PEOPLE v. BIDDINGER

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Court of Appeal, First District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Jeffrey Allen BIDDINGER, Defendant and Appellant.

Nos. A065791, A065792.

Decided: January 11, 1996

 Randy Baker, under appointment by the Court of Appeal, Berkeley, CA, for defendant and appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Christopher Grove, Tyler R. Meade, Deputy Attorneys General, San Francisco, CA, for plaintiff and respondent.

Defendant appeals from judgments following his guilty plea and admission of violating probation.   He alleges error in the trial  court's denial of a motion to suppress evidence and a denial of due process at a postjudgment hearing on the validity of his sentencing.   We affirm.

Statement of the Case

On August 10, 1989, defendant was placed on five years' probation following his conviction of assault with a firearm and battery.   He accepted various conditions of probation including submission of his person and property to search and seizure as requested, with or without cause, notice, consent, or warrant.

On July 19, 1993, defendant was arrested on outstanding warrants.   The apartment where he was arrested and another location were searched, leading to charges of possession of methamphetamine for sale and felon in possession of a firearm.   Defendant's probation was summarily revoked, and that matter continued to trail the new case.

On November 4, 1993, defendant's motion to suppress evidence was denied.   On February 4, 1994, he pled guilty as charged in the new case and admitted he had violated probation.   The parties agreed defendant would be sentenced to four years and four months in prison on the two cases.   On March 16, he was sentenced to that term.

On March 17, defendant sent a handwritten letter to the sentencing judge claiming that, after his plea but before sentencing, he told the police about criminal activity in exchange for their promise that he would receive a suspended sentence.   Defendant told the court his attorney had not known of this arrangement, and he asked the court to investigate the matter.

On April 6, the court held a hearing at which defense counsel called one of the investigators, Sergeant Giles, as a witness.   Defendant had already been transported to state prison and was not present.   In anticipation of his unavailability for the hearing, however, defendant sent a second letter to the court, detailing his allegations.   He did not request, either in writing or through counsel, to be present at the hearing.   Giles testified that he and Detective Weaver had met with defendant, but that no promises of leniency had been made.   Subsequently, the court wrote to defendant informing him of the hearing, Giles's testimony, the court's decision not to pursue the matter further, and defendant's option to file a writ of habeas corpus.

Statement of Facts

Detective Weaver received an anonymous tip that defendant was trafficking in methamphetamine and lived at two locations in Vallejo:  300 Hillary  Way, apartment 183 and 124 Scenic Way.   Weaver determined that defendant was on probation with a search condition and that he had two outstanding arrest warrants.   On July 19, 1993, when officers saw defendant's car parked outside the Hillary Way location, they went to apartment 183.   After being admitted by defendant's girlfriend, they arrested defendant, who had been lying on the living room couch.   Defendant asked for his shoes, which he told police were outside in his car, and gave officers permission to retrieve his keys from his pants pocket.   An officer inserted one of these keys into the front door and confirmed the key fit that lock.   The officers asked defendant if he lived at the residence.   He admitted he stayed there three or four days a week and had clothing in the bedroom.   Officers then searched the apartment.   They found two pounds of methamphetamine, a shotgun, indicia of defendant's connection with the location, an inhaler with methamphetamine residue, and pagers.   Officers also searched 124 Scenic Way.   There, they found ammunition, scales, packaging material, and other items consistent with the sale of methamphetamine.

Discussion

I.

 Defendant first claims the court erred in denying his motion to suppress evidence.   He does not dispute he was subject to a valid search condition that encompassed his residence.   Nor does he dispute that he lived at the Hillary Way apartment.   Essentially, he claims the officers did not have sufficient proof that he lived at the Hillary Way residence before they conducted a search there in reliance upon his search condition.   He bases this requirement for knowledge on the specific wording of his search clause.   His argument fails for several reasons.

First, at the time the officers conducted the comprehensive search, they knew of defendant's connection with the apartment from his own statements.   Defendant seeks to challenge this fact by arguing, for the first time on appeal, that the use of the key in the front door lock was itself a search and that, at that time, the officers did not know he lived at the apartment.1  We need not consider whether the use of the key in the front door lock was a search.   Even if the officer's action were considered a search, it did not result in any evidence of the crimes.   Further, there is no indication that the officers used the fact to acquire further information about defendant's link to the  residence.   After the key was found to fit the lock, officers asked defendant if he lived at the apartment and he replied that he stayed there three or four days a week.   Nothing in the record reflects that officers used the “key discovery” to secure defendant's admission.

