Filed 7/15/15 P. v. Hernandez 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                                           NOT TO BE PUBLISHED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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C075574

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F04987)

         v.

SEVERO TASI HERNANDEZ,

                   Defendant and Appellant.




         In this appeal, defendant Severo Tasi Hernandez challenges the magistrate’s
denial of his motion to suppress evidence obtained following a nonconsensual entry of
his home. The parole agents who entered the home did so because they thought a person
on searchable probation lived there, but they were mistaken. The parties agree that to
justify their entry into defendant’s home, the agents had to have objectively reasonable
grounds to believe the probationer lived there, but the parties do not agree on the level of
certainty required to meet that standard. We need not resolve that disagreement,
however, because even assuming the agents violated defendant’s Fourth Amendment

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rights in making their warrantless entry into his home, we conclude any violation of
defendant’s rights was neither deliberate, nor reckless, nor grossly negligent, and
therefore the evidence was not subject to the exclusionary rule. Accordingly, we will
affirm.
                      FACTUAL AND PROCEDURAL BACKGROUND
          We take the following facts from the evidence elicited at the preliminary
examination, which also served as the hearing on defendant’s motion to suppress.
          In July 2012, Agents John Edelman and Ron Dunne -- parole agents employed by
the Department of Corrections and Rehabilitation working on the California Parole
Apprehension Team -- were trying to locate a parolee named Kenneth Langford. While
reviewing Langford’s field file, Agent Dunne noticed that Langford had noted a
girlfriend by the name of Larann Tibben. (There was no evidence as to when Langford
provided this information.) Agent Dunne called a telephone number that Langford had
listed for Tibben, but the number was disconnected.
          Agent Dunne ran Tibben’s name through the Sacramento County Sheriff’s
Department’s known person finder, which is a Web site available to law enforcement.1
From the information on that Web site, he found that Tibben was on searchable probation
and had two warrants for her arrest, one from 2010 and one from 2011. The Web site
also showed her address as 6534 Meader Avenue (the Meader Avenue residence). Agent
Dunne did not know if anyone had attempted to serve the warrants on Tibben at that
address (or anywhere else for that matter), nor did he know if anyone had ever tried to
confirm the Meader Avenue residence as Tibben’s address. He did not know who put the
address information for Tibben into the sheriff’s Web site, where the information came
from, or when the information was entered into the Web site.




1         For ease of reference, we will refer to this as the sheriff’s Web site.

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         Agent Dunne wanted to talk to Tibben about Langford, so he and Agent Edelman
went to the Meader Avenue residence with two Sacramento Sheriff’s deputies. Just
before arriving at the residence, Agent Dunne called the Sacramento County Probation
Department and found that the probation department had the same address listed for
Tibben as the sheriff’s Web site. There was no evidence that Agent Dunne had any
knowledge as to the source of the address information the probation department had or
how old that information was. However, Agent Dunne testified that in his experience
address information from the probation department is correct about 70 percent of the
time. (Neither agent testified as to the reliability of information on the sheriff’s Web
site.)
         Other than checking the sheriff’s Web site and calling the probation department,
Agent Dunne took no further steps to confirm that Tibben actually lived at the Meader
Avenue residence. In particular, he did not check Department of Motor Vehicles records
for her driver’s license record or for vehicle registration information, and he did not
check utility records for the Meader Avenue residence.
         Upon arriving at the Meader Avenue residence, Agent Dunne noticed surveillance
cameras out front and three cars in the driveway. No one attempted to run the license
plates of the cars for vehicle registration information at that time.2 Instead, Agent Dunne
knocked on the front door, and Kao Nai Saelee answered, opening the door so that only
his face and upper torso were visible. Agent Dunne told Saelee that they were there to do
a probation search for Tibben. Saelee responded that Tibben did not live there and he did
not know anybody by that name. Saelee told the agents he did not want them in the
house, but Agent Dunne told Saelee they were going to conduct the search anyway.
Agent Dunne asked Saelee to come outside and at that time he showed Saelee a picture of




