People v. Velez CA1/3 ( 2014 )

Filed 7/2/14 P. v. Velez CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A136995
v.
MONICA VELEZ, (San Mateo County
Super. Ct. No. SC074436)
Defendant and Appellant.
Monica Velez (appellant) appeals from a judgment entered after the trial court
denied her motion to suppress evidence, accepted her no contest plea to one count of
child endangerment (Pen. Code, § 273a, subd. (a)), and sentenced her to four years of
probation. She contends the trial court erred in denying her motion to suppress evidence.
We reject the contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On October 14, 2011, an information was filed charging appellant and her father,
Herman Valencia Velez (Herman), with various crimes. It charged appellant with
possession of methamphetamine for sale (Health & Saf. Code,1 § 11378; count 1),
1
All further statutory references are to the Health and Safety Code unless
otherwise stated.
1
possession of marijuana for sale (§ 11359; count 4), and child endangerment (Pen. Code,
§ 273a, subd. (a); count 5).2
On January 11, 2011, appellant filed a motion to suppress evidence. The
following facts were presented at the hearing on the motion:3 On the morning of October
12, 2010, Deputy Sheriff Michael Marty had a search warrant for Herman’s person, his
van, and the residence at 721 Third Avenue in Redwood City. That same morning,
Deputy Sheriff Jacob Trickett was on the 700 block of Third Avenue looking for
Herman, when he spotted Herman driving westbound on Third Avenue, from 756 Third
Avenue to 703 Third Avenue. Herman parked and exited his van at 703 Third Avenue,
went onto the yard of the property, and after approximately five minutes, returned to his
van and drove off. After being advised that Herman was about to leave the area in his
van, Marty stopped the van. He conducted a search and found a scale, a small portion of
crystal methamphetamine, and a small amount of marijuana on Herman’s person. Marty
detained Herman. Marty and his search team then proceeded to conduct a search of 721
Third Avenue, and of 703 Third Avenue, which was listed as Herman’s address on a
previous driver’s license.
Before going to 703 Third Avenue, Marty contacted County Communications to
obtain information about the residents of 703 Third Avenue. He learned that Herman
Mark Anthony Velez (Mark Anthony)—Herman’s son—had listed it as his residence,
and that Mark Anthony was on probation in San Mateo County with search and seizure
terms. Marty followed up on this information by contacting adult probation and speaking
to the on-call probation officer, Melissa Ewing. Ewing told Marty that Mark Anthony
was on probation and that his residence of record on October 12, 2010 was 703 Third
2
The information charged Herman with appellant in counts 1 and 4, and charged
him alone in counts 2 (transportation of methamphetamine; § 11379) and 3 (possession of
a firearm by a felon; Pen. Code, § 12316, subd. (b)(1)).
3
The parties stipulated that the motion to suppress evidence, which was heard
before the preliminary hearing, would be deemed as if it had been heard at the
preliminary hearing. The parties waived “any procedural irregularities” and proceeded
with the “stand-alone” motion to suppress evidence.
2
Avenue. Neither Ewing nor County Communications told Marty that Mark Anthony was
in jail.
According to Ewing, a computer printout showed four addresses for Mark
Anthony beginning on June 21, 2008, and changing on September 29, 2008, July 20,
2009, and July 9, 2010. The addresses were 1631 Sunnyvale-Saratoga Road, then 703
Third Avenue, then 1309 Marshall Street, then 721 Third Avenue. According to
probation officer Jeff Morino, who reviewed Mark Anthony’s probation file in response
to the defense’s discovery requests, there were three different addresses for Mark
Anthony between 2008 and 2010. The most recent entry showed a citation Mark
Anthony received on January 3, 2010, which listed his address as 703 Third Avenue. The
next entry was from a rap sheet printed on July 22, 2010, which listed his address of
record with the Department of Motor Vehicles as 703 Third Avenue, and also listed a
mailing address of 1632 Sunnyvale-Saratoga Road in Sunnyvale. There was one more
entry, which was a booking sheet from when Mark Anthony was booked into custody on
February 21, 2009, which listed his address as 1305 Marshall Street, No. 305.
When Marty went to 703 Third Avenue, he encountered appellant, who appeared
to be pretty “upset” and indicated she did not want the officers to come inside the house.
