IN RE: TYRELL J.

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Court of Appeal, Fifth District, California.

IN RE: TYRELL J., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. TYRELL J., Defendant and Appellant.

No. F017074.

Decided: November 25, 1992

Carol A. Navone, San Francisco, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Michael J. Weinberger, Thomas Y. Shigemoto and Joel Carey, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

In this case we hold that the search of a suspect by a police officer cannot be justified under the Fourth Amendment by the officer's later discovery that the suspect is on juvenile probation.   Two recent Court of Appeal cases have come to a different conclusion.  (See In re Binh L. (1992) 5 Cal.App.4th 194, 6 Cal.Rptr.2d 678;  In re Marcellus L. (1991) 229 Cal.App.3d 134, 279 Cal.Rptr. 901.)   The juvenile court below expressed reliance on Marcellus L. in denying appellant's motion to suppress evidence.   We conclude that these two cases are wrongly premised on the belief that when a juvenile is placed on probation subject to search and seizure conditions he loses both his expectation of privacy in personal effects entirely hidden within his clothing and his right to assert Fourth Amendment illegality of virtually any police search of his person.

FACTS

Appellant was placed on probation by the juvenile court on May 21, 1991.   One condition of probation was that appellant “[s]ubmit to a search of your person and property, with or without a warrant, by any law enforcement officer, probation officer or school official.”

On October 3, 1991, appellant and two other young males were present at a high school football game.   It was a warm night, yet one of appellant's companions was wearing a bulky coat.

Because of a shooting at a football game the previous week, a Fresno Police Department juvenile tactical team was present at the game.   Officer Douglas Villemin was informed by radio that appellant and his friends were members of the U–Boys gang.

Concerned that the companion's unseasonably warm outerwear was concealing a weapon, Villemin and another officer told the three males to “hold up for a second.”   Appellant and his friends stopped.   An officer pulled back the companion's bulky coat, revealing a long, fixed-blade knife in his pocket.   The officers then directed all three males to move over to a fence so the officers could pat them down for additional weapons.

As appellant walked the 15 or 20 feet to the fence, he tugged on the front and crotch area of his pants three different times.   After appellant spread his feet and placed his hands against the fence as directed, Villemin “reached around in the front to see if I could find out what it was he was trying to hide or move.”   Villemin felt a soft object about 12 inches long and 3 inches in diameter in the front of (and partially protruding from) appellant's pants.   Villemin removed the object and identified it as marijuana.1

DISCUSSION

It is undisputed that Officer Villemin did not have probable cause to permit him to search the minor.   The issue is whether appellant's status as a juvenile probationer subject to search and seizure conditions, a status unknown to the officer prior to the search, makes the search constitutionally reasonable.   We first outline some basic principles governing warrantless searches.

The Fourth Amendment prohibits unreasonable searches and seizures by police officers and other government officials.  (New Jersey v. T.L.O. (1985) 469 U.S. 325, 335, 105 S.Ct. 733, 739, 83 L.Ed.2d 720.)   The exclusionary rule is the primary means by which the Fourth Amendment is enforced.  (See Alderman v. United States (1969) 394 U.S. 165, 171, 175, 89 S.Ct. 961, 965, 967, 22 L.Ed.2d 176.)   The exclusionary rule is applicable at Welfare and Institutions Code section 602 jurisdictional hearings.  (In re William G. (1985) 40 Cal.3d 550, 567, fn. 17, 221 Cal.Rptr. 118, 709 P.2d 1287.)

A search cannot be justified by what it discovers.   In Terry v. Ohio (1968) 392 U.S. 1, 21–22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, the court wrote:  “[I]n making [the assessment of constitutional reasonableness] it is imperative that the facts be judged against an objective standard:  would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?”  (Emphasis added.)  (See also Scott v. United States (1978) 436 U.S. 128, 137–138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168.)

