The People v. Ermi

Filed 5/14/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B241397
(Super. Ct. No. 2011027528)
Plaintiff and Respondent, (Ventura County)
v.
BRANDY DEANN ERMI,
Defendant and Appellant.
A probationer may devise a method to hide illicit drugs. "Search terms" allow a peace
officer to search any area over which the probationer has control or access. Here, a
probationer’s girlfriend, appellant, lives with him in an apartment. We conclude that his
girlfriend’s purse, which is on a chair in their bedroom, is subject to search because this is a
repository over which the probationer has control or access. A probationer has no entitlement
to Fourth Amendment protections because of ingenuity in selecting a hiding place for drugs.
Facts
On the evening of August 1, 2011, Oxnard Police Officer Paul Knapp knocked
on Ronald Williams' apartment door to conduct a probation search. Williams was on
probation with "search terms." Appellant, William's girlfriend, answered the door and
summoned Williams. He emerged from the bedroom and greeted Officer Knapp. Appellant
said that she, Williams, and their son shared the bedroom.
Officer Knapp entered the cluttered bedroom and saw a lot of bags, boxes, and
things strewn about. A tan purse was on a chair in the middle of the room. Officer Knapp
picked it up. Appellant said it was her purse and that she needed medication out of the purse.
Officer Knapp said that he would retrieve the medication and did not want appellant reaching
into bags while he was conducting the search.
Inside the purse was a small makeup bag. Officer Knapp, in his 16 year law
enforcement career, had seen males and females carry drugs in similar makeup bags.
Appellant claimed that the makeup bag was not hers, that she didn't know how it got in the
purse, and that a friend had borrowed the purse. Appellant was extremely nervous, had
dilated pupils, and appeared to be under the influence of a controlled substance.
Officer Knapp looked in the makeup bag and found a glass vial of
methamphetamine, a lighter, and a glass smoking pipe. Elsewhere in the bedroom, Officer
Knapp found a camera bag with small, skull-patterned Ziploc bags, a digital scale and a long
metal spoon, and another glass smoking pipe. The scale and spoon had white residue
consistent with methamphetamine, and a vial of methamphetamine was in the laundry basket
by the bedroom door. These items were seized and appellant was placed under arrest.
Trial Court Ruling
Citing People v. Smith (2002) 95 Cal.App.4th 912 (Smith), the trial court denied
the motion to suppress because Williams and appellant had joint control and "possession of
the bedroom and all of the items in it . . . . Certainly there was access to a purse out in the
middle of the bedroom."
Joint Control or Access
An officer conducting a probation search, may search those portions of a
residence over which the officer reasonably believes the probationer has joint control or
access. (People v. Woods (1999) 21 Cal.4th 668, 682; Smith, supra, 95 Cal.App.4th at p. 919
[probation search may include common areas shared by nonprobationer).)
Appellant argues that Officer Knapp had no reason to believe the purse
belonged to Williams. Relying upon People v. Veronica (1980) 107 Cal.App.3d 906,
appellant asserts that a purse is a distinctly female depository and no officer would believe it
belonged to a male probationer. But in Veronica the Court of Appeal stated: "We do not, of
course, suggest that simply because a garment or container is clearly designed for a person
other than the parolee, that it may never be searched under the parolee's prerelease consent.
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The particular circumstances may indicate that the object is, in fact, one of the parolee's own
effects or, at least, jointly possessed by him and another." (Id., at p. 909.)
People v. Baker (2008) 164 Cal.App.4th 1152, also relied upon by appellant, is
distinguishable. There an officer stopped a male parolee driver and searched the car. Baker,
the only female in the car, was in the passenger seat with her purse at her feet. The officer
asked her to exit the car, looked in the purse, and found methamphetamine. The Court of
Appeal held that "there could be no reasonable suspicion that the purse belonged to the [male]
driver, that the driver exercised control or possession of the purse, or that the purse contained
anything belonging to the driver. [Citation.]" (Id., at p. 1159.) We agree with the Baker
holding. It does not require suppression of evidence here. Here, the probationer shared a
bedroom with appellant and had control or access to the purse and other hiding places in the
bedroom.
In Smith, supra, 95 Cal.App.4th 912, officers conducted a probation search of a
bedroom and found a baggie of marijuana in a robe hanging in the closet, baggies with
methamphetamine residue in containers, and a line of cut methamphetamine on a mirror
inside a fold-up desk. (Id., at p. 914.) Defendant (the probationer's girlfriend) told the
officer that a gun was in a locked safe and that the safe key was in her purse, hanging on the
bedroom closet door. Defendant gave the officer permission to retrieve the key. After the
officer retrieved the key, a narcotics police dog indicated that drugs were in the purse and the
officer found a plastic bag of methamphetamine in the purse. (Id., at p. 915.)
The Smith court held that the critical issue is not whether the purse was female
or gender neutral but whether the officer reasonably believed that the purse was under the
probationer's control "or one to which he at least had access. [Citation.]" (Id., at p. 919,
emphasis added.)
Here the purse was on a chair in the middle of a cluttered bedroom that
Williams shared with appellant. Officer Knapp saw Williams emerge from the bedroom
moments before the search. (See e.g., People v. Schmitz (2012) 55 Cal.4th 909, 932.) Based
on his training and experience, Officer Knapp had seen probationers hide contraband in a
roommate's belongings to avoid detection. We conclude that substantial evidence supports
the trial court's express factual finding of control or access. (Smith, supra, 95 Cal.App.4th at
3
p. 918; People v. Boyd (1990) 224 Cal.App.3d 736, 745-746 [search of leather bag in trailer
occupied by parolee and girlfriend].) To rule otherwise would enable a probationer to flout a
probation search condition by hiding drugs in a cohabitant's purse or any other hiding place
associated with the opposite gender1 Persons who live with probationers cannot reasonably
expect privacy in these circumstances. (People v. Woods, supra, 21 Cal.4th at pp. 675-676.)
The judgment (order denying motion to suppress evidence) is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
1 For the first time on appeal appellant argues that there is no evidence that William's
probation search terms included search of the residence. Appellant forfeited the claim by not
raising it at the hearing on the motion to suppress. (People v. Williams (1999) 20 Cal.4th
119, 130-131.)
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Donald Coleman, Judge
Superior Court County of Los Angeles
______________________________
Lyna Woodward , under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, Noah P. Hill, Deputy Attorney General, for Plaintiff
and Respondent.
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