P. v. Moore

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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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. . . . [¶] But our reasoning in
Reyes does not apply if the officer is unaware that the suspect is on parole and subject to
a search condition. Despite the parolee’s diminished expectation of privacy, such a
search cannot be justified as a parole search, because the officer is not acting pursuant
to the conditions of parole.” (Id. at p. 333, emphasis added.)
The above-emphasized language clearly reveals the Supreme Court’s view that
knowledge of the parole search term must precede the search in order for the search to be
reasonable under the Fourth Amendment. In this case, the prosecution’s only showing in

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opposition to defendant’s motion to suppress the drugs was a certified copy of
defendant’s parole terms which, as the trial court noted, included a term that required
defendant to “agree to search or seizure by a parole officer or other peace officer at any
time of the day or night with or without a search warrant, with or without probable
cause.” The prosecutor did not present any evidence to show that the police officers were
aware that defendant was on parole and subject to a parole search condition at the time
the search was conducted. Therefore, the prosecution did not meet its burden of
demonstrating that the search was within the parole search term exception to the warrant
requirement. (People v. Duncan (1986) 42 Cal.3d 91, 97.) The trial court, in turn, erred
in relying on defendant’s parole search term to deny defendant’s motion to suppress.
Although it appears that the search could have been reasonable as one conducted
pursuant to a lawful arrest, the prosecutor did not rely on that exception in the trial court
and therefore did not present evidence to support such a finding. Instead, defendant and
the prosecutor based their respective arguments on their moving and opposing papers as
well as on the transcript of defendant’s preliminary hearing. That hearing was conducted
under Article I, section 30 of the California Constitution, which makes hearsay evidence
admissible at a preliminary hearing. (Cal. Const., art. I, § 30, subd. (b).) Officer Brennan
was the only witness to testify at defendant’s preliminary hearing and he stated that he
had an encounter with defendant on the date in question and sometime after that
encounter, defendant was taken by ambulance to the emergency room of a hospital where
defendant was sedated and the doctor began “pulling items out” of defendant’s mouth.

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According to Officer Brennan, of the three items the doctor removed from defendant’s
mouth, the second appeared to contain a rock of cocaine.
Officer Brennan’s preliminary hearing testimony does not disclose the
circumstances surrounding the police officers’ initial encounter with defendant and the
subsequent events that caused the police to have defendant transported to the hospital.
Therefore, we cannot determine from the record on appeal whether the search of
defendant’s mouth was conducted pursuant to a lawful arrest. On the basis of the only
evidence the prosecution presented, the search was unreasonable under the Fourth
Amendment and we therefore must reverse the judgment.
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
I concur:
/s/ King
J.

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RAMIREZ, P.J., Dissenting
I respectfully dissent from the opinion of the majority.
The first matter to be addressed is which facts the trial court could properly rely on
in ruling on the motion to suppress. Although in his opening brief Moore asserts that the
facts stated in his written motion and in the prosecutor’s written response thereto could
be properly considered, apparently later realizing that taking this position weakened,1
rather than strengthened, his case, he retreated from it in his reply brief and agreed with
the People’s position. For their part, the People asserted in their brief that only evidence
presented at the hearing on the motion may properly be considered.2 While the
authorities they cite in support of this proposition are not exactly on point, it is clear that
the People are correct. (Pen. Code, § 1538.5, subd. (i) [“. . . [T]he defendant shall have
the right to fully litigate the validity of a search or seizure on the basis of the evidence
presented at a special hearing.” (Italics added.)]; People v. Loewen (1983) 35 Cal.3d
117, 123 [The appellate court upholds any implied finding of fact if supported by
1 For example, in the People’s written response, they assert that the San
Bernardino police officers who accosted Moore were in the company of a parole agent,
that almost immediately upon encountering Moore, they asked him if he was on
probation or parole and he admitted being on the latter, and that “[a]mong the general
rules imposed upon all people released on parole is the requirement that ‘[y]ou . . . may
be searched without a warrant at any time . . . .” The implication of these assertions is
that the officers were aware that Moore had a parole search term, which would provide a
basis for affirming the trial court’s ruling consistent with the analysis advanced by the
majority.
[footnote continued on next page]

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substantial evidence.]; People v. Escudero (1979) 23 Cal.3d 800, 804, fn. 1, 806 [The
court below may not rely on a preliminary hearing transcript that was not offered into
evidence at the hearing on the motion. The People’s burden of proof can be discharged
only by “objective evidence.”]; People v. Neighbours (1990) 223 Cal.App.3d 1115, 1120
[The appellate court will consider “only the evidence adduced at the hearing of the [Penal
Code section] 1538.5 motion . . . .”]; In re Javier A. (1984) 159 Cal.App.3d 913, 921 [An
appellate court is limited to “the evidence presented at the motion to suppress.”]; Wilder
v. Superior Court (1979) 92 Cal.App.3d 90, 94 [Despite the fact that a party cited
portions of the preliminary hearing transcript in its points and authorities, absent a
stipulation or exception to the hearsay rule, the transcript is not admissible and may not
be relied upon by the court below.]; People v. Carson (1970) 4 Cal.App.3d 782, 786 [A
defendant makes a prima facie showing when he or she “establishes” that an arrest was
made without a warrant -- “establishes” means using competent evidence.])
What we are left with in this case is the transcript of the preliminary hearing and
the search condition of Moore’s parole. No other asserted facts are relevant to a
discussion of the propriety of the denial of the motion. Any recitation of such facts, as
the majority engages in, improperly clouds and confuses the issue. The majority’s
statement that the parties “based their respective arguments on their moving and
opposing papers as well as the transcript of [Moore’s] preliminary hearing[,]” (maj. opn.,
[footnote continued from previous page]
2 Curiously enough, though, in their supplemental brief, the People cite facts
adduced at trial in urging that the motion was correctly denied.

