P. v. Lazalde

Filed 6/6/02
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS DELGADO LAZALDE,
Defendant and Appellant.
H022775
(Santa Cruz County
Super. Ct. No. F01504)
Following the denial of his motion to suppress evidence brought pursuant to Penal
Code section 1538.5, appellant pleaded guilty to one count of conspiracy to sell heroin
and one count of possession of heroin for sale. (Pen. Code, § 182; Health & Saf. Code, §
11351.) Appellant also admitted an enhancing allegation that he possessed more than
14.25 grams of a substance containing heroin. (Health & Saf. Code, § 11352.5, subd. (1);
Pen. Code, § 1203.07.) He was sentenced to three years in state prison. Appellant
contends the court erred in denying his motion to suppress. We affirm.
In October 2000, after watching appellant conduct several hand-to hand
transactions on different days, and following him to the Economy Inn Motel, Watsonville
police officers obtained a search warrant. Searching room 139 where they found
appellant, the police discovered heroin, packing materials, injecting paraphernalia and
almost $600 in cash. Appellant was arrested, and admitted to the police he sold heroin
for another person to support his own habit.

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2
Appellant initially challenged the search of the motel room by arguing that "the
search warrant affidavit in this matter totally lacks any competent and sufficient facts to
support the issuance of a search warrant for room 139 at the Economy Inn." The
prosecution opposed appellant's motion on the grounds probable cause existed for
issuance of the warrant. Later, the prosecution conceded that, due to certain procedural
irregularities, the search warrant was "invalid." The prosecution defended the search on
the basis of a probation search condition to which appellant was subjected following his
conviction for being under the influence of a controlled substance in January 2000.
At the hearing on appellant's motion to suppress, the parties discussed the search
warrant, and defense counsel stated "there was some problems that were created with
regard to the preservation of the actual search warrant itself and that's why . . . the district
attorney is only now relying upon the search clause as the basis for justifying this
search." The parties stipulated that at the time of the search, the officers were unaware of
the probation search condition.
Defense counsel acknowledged that In re Tyrell J. (1994) 8 Cal.4th 68 permits a
search even though officers are unaware of search condition. Counsel argued that there
was reason to believe the California Supreme Court was retreating from its holding in
Tyrell J. The court stated its belief that the court "may very likely reverse the Tyrell J.
case," but, because it was current law, the court denied appellant's motion to suppress. 1
Appellant contends "because the police were not aware of appellant's probation
status and the attendant search clause at the time he was searched, the instant search
could not have advanced the special needs of the state's probation system and was not a
1 The court and others believed Tyrell J. might be overruled because the Supreme
Court had granted review in People v. Moss (S087478) on the issue of whether probation
searches are valid if the searching officer is unaware of the search condition. That grant
of review has since been dismissed and the matter remanded to the appellate court.

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3
valid probation search; since no other justification existed for the search, it was
unreasonable and unlawful . . . ."
We review the trial court's denial of appellant's Penal Code section 1538.5 motion
by presuming that the factual determinations of the superior court were correct and
upholding the court's express or implied findings if they are supported by substantial
evidence. (People v. Laiwa (1983) 34 Cal.3d 711, 718.) We exercise independent
judgment in resolving whether, on the facts found, the search was unreasonable within
the meaning of the Constitution. (People v. Leyba (1981) 29 Cal.3d 591, 597.)
In People v. Bravo (1987) 43 Cal.3d 600, an anonymous informant told police that
heavy traffic near defendant's home indicated he was selling drugs. The defendant was
an adult probationer subject to a warrantless search condition. Although police saw no
suspicious activity, they nevertheless searched the defendant's house after learning he
was on probation. They found drugs, guns, and money. The defendant challenged the
search as unlawful, arguing that the police lacked a reasonable suspicion of criminal
conduct. The California Supreme Court rejected this claim. It explained that an adult
probationer consents to a waiver of his Fourth Amendment rights in exchange for the
opportunity to avoid serving a state prison sentence. (Id. at p. 608.) " '[W]hen [a]
defendant in order to obtain probation specifically [agrees] to permit at any time a
warrantless search of his person, car and house, he voluntarily waive[s] whatever claim
of privacy he might otherwise have had.' " (Id. at p. 607.) The court considered the
waiver of rights "complete," "save only [the probationer's] right to object to harassment
or searches conducted in an unreasonable manner." (Ibid.) Thus, under Bravo, an 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. (In re Tyrell J., supra, 8 Cal.4th 68, 80; see People v. Robles
(2000) 23 Cal.4th 789, 795.)

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In People v. Reyes (1998) 19 Cal.4th 743, a case involving an adult parolee, the
court reiterated these principles, stating, "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." (Id. at p. 752.)
Quoting People v. Clower (1993) 16 Cal.App.4th 1737, the court explained that a search
" 'could become constitutionally "unreasonable" if made too often, or at an unreasonable
hour, or if unreasonably prolonged or for other reasons establishing arbitrary or
oppressive conduct by the searching officer.' " (People v. Reyes, supra, 19 Cal.4th at pp.
753-754.)
In In re Tyrell J., supra, 8 Cal.4th 68, 89, a majority of our Supreme Court held
that a person under a probation search condition generally does not enjoy a reasonable
expectation of privacy, and hence that an otherwise unjustified search was upheld even
though the searching officer was unaware of the condition. Appellant recognizes that the
rationale of Tyrell J. justifies the search in this case, but he argues that the case was
wrongly decided and urges us not to follow it. We are, of course, bound to follow
decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal. 2d 450.)
It is undisputed that at the time of the search, appellant was subject to a condition
of probation which included the warrantless search of his residence. Thus, the conduct of
the police officers was reasonable under the Fourth Amendment because it did not
infringe upon any reasonable expectation of privacy appellant retained over his person or
property. The search was conducted after several days of surveillance in which appellant
was seen engaging in a number of suspicious hand-to-hand transactions which led to the
conclusion that he was involved in selling drugs. Thus, the search was reasonable under
Fourth Amendment standards.

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Appellant cites Griffin v. Wisconsin (1987) 483 U.S. 868, arguing that the United
States Supreme Court has held warrantless probationary searches are only constitutional
when they are conducted for a purpose which furthers the special needs of the probation
system and therefore, must be conducted only by those who are aware of the search
condition. The California Supreme Court expressly rejected Griffin as controlling in this
context. (See In re Tyrell J., supra, 8 Cal.4th at p. 79.)
The trial court did not err in denying appellant's motion to suppress.2
The judgment is affirmed.
____________________________
Elia, J.
WE CONCUR:
_____________________________
Premo, Acting P.J.
_____________________________
Wunderlich, J.
2 At oral argument, appellant cited People v. Black (2002) 96 Cal.App.4th 1389,
review filed May 1, 2002. Even if we were to apply the Black court's "legitimate, though
limited, expectation of privacy" (id. at p. 1403) of a probationer to the facts of this case,
we do not consider the police conduct here to be unreasonable.

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