141 Cal.App.2d 499, 507-510, 297 P.2d 451; cf.
The touchstone for all Fourth Amendment analysis is the reasonableness of governmental action; reasonableness is measured by balancing the intrusion suffered by the individual against the governmental interests promoted. (E.g., Vernonia School Dist. 47J v. Acton, supra, 515 U.S. 646, 652-653, 115 S.Ct. 2386, 132 L.Ed.2d 564; Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 and decisions cited.) Most of that analysis has already been performed in Reyes, so it need not be reproduced here except in highlight form.
Reyes decided that a parolee has a greatly reduced expectation of privacy by virtue of a search condition imposed at the time of release from state prison. The
Officer Grubensky‘s entry clearly was not arbitrary, capricious, or undertaken for the purpose of harassing defendant. His purpose was entirely legitimate—to make an arrest based on what defendant has never disputed was ample probable cause. The fact that defendant‘s probation officer had already tried to arrest him only underscores this conclusion.
It is a general principle of both state and federal constitutional law that absent consent or exigent circumstances police cannot enter a home to make a warrantless arrest. (Payton v. New York, supra, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639; People v. Ramey, supra, 16 Cal.3d 263, 275-276, 127 Cal.Rptr. 629, 545 P.2d 1333.) The purpose of the principle is to protect the place, not the person. (See Minnesota v. Olson (1990) 495 U.S. 91, 95, 110 S.Ct. 1684, 109 L.Ed.2d 85; New York v. Harris (1990) 495 U.S. 14, 17, 110 S.Ct. 1640, 109 L.Ed.2d 13.) Defendant erroneously assumes it applies to him. Courts across the country, however, have concluded that a parolee who has no legitimate expectation of privacy against warrantless searches is similarly divested of protection against warrantless arrests, even in the home. (U.S. v. Cardona (1st Cir.1990) 903 F.2d 60; Smith v. State (1981) 1 Ark.App. 241[, 614 S.W.2d 527]; State v. Bass (La.Ct.App.1992) 595 So.2d 820; People v. Dyla (1988) 142 A.D.2d 423, 536 N.Y.S.2d 799; State v. Thompson (1987) 33 Ohio St.3d 1, 514 N.E.2d 407; State v. Maestas (Utah App.1991) 815 P.2d 1319; State v. Pittman (App.1990) 159 Wis.2d 764, 465 N.W.2d 245.) For the reasons stated above, we believe the conclusion reached by these courts is sound.
Defendant‘s situation will demonstrate the unworkable illogic behind a contrary conclusion. The idea that Officer Grubensky could enter to conduct a warrantless search but not to make a warrantless arrest seems, at best, anomalous. (See People v. Dyla, supra, 142 A.D.2d 423, 536 N.Y.S.2d 799, 810.) The idea becomes still harder to accept when it is remembered that Grubensky could have searched even without a reasonable suspicion of criminality, but here he was armed with the probable cause needed to arrest any citizen. The ability and authority to enter for purposes of searching appears to mean that the interest behind the Payton-Ramey rule in preserving the sanctity of the home has already been compromised. Thus, a number of California decisions recognize that once officers make a valid entry to search, there can be no Ramey objection to a subsequent arrest. (See People v. Palmquist (1981) 123 Cal.App.3d 1, 15, 176 Cal.Rptr. 173 [“Since the officers had authorization to enter the home to search, the arrest inside was of no constitutional significance“]; People v. McCarter (1981) 117 Cal.App.3d 894, 907-908, 173 Cal.Rptr. 188 [same]; People v. Evans (1980) 108 Cal.App.3d 193, 196, 166 Cal.Rptr. 315 [“We find no violation of Ramey principles in the facts here, for it is the intrusion into, rather than the arrest in, the dwelling which offends ... Ramey“].) The logic of defendant‘s argument is that, with no expectation of privacy against searches, he can nevertheless keep at bay officers who wish to arrest him. Defendant can point to no reason for making the officers apply for an arrest warrant when, by virtue of the parolee‘s search condition, they already have the virtually conclusive authority to enter. An arrest warrant would give officers the limited power to enter for that purpose (see Payton v. New York, supra, 445 U.S. 573, 602-603, 100 S.Ct. 1371, 63 L.Ed.2d 639), but the officers would already possess the much broader entry power given them by the search condition. What privacy interests against warrantless arrest are so much weightier than the privacy interests against warrantless search that they can be protected only by making police apply for an arrest warrant? Such a requirement, if adopted, would create a bizarre privacy interest unique to parolees, whose only likely outcome would be the frustration of compelling state interests. Yet that appears to be the direction of defendant‘s argument, that a rule regulating arrest of citizens must also apply to parolees, even though apprehending a parolee is not an arrest in the same sense, but merely a change in the parolee‘s custodial status. (See People v. Giles, supra, 233 Cal.App.2d 643, 647, 43 Cal.Rptr. 758; People v. Denne, supra, 141 Cal. App.2d 499, 510, 297 P.2d 451.)
Finally, requiring a judicial arrest warrant would also conflict with the special needs of the parole system. Parole authorities have the authority to issue arrest warrants. (
In short, there is no violation of either Ramey or Payton if officers entitled to enter a home to search enter to make an arrest. (E.g., People v. Palmquist, supra, 123 Cal.App.3d 1, 15, 176 Cal.Rptr. 173 and decisions cited.) Defendant‘s argument to the contrary is not only logically unsound and unrealistic, it is ultimately pointless. As previously mentioned, the Reyes court noted that police practices that are “illegal in the abstract” do not necessarily require exclusion of evidence. (People v. Reyes, supra, 19 Cal.4th 743, 755, 80 Cal.Rptr.2d 734, 968 P.2d 445.) Even if Grubensky‘s warrantless entry did amount to a violation of Payton, the conceded fact that he had probable cause to arrest defendant means that there is no constitutional taint to defendant‘s apprehension or to the victim‘s subsequent identification of defendant at the scene. (See New York v. Harris, supra, 495 U.S. 14, 17-20, 110 S.Ct. 1640, 109 L.Ed.2d 13 [“following a Payton violation, the principle incentive to obey Payton still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found, or statements taken, inside the home.” (Italics added) ]; United States v. Crews (1980) 445 U.S. 463, 471, 474, 100 S.Ct. 1244, 63 L.Ed.2d 537; People v. Marquez (1992) 1 Cal.4th 553, 566-569, 3 Cal. Rptr.2d 710, 822 P.2d 418.)
Defendant also contends Grubensky‘s entry was invalid because it did not satisfy the knock-notice requirements of
Defendant‘s other contentions deal with issues from his trial, issues that were not addressed given the limited scope of the initial appeal‘s resolution. It is to these deferred claims that we now turn.
II-V***
DISPOSITION
The judgment of conviction is affirmed.
HANLON, P.J., and REARDON, J., concur.