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ante, at p. 5) while true, is unhelpful,3 because the facts asserted in those documents, to
the extent they were not supported by evidence presented at the hearing on the motion
(and most of them were not), are irrelevant to the propriety of the ruling of the court
below.
The next matter to be addressed is the application of People v. Sanders (2003) 31
Cal.4th 318 [Sanders], to the narrow set of facts adduced at the hearing on the motion.4
In Sanders, police entered the apartment of a man and a woman in response to a domestic
disturbance call after hearing them yelling at each other and seeing that the woman had
an abrasion on her face. (Id. at p. 322.) After they entered, they saw the man put
something metal behind a couch cushion and they handcuffed both, ignoring the latter’s
demands that they leave. (Ibid.) During a “protective sweep” of the apartment, one of
the officers found bagged cocaine in work boots inside an open closet. (Id. at p. 323.)
3 It also feeds into Moore’s seeming lack of clarity during the pendency of this
appeal about what facts were properly available for the court below to consider. (See text
accompanying fn. 1, ante.)
4 I note in passing that Moore failed to meet his initial burden of showing that the
search occurred without a warrant. (See People v. Williams (1999) 20 Cal.4th 119. ) No
evidence was adduced at the preliminary hearing (including the officer’s truncated
version of events) that there was no warrant; such a matter, naturally, was not addressed
in the search condition of Moore’s parole and Moore presented no evidence concerning it
at the hearing on the motion, nor did the People stipulate, as they routinely do in such
cases, to the absence of a warrant. Remarkably, in his reply brief, Moore acknowledges
his obligation in this regard, but asserts, “[The People] do[] not dispute that [Moore]
established a prima facie showing that the search was without a warrant . . . .” I, for one,
would like to know how.

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The officer then discovered that the man was on parole, subject to search terms. (Ibid.)
A parole search was conducted, and the cocaine seized. (Ibid.)
The Sanders court traced the development of the law of parole and probation
searches, beginning with In re Martinez (1970) 1 Cal.3d 641, which outlawed the search
of a parolee’s home by officers who were unaware of his status. Sanders noted that the
high court questioned the reasoning in Martinez in In re Tyrell J. (1994) 8 Cal.4th 68,
where it upheld the search of a juvenile probationer even though the searching officer
was unaware of the minor’s status and that he had a search condition, reasoning that
juvenile probationers have reduced expectations of privacy that are outweighed by
society’s interest in rehabilitating them. (Sanders, supra, 31 Cal.4th at pp. 326-328.) As
an extension of the reasoning in Tyrell J., Sanders noted that People v. Reyes (1998) 19
Cal.4th 743 upheld the search of a parolee’s shed by officers who were aware of his
status but lacked reasonable suspicion of criminal activity. (Sanders, supra, at pp. 750-
751, 752.)
Concerning the rights of the male parolee therein, the Sanders court said, “. . .
[P]olice cannot justify an otherwise unlawful search of a residence because, unbeknownst
to the[m], a resident . . . was on parole and subject to a search condition. . . . [T]his result
flows from the rule that whether a search is reasonable must be determined based upon
the circumstances known to the officer when the search is conducted and is consistent
with the primary purpose of the exclusionary rule -- to deter police misconduct. [¶] A
parolee’s expectation of privacy certainly is diminished, but it is not eliminated. [Fn.

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omitted.] . . . [¶] In Reyes, . . . the searching officer was aware of the existence of the
search condition. . . . [¶] We recognized in Reyes that whether the parolee has a
reasonable expectation of privacy is inextricably linked to whether the search was
reasonable. A law enforcement officer who is aware that a suspect is on parole and
subject to a search condition may act reasonably in conducting a parole search even in the
absence of a particularized suspicion of criminal activity, and such a search does not
violate any expectation of privacy of the parolee. We observed in Reyes: ‘The level of
intrusion is de minimis and the expectation of privacy greatly reduced when the subject
of the search is on notice that his activities are being routinely and closely monitored.
. . .’ [¶] But our reasoning in Reyes does not apply if the officer is unaware that the
suspect is on parole and subject to a search condition. Despite the parolee’s diminished
expectation of privacy, such a search cannot be justified as a parole search, because the
officer is not acting pursuant to the conditions of parole. [¶] . . . ‘[T]he reasonableness
of a search is determined “by assessing, on the one hand, the degree to which it intrudes
upon an individual’s privacy and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.’” [¶] . . . [I]f an officer is unaware that a
suspect is on probation and subject to a search condition, the search is not justified by the
state’s interest in supervising probationers or by the concern that probationers are more
likely to commit criminal acts. [¶] . . . [¶] Thus, the admission of evidence obtained
during a search of a residence that the officer had no reason to believe was lawful merely
because it later was discovered that the suspect was subject to a search condition would

