People v. Montenegro
| Decision Date | 29 October 1985 |
| Citation | 173 Cal.App.3d 983,219 Cal.Rptr. 331 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Jesus Carranza MONTENEGRO, Defendant and Appellant. G001059. |
Jesus Montenegro pleaded guilty to narcotics offenses (Health & Saf.Code, § 11351; Bus. & Prof.Code, § 4143, subd. (a)) and admitted he previously served a term in state prison for possessing narcotics (Pen.Code, § 667.5, subd. (b)). He appeals the denial of his motion to suppress evidence (Pen.Code, § 1538.5, subd. (m)), challenging the lawfulness of a parole search conducted jointly by police and a parole agent. We affirm.
* * *
* * *
Police received information from a confidential informant that a certain dealer supplied a narcotics suspect. The dealer lived near Bristol and the Garden Grove Freeway and drove a black compact pickup truck with a yellow, red and white striped camper shell. A surveillance officer saw such a truck parked at Montenegro's apartment complex, on Bristol, near the freeway. Montenegro was seen driving the truck. Officers learned he was on parole and confirmed this with his parole agent.
A police officer also confirmed Montenegro was subject to the standard search and seizure condition imposed on virtually all state prison parolees. The "Notice and Conditions of Parole" signed by Montenegro upon his release from prison in 1982 states: "You and your residence and any property under your control may be searched without a warrant by any agent of the Department of Corrections or any law enforcement officer." The police officer expressed his desire to participate in a parole search, with a parole agent. Montenegro's agent agreed and advised the police officer to "just let him know" when.
Four days later, the police believed a known narcotics user might be present in Montenegro's apartment and called the parole agent to request his presence to conduct a search. Because Montenegro's supervising agent was not in, a different parole agent agreed to participate in the search with the officers. That agent testified he made an independent decision to conduct a parole search, based in part on the information from the police that Montenegro was suspected of dealing narcotics. The agent also considered evidence of Montenegro's use of narcotics, as shown by urine samples submitted to his parole agent.
The parole agent knocked on Montenegro's apartment door and announced, "Parole"; Montenegro looked out the window and mouthed the words, "Okay, okay." The doorknob moved but the door did not open. The parole agent tried the door but it was locked. A police officer shouted, "Police, open the door." There was still no response. The agent directed the officer to break open the door, which he did. A young child was standing inside near the door; Montenegro was headed up the stairs. The ensuing search led to the seizure of heroin, a syringe and $20,000 in cash, which Montenegro sought to suppress.
Montenegro asserts the forced entry into his home cannot be justified by any exception to the warrant requirement. The prosecution concedes there was no probable cause justifying the entry and search. However, it correctly points out that probable cause is not necessary when conducting this type of parole search. (People v. Mason (1971) 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630, disapproved on other grounds in People v. iLent (1975) 15 Cal.3d 481, 486, fn. 1, 124 Cal.Rptr. 905, 541 P.2d 545; People v. Britton (1984) 156 Cal.App.3d 689, 202 Cal.Rptr. 882.)
Montenegro alternatively argues the search cannot be justified as a parole search. He contends the police officers knew they did not have enough information to get a search warrant. He argues they used the parole agent only as a ruse to conduct the search. We disagree.
It is true (People v. Natale (1978) 77 Cal.App.3d 568, 574, 143 Cal.Rptr. 629; People v. Coffman (1969) 2 Cal.App.3d 681, 688, 82 Cal.Rptr. 782.) Nevertheless, "[t]he purpose of the search, not the physical presence of a parole agent, is the vital element." (Ibid.) The Coffman-Natale rationale could be rejected as inapposite, simply because the parole condition in this case specifically authorizes a "law enforcement" search, whereas the conditions in Coffman and Natale were limited to "parole agent" searches. (Hernandez v. Superior Court (1980) 110 Cal.App.3d 355, 366, 185 Cal.Rptr. 127.) But more importantly, as in Hernandez, the parole agent here made an independent determination to search Montenegro's apartment. This justifies the validity of the search irrespective of law enforcement participation. Montenegro suggests the primary motivation was to conduct a police search; that, however, was not the only motivation. Such a dual purpose does not invalidate the search. Our review of the record "reveals that the search and the arrest were lawful and legitimate parole administration functions and not mere law enforcement duties and actions." (People v. Wagner (1982) 138 Cal.App.3d 473, 479, 188 Cal.Rptr. 185.)
Next, Montenegro asserts parole searches are unlawful because they are premised on a theory he claims is no longer viable: "consent" to waive certain Fourth Amendment rights in exchange for early release on parole. Both People v. Icenogle (1977) 71 Cal.App.3d 576, 139 Cal.Rptr. 637 and People v. Mason, supra, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630 1 validated search conditions as consensual waivers of Fourth Amendment rights. Montenegro asserts these cases are inapposite because they predate the Determinate Sentencing Act. He correctly points out the majority of state prisoners, like himself, now serve determinate, not indeterminate, sentences. Therefore, he concludes prisoners have no choice of rejecting or accepting parole under conditions proposed by parole authorities. They are entitled to release at the conclusion of their determinate sentence. Thus, under the Determinate Sentencing Act, there is no bargaining for early release on parole and therefore no "consent" to waive certain rights in exchange for parole.
The Determinate Sentencing Act does change the equation, but not the result. (People v. Britton, supra, 156 Cal.App.3d 689, 202 Cal.Rptr. 882.) Britton upheld a search based on an identical parole condition, involving a parole under the Determinate Sentencing Act. We agree with Britton to the extent it holds such conditions reasonable. Britton, however, avoided deciding Montenegro's consent argument directly, although Britton raised the same argument Montenegro makes before this court. We would go further than the holding in Britton and expressly hold a parole condition cannot be justified as a consensual waiver of a known right.
A defendant sentenced determinately is entitled to release at the conclusion of the sentence. However, the sentence includes a period of parole supervision. During...
To continue reading
Request your trial
-
Pennsylvania Bd. Probation & Parole v. Scott
...stop and subsequent search and seizure knew or had reason to know that defendant was on probation); People v. Montenegro, 173 Cal.App.3d 983, 986, 219 Cal.Rptr. 331, 332 (4th Dist.1985) (police contacted parole agent so that they could conduct search of parolee's apartment); see also Pennsy......
-
Lane v. State
...689 (2005) (holding that there is no blanket exception to the knock-and-announce requirement for parolees); People v. Montenegro , 173 Cal.App.3d 983, 219 Cal.Rptr. 331 (1985) (for warrantless parole arrests, there must be substantial compliance with knock-and-announce rules); United States......
-
People v. Pugh
...literal compliance, as long as ` the policies and purposes of the requirements have been satisfied.'" (People v. Montenegro (1985) 173 Cal. App. 3d 983, 989, 219 Cal. Rptr. 331 [parole officers substantially complied though they opened screen to defendant's home before knock-notice given an......
-
Lane v. Nading
...of the knock and announce requirement"), rev’d on other grounds, 401 F.3d 1208 (10th Cir. 2005).4 See People v. Montenegro, 173 Cal.App.3d 983, 219 Cal. Rptr. 331, 334 (1985) (holding that officers must comply with state statutory knock-and-announce requirements when searching a parolee’s ...