 Just as a search is not “with” probable cause unless the officer has knowledge of the facts, and just as an arrest is not “pursuant” to a warrant unless the officer has knowledge of the warrant, a search is not “pursuant” to a probation condition unless the officer conducting the search has knowledge that the suspect is subject to a probation search condition.   Without such knowledge the search is unreasonable (absent other relevant exceptions).   Significantly, the Marcellus L. court was headed in the right direction when it stated, “It goes without saying that a search undertaken pursuant to [a probation search] clause for monitoring or other probationary purposes would pass review under Griffin [Griffin v. Wisconsin (1987) 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709] and Bravo [People v. Bravo (1987) 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336].   However, this search was not conducted pursuant to the authority granted by the probationary search clause [because the officer did not know that the suspect was on probation].”   (In re Marcellus L., supra, 229 Cal.App.3d at p. 140, 279 Cal.Rptr. 901.)

We have found that in each California and United States Supreme Court case discussing the standards for probation and parole searches the opinion specifically indicates the government agents knew about the parole or probation search condition.  (See Griffin v. Wisconsin (1987) 483 U.S. 868, 871, 107 S.Ct. 3164, 97 L.Ed.2d 709;  People v. Bravo (1987) 43 Cal.3d 600, 603, 238 Cal.Rptr. 282, 738 P.2d 336 [probation search];  People v. Burgener (1986) 41 Cal.3d 505, 529, 224 Cal.Rptr. 112, 714 P.2d 1251 [parole search];  People v. Mason (1971) 5 Cal.3d 759, 762, 97 Cal.Rptr. 302, 488 P.2d 630 [probation search];  In re Martinez (1970) 1 Cal.3d 641, 646, 83 Cal.Rptr. 382, 463 P.2d 734 [collecting parole search cases];  People v. Bremmer (1973) 30 Cal.App.3d 1058, 1061, 106 Cal.Rptr. 797;  see also Annot., Validity of Requirement That, As Condition of Probation, Defendant Submit to Warrantless Searches (1977) 79 A.L.R.3d 1083.)

In In re Martinez, supra, 1 Cal.3d at page 646, 83 Cal.Rptr. 382, 463 P.2d 734, the court wrote:  “In the instant case regular police officers undertook the search pursuant to their general law enforcement duties;  the officers, at the time of the search, did not even know of defendant's parole status․  Under these circumstances the officers cannot undertake a search without probable cause and then later seek to justify their actions by relying on the defendant's parole status, a status of which they were unaware at the time of their search.”

Against this backdrop, we next discuss the premise upon which both Binh L., supra, and Marcellus L., supra, are essentially based:  a juvenile's probation order to submit to search and seizure necessarily forfeits the juvenile's right to privacy from searches that otherwise would have to be justified by the searching officer's possession of articulable reasonable cause, in spite of the fact the searching officer knows nothing about the probation condition.   In asserting this premise, the two cases endeavor to follow the case of People v. Bravo, supra, 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336.

Bravo recognized:  “Probation is not a right, but a privilege.  ‘If the defendant considers the conditions of probation more harsh than the sentence the court would otherwise impose, he has the right to refuse probation and undergo the sentence.  [Citations.]’ ”  (People v. Bravo, supra 43 Cal.3d at p. 608, 238 Cal.Rptr. 282, 738 P.2d 336.)   The California Supreme Court cited its opinion in In re Martinez, supra, 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734 as providing a distinction between adult probationers and parolees.  (People v. Bravo, supra, 43 Cal.3d at p. 608, 238 Cal.Rptr. 282, 738 P.2d 336.)   This distinction meant that while parolees could only be validly searched pursuant to a search condition if the searching authority had “reasonable suspicion” (People v. Burgener, supra, 41 Cal.3d at pp. 533–534, 224 Cal.Rptr. 112, 714 P.2d 1251), there was no such requirement in the circumstance of a probation search.   The Bravo court added, “defendant has voluntarily waived ‘whatever claim of privacy he might otherwise have had.’  ( [People v. Mason (1971) ] 5 Cal.3d at p. 766, 97 Cal.Rptr. 302, 488 P.2d 630.)”  (People v. Bravo, supra, at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336, fn. omitted.)

