P. v. Moore 4/23/04 CA4/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: E032142

Case Date: 07/14/2004

Preview:Filed 4/23/04 P. v. Moore CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, v. ADRIAN EUGENE MOORE, Defendant and Appellant. E032142 (Super.Ct.No. FSB022611) OPINION

APPEAL from the Superior Court of San Bernardino County. Patrick J. Morris, Linda M. Wilde, Kenneth R. Barr and Brian McCarville, Judges. Reversed. Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster, Supervising Deputy Attorney General, Frederick R. Millar, and Bradley Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury found defendant guilty of possessing rock cocaine and the trial court, in a separate proceeding and after defendant waived his right to a jury, found that defendant had previously been convicted of two prior serious felonies within the meaning of the three strikes law. After denying defendant's motion to strike one of the prior convictions, the trial court sentenced defendant to the term of 25 years to life in accordance with the mandate of the three strikes law. Defendant raises various claims of error in this appeal. We agree with his claim that the search of his mouth pursuant to which the police recovered the rock of cocaine violated the Fourth Amendment and therefore the trial court erred in denying defendant's motion to suppress that evidence. Because that search was unlawful, we will reverse the judgment and consequently will not address defendant's remaining claims of error. FACTUAL AND PROCEDURAL BACKGROUND Because we are reversing the judgment based on the unlawful search, we will not recount in detail the evidence presented at trial. For our purposes it is sufficient to note that San Bernardino City Police Officers Antillon and Brennan were on bike patrol in downtown San Bernardino at 12:35 p.m. on May 5, 1999, when they spotted defendant and a woman leaving an apartment. Defendant had a beer in his right hand and the woman appeared to be looking at something in her hands. As Officer Antillon headed across the street toward them, defendant and the woman stopped walking. When the woman looked up and spotted the officer she said something to defendant and then walked quickly back to the apartment complex.

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Officer Antillon contacted defendant who immediately stated that he would throw away the beer he had been holding. Following an initial exchange during which defendant appeared to the officer to be very agitated and nervous, Officer Antillon noticed what appeared to be a black plastic bindle in defendant's left hand. When defendant would not comply with Officer Antillon's directive to open his hand, a struggle ensued that included other officers who had arrived at the scene. Ultimately, defendant put the object in his mouth and the police officers had him transported by ambulance to a hospital where defendant was sedated and the bindle was removed from his mouth. That bindle tested positive for cocaine. Defendant moved in Superior Court to suppress the drugs on the ground that the search of his mouth had violated his Fourth Amendment right to be free from unreasonable searches. The trial court denied that motion after the prosecutor presented evidence to show that defendant had been on parole at the time of the search and therefore had waived his Fourth Amendment rights. Defendant contends, because the police officers did not know he was on parole at the time they conducted the search, that search was unlawful and therefore the trial court erred in denying his motion to suppress the drugs. We agree for reasons we now explain. DISCUSSION Resolution of defendant's claim is governed by People v. Sanders (2003) 31 Cal.4th 318, in which our state supreme court held that the warrantless search of a home was unreasonable under the Fourth Amendment because, although one of the home's

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occupants was on parole and subject to a search condition, the police were unaware of that condition at the time the search was conducted. (Id. at p. 332.) In reaching that conclusion, the Sanders court distinguished People v. Reyes (1998) 19 Cal.4th 743, in which the court had upheld as reasonable a search conducted "under the auspices of a properly imposed parole search condition" even though the police did not also have a particularized suspicion of wrongdoing. (Id. at p. 754.) The Sanders court noted, "In Reyes, unlike the present case . . . the searching officer was aware of the existence of the search condition. In fact, the standard adopted in Reyes, upholding a search conducted `under the auspices of a properly imposed parole search condition,' presumes the officer's awareness of the search condition, because a search cannot be conducted `under the auspices' of a search condition if the officer is unaware that the condition exists." (People v. Sanders, supra, 31 Cal.4th at p. 332.) The Sanders court went on to state, "We recognized in Reyes that whether the parolee has a reasonable expectation of privacy is inextricably linked to whether the search was reasonable. . . . [

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