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Filed 12/15/20 P. v. Varga CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ATTILA ALEX VARGA,

Defendant and Appellant.

 A157243

 (Napa County

 Super. Ct. No. 18CR001720)

Appellant Attila Alex Varga was convicted by jury of possession for sale 

of methamphetamine and possession of narcotic paraphernalia. At the 

preliminary hearing, he unsuccessfully moved to suppress the evidence, all of 

which was confiscated during the search of his bedroom at Capstone Court in 

Napa. On appeal, he does not dispute his factual guilt of the charges; 

instead, he challenges only the denial of the motion to suppress evidence

(Pen. Code, § 1538.5).

1 We affirm.

1 Undesignated statutory references are to the Penal Code. Appellant 

did not renew his motion pursuant to section 1538.5, subdivision (i), after the 

filing of the information, nor did he challenge its denial by way of a motion to 

set aside the information pursuant to section 995. Respondent contends 

appellant is now precluded from raising the motion on appeal. In the 

alternative, appellant raises an ineffective assistance of counsel claim for 

failure to preserve the issue. We do not reach these issues, finding instead 

that the motion was properly denied.
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FACTUAL AND PROCEDURAL BACKGROUND

On May 18, 2018, Napa Police Officer Thomas Keener conducted a 

probation search related to E. Dellagana, whose probation required her to 

submit to search of her residence. He consulted both the Napa Police 

Department and Napa County law enforcement record systems, which 

showed her current address to be Capstone Court.

These record entries were both made in 2016. One was the result of an 

encounter with Dellagana at a hospital where her daughter was being treated 

as a crime victim. The reporting officer on that occasion asked, “[I]f we need 

to get ahold of you where can we find you?” The second was the result of the 

service of a search warrant at the Capstone address in December 2016. 

Dellagana was a subject of the warrant, was seen leaving the residence, and 

possessed keys to the residence.

Keener was also aware that “within recent months [officers] had served 

a search warrant at that residence where Miss Dellagana was contacted.”

Keener reviewed Dellagana’s probation order “to see that she was in fact on 

searchable probation.” He did not contact anyone at the probation 

department or the court to verify her current address.

At the time Dellagana was placed on the relevant probation in early 

2018, she gave an address of “Magnolia NSH,” which Keener testified was a 

residential treatment program associated with Napa State Hospital that was 

not a permanent residence.2 Appellant produced evidence that Dellagana 

held a month-to-month lease at the treatment program beginning in 

2 Dellagana signed the probation order, and apparently wrote in the 

Magnolia address, on January 30, 2018, but it was not signed by the judge 

and filed until April 17. It is not clear from the record whether Keener 

noticed the Magnolia address when he reviewed the probation order prior to 

the search.
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December 2017; she was dismissed from the program a month after the 

search in question.3

On the day of the search, officers located Dellagana in a bedroom of the 

home on Capstone. Through an open window, they informed her that they 

were there to conduct a probation search; she asked if they could come back 

later. Appellant opened the front door and told the police Dellagana was in 

the bedroom. Dellagana, who was sitting on the bed, informed the officers 

that she was unable to walk because of recent medical care. Appellant 

helped her into a wheelchair, and they exited the room. It appeared to the 

officer that “it was almost impossible” for Dellagana to move without the 

wheelchair. The officer did not note whether the room contained a woman’s 

belongings: “The room was a mess so I didn’t really pay attention to what 

type of belongings were in the room.” Dellagana told the officers that she had 

been staying at the residence “off and on.”4

Appellant, not Dellagana, was charged with possession of the 

contraband found in the bedroom.

DISCUSSION

As noted, appellant does not dispute his factual guilt of the charges, nor 

does he dispute that Dellagana was subject to residential search as a 

condition of her probation. He contends only that the trial court erred in 

finding that Keener’s belief that Dellagana resided at Capstone was 

objectively reasonable. The parties agree that we review that finding for 

3 These records were received in evidence but were returned to counsel 

at the conclusion of the motion. The record on appeal was not augmented 

with them. Their content was not in dispute. We take our description of 

them from the discussion of court and counsel.