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legitimize unlawful police conduct. . . . [¶] An additional reason for suppressing the
evidence obtained in the search of the residence in the present case . . . is to protect the
rights of the parolee’s cohabitants and guests. . . . Permitting evidence that has been
suppressed as to a cohabitant[5] to be used against the parolee would encourage searches
that violate the rights of cohabitants and guests by rewarding police for conducting an
unlawful search of a residence . . . [and] . . . ‘[m]any law-abiding citizens might choose
not to open their homes to probationers [or parolees] . . . [which would result in] higher
recidivism rates and a corresponding decrease in public safety . . . .” (Sanders, supra, 31
Cal.4th at pp. 332-335.)
5 The Sanders court condemned the search as to the nonparolee woman by
following the development of the law after Tyrell in People v. Robles (2000) 23 Cal.4th
789, which invalidated the search of a resident’s garage by officers who were unaware at
the time that the resident’s cohabitant was on probation and subject to a search condition.
(Sanders, supra, 31 Cal.4th at pp. 329.) The Robles court declined to extend the logic of
Tyrell J. to one who resides with a parolee because the former still enjoys a greater
expectation of privacy than does the latter and the extent of the nonparolee’s expectation,
“hinged, in part, upon the searching officer’s knowledge of the search condition.”
(Sanders, supra, at p. 329.) Sanders noted that the Robles court said of Tyrell’s
conclusion that its holding was consistent with the primary purpose of the exclusion rule,
i.e., deterring unlawful police conduct, “‘[R]esidential searches present an altogether
different situation.’” (Sanders, supra, at p. 330.) Sanders noted that Robles went on to
explain that since parolees often live in households also occupied by nonparolees,
allowing police to justify searches of such households on the basis of after-acquired
knowledge of the status of one of its occupants “would encourage the police to engage in
facially invalid searches with increased odds that a justification could be found later . . .
[and] . . . would create a significant potential for abuse since the police, in effect, would
be conducting searches with no perceived boundaries, limitations or justification.”
(Sanders, supra, at p. 330.) The Sanders court said that the holding in Robles mandated
the conclusion that the search was invalid as to the nonparolee woman. (Sanders, supra,
at p. 330.)

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Based on the fact that Sanders involved the search of a residence, the holding
expressly referred to a search of a residence and the California Supreme Court’s
“additional reason” for its holding depended exclusively on that fact, the People assert
that Sanders does not render the search here invalid, even absent evidence at the hearing
below that the officers were aware of Moore’s status as a parolee and search condition.
Their point is not lacking in logical appeal, but, unfortunately, the majority does not even
address it.
At the time the hearing on the motion took place, i.e., April 2000, Martinez’s
condemnation of parole searches without prior knowledge by the searching officer of the
defendant’s parole status and search condition had been repudiated by Tyrell. It is
abundantly clear, and the parties agree, that at the time of the hearing, both sides believed
that the existence of the parole search condition alone justified the search of Moore.6 It
was not until more than three years later that Sanders was decided.
It may be, however, that there is no need to determine whether Sanders compels
any particular outcome in this case -- that is, if the majority were merely to follow the
ultimate request of Moore, the party aggrieved by the ruling of the court below. In his
supplemental reply brief, Moore put it admirably, saying, “. . . [I]n light of the recent
6 After the court below read Moore’s search term into the record, it said to defense
counsel, “So, technically speaking, you[r] 1538.5 should be denied.” Defense counsel
replied, “Okay. [¶] . . . [T]hat is well taken. . . .” However, he went on to assert that the
manner in which Moore was searched, i.e., that he was choked and handled forcefully,
[footnote continued on next page]

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decision in Sanders, the appropriate remedy at this time would be to remand the matter
for a new hearing in the trial court. . . . It would be unfair to both the People and to
[Moore] for this [c]ourt to determine the constitutionality of the search based on a
record which was not created for this purpose.”7 (Italics added.) Assuming the
representations in the People’s responsive papers below were correct, at such a hearing
upon remand, the People should be able to easily prove that the officers who encountered
Moore, and were, by the way, in the presence of a parole officer, were made aware from
the beginning that Moore was on parole. It would require an additional question or two
at such a hearing to determine their awareness that parolees have search conditions. This
would moot any necessity on the part of this court to determine whether Sanders requires
knowledge of the parolee’s status and search condition when the latter is encountered on
a public street. As Moore put it, this disposition is fair to both parties, and it should have
been adopted by the majority.
RAMIREZ
P. J.
[footnote continued from previous page]
was unlawful. Immediately after he made this argument, the court below denied the
motion.
7 This would eliminate any inclination on the part of the People to persuade us,
due to the unusual context of this issue, to consider the facts adduced at trial as
justification for the search (see fn. 2, ante), an approach I find unappealing.

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