The context of Bravo makes it clear that the court was setting forth an analysis limited to adult probationers.   The court saw the scope of a defendant's consent as being broad, consistent with the purpose of such a condition:  to effectively supervise him to better ensure his obedience to the law and measure his amenability to rehabilitation.  (People v. Bravo, supra, 43 Cal.3d at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336.)   Yet, the scope is not unlimited;  the search must be related to “rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes.”   (Ibid.)  A defendant's waiver does not go so far as to permit harassment, arbitrariness or capriciousness.  (Ibid.)

In re Binh L., supra, 5 Cal.App.4th 194, 6 Cal.Rptr.2d 678 held that because a minor who knows he is subject to a probation search condition cannot reasonably expect not to be searched by any police officer he comes across, the probationer has lost all Fourth Amendment privacy protection (with the exceptions earlier set forth from Bravo not relevant in this case or in Binh L.).   Binh L. was on probation for auto theft.   One condition of probation was that the minor “ ‘submit to search & seizure anytime, day or night, with or without a warrant by any peace officer or school official.’ ”   (In re Binh L., supra, 5 Cal.App.4th at p. 199, 6 Cal.Rptr.2d 678.)   He had signed an acknowledgment that he did “accept” the order.  (Id. at p. 202, 6 Cal.Rptr.2d 678.)   He subsequently stole another car and was returned to probation.  (Id. at p. 199, 6 Cal.Rptr.2d 678.)   Three months later “a police officer with no knowledge of the minor's probation or of the search condition found the minor in an automobile in what the officer regarded as suspicious circumstances.”  (Ibid.)  After performing two patdown searches, the officer found a loaded pistol on appellant's person.  (Id. at pp. 200–201, 6 Cal.Rptr.2d 678.)

The court in Binh L. upheld the search:  “We shall conclude that the probation search condition was valid, and that in the circumstances described in the officer's testimony any subjective expectation the minor might have had that the loaded pistol would not be subject to discovery by the officer was unreasonable.”  (In re Binh L., supra, 5 Cal.App.4th at p. 201, 6 Cal.Rptr.2d 678, emphasis added.)   The rationale for this holding is found at page 205, 6 Cal.Rptr.2d 678:  “In short, if there were any circumstance in which the minor could reasonably have expected his decision to carry a loaded pistol to remain private from the police, this was certainly not such a circumstance:  Riding in a car only four months after he had acknowledged a probation search condition in an order arising out of admitted vehicle thefts.”

In In re Marcellus L., supra, 229 Cal.App.3d 134, 279 Cal.Rptr. 901, an officer who was patrolling in “an area known for drug dealing and where loitering and shootings were common” (id. at p. 138, 279 Cal.Rptr. 901) pat-searched the minor “ ‘as I do every time I go into the area and contact someone’ ” (ibid.).   He had no reason to believe the minor was armed.   He felt a lump in the minor's pocket and removed it.   The lump was rock cocaine.   Authorities subsequently discovered the minor was on juvenile probation.

The Marcellus L. court acknowledged that the pat-search there was not justified under Terry v. Ohio, supra, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.   Yet, the court expressed a willingness to tolerate the officer's illegal conduct because “the probationary search clause renders the minor without standing to object to [the officer's] objectively unreasonable frisk.”  (In re Marcellus L., supra, 229 Cal.App.3d at p. 139, 279 Cal.Rptr. 901.)   The court's viewpoint that the minor lacked standing is expressed a bit differently later in the opinion:  “What is critical is that the juvenile probationer has been admitted to probation upon a legitimate search condition (see People v. Bravo, supra, 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336) and has absolutely no reasonable expectation [of privacy].”  (Id. 229 Cal.App.3d at p. 145, 279 Cal.Rptr. 901.)