 However, even if the key episode were considered a search, defendant has no standing to complain.   His acceptance of probation and its attendant search condition operated as a waiver of his reasonable expectation of privacy and, thereby, his Fourth Amendment rights, except for the right to object to harassment or searches conducted in an unreasonable manner.   (People v. Bravo (1987) 43 Cal.3d 600, 607, 238 Cal.Rptr. 282, 738 P.2d 336.) 2  Furthermore, there is no evidence on this record, and defendant suggests none, that the officers' conduct was unreasonable or designed to harass.  (See In re Tyrell J. (1994) 8 Cal.4th 68, 87, 32 Cal.Rptr.2d 33, 876 P.2d 519.)

Defendant's argument that officers were required to know he lived at the address is unsupported by any authority.   Here, defendant accepted probation on the following condition:  “Defendant shall submit his/her person, real or personal property, automobile and any object under defendant's control, to search and seizure in or out of the presence of the defendant, as requested by any peace or probation officer, at any time of the day or night, with or without cause, notice, consent or warrant.”   The convoluted and redundant wording of this condition is likely the source of much mischief, not the least of which is defendant's argument here.   Unfortunately, conditions of probation often contain similar extraneous and confusing language.   It is for trial courts, of course, to craft orders that are appropriately suited to the goals of probation supervision as the factors of the cases require and the courts' sound judgments dictate.   In setting out their orders, trial judges would give clearer guidance to probationers and would reduce the chances of needless litigation if they consider the import of their words carefully.   A review of probation orders with an eye toward clarity and avoidance of unnecessary or ambiguous verbiage would constitute time well spent.

As defendant points out, his probation condition requires that he submit to search “as requested” by a peace officer.   This request requirement, defendant asserts, obliges an officer to be aware of defendant's association with a location before relying on the clause to justify the search.   Defendant relies upon language of the Supreme Court interpreting search conditions containing provisions similar to the “as requested” provision here.   We conclude,  however, that an “as requested” clause does not require officers to know the property searched belongs to the probationer.

In People v. Mason (1971) 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630 (Mason ) (disapproved on another point in People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545), the defendant was subject to a condition requiring him to submit to search “ ‘whenever requested to do so.’ ”   Officers came to his home and informed him that they believed he had been involved in a burglary and that he was subject to search as a condition of his probation.   After the defendant verified that he was subject to a search condition, officers searched the residence.  (Id. at p. 762, 97 Cal.Rptr. 302, 488 P.2d 630.)   On appeal, Mason contended the officers were required to request permission to search.   The Supreme Court disagreed:  “To so construe the condition would, however, render it utterly meaningless.   A ‘condition’ implies a qualification or restriction;  accordingly, a condition to a grant of probation contemplates some limitation upon the probationer's rights.   [Citation.]  If defendant had the right to withhold his consent to a warrantless search, the protection thereby afforded him would have been as broad as that afforded all other persons under the Fourth Amendment.   We conclude that the probation condition, by use of the words ‘with or without a search warrant,’ was intended to restrict defendant's right to refuse a warrantless search, and that the words ‘whenever requested’ were added to require the officers to notify defendant before conducting a search of his house or car.”  (Id. at p. 763, 97 Cal.Rptr. 302, 488 P.2d 630.)   The court logically held that a request provision did not compel that such a request actually be made.   However, the court translated “whenever requested” to mean notice, a term that nowhere appeared in the order of the trial court.   Such judicial alchemy produces mischievous results.

The evolution of “as requested” continued in People v. Superior Court (Stevens) (1974) 12 Cal.3d 858, 117 Cal.Rptr. 433, 528 P.2d 41.   There, officers searched the defendant's premises pursuant to a condition that the defendant submit to search “upon request.”   The defendant was not present at the time of the search and had not been informed that it was to take place.   The court concluded that a lack of notice to the defendant invalidated the search.   However, the court explained:  “Mason does not require the physical presence of the probationer or other person who is entitled to notice before the search can occur, so long as such notice is given.  [Citation.]  The notice, moreover, need not be formally given and might even be implied in circumstances which warrant a conclusion that a parolee, probationer, outpatient or other such person had knowledge that a request was to be made.”   (Id. at pp. 861–862, fn. 3, 117 Cal.Rptr. 433, 528 P.2d 41.)

