P. v. Butler

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Filed 6/14/11 P. v. Butler CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
DEMOND DUPREE BUTLER,
Defendant and Appellant.
C064170
(Super. Ct. No.
SF112462A)
Defendant Demond Dupree Butler appeals the trial court‟s
denial of his motion to suppress evidence that includes a loaded
handgun the police found underneath the driver‟s seat of the car
defendant was driving. The police searched under the seat as
part of a “parole search” because the front seat passenger,
Johnny Duckworth, was on parole. Defendant argued in the trial
court, as he does on appeal, that the search under the driver‟s
seat went beyond the permissible reach of a parole search. We
disagree and affirm.

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BACKGROUND
I. Factual Background1
Just after midnight on July 25, 2009, Officers Mohammed and
Guerrero of the Stockton Police Department were driving behind a
1999 Honda Accord. Officer Mohammed noticed the red lens on the
left brake light was cracked and initiated a traffic stop. The
car pulled over, and the officers approached the vehicle.
Officer Mohammed asked defendant (the driver) for his driver‟s
license, registration, and insurance. Defendant provided the
information. Officer Mohammed also obtained the names and birth
dates of the front seat passenger and the two passengers in the
back seat. Officer Mohammed returned to his patrol car and ran
a records check on all of the vehicle occupants. The records
check indicated that the front seat passenger, Johnny Duckworth,
was on parole for residential robbery.
Upon learning of Duckworth‟s parole status, the officers
decided to conduct a parole search and had everybody exit the
vehicle. During this time, Duckworth was handcuffed and placed
in the back of the patrol car. The other vehicle occupants were
seated on the curb. During the parole search, Officer Guerrero
found a handgun directly underneath the driver‟s seat.
Additional officers arrived on the scene, and the remaining
vehicle occupants were handcuffed and placed into patrol cars.
1 The background facts are taken from evidence presented at a
combined preliminary and suppression of evidence hearing held on
September 24, 2009.

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Officer Guerrero had Officer Mohammed look under the driver‟s
seat to observe the gun. Before the officers handled the gun,
an evidence technician was called to the scene for
photographing. Eventually Officer Mohammed removed the gun from
under the driver‟s seat and discovered it was loaded with six
bullets.
After being read his Miranda rights,2 defendant spoke with
Officer Mohammed about the gun. Defendant stated that his
cousin was involved in an altercation earlier that night, and
defendant took the gun away from his cousin before the matter
escalated. Defendant placed the gun in his vehicle and forgot
about it. Defendant indicated that he knew the gun was loaded,
but was unaware that it was illegal to carry a gun in the
vehicle.
II. Procedural Background
On September 28, 2009, the San Joaquin County District
Attorney filed a two-count information against defendant
charging him with possession of a firearm by a felon (count 1)
and possession of ammunition by a felon (count 2). The
information further alleged that defendant had committed one
prior strike and served two prior prison terms. A combined
preliminary and suppression of evidence hearing was held on
September 24, 2009. The superior court judge, sitting as a
magistrate, denied the suppression motion and held defendant to
2 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]
(Miranda).

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answer on the charges against him. In denying the suppression
motion, the magistrate stated: “Next issue would be the issue
of a parole search. . . . A Honda, not a lot of distance
between the driver‟s seat and passenger seat. The officers
would be allowed to look. [¶] . . . [W]hat I have here
indicates Mr. Duckworth was on parole and therefore there would
be a basis for a parole search. Also, though he‟s the
passenger, that doesn‟t mean they can‟t search the car or areas
particularly in his control. On a bus, that is a different
deal. This is a small car. We‟re not talking about officers
plowing through the trunk. We‟re talking the search of the
front seat where Duckworth was seated apparently next to
[defendant] that night. [¶] I would deny the [motion] for those
reasons.”
On December 7, 2009, defendant sought review of the
magistrate‟s suppression ruling and filed a renewed motion to
suppress pursuant to Penal Code section 1538.5, subdivision (i)
(section 1538.5(i)).3 On January 11, 2010, after reviewing the
parties‟ briefing and preliminary hearing transcript, the trial
court denied the motion. In its ruling, the trial court stated:
“I am going to deny the motion based on the notion that this was
a parole search. And the gun was found in a place that was
3 Defendant also filed a Penal Code section 995 motion to
dismiss the information. Defendant, however, expressly made
this motion contingent upon obtaining a successful result on his
renewed motion to suppress under section 1538.5(i), which
contingency never occurred.