2        They did so later, after they entered the residence.

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Tibben, but Saelee said he had never seen her. Saelee told the agents he had one
roommate who was home.
       The officers then began their search of the residence. Saelee led them to the
bedroom of his roommate who was at home -- defendant. The door was closed, but
Saelee knocked and told defendant through the door that the agents were there to conduct
a probation search. Defendant came out of the room, and Agent Edelman entered to see
if Tibben was there. In plain sight, he found marijuana, a baggie containing what
appeared to be a small amount of methamphetamine, and various types of ammunition.
Defendant also told them he had a .40-caliber handgun behind the chair next to his bed.
After defendant refused to sign a consent form for the officers to search the property, the
agents froze the residence until a search warrant could be produced. After the warrant
was obtained, a full search of the home was performed. The officers located numerous
marijuana plants in the backyard of the home. They did not find Tibben. In fact, the
person who had owned the Meader Avenue residence since 2006 testified at the hearing
that he had never rented it to anyone named Larann Tibben and no one by that name ever
resided there.
       Ultimately, the record does not reflect how the Meader Avenue residence came to
be listed as Tibben’s address either on the sheriff’s Web site or in the probation
department’s records. With respect to the probation department’s records, the evidence
showed that Tibben’s probation was informal, so she was not under supervision by the
probation department and thus had no obligation to provide the department with current
contact information, but a probation officer testified that the Meader Avenue residence
was listed in the department’s records as Tibben’s address in June 2009 and again in
November 2010. The officer could not tell how the address information got into the
database in 2009, but the 2010 entry had a comment on it that it was an automated entry.
The probation officer said that because it was an automated entry, “it look[ed] like she
reported [the address] to someone who had the capability of entering it into the system,

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whether it be law enforcement or a court officer,” and the information was then
automatically transferred into the probation department’s system. The officer admitted,
however, that he was “not an IT person” and so he could not say what event triggered the
entry in November 2010 or just where the information came from. Neither agent testified
to any awareness about how old the information in the probation department’s records
was or where that information came from.
       Agent Edelman testified that he has probably conducted over a couple of hundred
parole or probation searches. While it was difficult for him to determine, he thought that
in maybe a little less than half of those searches, the person who greeted him at the door
said the person he was looking for did not live there. In “probably less than half” of
those cases, he later found out that the person was actually there.
       Defendant was charged with possession of methamphetamine for sale and
possession of methamphetamine while armed with loaded, operable firearms. He filed a
motion to suppress the evidence obtained as a result of the warrantless entry into his
home, but the magistrate concluded the search was valid. In ruling, the magistrate first
observed that the agents “checked two sources. And I grant you they may not [have]
be[en] independent sources, but they’re not even required by law or constitution to check
more than one source as long as the source that they check is reasonably reliable and
sufficient that they could base their conduct on that information. But they do more than
they need to do, and they not only get it from the known persons file, but they also get it
from the probation department just moments or minutes before they arrive at the house.”
The magistrate concluded that the information from these sources gave the agents “a
basis to knock on the door and see if Ms. Tibbe[n] lived there,” but the magistrate was
“inclined to the view that,” without more, “there [wa]s not a sufficient basis to just press
forward” and enter the house. Nevertheless, the magistrate relied on the presence of
surveillance cameras, Saelee’s “secretive” behavior in opening the door, the presence of
marijuana plants in the backyard, and the frequency with which people falsely deny that a

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probationer or parolee is present3 to conclude that the agents were reasonable in believing
that Saelee was or might have been lying about Tibben living there and were therefore
justified in entering the home to find out for themselves whether Tibben was there.
Moreover, regarding the reliability of the sources the agents used for Tibben’s supposed
address, the magistrate stated that “[p]olice are not required to take information off of
CJIS or known persons file, KPF, or from probation and not reasonably rely on that
information, but they’re not required to go further and verify the source of that
information. If they were, the police would simply not be able to function in the field
that way. . . . There are practical limitations to how much the police must verify
information before they go forward.”
       After he was held to answer, defendant filed a motion to dismiss the information
under Penal Code section 995, asserting that the magistrate erred in denying the motion
to suppress. The superior court upheld the magistrate’s decision and denied the motion to
dismiss. Defendant then pled no contest and the court sentenced him to three years in
prison. This timely appeal followed.
                                       DISCUSSION
       “ ‘[T]he “physical entry of the home is the chief evil against which the wording of
the Fourth Amendment is directed.” ’ [Citation.] Thus, ‘searches and seizures inside a
home without a warrant are presumptively unreasonable.’ [Citation.] ‘Nevertheless,
because the ultimate touchstone of the Fourth Amendment is “reasonableness,” the
warrant requirement is subject to certain exceptions.’ ” (People v. Troyer (2011) 51
Cal.4th 599, 602.) One such exception is “where consent to the search has been given”




3       Specifically, the magistrate said it is “frequently the case” and “it happens all the
time” that “when probation officers or parole agents or police go to a residence to seek to
speak to or contact somebody and are told that person isn’t there when the person is
there.”