4 Dellagana later told officers she had been staying with appellant for 

three weeks.
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substantial evidence. “ ‘[T]he question of whether police officers reasonably 

believe an address to be a probationer’s residence is one of fact, and we are 

bound by the finding of the trial court, be it express or implied, if substantial 

evidence supports it.’ ” (People v. Downey (2011) 198 Cal.App.4th 652, 658.)

Here, Officer Keener consulted two separate law enforcement 

databases that reflected a current address of Capstone Court for Dellagana 

as of 2016. The prosecutor demonstrated Dellagana’s connection to the 

residence in 2016 was not passing, i.e., in one instance, she gave the address 

as a place where she could be located if law enforcement needed to contact 

her in regard to her daughter who had been the victim of a crime, and in the 

other, she was the subject of a criminal investigation at the property and, 

thanks to a set of keys, had complete access to the property.

As against a contention that this information was stale lie the facts 

that upon officers going to the residence to conduct the search in May 2018, 

Dellagana was present sitting on a bed in a relatively immobilized state 

following medical care. She indicated she had been staying there off and on, 

and when first informed of the officers’ intention to conduct a probation 

search, she did not deny she lived there. Instead, she asked them to come 

back later—not the ordinary request of a guest. The recent information that 

Dellagana had been present during the service of a search warrant was quite 

vague, but in any event, the circumstances surrounding her presence at the 

time of the search are compelling.

Appellant relies principally upon the evidence that Dellagana’s 

probation order from early 2018 showed the Magnolia address. Although 

the court signed and filed that order in April 2018, Dellagana had given the 

Magnolia address and signed the document in January 2018. It is not clear 
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from the record whether Keener saw this address when he consulted the 

order for purposes of verifying her search terms. In reason, we must 

impute that knowledge to him. (See People v. Ramirez (1983) 34 Cal.3d 541, 

546–547.) 

However, he certainly was not required to accept that address as 

accurate or current. Appellant contends Keener should have accepted the 

Magnolia address because it was the most recent one. However, the most 

recent evidence consisted of the circumstances observed by the officers at the 

time of the search. We acknowledge a different result may have followed if 

Dellagana had not been present—along with all attendant circumstances—at 

the time of the search. It might be suggested that Keener was obligated to 

first investigate the currentness of the Magnolia address. Yet, he knew it 

was not a permanent residence, and had he contacted the program, he 

presumably would have learned that Dellagana had not been staying there 

for at least three weeks—the amount of time she later stated she had been 

staying on Capstone. In sum, at the time of the search, Keener was faced 

with a probationer whose intimate relationship with the residence had 

existed and persisted for two years.

Appellant cites no authority for the proposition that the facts as known 

by Keener (i.e., a relatively immobile individual staying in a bedroom for an 

extended period of time following medical care, who had previously given the 

address as her own on more than one occasion and previously been known to 

have exercised dominion there) do not establish residence for the purposes of 

probation search terms. He also cites no authority that a probationer can 

have only one residence for the purposes of probation search terms, namely 

the one written on the probation order.
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In Case v. Kitsap County Sheriff’s Dept. (9th Cir. 2001) 249 F.3d 921, 

the Ninth Circuit Court of Appeals considered a related question: whether, 

for purposes of warrantless entry to arrest, an officer’s belief that the subject 

of an arrest warrant resided in the residence in question was reasonable. 

There, officers in Washington entered the home of Christopher Russell to 

arrest Case on an Oregon warrant. Oregon officers had verified that Case 

was living at the address, and Russell confirmed that Case was staying at the 

house. Just prior to the entry, officers spoke by phone to Case at the 

residence. (Id. at pp. 924–925.) The court concluded: “By all indicia, [Case] 

was far more than a mere ‘overnight guest.’ Case presents insufficient 

evidence supporting her argument that a reasonable officer would have 

investigated her residency further or why further investigation would 

preclude a reasonable officer from concluding that she was a co-resident of 

the . . . residence.” (Id. at p. 931.) 