Appellant told Marty that her brother, Mark Anthony, was not there because he was in
jail. Marty initially told her he did not believe her. Marty recalled asking appellant what
Mark Anthony was in jail for, but it was difficult to get answers from her because she
was upset. Special Agent John DeFelice, an adult probation officer who was part of the
search team, testified that as he stood in the driveway, he saw appellant sticking her head
out of a window and saying some “foul words.” Appellant also said that the man they
were looking for was not there, and that it was not his house.
Marty asked DeFelice whether Mark Anthony was in custody. DeFelice
responded that he believed he was. According to Marty, when he asked DeFelice if they
were allowed to search a probationer’s residence while he was in custody, DeFelice
3
replied, “Absolutely. I do it all the time.”4 DeFelice testified that he told appellant that
as far as he knew, that was Mark Anthony’s address of record, that Mark Anthony was on
probation with search and seizure terms, and that they had the right to search. He did not
take steps to confirm whether Mark Anthony was in jail. Once Marty made sure it was
“okay to be there [703 Third Avenue],” and after instructing the investigative team to
limit the scope of the search to the areas that would be under Mark Anthony’s dominion
and control, Marty left that residence and went to 721 Third Avenue.
Inside 721 Third Avenue, Marty found some ammunition, a magazine for a
firearm, and crystal methamphetamine pipes. While Marty was there, he was informed
that narcotics were found at 703 Third Avenue. He therefore returned to 703 Third
Avenue. There, he saw that there was only one bedroom that had any adult clothing in it.
That bedroom had clothing for both men and women, and there was one adult bed and a
toddler bed. There was another room in the rear that appeared to belong to a child; the
search team did not search that room. In addition to appellant, there was a child inside
the house and a woman who identified herself as the child’s grandmother and the mother
of appellant’s boyfriend, Daniel White.
Appellant told DeFelice that everything in the adult bedroom was hers. Inside the
bedroom, the search team found a large amount of cash in multiple denominations inside
a “larger” men’s leather jacket, and a large amount of crystal methamphetamine in a
closet between two pairs of men’s jeans.5 The team found a Safeway pay stub belonging
to White, as well as a pay check stub or business card dated October 2007 with the name
Herman M. Velez and the 703 Third Avenue address on it. The team also searched
outside the residence and found approximately two “kilos” of marijuana in a building in
the rear of the residence.
Probation supervisor Tim Gatto testified that there are many benefits to probation
searches. It ensures the probationer is in compliance with court orders, and can also
4
DeFelice testified that he did not recall having such a conversation with Marty.
5
White is approximately 5 feet 10 inches tall and weighs 215 pounds; Mark
Anthony is approximately 5 feet 6 inches tall and weighs 145 pounds.
4
assist law enforcement in gathering evidence for crimes in which the probationer may be
involved. A probation search also indicates to the probationer that he is being “check[ed]
on.” One of the primary things Gatto taught his officers was to emphasize to the
probationer that he must keep his probation officer advised of his residence and
whereabouts at all times. For example, if a probationer was staying with his girlfriend
one night, he would be required to report that to his probation officer. Otherwise,
probation would assume that he is at the residence he has provided.
Gatto testified that some probationers stay in more than one place, or give an
address that is a relative’s or a friend’s, when they actually intend to stay elsewhere. If a
probationer wishes to continue with his criminal lifestyle or hide things from his
probation officer, for example, he may give one address as his residence, and stay at
another in which he keeps his contraband. Gatto believed it was a “red flag” for someone
to have had four different addresses in two years.
Gatto believed there was a benefit in conducting a probation search in a case such
as Mark Anthony’s, where the probationer has three felony cases—residential burglary,
possession of methamphetamine, and possession for sale of marijuana—and goes to jail
to serve a probation violation on January 12, 2010, and is not due to be released until
October 30, 2010. He testified, “somebody with three felony cases is a red flag for us
right away that that’s somebody who’s going to be a high-profile case for us, somebody
who’s involved with drug sales and drug possession. And we want to make sure we have
a handle on it.” In such a case, a probation search would verify that the residence is
actually his, and would also enable probation to determine whether it is an appropriate
residence for the probationer. Gatto testified, as an example, that he would not want a
probationer living in or returning to a home occupied by parolees. A probation search
conducted before a probationer is released would also serve a community safety purpose
because the probationer may have hidden drugs or firearms in the residence.