To explain our view that Binh L. and Marcellus L. have gone astray in their analyses of expectation of privacy, we need to examine briefly the underpinnings of the concept as developed in United States Supreme Court decisions.  “[A]pplication of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded” by the unreasonable government conduct.  (Smith v. Maryland (1979) 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220.)  “This principle ‘posits a two-part inquiry:  first, has the individual manifested a subjective expectation of privacy in the object of the challenged search?   Second, is society willing to recognize that expectation as reasonable?’  (California v. Ciraolo (1986) 476 U.S. 207, 211 [106 S.Ct. 1809, 1811, 90 L.Ed.2d 210]․)”  (In re Binh L., supra, 5 Cal.App.4th at p. 201, 6 Cal.Rptr.2d 678.)

 The suspect's “manifestation of a subjective expectation of privacy” must first be actual:  the suspect must show a subjective expectation of privacy in the sense that, for example, the suspect hides something instead of carrying it in the open, conveys his message by telephone instead of shouting it from the street, or takes something inside his house instead of leaving it out in his yard.

In the present case, we readily conclude appellant has satisfied the first part of the inquiry:  he had placed the object inside his trousers and under his shirt.   That is clearly a manifestation of an expectation of privacy.

The second aspect of the “reasonable expectation of privacy” inquiry involves “reasonableness.”   This is not the reasonableness of a particular suspect's belief that he will or will not be subjected to a search on a particular occasion.   It makes no difference, in terms of this “reasonableness” inquiry, whether the suspect believes his effort to hide something from public view is reasonable or unreasonable.

Instead, this aspect of the “reasonableness” inquiry is directed toward a determination whether society at large is willing to accept a particular kind of assertion of privacy as legitimate for protection.   Thus, for example, when a student places personal belongings in her purse, the student's expectation of privacy is “reasonable.”  (New Jersey v. T.L.O., supra, 469 U.S. at p. 337, 105 S.Ct. at p. 740.)   But when a prisoner hides personal belongings under his mattress, society is not willing to recognize that subjective expectation of privacy, and it is “unreasonable.”  (Hudson v. Palmer (1984) 468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393.)   Because society is not prepared to recognize as reasonable a prisoner's expectation of privacy in his cell, “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.”  (Ibid.)

In the present case, appellant had the bag of marijuana hidden in his pants.   While society is not prepared to accept possession of marijuana as legitimate, society is prepared to accept “under the clothing” as a place of privacy that cannot be invaded by police without suitable reason.  (People v. Holt (1989) 212 Cal.App.3d 1200, 1204–1205, 261 Cal.Rptr. 89.)

 Should the fact that appellant is subject to search and seizure conditions as a result of his grant of juvenile probation alter his reasonable expectation of privacy to the point that he has essentially waived his Fourth Amendment rights, save and except his protection against harassing, capricious or arbitrary conduct?   Based upon the above discussion of the two prongs set forth in California v. Ciraolo, supra, 476 U.S. 207, 106 S.Ct. 1809, we conclude the answer is no.

In accordance with People v. Bravo, supra, 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336, a person who sufficiently consents to be searched or effectively waives his privacy rights has given up his expectation of privacy.   However, to say a juvenile knows or should have known he was subject to being searched at any time based on his probationary terms does not mean that he has effectively consented to all searches;  i.e., that he has given up all privacy rights.   We cannot simply say, as the court suggests in Binh L., that we need not examine the perspective and conduct of the officer once it is determined that a juvenile probationer should have known better than to possess an item in violation of the probation when he had earlier “acknowledged” that he could be searched at any time.  (In re Binh L., supra, 5 Cal.App.4th at p. 205, 6 Cal.Rptr.2d 678.)   When the officer is not even aware the person is a juvenile probationer, the officer can only assume that the person is entitled to the same expectation of privacy as anyone else.   Only if a “consent” is conveyed to the officer, either by the minor at the scene of the detention or by conveyance of the probation condition through institutional channels, may the officer dispense with other Fourth Amendment prerequisites to a search.

 Thus, where the officer is unaware of a juvenile probationer's search condition, he may not search under a suspect's clothing without a warrant unless the officer has probable cause to arrest the suspect.  (See People v. Holt, supra, 212 Cal.App.3d at p. 1204, 261 Cal.Rptr. 89.)