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readily accessible to the defendant. [¶] The Court made sort of
a factual finding on that, about the size of the car and the,
quote, relatively small car. [¶] A gun was found under the
driver‟s seat, next to wherever Mr. Duckworth, the parolee, was
seated, so that he had access to it. I‟m not disagreeing with
the notion that he didn‟t have an ownership interest in the car,
or even have a possessory interest in the car. But he had the
ability or right to control those items underneath the driver‟s
seat. [¶] And so a parole search clause requiring access to
places that a person has control is imposed just for that
purpose. The place where the parolee might be able to put,
place[,] secret or have access to contraband. And, certainly,
that could have been the case here. [¶] So for all those
reasons, the Court‟s going to deny the [section] 1538.5 motion.
But that‟s an interesting issue. Let‟s see where it goes from
here.” This appeal followed.
DISCUSSION
Motion to Suppress
On appeal from a renewed motion to suppress brought under
section 1538.5(i), we review the determination of the magistrate
at the preliminary hearing. (People v. Nonnette (1990)
221 Cal.App.3d 659, 664.) We defer to the magistrate‟s factual
findings, whether express or implied, when supported by
substantial evidence, and we independently determine whether the
facts of the challenged search and/or seizure violated
defendant‟s Fourth Amendment rights. (People v. Lomax (2010)

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49 Cal.4th 530, 563; People v. Hua (2008) 158 Cal.App.4th 1027,
1033.)
A warrantless search is “„per se unreasonable under the
Fourth Amendment -- subject only to a few specifically
established and well-delineated exceptions.‟ [Citation.]”
(Arizona v. Gant (2009) 556 U.S. __ [173 L.Ed.2d 485, 493]
(Gant); see also People v. Redd (2010) 48 Cal.4th 691, 719.) A
search pursuant to a properly imposed parole search condition is
one such exception. (People v. Reyes (1998) 19 Cal.4th 743, 751
(Reyes); People v. Smith (2009) 172 Cal.App.4th 1354, 1360
(Smith).) California parolees are subject to a standard search
condition, which provides that their person, their residence,
and any property under their “control” may be searched without a
warrant at any time by any law enforcement officer. (Cal. Code
Regs., tit. 15, § 2511, subd. (b); Reyes, supra, 19 Cal.4th at
p. 746; People v. Lewis (1999) 74 Cal.App.4th 662, 666, fn. 1
(Lewis); People v. Williams (1992) 3 Cal.App.4th 1100, 1105
(Williams).)4 This condition has long been regarded as valid.
4 Given no evidence to the contrary, we assume that Duckworth
was subject to this standard search condition. (See Lewis,
supra, 74 Cal.App.4th at p. 666, fn. 1 [assuming standard search
condition applied]); Cal. Code Regs., tit. 15, § 2356 [requiring
prison staff to provide parolee documentation that includes the
standard search condition]; Evid. Code, § 664 [“It is presumed
that official duty has been regularly performed”].) Our
assumption is especially well-founded given that defendant cited
California Code of Regulations, title 15, section 2511,
subdivision (b) in his trial court briefing and also
represented, during oral argument at the renewed suppression
hearing, that the officers searched the car “pursuant to the

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(People v. Wagner (1982) 138 Cal.App.3d 473, 479; People v.
Montenegro (1985) 173 Cal.App.3d 983, 988.) While parole
searches need not be based on probable cause or reasonable
suspicion of criminal activity (People v. Sanders (2003)
31 Cal.4th 318, 332-333 (Sanders); Reyes, supra, 19 Cal.4th at
pp. 751, 754), they are subject to constitutional limits. Among
other things, the scope of a parole search may render the search
constitutionally unreasonable. (See Smith, supra,
172 Cal.App.4th at p. 1362.)
No party disputes that Officers Mohammed and Guerrero had
knowledge that Duckworth was on parole and were authorized to
conduct a parole search. (See Smith, supra, 172 Cal.App.4th at
p. 1360 [officer was aware that defendant was on parole and was
therefore authorized to conduct a parole search]; see also
Samson v. California (2006) 547 U.S. 843, 856, fn. 5
[165 L.Ed.2d 250, 262].) Rather, the parties dispute whether
the scope of their search went beyond the parameters of a
legitimate parole search.
Consistent with the ambit of the standard parole search
condition, the searching officer may look into areas or
containers that it is reasonable to believe are within the
complete or joint “control” of the parolee. (People v. Boyd
(1990) 224 Cal.App.3d 736, 745, 749-751 (Boyd); People v.
Britton (1984) 156 Cal.App.3d 689, 703 (Britton), disapproved on
parole condition” of Duckworth but that the area under the
driver‟s seat was not under Duckworth‟s “control.”