Maria Velez Valencia (Valencia), the mother of Herman and the grandmother of
Mark Anthony and appellant, testified that she had owned the house located at 703 Third
Avenue for almost 40 years. Herman, his wife, and their children, including Mark
5
Anthony and appellant, lived at the house with Valencia and her husband from the time
Mark Anthony was a baby. Herman’s wife moved out when Mark Anthony was eight
months old but Herman and the children continued to live there. Everyone eventually
moved out, and Mark Anthony was the last to go, at the age of 16, when he moved to
Santa Clara to be with his girlfriend. Even after Mark Anthony moved out, he was
always welcome in the home, which was like a family home. He lived in Santa Clara for
a year or two and visited her at the house during that time. Herman was also always
welcome in the home, with the exception of one incident in which he was not respectful
towards Valencia and she told him to leave.
Valencia and her husband moved out of 703 Third Avenue in October 2008 and
rented it to a non-relative renter who lived there until January 2010. While the renter was
there, Valencia’s nephew also lived there, in a little room in the back of the house.
Appellant and her two children moved into the house in May 2010 and lived there
through October 2010. Appellant had a boyfriend named Danny White, but Valencia
believed White never lived at the house.
When asked why Mark Anthony’s bank records were found in the home, Valencia
responded that it was because he was “not established in one place” and was “like,
homeless,” so “most the time, he drop in my house,” and it was “normal” for him to leave
things there. When Valencia said “homeless,” she meant that Mark Anthony lived in
various places, including with his mother in Redwood City, with his girlfriend, or with
appellant at 703 Third Avenue, “once in a while.” Valencia explained that after Mark
Anthony got out of jail, “nobody want[ed] him” because police would come knock on the
door looking for “this and that.”
After Valencia moved out of 703 Third Avenue, she would go back to visit
appellant and appellant’s baby. During those visits, she never saw Herman or Mark
Anthony there. She was aware that Herman received mail at 703 Third Avenue, but she
testified that “a hundred people,” including people who did not “even live there,” also
received mail there. She did not recall ever receiving mail for Mark Anthony there.
6
Valencia testified that at the time of the hearing, Herman was living at 721 Third Avenue
and that Mark Anthony was living with his girlfriend in Redwood City.
Recalled as a witness, Marty was asked by the court to explain what triggered his
decision to conduct a probation search at 703 Third Avenue. Marty explained that he
believed “a family business of selling narcotics” was being conducted at 721 Third
Avenue. Then, on the morning of October 12, 2010, he learned that Mark Anthony’s
address was down the street and that he was on probation with search and seizure terms.
Those factors triggered the decision to conduct a search at 703 Third Avenue.
The parties stipulated that on October 12, 2010, Mark Anthony was on felony
probation with search and seizure terms for residential burglary, possession for sale of
marijuana and possession of methamphetamine. It was also stipulated that Mark
Anthony was booked just after midnight on January 12, 2010, using the address 721
Third Avenue in Redwood City. He was born March 24, 1987, weighed 145 pounds and
was 5’6” tall. He was in jail from January 12, 2010 until his release on October 30, 2010.
The court received a certified declaration relating to Herman’s driver’s license indicating
he was born September 5, 1964, that his mailing address as of October 2, 2007 was 703
Third Avenue, and that his address as of May 4, 2009 was 721 Third Avenue.
After hearing testimony and argument by counsel, the magistrate stated, “If the
probation search is not arbitrary and capricious, [it] . . . is not going to be second-
guessed. There is no further collective intent or purpose that needs to be shown by the
probation department with reference to a probation search. The question is: Was the
search reasonable? It was, if the residence address searched was the residence of the
probationer and if the probationer was truly on probation or if there was a reasonable
belief that this was the address. [¶] So what does a police officer have to do to validly
conduct a probation search? He has to verify the probationer status. He has to verify the
address of the probationer. That’s what they did in this case. They called the probation
department. The probation officer testified, and . . . Marty testified as to the steps that he
took. He verified probationary status. He verified the address.”
The magistrate continued: “Now, the defense has questioned whether or not the
7
probation department should have had a different address for this particular probationer.
Was there an unreasonable error made here by the probation department? Should this
search be found unreasonable, and thus, the reliance unreasonable, based on a probation
mistake? I can’t say that’s been shown. This was, based on the evidence, sketchy at best,
the most permanent address for the probationer, [Mark Anthony]. [¶] He lived there for
16 years, from zero to 16. Even his grandmother didn’t know where he was living. And
she even said that after the time that he supposedly moved out of 703 Third, that he did
go back and live with [appellant] from time to time. And so I don’t think that it was
unreasonable for the probation department to have made the determination that they
did to the extent that that’s necessary for a finding here. But it certainly wasn’t
unreasonable [for] . . . Marty to have relied on what he was told. [¶] Even if there was a
mistake, even if the courts should find that this was unreasonable on the part of the
probation department based on the evidence produced here, then the question is, does it
justify the use of the exclusionary rule if there was a good-faith effort made, if any errors
or mistakes were, nevertheless, conducted in good faith. [¶] And I think under the
Herring case, that I do not find that the exclusionary rule is appropriate here. [¶] Under
these circumstances, based on that analysis, I’m going to deny the motion to suppress.”