Mason and Stevens make clear that an “as requested” clause does not require a probationer be asked for permission, nor does it mandate a probationer's presence at the time and place of the search.   At most, these cases  require that the probationer have notice of the search.   In this context, notice admits of two possible meanings:  advance warning of the search or contemporaneous knowledge of the search.   We conclude that notice cannot mean the probationer is entitled to advance warning of a search.   As Mason points out, such an interpretation would conflict with “the acknowledged purposes of such a provision to deter further offenses by the probationer and to ascertain whether he is complying with the terms of his probation.  ‘With knowledge he may be subject to a search by law enforcement officers at any time, he will be less inclined to have narcotics or dangerous drugs in his possession.   The purpose of an unexpected, unprovoked search of defendant is to ascertain whether he is complying with the terms of probation;  to determine not only whether he disobeys the law, but also whether he obeys the law.   Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation.’  [Citation.]”  (5 Cal.3d at pp. 763–764, 97 Cal.Rptr. 302, 488 P.2d 630.)

Because advance warning is not contemplated, notice can only mean the probationer has the right to contemporaneous awareness that the search is being conducted.   The phrase “as requested” has, in fact, been transmogrified into a right to know that a search or seizure is occurring, even though the probationer can do nothing about it.   Such a result is the height of formalism.   An individual accepts probation in lieu of a jail or prison sentence.   In doing so, he surrenders his reasonable expectation of privacy in his person and effects.   He, thereafter, has no right to object to a search or seizure, save those conducted in an unreasonable manner or for harassment purposes.   We cannot agree that “as requested” language in a probation condition is anything more than excess verbiage.3  Nonetheless, we are bound by the principle of stare decisis to follow the dictates of Mason and Stevens.   In this, we are reminded of the words of Justice Gardner:  “I fully recognize that under the doctrine of stare decisis, I must follow the rulings of the Supreme Court, and if that court wishes to jump off a figurative Pali, I, lemming-like, must leap right after it.   However, I reserve my First Amendment right to kick and scream on my way down to the rocks below.”   (People v. Musante (1980) 102 Cal.App.3d 156, 159, 162 Cal.Rptr. 158 (conc. opn. of Gardner, P.J.).)

Our conclusion that Mason and Stevens should be reconsidered is bolstered by the development of the law following those decisions.   In People v. Lilienthal (1978) 22 Cal.3d 891, 150 Cal.Rptr. 910, 587 P.2d 706 (Lilienthal ), the defendant was arrested, following a traffic stop, for possession of a controlled substance.   After he was transported to the police station,  police searched his vehicle pursuant to a probation search condition that required him to “ ‘submit to warrantless search.’ ”  (Id. at pp. 898, 899 & fn. 8, 150 Cal.Rptr. 910, 587 P.2d 706.)   He argued on appeal that the officers had failed to notify him of their intent to search his car.   The Supreme Court distinguished Mason and Stevens on the ground that Lilienthal's probation condition did not contain a request or notification provision.  (Id. at p. 899, 150 Cal.Rptr. 910, 587 P.2d 706.)   Lilienthal further argued that notice was nonetheless required, but the court disagreed:  “No persuasive reason appears why a notice requirement should be read into a consent to search condition which contains no such express provision.   The condition itself provides general notice to a defendant that he or his belongings may be subjected to warrantless searches.   There appears no greater possibility of violence or of violation of innocent third parties' rights than exists with any other search conducted without the knowledge of the owner of the premises or car.”  (Id. at p. 900, 150 Cal.Rptr. 910, 587 P.2d 706.)

In People v. Bravo, supra, the defendant was subject to a search condition similar to that in Lilienthal.   On appeal, Bravo argued officers lacked reasonable cause to conduct the probation search.  (43 Cal.3d at p. 603, 238 Cal.Rptr. 282, 738 P.2d 336.)   The Supreme Court concluded that the officers needed no justification to conduct the search, because the acceptance of the probation condition operated as a “complete waiver of [the] probationer's Fourth Amendment rights, save only his right to object to harassment or searches conducted in an unreasonable manner.”  (Id. at p. 607, 238 Cal.Rptr. 282, 738 P.2d 336.)

Finally, courts have more recently concluded that, because the probationer has waived his expectation of privacy under the Fourth Amendment, he has no standing to object to a search, even if the searching officer was unaware of the probation condition.  (People v. Velasquez (1993) 21 Cal.App.4th 555, 558, 26 Cal.Rptr.2d 320;  People v. Viers (1991) 1 Cal.App.4th 990, 993, 2 Cal.Rptr.2d 667.)