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another ground in People v. Williams (1999) 20 Cal.4th 119, 135;
United States v. Davis (9th Cir. 1991) 932 F.2d 752, 760
(Davis).) As there was no evidence that Duckworth owned or
possessed the vehicle, some other indication of Duckworth‟s
control of the area searched was necessary for the search to be
reasonable. From the record, it is clear that the magistrate
(and the trial court) concluded that the area underneath the
driver‟s seat was within Duckworth‟s “control” based on his
immediate access to that area.
As the magistrate correctly found, a Honda Accord is a
“small car.”5 Duckworth was sitting in the front passenger seat
of the vehicle, which put him within immediate reach of the area
under the driver‟s seat. Moreover, there was no evidence
Duckworth suffered from a physical limitation that rendered him
unable to utilize his hands or that the area under the driver‟s
seat was partitioned off or excluded from other passengers. As
the trial court put it, and as the magistrate impliedly found,
the area underneath the driver‟s seat was “readily accessible”
to Duckworth. We defer to this finding.
5 A judge, as with any fact finder, may appropriately consider
matters within common knowledge. (See Evid. Code, § 452,
subd. (g) [matters of common knowledge are judicially
noticeable]; People v. Godinez (1992) 2 Cal.App.4th 492, 500
[recognizing that fact finders may rely on common knowledge].)
Given that in Maryland v. Pringle (2003) 540 U.S. 366, 373
[157 L.Ed.2d 769, 776] the United States Supreme Court,
apparently relying on its own common knowledge, considered a
Nissan Maxima a “relatively small automobile,” we see no reason
to quarrel with the magistrate‟s similar observation that a
Honda Accord is a “small car.”

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The issue remains, however, whether it was reasonable to
believe that this area, which was readily accessible to
Duckworth, was within his “control.” (See Boyd, supra,
224 Cal.App.3d at p. 750 [reasonable suspicion standard used to
determine whether an object is within the scope of a parole
search].) We conclude that it was.6
Because Duckworth was within immediate reach of the area
underneath the driver‟s seat and it was readily accessible to
him, it was reasonable to believe that Duckworth could
personally exercise power over that area (and any contraband
therein), rendering it within his control. (See Merriam-
Webster‟s Collegiate Dict. (11th ed. 2006) p. 272, col. 1
[defining “control” as, among other things, “to have power
over”]; cf. People v. Pompa (1960) 178 Cal.App.2d 62, 65
[“control [over contraband] might be inferred from its presence
in a place to which the accused and others had joint access”);
United States v. Tirrell (7th Cir. 1997) 120 F.3d 670, 676
[“Indeed, in close quarters such as a car, a jury likely would
have an easier time concluding that multiple individuals
exercised control over a particular weapon”].)
6 The California Supreme Court has recently granted review in
People v. Schmitz (2010) 187 Cal.App.4th 722, review granted
December 1, 2010, S186707. According to the case summary
appearing on the Supreme Court‟s Web site, Schmitz “presents the
following issue: When conducting a vehicle search authorized by
a passenger‟s parole condition, can the police search any areas
of the vehicle‟s interior that appear reasonably accessible to
the passenger?”

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Although we have not located any authority that purports to
delineate or establish criteria for determining what areas
inside a vehicle are within a passenger-parolee‟s control for
parole search purposes, our conclusion that it was reasonable to
believe the area searched was within Duckworth‟s control, and
thus within the proper scope of a parole search, is consistent
with the rationale for permitting warrantless, suspicionless
parole searches. (See Cupp v. Murphy (1973) 412 U.S. 291, 295
[36 L.Ed.2d 900, 905-906] (Cupp) [“the scope of a warrantless
search must be commensurate with the rationale that excepts the
search from the warrant requirement”]; see also Gant, supra,
556 U.S. at p. ___ [173 L.Ed.2d at p. 493] [explaining that
“„the area “within [an arrestee‟s] immediate control”‟” is
defined as the “„area from within which he might gain possession
of a weapon or destructible evidence‟” so that the scope of the
search-incident-to-arrest exception remains “commensurate with
its purposes of protecting arresting officers and safeguarding
any evidence of the offense of arrest that an arrestee might
conceal or destroy” (italics added)].)
“The justification for exempting parole searches from the
warrant requirement . . . is that these searches are necessary
for effective parole supervision.” (Williams, supra,
3 Cal.App.4th at pp. 1105-1106.) Parolees are “routinely and
closely monitored,” which greatly reduces their expectation of
privacy. (Reyes, supra, 19 Cal.4th at p. 753.) Warrantless
parole searches serve to deter crime and protect the public, and