On June 13, 2012, appellant filed her motion to suppress evidence in the superior
court. On July 13, 2012, the motion was heard by the trial court, which reviewed the
reporter’s transcript of the proceedings, heard argument by counsel, and denied the
motion.
Thereafter, appellant pleaded no contest to child endangerment, and the remaining
counts were dismissed. The trial court suspended imposition of sentence and placed
appellant on probation for four years with various conditions, including five months in
county jail.
DISCUSSION
Appellant contends the trial court erred in denying her motion to suppress
evidence because the probation search violated her Fourth Amendment rights. We reject
the contention.
8
“When reviewing the denial of a motion to suppress evidence, [the appellate court]
view[s] the facts most favorably to the respondent and uphold[s] the magistrate’s factual
findings if supported by substantial evidence.” (People v. Watkins (2009)
170 Cal. App. 4th 1403, 1408; People v. Redd (2010) 48 Cal. 4th 691, 719.) Whether a
search is constitutionally reasonable is a legal question upon which the appellate court
exercises its independent judgment. (People v. Hughes (2002) 27 Cal. 4th 287, 327;
People v. Medina (2007) 158 Cal. App. 4th 1571, 1575.)
“The Fourth Amendment proscribes all unreasonable searches and seizures, and it
is settled that warrantless searches are per se unreasonable unless they come within an
established exception to the warrant requirement. [Citation.] A search by police under
an adult probationer’s search condition comes within an exception.” (People v.
Hoeninghaus (2004) 120 Cal. App. 4th 1180, 1184.) “[A] person may validly consent in
advance to warrantless searches and seizures in exchange for the opportunity to avoid
serving a state prison term.” (People v. Robles (2000) 23 Cal. 4th 789, 795.)
It is well established that a person’s advance consent will justify a probation
search of an area shared by nonprobationers over which the probationer has “common
authority.” (U.S. v. Matlock (1974) 415 U.S. 164, 171 [94 S.Ct 988, 993]; People v.
Woods (1999) 21 Cal. 4th 668, 678–681.) The common authority theory of consent rests
“on mutual use of the property by persons generally having joint access or control for
most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the
right to permit the inspection in his own right and that the others have assumed the risk
that one of [them] . . . might permit the common area to be searched.” (U.S. v. Matlock,
supra, 415 U.S. at p. 171, fn. 7 [94 S.Ct. at p. 993, fn. 7].) Thus, if a person lives with a
probationer, common or shared areas of their residence may be searched by officers
aware of an applicable search condition. (People v. Robles, supra, 23 Cal.4th at p. 798
[cohabitants have no cause to complain of searches that are reasonably and objectively
related to the purposes of probation].)
There is a reduced expectation of privacy that stems from the principle that one
who shares “joint access or control for most purposes” over an area will be “held to have
9
assumed the risk” that a co-occupant might consent to a search of the premises or effects.
(U.S. v. Matlock, supra, 415 U.S. at p. 171 & fn. 7 [94 S.Ct. at p. 993 & fn. 7]; People v.
Jenkins (2000) 22 Cal. 4th 900, 977.) Cotenants of a probationer maintain normal
expectations of privacy only over their persons and residential areas subject to their
exclusive access or control, provided there is no basis for officers to reasonably believe
the probationer has authority over those residential areas. (People v. Robles, supra, 23
Cal.4th at p. 798.)
Appellant first challenges the probation search on the ground that Mark Anthony
was in jail and therefore did not have the actual or apparent authority to consent to the
search. She points out that he “had been in jail for the 10 months prior to the search,”
had given 721 Third Avenue as his address when he was booked in jail in January 2010,
“was not on the lease” for 703 Third Avenue, did not contribute to the rent or have a key
to the residence, and did not have any furniture or household effects in the home except
“a financial statement dated 2007.”