 The current state of the law, then, is that a probationer may, as a condition of his probation, be subject to search and seizure without a warrant, probable cause, or reasonable suspicion.   Nor is there a general requirement that the probationer be asked permission, be given advance warning, or be present during the search.   Under Mason and Stevens, however, a probationer whose search condition includes an “as requested” provision has a right to be made aware a search is taking place.   The trial court may, of course, tailor a specific search condition to require any of the above, but it is not necessary to do so.   In order to avoid a jail or prison sentence, a defendant may, as a condition of probation, waive his right to  object to any search or seizure, except those conducted for harassment or in an unreasonable manner.4

Here, defendant argues that, by the use of the “as requested” provision, the court did tailor his condition to require that officers know the residence was his.   Under Mason and Stevens, that provision means only that defendant is entitled to notice.   Here, however, when defendant accepted the search clause as a condition of probation, he also specifically waived his right to notice:  “Defendant shall submit ․ to search and seizure ․ as requested by any peace or probation officer, at any time of the day or night, with or without cause, notice, consent or warrant.”  (Italics added.)

Our concurring colleague would hold that “notice” as used in defendant's probation clause actually means “advance warning.”   The chief difficulty with this conclusion is that is not what the clause says.   The conclusion that “notice” really means “advance warning” is based upon the following analysis.   “Whenever requested” actually means notice, as the court held in Mason.   (5 Cal.3d at p. 763, 97 Cal.Rptr. 302, 488 P.2d 630.)   This translation cannot possibly mean “advance warning,” because such an interpretation would lead to absurd results.   The notice of Mason, then, must mean contemporaneous knowledge.   Thus, if “whenever requested” means notice (which actually means contemporaneous knowledge ), it follows ineluctably that the use of the simple word “notice” in defendant's probation clause must mean “advance warning.”

This line of reasoning proceeds with perfect internal consistency and follows a time-honored tradition of giving words with a clear common meaning a different judicial gloss.   We urge, however, that this practice should be avoided whenever possible.   As noted above, clauses of this nature should be drafted with care to give all parties a clear understanding of their meaning.   Thereafter, courts should avoid interpretations that require the specialized knowledge of the cognoscenti to understand.

Our opinion should not be read broadly as a mandate for law enforcement officials, lacking sufficient information about a probationer's link to the residence searched, to conduct probation searches with impunity.   We intend no such mandate.   The case before us concerns the rights of the probationer alone.   As such, the case is resolved against defendant because he lacks standing to object.   We do not mean to suggest that the same result would follow if the motion were brought by someone other than the probationer.    Naturally, a probationer's cohabitant or any other third party retains their standing to complain of a Fourth Amendment violation.   Such persons may also have a viable civil complaint.   Our holding here speaks only to the standing of probationers to seek the remedy of evidentiary exclusion.

II.

 Defendant next alleges he was denied due process when, in his absence, the court conducted the postjudgment hearing into the nature of the agreement, if any, between defendant and investigators.

Defendant claims that his agreement with the investigators arose after his guilty plea but before judgment was pronounced.   He certainly could have moved to withdraw his guilty plea at any time before judgment was pronounced.   (Pen.Code, § 1018.)   He did not do so.   In fact, at sentencing, the court and counsel discussed the manner by which the court would reach the bargained-for sentence of four years and four months.   Defense counsel then answered in the negative when the court asked whether there was any legal cause why judgment should not be pronounced.   Defendant offers no explanation why he did not object at that time or inform his lawyer of his discussion with investigators.

Additionally, we cannot discern exactly what procedural and/or substantive remedies defendant was seeking in his letters.   After detailing his version of the facts, defendant wrote in his first letter:  “I am wondering if this is the normal pratice [sic ] of these two offices [sic ] to do this sort of thing to the people who decide to work with them?  [¶] Also is there anything that you yourself can do about [this] unfinished deal?”   Defendant's second letter shows he was aware that he would not be present in court on April 6.   Yet, again, he made no specific request of the court, either to order his presence or furnish particular redress.   At the hearing itself, defense counsel also did not object to defendant's absence and, in fact, indicated that he was not in a position to make a specific motion on the merits but merely wanted to preserve the officer's testimony for the record.

 Following judgment, a defendant may attack his conviction by appeal, motion to vacate judgment in the form of a petition for writ of error coram nobis, or by a petition for writ of habeas corpus.   Defendant's complaint of postplea conduct by the police, given that it was addressed to the trial court, was not an appeal.   Nor did he characterize his request as either a petition for writ of error coram nobis or habeas corpus.