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(People v. Robles (2000) 23 Cal.4th 789, 795) -- as when a person granted probation
consents to be subject to warrantless searches. “In California, a person may validly
consent in advance to warrantless searches and seizures in exchange for the opportunity
to avoid serving a state prison term. [Citations.] Warrantless searches are justified in the
probation context because they aid in deterring further offenses by the probationer and in
monitoring compliance with the terms of probation.” (Ibid.)
       “It is settled that where probation officers or law enforcement officials are justified
in conducting a warrantless search of a probationer’s residence, they may search a
residence reasonably believed to be the probationer’s.” (People v. Palmquist (1981) 123
Cal.App.3d 1, 11-12), disapproved on another point by People v. Williams (1999) 20
Cal.4th 119, 135.) In determining whether a probation search of a particular residence
was valid, “California case law is clear that the appropriate test is whether the facts
known to the officers, taken as a whole, gave them objectively reasonable grounds to
believe that [the probationer] lived at the [residence].” (People v. Downey (2011) 198
Cal.App.4th 652, 661.)
       Here, defendant argues that the reasonable belief standard is equivalent to
probable cause, and he contends that under that heightened standard the agents did not
have objectively reasonable grounds to believe that Tibben lived at the Meader Avenue
residence and therefore their warrantless entry into the residence was unlawful. The
People disagree, contending “the reasonable belief standard is lesser than the probable
cause standard” and “substantial evidence supports the magistrate’s finding that the
officers reasonably believed that the address was Tibben’s” because “they verified the
address with two different sources, the Sheriff’s Known Person File and Sacramento
County probation.” The People further argue that “the magistrate enumerated multiple
factors that supported the finding that after the officers arrived at the residence and made
contact with Kao Saelee at the front door, the officers reasonably believed Saelee was
lying to them about Tibben and that she was actually inside the house.” The People also

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argue that, regardless of the legality of the warrantless entry into the home, the evidence
was properly admitted under the good faith exception to the exclusionary rule because
“the officers’ actions were neither deliberate, reckless, nor grossly negligent, as the
officers reasonably relied on two official sources informing them that [Tibben] lived at
[the home].”
       We conclude that it ultimately does not matter whether the agents had objectively
reasonable grounds to believe Tibben lived at the Meader Avenue residence when they
made their warrantless entry to look for her, because even assuming they did not, we
agree with the People that any violation of defendant’s constitutional rights was neither
deliberate, nor reckless, nor grossly negligent, and therefore the entry of the home does
not justify application of the exclusionary rule.
       Under United States Supreme Court precedent, “evidence obtained from a search
should be suppressed only if it can be said that the law enforcement officer had
knowledge, or may properly be charged with knowledge, that the search was
unconstitutional.” (United States v. Peltier (1975) 422 U.S. 531, 542 [45 L.Ed.2d. 374,
384].) If “ ‘the officer was acting as a reasonable officer would and should act in similar
circumstances,’ ” the rule has no application. (United States v. Leon (1984) 468 U.S.
897, 920 [82 L.Ed.2d 677, 697].) “To trigger the exclusionary rule, police conduct must
be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently
culpable that such deterrence is worth the price paid by the justice system. As laid out in
our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent
conduct, or in some circumstances recurring or systemic negligence.” (Herring v. United
States (2009) 555 U.S. 135, 144 [172 L.Ed.2d 496, 507].)
       Here, in concluding the agents had objectively reasonable grounds to believe
Tibben lived at the Meader Avenue residence, the magistrate relied on the following
factors: (1) the agents obtained that address for Tibben from two sources, the sheriff’s
Web site and the probation department; (2) there were surveillance cameras on the

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residence; (3) Saelee acted “secretive[ly]” when he opened the door; (4) there were
marijuana plants in the backyard; and (5) people often tell probation officers, parole
agents, and police that someone the officers are looking for is not there when he or she
actually is there. In addition to these factors, the People rely on the presence of the three
cars in the driveway, when Saelee said only he and defendant were at home, as
supporting a reasonable belief that Saelee was lying about Tibben not living there and
that “she was home but was evading the officers with the assistance of her roommates.”
       For our purposes, however, it is sufficient to focus on the first factor alone -- the
information in the two databases -- in deciding whether the exclusionary rule applies
here. Even assuming none of the other factors gave the agents objectively reasonable
grounds to believe Tibben lived at the Meader Avenue residence, the evidence regarding
the information in the databases -- particularly, the probation department’s records --
leads to the conclusion that the agents did not violate defendant’s Fourth Amendment
rights deliberately, recklessly, or with gross negligence in entering the home without a
warrant.
       With respect to the information in the databases, the People contend the agents
acted reasonably because “they verified the [Meader Avenue] address with two different
sources, the Sheriff’s Known Person File and Sacramento County probation,” but that
argument is flawed for two reasons. First, to the extent the People are suggesting the
agents already had the Meader Avenue address for Tibben and verified that preexisting
information against the two databases, that is not what the evidence showed. Rather, the
evidence showed that Agent Dunne obtained the information that Tibben lived at the
Meader Avenue residence from the sheriff’s Web site and then verified that information
against one additional source: probation department records. Second, to the extent the
People are suggesting that these two “different” and “separate” sources were shown to be
independent of each other with respect to the information the agents obtained from them,
the evidence does not bear that out. There was no evidence as to where the information