Before beginning the search, however, Marty contacted County Communications
to find out who lived at 703 Third Avenue. He was informed that Mark Anthony had
listed the address as his residence and that he was on probation with search and seizure
terms. He followed up on this information by contacting adult probation and speaking
with on-call probation officer Ewing, who had access to Mark Anthony’s file and
confirmed that his residence of record on the day of the search was 703 Third Avenue.
Neither informed Marty that Mark Anthony was in jail. It was therefore reasonable for
Marty to conclude—based on confirmation from two official channels—that the
residence he and his team were about to search was that of a probationer who had
consented to search and seizure terms.
Appellant relies on Illinois v. Rodriguez (1990) 497 U.S. 177 [110 S. Ct. 2793] in
support of her position that Mark Anthony did not have actual or apparent authority to
consent to a search of 703 Third Avenue. Her reliance on the case is misplaced. There,
the United States Supreme Court held that a woman’s consent to the search of an
apartment she used to share with the defendant and her two children, but in which she no
10
longer lived, did not justify a warrantless search of the apartment. (Id. at p. 181 [110
S.Ct. at p. 2797.) Appellant tries to draw an analogy between the two cases by noting
that Mark Anthony, like the woman in Illinois v. Rodriguez, was not on the lease to the
residence and did not contribute to the rent. Illinois v. Rodriguez, however, did not
involve a probation search, and there was no confirmation from any officials in that case
that the apartment they searched was one in which the woman resided. In contrast, here,
officers received information from two official sources that the house they were about to
search was the residence of a probationer who had agreed to search and seizure terms.
Appellant also asserts that once she told the officers that Mark Anthony was in
jail, they had the duty to inquire further to confirm whether this information was true.
She has not cited any authority, however, for her purported position that officers are
prohibited from conducting probation searches when the probationer is in jail. As noted,
probation supervisor Gatto explained that a search of a probationer who is in jail benefits
the community in various ways, including allowing probation to determine whether the
probationer will be returning to an appropriate residence, and ensuring that there are no
hidden drugs or firearms at the residence. In some situations, it can also assist probation
in investigating crimes in which the probationer may be involved. A probation search
also indicates to the probationer that he is being “check[ed] on,” and that he needs to
provide an accurate and updated address to his probation officer at all times. Because
appellant has not shown that officers are prohibited from conducting probation searches
for probationers who are in jail, the fact that the officers in this case could have taken
additional steps to verify Mark Anthony’s residence does not undermine the magistrate’s
determination that they acted reasonably based on information that was available to them
at the time of the search.
Next, appellant argues that the search of the adult bedroom was unreasonable
because police “had no reason to believe” that Mark Anthony had “joint access [to] or
control” of that bedroom. She points out that the bedroom, which was the only adult
bedroom in the house, had only one adult bed, and that she had told the officers that
everything in it was hers. However, appellant’s statement that everything in the room
11
belonged to her was not credible in light of the fact that the room contained both men’s
and women’s clothing, as well as indicia of occupancy by Mark Anthony. The officers
were therefore not required to end their search based on that statement. Moreover, there
was nothing in the record to suggest what the specific sleeping arrangements were, or
who stayed at the residence on any given day. As noted, appellant and Mark Anthony’s
grandmother, Valencia, testified that the house was a family home in which many family
members lived and stayed throughout the 40 years that Valencia and her husband owned
it. Mark Anthony lived there from the time he was a baby until he was 16-years-old, and
was always welcome in the home after he moved out. When asked why Mark Anthony’s
bank records were found in the bedroom, Valencia explained that it was “normal” for him
to leave things in the house because he was “not established in one place” and would
“most the time, . . . drop in my house.” Valencia also testified that Mark Anthony was
“homeless” and stayed in various places at various times, including with his mother in
Redwood City, with his girlfriend, or “once in a while,” at 703 Third Avenue. It was not
unreasonable for the police to believe that the adult bedroom was one over which Mark
Anthony had joint access or control.
The cases on which appellant relies are inapposite. She cites to People v. Baker
(2008) 164 Cal. App. 4th 1152 (Baker), for example, to support her claim that the bedroom
search was unreasonable. In Baker, the court held that the search of a purse belonging to
a female passenger could not be justified by the male driver’s parole search conditions.
(Id. at p. 1156.) Baker was the only passenger in a car that was stopped for speeding, and
the purse was sitting at her feet. When Baker was ordered to exit the car, she did so
without taking her purse or asserting ownership of the purse. (Ibid.) On those facts, the
court concluded “there could be no reasonable suspicion that the purse belonged to the
driver, that the driver exercised control or possession of the purse, or that the purse
contained anything belonging to the driver.” (Id. at p. 1159.)