Defendant certainly did not procedurally perfect a petition for writ of error coram nobis.   In particular, he failed to supply the required supporting  affidavits.  (6 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) § 3121, p. 3852.)   Even if we construe defendant's request liberally and overlook his procedural shortcomings (People v. Wadkins (1965) 63 Cal.2d 110, 112–113, 45 Cal.Rptr. 173, 403 P.2d 429), we cannot find valid grounds for such a petition.   Specifically, defendant does not claim that his plea was induced by official promises.  (People v. Goodrum (1991) 228 Cal.App.3d 397, 400, 279 Cal.Rptr. 120.)   In fact, the conversations with investigators occurred after defendant pled guilty and agreed to a sentence of four years and four months.   Additionally, defendant cannot claim that the facts upon which he relies were newly discovered.  (People v. Shipman (1965) 62 Cal.2d 226, 230, 42 Cal.Rptr. 1, 397 P.2d 993.)   His own letter establishes he was aware of the facts at the time judgment was entered but did not bring them to the court's attention.

 We note also that where no grounds for the petition exist, a court may summarily reject the petition.  (People v. Shipman, supra, 62 Cal.2d at p. 230, 42 Cal.Rptr. 1, 397 P.2d 993.)   If the trial court conducts a hearing on the petition, that hearing need not be a formal trial and may, in fact, be decided on the documents without the presence of the defendant.   (Id. at pp. 230–231, 42 Cal.Rptr. 1, 397 P.2d 993;  People v. Lauderdale (1964) 228 Cal.App.2d 622, 626–627, 39 Cal.Rptr. 688.)   Finally, where no request is made that the defendant be present, no error occurs.   (Lauderdale, supra, at p. 627, 39 Cal.Rptr. 688.)

Defendant's request also failed to conform to a petition for writ of habeas corpus, because it was unverified.  (6 Witkin & Epstein, Cal.Criminal Law, supra, § 3360, p. 4169.)   Although the court informed defendant he retained the right to file such a petition, he has not done so.

The precise remedy that defendant sought remains unclear.   He pled guilty with the understanding he would receive a specific sentence.   In fact, he received the very sentence for which he bargained.   At the time that sentence was imposed, he neither objected nor brought the alleged postplea discussions to the attention of the court or counsel.   Consequently, while it was not advisable that the trial court conduct an evidentiary hearing in defendant's absence, we find no harm occurred.   The hearing itself, to which defendant had no right, was a highly irregular procedure with no clear purpose.   Defendant does not, and cannot, suggest that had the court not conducted a hearing at all he would have had grounds for appeal.

Disposition

The judgments are affirmed.

I concur in the result reached in part I of the majority opinion, and I concur fully in part II.   I do not believe we need to go any further than to hold that the search conducted by the police did not violate the terms of the search clause to which defendant agreed as a condition of his probation.   As the majority correctly observes, defendant admitted to the officers that he lived at the apartment 1 before they searched it, and there is no showing defendant's admission was derived from the insertion of defendant's keys in the door locks, even if we assume for purposes of argument that testing the locks in this way constituted a search.

I do not agree with the majority's reading of the search clause to eliminate the requirement, inherent in the “as requested” term, that defendant be informed of the search.   The fact that defendant agreed to submit to a search of his property without notice does not conflict with the requirement of a request.  “Notice” is reasonably understood in the context of this search clause to mean advance warning, as opposed to the contemporaneous notice provided by a “request.”   Defendant's argument that the “as requested” term required the officers to know he lived at the apartment is logically tenuous and factually irrelevant, given that the officers did know he lived there when they searched the apartment.   The argument is a red herring that has drawn the majority into a discussion of probation conditions in general, which is unnecessary.

I would hold simply that the police properly searched the apartment after defendant told them he lived there.

FOOTNOTES

1.   Defendant also argues that the search of 124 Scenic Way was the “fruit” of the unlawful search at Hillary Way, requiring suppression of this evidence as well.  (Wong Sun v. United States (1963) 371 U.S. 471, 484, 83 S.Ct. 407, 415–416, 9 L.Ed.2d 441.)   We need not reach this claim for the reasons set out below.

2.   Defendant contends the Supreme Court should reconsider its ruling in Bravo.   Unless and until they do so, Bravo is binding precedent.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

3.   Such an analysis would apply equally to all similar provisions, e.g., “whenever requested,” “upon request.”

4.   We are careful to reiterate that a defendant maintains the right to object to the manner in which a search is conducted.   For instance, the United States Supreme Court has held that the principle of knock-notice “forms a part of the reasonableness inquiry under the Fourth Amendment.”   (Wilson v. Arkansas (1995) 514 U.S. 927, ––––, 115 S.Ct. 1914, 1915;  see also Lilienthal, supra, 22 Cal.3d at p. 900, 150 Cal.Rptr. 910, 587 P.2d 706.)

1.   Defendant's statement to the officers that he stayed at the apartment three or four days a week and kept clothing in the bedroom amounted to an admission that he used the apartment as a residence.

CORRIGAN, Associate Justice.

CHIN, P.J., concur.