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when randomly done, parole searches enhance the potential for
crime deterrence. (Ibid.)
Here, given that the area underneath the driver‟s seat was
readily accessible to Duckworth, he could easily utilize that
area to store or conceal items, such as weapons or other
contraband, and he could easily retrieve items from that area
and reduce them to his immediate possession. Accordingly,
treating that area as within Duckworth‟s control and subject to
a parole search is commensurate with the purpose of effectively
supervising Duckworth, closely monitoring his conduct,
protecting the public from any criminal danger he may pose, and
deterring him from committing crime. Indeed, it is difficult to
imagine that an officer attempting to supervise and monitor a
parolee via a warrantless parole search would disregard those
areas that are readily accessible to him. (Cf. United States v.
Knights (2001) 534 U.S. 112, 120 [151 L.Ed.2d 497, 506]
[“probationers [and parolees] have even more of an incentive to
conceal their criminal activities and quickly dispose of
incriminating evidence than the ordinary criminal because
probationers [and parolees] are aware that they may be subject
to supervision and face revocation of probation [or parole], and
possible incarceration, in proceedings in which the trial rights
of a jury and proof beyond reasonable doubt, among other things,
do not apply”].)
We conclude that the facts confronting the searching
officers supported a reasonable belief that the area under the
driver‟s seat, which was readily accessible to Duckworth, was

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within his control and therefore within the proper scope of a
parole search. Accordingly, the search of that area was lawful.
While defendant raises arguments to the contrary, none compel a
different result.
Defendant claims that this case is “controlled” by
People v. Baker (2008) 164 Cal.App.4th 1152 (Baker), a decision
from the Fifth Appellate District, which defendant cites in
support of his position that “[i]t is not enough that the
parolee had some theoretical access to the area underneath the
driver‟s seat.” Baker, which we are not bound to follow, is
readily distinguishable.
In Baker, an officer stopped a vehicle for speeding.
(Baker, supra, 164 Cal.App.4th at p. 1156.) Defendant Baker was
sitting in the front passenger seat with a female‟s purse at her
feet. (Id. at p. 1156.) After confirming that the vehicle‟s
driver was on parole, the officer decided to conduct a parole
search and had Baker exit the vehicle. (Ibid.) The officer
searched the entire car and found nothing. (Ibid.) The officer
then searched the purse and found methamphetamine in one of the
purse pockets. (Ibid.) Baker was later charged with possession
of methamphetamine and moved, unsuccessfully, to suppress the
contraband found in her purse. (Id. at pp. 1155-1156.) The
Court of Appeal concluded that the search of the purse went
beyond the legitimate scope of a parole search. (Id. at pp.
1156, 1161.)
The Baker court reasoned that when executing a parole
search, “the searching officer may look into closed containers

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that he or she reasonably believes are in the complete or joint
control of the parolee,” and the purse was not such a container.
(Baker, supra, 164 Cal.App.4th at p. 1159.) According to the
court, a purse is “not generally an object . . . which two or
more persons share” and “there [was] nothing to overcome the
obvious presumption that the purse belonged to the sole female
occupant of the vehicle.” (Id. at p. 1160.)
What distinguishes this case from Baker is the nature of
the area searched and the different “social expectations”
(Georgia v. Randolph (2006) 547 U.S. 103, 111 [164 L.Ed.2d 208,
220]) that attach. In Baker, the area searched was the interior
of a female‟s purse; it obviously belonged to the female
nonparolee passenger, and as a matter of common social
expectations, a purse is not generally an object that two or
more persons share as it is “an inherently private repository
for personal items.” (Baker, supra, 164 Cal.App.4th at
pp. 1159-1160; see also United States v. Welch (9th Cir. 1993)
4 F.3d 761, 764 [recognizing that “a purse is a type of
container in which a person possesses the highest expectations
of privacy”].) Thus, even though the driver, a male parolee,
was likely within reach of the female purse, there was no reason
to believe that he was allowed to access it.
Here, the area searched was an open space underneath the
driver‟s seat, not a closed, personal possession clearly
belonging to another individual. Unlike the female‟s purse in
Baker, the area underneath the driver‟s seat carried with it no
social expectation of exclusive or intensely private use. As