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on the sheriff’s Web site came from -- either generally or with respect to Tibben in
particular. For all we know on this record, the information on the sheriff’s Web site
could have been taken directly from the information in the probation department’s
records, in which case the agents would not have had two “different” and “separate”
sources for Tibben’s address, but only a single source -- the probation department. For
this reason, we focus on that source.
       One of the last questions asked of Agent Dunne was if he “ever ha[d] any instance
where the information in the database checked was incorrect.” Agent Dunne responded
as follows: “It’s probably about 70, you know -- if you’re going from 100 it’s probably
70/30. It’s 70 where the address is right and 30 where the probation department don’t
take it out of the system for whatever reason, but as law enforcement that’s our job and
when we go in there and we check it, and if it’s not we will contact the probation
department and say that this is not a good address for this person and they will remove it
from the system.” Thus, it was Agent Dunne’s testimony that the information in the
probation department’s records is correct probably 70 percent of the time and incorrect
only 30 percent of the time.
       That leads us to frame this dispositive question: Where a law enforcement officer
has reason to believe, based on personal experience, that the address information for
probationers maintained by the probation department is correct 70 percent of the time, is
it grossly negligent (or worse) for the officer to rely on that information to enter a
residence to look for that probationer, without first making an effort to corroborate that
information through other sources? We conclude the answer to that question is “no.”
Thus, even if the agents violated defendant’s Fourth Amendment rights by entering his
house to conduct a probation search for Tibben, because the agents were acting based on
information in a database that, in Agent Dunne’s experience, is correct 70 percent of the
time, the agents cannot be deemed to have engaged in deliberate, reckless, or even



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grossly negligent conduct triggering application of the exclusionary rule. For this reason,
the magistrate did not err in denying defendant’s motion to suppress.
       To the extent defendant challenges the agents’ entry into his bedroom, as opposed
to the house as a whole, no different result is justified. Defendant cites People v. Woods
(1999) 21 Cal.4th 668 for the proposition that, in a probation search, “officers generally
may only search those portions of the residence they reasonably believe the probationer
has complete or joint control over.” (Id. at p. 682.) His contention is that the agents here
could not have reasonably believed Tibben had complete or joint control over the
bedroom that belonged to defendant. Even if we assume defendant is correct on this
point, however, the question still remains whether the agents violated defendant’s Fourth
Amendment rights deliberately, recklessly, or with gross negligence when they entered
his room to look for Tibben.
       As with the house as a whole, we conclude the answer to this question is “no.”
First, what argument defendant offers on this point is not persuasive, as he fails to focus
on the entry into the bedroom in particular. Second, given our conclusion that it was not
grossly negligent (or worse) for the agents to enter the house to look for Tibben based on
the address information they obtained from a database that in their experience is correct
70 percent of the time, we see no reason why it was grossly negligent (or worse) for them
to enter each part of the house where Tibben could have been -- including the bedroom
occupied by defendant. Had they entered the bedroom and conducted a full-blown
probation search -- e.g., opening cabinets and drawers -- without first satisfying
themselves that Tibben, in fact, lived at the Meader Avenue residence, the outcome of
this question -- the applicability of the exclusionary rule -- might be different. But on the
facts before us, where all the agents were doing when they saw contraband in plain sight
was looking for a probationer who they thought lived in the house based on information
in a database that is correct 70 percent of the time, we cannot find that the agents’
conduct in entering the bedroom to look for her rose to the level of culpability necessary

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to trigger the exclusionary rule. Thus, even looking at the entry into the bedroom in
particular, the magistrate correctly denied the motion to suppress.
                                       DISPOSITION
       The judgment is affirmed.




                                                       ROBIE                 , J.



We concur:



     NICHOLSON              , Acting P. J.



     HOCH                   , J.




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