In contrast, here, there were no circumstances that indicated the contraband and
currency belonged to appellant only, and not Mark Anthony. The large amount of crystal
methamphetamine was found in a shelf in the closet between two pairs of men’s jeans,
12
and the currency was found in a men’s jacket hanging in the room. Indicia of occupancy
by Mark Anthony was also found in the room. The contraband and money were not
found in appellant’s immediate presence and the officers could reasonably conclude that
Mark Anthony had access to the items.
People v. Montoya (1981) 114 Cal. App. 3d 556 is similarly distinguishable. There,
the court held that the a parole agent was under a duty to inquire as to who owned a pair
of jeans before searching it, because the agent subjectively believed that it was equally
likely the jeans belonged to the defendant, a nonparolee, as it was that they belonged to a
second guest known to the agent to be a parolee with a search condition. (Id. at pp. 561–
564.) Here, in contrast, there was sufficient evidence from which the magistrate could
reasonably find that the house that was searched was Mark Anthony’s residence, and that
the contraband that was found in the adult bedroom between two pairs of men’s jeans,
was his, and not his sister’s.
Finally, appellant argues that the search “over her express objection rendered it
unreasonable as to her.” She argues that any consent Mark Anthony gave by agreeing to
a search and seizure clause was overridden because she was physically present when the
officers came to the house and expressly objected to the search. She relies on Georgia v.
Randolph (2006) 547 U.S. 103, 111–114 [126 S. Ct. 1515, 1521–1523] (Randolph) to
support her claim, but her reliance on the case is misplaced. In Randolph, the United
States Supreme Court held that police may not conduct a warrantless search with the
consent of an occupant based on the consent of one occupant when another co-occupant
expressly refuses to consent. (Id. at pp. 114–115 [120; 126 S.Ct. at pp. 1523–1524,
1526].) Randolph is distinguishable from this case because it did not involve a probation
or even a parole search. (Ibid.) Appellant has not cited—and we have not found—any
California cases that have applied the principles in Randolph to cases involving probation
searches. Here, because the officers knew that Mark Anthony had consented to a
probation search and seizure clause, it was reasonable for them to believe they could
lawfully search all portions of the house over which they believed he had complete or
joint control.
13
In any event, even assuming the search violated appellant’s Fourth Amendment
rights, we conclude the evidence was properly admitted under the good faith exception.
In Herring v. U.S. (2009) 555 U.S. 135, 137 [129 S. Ct. 695] (Herring), the United States
Supreme Court stated, the “ ‘ “exclusionary rule is not an individual right and applies
only where it ‘result[s] in appreciable deterrence.’ ” ’ ” (Id. at p. 141; see also People v.
Robinson (2010) 47 Cal. 4th 1104, 1124.) Thus, deterrence is needed—and exclusion is
therefore proper—only where the law enforcement action in question constitutes
“ ‘deliberate’, ‘reckless’, or ‘grossly negligent’ ” or systematically negligent police
conduct. (Davis v. U.S. (2011) ____ U.S. ____ [131 S. Ct. 2419, 2426–2427, 180
L. Ed. 2d 285].) Absent such “culpable conduct,” the exclusionary rule should not be used
simply to remedy a Fourth Amendment violation. (Ibid.) Accordingly, the exclusionary
rule does not apply when “police act[] with an objectively reasonable good faith belief
that their conduct is lawful.” (Id. at p. 2427.)
Here, the officers’ actions were not grossly negligent, as the officers reasonably
relied on two official sources informing them that a probationer who had agreed to search
and seizure terms lived at 703 Third Avenue. Appellant asserts the officers were grossly
negligent when they failed to confirm the truth of her statement that her brother was in
jail and did not live there. However, as noted, she has not shown the officers would have
been prohibited from searching the residence, even if they had learned that Mark
Anthony was, in fact, in jail. “ ‘Gross negligence’ long has been defined as with a
“ ‘ “ ‘want of even scant care’ ” ’ ” or “ ‘ “ ‘an extreme departure from the ordinary
standard of conduct.’ ” ’ ” (City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th
747, 754.) Because the officers in this case relied in good faith on the information they
had received from two separate official channels, the exclusionary rule did not apply and
the trial court did not err in denying appellant’s request to suppress the evidence
14
DISPOSITION
The judgment is affirmed.
_________________________
McGuiness, P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
15