Furthermore, both Binh L. and Marcellus L. take a wrong turn in saying that all probationers, whether juvenile or adult, are lumped into a category that Bravo referred to as persons differently situated than parolees.   Search conditions for juveniles are more like the search requirements that a parolee faces than those faced by an adult probationer.   The meaningful distinction is found in the very words of the Bravo court:  “A probationer, unlike a parolee, consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term.”  (People v. Bravo, supra, 43 Cal.3d at p. 608, 238 Cal.Rptr. 282, 738 P.2d 336, emphasis added.)

In trying to tailor Bravo to suit its holding, the Binh L. court is first forced to concede that a juvenile cannot be said to have voluntarily and effectively waived his privacy rights merely by signing an acknowledgment that he “accepts” the probation order.  (In re Binh L., supra, 5 Cal.App.4th at p. 202, 6 Cal.Rptr.2d 678.)   But Binh L. proceeds to try to obviate the comparison with parolees by asserting, “Unlike a parolee, a minor cannot be made subject to an automatic search condition.”  (Id. at p. 203, 6 Cal.Rptr.2d 678.)   We see no meaningful difference here as it relates to a juvenile's inability to reject terms of probation imposed by a court.   It matters not whether the condition is automatic;  what matters is:  once the condition is set in place, does the proceeding involve an effective acceptance and consent procedure tantamount to a waiver of virtually all privacy rights?

The People maintain in their supplemental letter brief that Marcellus L. correctly sets forth that whether a minor can refuse probation is not determinative because the mere fact he has been admitted to probation upon a legitimate search condition means he has absolutely no right to object to a search of his person.  (Citing Marcellus L., supra, 229 Cal.App.3d at p. 145, 279 Cal.Rptr. 901.)

While Marcellus L. and Binh L. take somewhat different paths, they reach essentially the same conclusion:  that the officer's otherwise illegal conduct can be validated simply by saying the defendant has no reasonable expectation of privacy and no right to object to the searching officer's conduct.  Binh L. says the juvenile no longer has a reasonable expectation of privacy in his person because he knew of, even though he may not have effectively consented to, the search condition.   An encroachment on what would otherwise be protected by the juvenile's constitutional rights is valid, claimed the Binh L. court, based on two considerations:  “[E]ven adult parolees and probationers have a reduced expectation of privacy, thereby rendering certain intrusions by governmental authorities reasonable,” and “[T]he State has somewhat broader authority to regulate the activities of children than of adults.”  (In re Binh L., supra, 5 Cal.App.4th at p. 204, 6 Cal.Rptr.2d 678, internal quotation marks omitted.)

We are aware that the number of serious crimes committed by juveniles continues to escalate.   Society is demanding harsher treatment of those juveniles who seem impervious to the rehabilitative offerings of probation.   However, we must remain sensitive to the fact that even minors adjudicated for misdemeanors are susceptible to placement on probation with broad search conditions, without any choice in the matter or adequate understanding of the conditions.   We therefore think that the whole spectrum of juvenile offenders needs to be considered in articulating rules that generally impact the rights of all juveniles.2

Applied to the instant case, the distinction between parolees and probationers drawn in Bravo supports applying the parole-type standards to juvenile probationers.  “Unlike adult probation, juvenile probation is not a grant of leniency imposed as an alternative to the legally authorized sentence.   An adult may reject the sentencing court's offer of leniency and refuse probation;  juveniles may not.  [Citation.]”  (In re Nathaniel Z. (1986) 187 Cal.App.3d 1132, 1140, 232 Cal.Rptr. 378.   Thus, we think a reasoned application of Bravo places juvenile probationers who are subject to search conditions within the same search criteria as parolees to the extent that a juvenile does not completely waive an expectation of privacy of his person, but enjoys a privacy right of restricted scope requiring searching authorities to demonstrate some justification for the search in the form of a reasonable suspicion.