In reaching this conclusion, the Ninth Circuit relied upon U.S. v. Risse

(8th Cir. 1996) 83 F.3d 212, where officers entered Risse’s home to execute an 

arrest warrant for Sandra Rhoads. Within the previous month, Rhoads had 

been contacted by officers at the home. She later said she was “ ‘staying’ ” 

there and could be contacted there. A reliable informant had confirmed that 

Rhoads was living with Risse, and just prior to the arrest, officers verified by 

phone that Rhoads was present in the home. To the contrary, officers knew 

that Rhoads maintained another address in town that she had given at the 

time of an earlier arrest, where the utilities were in her name and where she 

received her mail. However, they had not been able to contact her at this 

other address before the arrest. (Id. at pp. 214–217.) 

The Eighth Circuit Court of Appeals upheld the lower court’s ruling, 

finding that the officers’ belief that Rhoads resided with Risse was reasonable 
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as a matter of law: “In so holding, we reject Risse’s contention that, because 

the officers knew, or should have known, that Rhoads maintained a 

permanent residence [elsewhere], they could not have reasonably believed 

that Rhoads resided [with Risse]. We have found no authority to support 

Risse’s implicit assumption that a person can have only one residence for 

Fourth Amendment purposes. Rather, when evaluating Risse’s expectation 

of privacy in his home, we are guided by the principle that, so long as Rhoads 

possesses common authority over, or some other significant relationship to, 

[Risse’s] residence, [citation], that dwelling ‘can certainly be considered [her] 

“home” for Fourth Amendment purposes, even if the premises are owned by a 

third party and others are living there, and even if [Rhoads] concurrently 

maintains a residence elsewhere as well.’ ” (U.S. v. Risse, supra, 83 F.3d at 

p. 217.)

To permit a probationer to evade supervision by giving one address at 

the time of being placed on probation and living elsewhere seems illogical, 

just as illogical as permitting a probationer to simply move about without 

fear that the residential search condition will ever be exercised. Nor does 

it seem appropriate to require an officer to eliminate all other possible 

residences as long as the belief with respect to the residence in question is 

reasonable. Indeed, here, had Keener investigated the Magnolia residence as 

a possible current residence for Dellagana, the results would only have 

confirmed his belief that she was, at that time, residing on Capstone.

In People v. Downey, supra, 198 Cal.App.4th at page 662, the court 

upheld the trial court’s conclusion that the officers had an objectively 

reasonable belief that the probationer lived in the residence. Appellant 

contends that Downey supports his position because, in that case, there was 

more substantial evidence to support the officers’ belief. There, the officers 
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searched several databases and called various agencies. As a result, they 

knew that the probationer had given several different addresses but that the 

most recent one, as reflected by utility bills, was the residence in question. 

They were also told that, though another individual was currently on the 

lease, others were living in the residence as well. (Id. at pp. 655–656.) We 

disagree that the factual distinction is meaningful under the standard of 

substantial evidence. 

Appellant’s reliance on People v. Tidalgo (1981) 123 Cal.App.3d 301 is 

unavailing. There, officers had conflicting information as to whether the 

defendant lived at the residence in question. (Id. at pp. 303–306.) Applying 

the same standard of review that we employ here, the court simply upheld 

the trial court’s finding that the officer’s belief was not reasonable. (Id. at 

p. 308.) We conclude that there was substantial evidence to support the trial 

court’s finding here that the officer’s belief that Dellagana resided at 

Capstone was reasonable.

We conclude the magistrate properly denied the motion to suppress at 

the preliminary hearing.

DISPOSITION

The judgment is affirmed.
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_________________________

Reardon, J.*

WE CONCUR:

_________________________

Needham, Acting P. J.

_________________________

Burns, J.

A157243

* Judge of the Superior Court of Alameda County, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.