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the People suggest in their briefing, it is not atypical for
passengers apart from the driver to utilize the space underneath
the driver‟s and front passenger‟s seat for storage purposes
(whether to create more legroom or otherwise). In short, unlike
in Baker, here there was no reason to believe that the parolee
was not allowed to access the area searched.
In a related argument, defendant contends there was no
evidence that Duckworth had “common authority” over defendant‟s
vehicle. Defendant attempts to invoke the “common authority”
theory of consent articulated in United States v. Matlock (1974)
415 U.S. 164 [39 L.Ed.2d 242] (Matlock), which Baker mentions
and which the California Supreme Court employed in People v.
Woods (1999) 21 Cal.4th 668, 675-676 (Woods), for purposes of
explaining the legitimate scope of a probation (not parole)
search. While defendant would have us analyze this case under
the “common authority” theory of consent, we decline defendant‟s
invitation to do so.
At its heart Matlock is a consent case, and Woods imported
Matlock into the probation search context based on the
underlying premise that probationers “may validly consent” to
the search terms of their probation. (Woods, supra, 21 Cal.4th
at p. 674.) While probation search terms may be a matter of
consent, on more than one occasion the California Supreme Court
has indicated that a parolee does not consent to the search
terms of his parole; rather, those terms are imposed upon him.
(Sanders, supra, 31 Cal.4th at p. 329, fn. 3 [“No comparable
issue of waiver is raised in the present case, because the

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search condition at issue here was imposed as a condition of
parole, which defendant could not refuse”]; Reyes, supra,
19 Cal.4th at p. 749 [“The consent exception to the warrant
requirement may not be invoked to validate the search of an
adult parolee because, under the Determinate Sentencing Act of
1976, parole is not a matter of choice”]; People v. Bravo (1987)
43 Cal.3d 600, 608 [“A probationer, unlike a parolee, consents
to the waiver of his Fourth Amendment rights in exchange for the
opportunity to avoid service of a state prison term”].)
Accordingly, unless and until the California Supreme Court
explicitly imports Matlock’s “mutual authority” theory of
consent into the parole search context, we are reluctant to
filter this case through a Matlock analysis.
Second, and in any event, there is no need to utilize
Matlock as the test for assessing the parole search‟s
legitimacy. The standard parole search condition, along with
case law, already authorizes a search of the parolee and areas
or property within his “control.” (Cal. Code Regs., tit. 15,
§ 2511, subd. (b), item 4; see Boyd, supra, 224 Cal.App.3d at
pp. 745, 749-751; Britton, supra, 156 Cal.App.3d at p. 703;
Davis, supra, 932 F.2d at p. 760.) Here, it was reasonable to
believe that the area underneath the driver‟s seat (and the
contraband therein) was within Duckworth‟s “control” for parole
search purposes. Moreover, the scope of a parole search must be
commensurate with the rationale for exempting parole searches
from the warrant requirement (Cupp, supra, 412 U.S. at p. 295
[36 L.Ed.2d at pp. 905-906]), and as previously discussed, the

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search underneath the driver‟s seat was commensurate with this
rationale. Therefore, the search was valid and there is no need
to separately analyze this case under a consent rubric and
independently determine whether the scope of the search was also
commensurate with the quite different rationale behind
warrantless consent searches. (Florida v. Jimeno (1991)
500 U.S. 248, 250-252 [114 L.Ed.2d 297, 302-303] [discussing
consent exception rationale]; People v. Jenkins (2000)
22 Cal.4th 900, 980 [same].) Because the parole search in this
case was lawful without regard to its treatment under Matlock,
there is no need to further analyze the legality of the parole
search under a Matlock paradigm.
Despite defendant‟s arguments to the contrary, the parole
search underneath the driver‟s seat was constitutionally
reasonable. Accordingly, we uphold the trial court‟s ruling.
DISPOSITION
For the reasons stated, we affirm the ruling on defendant‟s
suppression motion.
RAYE , P. J.
We concur:
ROBIE , J.
BUTZ , J.

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