P. v. Casian

Filed 2/26/03 P. v. Casian CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
RAUL CASIAN, JR.,
Defendant and Appellant.
B159131
(Super. Ct. No. BA225551)
APPEAL from a judgment of the Superior Court of Los Angeles County, Craig E.
Veals, 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, William T. Harter and
Marc E. Turchin, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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Raul Casian, Jr., appeals a judgment convicting him of possession of cocaine base
for sale (Health & Saf. Code, § 11351.5). He contends the evidence against him should
have been suppressed because the arresting officer was unaware of Casian’s parole search
condition at the time of the search. Casian asks this court to withhold its ruling until the
California Supreme Court decides a case presenting this same issue, People v. Sanders,
review granted February 28, 2001, S094088. Casian also contends the search was not
justified by exigent circumstances or as a search incident to an arrest, and in any event
the matter should be remanded to the trial court to consider those grounds in the first
instance.
We decline to withhold our ruling and conclude that the search was lawful under
People v. Reyes (1998) 19 Cal.4th 743.
FACTUAL AND PROCEDURAL BACKGROUND
Narcotics users informed a police officer that gang members were selling narcotics
from a residence in an alley. The officer entered the driveway from the alley and
approached the door. The door was open, but a security screen was closed. Standing
approximately one foot from the doorway, the officer observed Casian and another
person inside playing a video game together. The officer also observed what appeared to
be a large quantity of rock cocaine on a table in front of Casian together with a small
scale and a cigar box.
The officer knocked, and Casian’s companion approached the doorway. The
officer identified himself as a police officer and, as a ruse, asked whether the man had
heard a woman scream. Casian put the items on the table into the cigar box and carried
the box out of the officer’s view, then returned a few seconds later and approached the
doorway. The officer asked whether Casian had heard a woman scream. Casian
responded “No.”
Another officer stated, “Can you open the door so I can see who I’m talking
with?” The suspects then opened the door, and the officers arrested them. The officers
found rock cocaine in a cigar box on the kitchen counter.

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Casian was on parole at the time of his arrest and was subject to a search
condition. The arresting officer was unaware that Casian was on parole.
An information charged Casian with one count of possession for sale of cocaine
base in violation of Health and Safety Code section 11351.5, and alleged that he had
served a prior prison term for unlawful possession of a controlled substance (Health &
Saf. Code, § 11350, subd. (a)). Casian pled not guilty and denied the special allegation.
Casian moved to suppress evidence obtained as a result of an unreasonable
warrantless search (Pen. Code, § 1538.5, subd.(a)(1)(A)).1 The trial court denied the
motion on the ground that the search was justified by Casian’s parole condition. Casian
then withdrew his plea of not guilty and pled no contest to the count charged, and the
special allegation was dismissed. The court sentenced him to the low term of three years
in prison.
CONTENTIONS
Casian contends (1) the evidence against him should have been suppressed
because the arresting officer was unaware of Casian’s parole search condition at the time
of the search; and (2) the search was not justified by exigent circumstances or as a search
incident to an arrest, and in any event the matter should be remanded to the trial court to
consider those grounds in the first instance.
DISCUSSION
1. The Search Was Reasonable Due to the Parole Search Condition
The California Supreme Court in In re Tyrell J. (1994) 8 Cal.4th 68 held that a
minor who was subject to a valid condition of probation requiring him to submit to a
warrantless search by any law enforcement officer had no reasonable expectation of
privacy that the marijuana he was carrying could remain concealed. “We conclude a
juvenile probationer subject to a valid search condition does not have a reasonable
expectation of privacy over his or her person or property.” (Id. at p. 86, original italics.)
1 All statutory references are to the Penal Code unless otherwise specified.

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The court presumed that the minor was aware of the search condition, noted that under
the condition permission to conduct a warrantless search was not limited to officers who
were aware of the condition, and therefore concluded that the minor could not reasonably
believe that the officer would not search him. (Ibid.)
The court in In re Tyrell J., supra, 8 Cal.4th 68 noted that a juvenile probationer
retains a reasonable expectation of privacy to be free from searches that are arbitrary or
intended to harass. (Id. at p. 87, fn. 5.) “Indeed, we hold today that a juvenile
probationer subject to a search condition simply has a greatly reduced expectation of
privacy, not that he or she has no legally recognizable privacy rights at all. [Citation.]”
(Ibid.)
The California Supreme Court in People v. Reyes, supra, 19 Cal.4th at page 751
concluded that the reasoning of In re Tyrell J., supra, 8 Cal.4th 68 applies equally to an
adult parolee. The Reyes court overruled People v. Burgener (1986) 41 Cal.3d 505, 533,
in which the court had held that a warrantless search of a parolee must be justified by
“reasonable suspicion.” (Reyes, at pp. 753-754.) The Reyes court concluded, “When
involuntary search conditions are properly imposed, reasonable suspicion is no longer a
prerequisite to conducting a search of the subject’s person or property. Such a search is
reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary,
capricious or harassing.” (Reyes, at p. 752.)
A parole search condition ordinarily requires that the parolee submit to a
warrantless search of his person or property within his control by any law enforcement
officer, as the People note in their respondent’s brief. Casian does not contend the search
condition here was more narrow in scope.
People v. Reyes, supra, 19 Cal.4th 743 is directly on point. Its reasoning and the
reasoning of In re Tyrell J., supra, 8 Cal.4th 68 apply here. As a parolee subject to a
search condition, the validity of which Casian does not challenge, Casian had no
reasonable expectation of privacy over his person or property, other than the expectation
that he would not be subject to an arbitrary, capricious, or harassing search. Casian’s

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argument that the search was arbitrary and capricious simply because the officer did not
know that Casian was subject to a parole search condition is contrary to Reyes and Tyrell.
Accordingly, we conclude that the search was reasonable under the Fourth Amendment.
2. We Need Not Decide Whether Other Grounds Justify the Search
In light of our conclusion that the search was justified based on the parole search
condition, we need not decide whether the search was justified on another ground.
Moreover, since the trial court concluded that the search was reasonable based on the
parole search condition and did not rule on the other grounds asserted, we will not
consider the other grounds without the benefit of factual findings by the trial court in the
first instance. (People v. LeBlanc (1997) 60 Cal.App.4th 157, 168.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
CROSKEY, Acting P.J.
ALDRICH, J.

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