 We thus conclude that appellant did not by virtue of his status as a juvenile under search-conditioned probation lose his expectation of privacy.   We find his expectations and rights were in line with those described by the California Supreme Court in In re Martinez, supra, 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734, and People v. Burgener, supra, 41 Cal.3d 505, 224 Cal.Rptr. 112, 714 P.2d 1251, as applicable to parole searches.

Consequently, a search of a juvenile pursuant to (i.e., with knowledge of) a probation search condition must be based on a reasonable suspicion that the officer will find evidence of conduct violative of a condition of probation:  For example, an officer may properly search a juvenile pursuant to a search condition on the reasonable suspicion that he possesses illegal narcotics, since any probationer violates probation when he commits a new crime (a consequence recognized by society and which we can reasonably assume any probationer knows);  that search would not violate the juvenile's reduced expectation of privacy that allows a search based on reasonable suspicion.   As Marcellus L. acknowledged, a search can be justified as being pursuant to a search condition only if the officer was aware of the condition prior to performing the search.   Therefore, in this hypothetical case, the searching officer possessed the two requirements necessary to justify the search:  he was aware the juvenile was on probation, and he had a reasonable suspicion that violative conduct was being committed.   Had the hypothetical officer not known this juvenile was on probation, the officer would have been held to the higher standard applicable to the search of any person—i.e., probable cause to arrest in accordance with People v. Holt, supra, 212 Cal.App.3d 1200, 261 Cal.Rptr. 89.

In the instant case, since Officer Villemin did not know appellant was on probation, the matter of fortuity that appellant was subject to a juvenile probation search condition did not justify the search which otherwise violated the Fourth Amendment.   The burden on the State to justify this warrantless search had to be satisfied by the establishment of facts articulable by Villemin.   Since the People failed to do that here, the motion to suppress the marijuana should have been granted.

DISPOSITION

The judgment is reversed.

I concur in the result but dissent from that part of the opinion which states a searching officer must have reasonable suspicion of wrongdoing before he may legally search a juvenile probationer who is subject to a search condition.   In light of the court's holding that the searching officer must have probable cause to search a juvenile probationer it is obvious this gratuitous observation, not briefed and not argued, is totally unnecessary to the disposition of this case.

The facts of this case are simple.   A juvenile suspect was searched without probable cause.   Unknown to the searching officer, the juvenile was on probation, one of the conditions of which required the juvenile to “submit to a search of your person and property, with or without a warrant, by any law enforcement officer, probation officer, or school official.”   Based on the search condition the juvenile court held the search was valid.   The majority opinion reverses primarily on the ground the searching officer must have knowledge of the search condition to render the search valid.   I would take a shorter course which in my view obviates the necessity of passing on questions not necessary to the disposition of this case, including the question of whether the officer must have knowledge of the search condition.

This case, as in other search and seizure cases, involves a dual formula.   One aspect focuses on the searching officer's conduct and mental state.   The other side of the coin focuses on the suspect's expectations of privacy.   The lead opinion approaches the case primarily from the vantage point of the officer's conduct and his state of mind.   In substance it holds, the searching officer did not have knowledge of the search condition and therefore he could not rely upon it.

However, if the suspect has no reasonable expectation of privacy, there is no illegal search though made without probable cause.   On the suspect's side of the formula, the inquiry is whether he has manifested a subjective expectation of privacy which society is willing to recognize as objectively reasonable.   (Smith v. Maryland (1979) 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220;  California v. Ciraolo (1986) 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210.)

A suspect has no reasonable expectation of privacy if he has validly consented to or waived such expectation.   For example, an adult probationer who has expressly consented to the imposition of a search condition as a condition of probation has waived any expectation of privacy and is subject to search without probable cause or reasonable suspicion.  (People v. Bravo (1987) 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336;  People v. Mason (1971) 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630.)   The only limitation is that the search not be “undertaken for harassment or ․ for arbitrary or capricious reasons.”  (People v. Bravo, supra, 43 Cal.3d at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336.)   There is no suggestion in this case that the search falls within this narrow exception.

The position of a juvenile subject to a juvenile court search condition, however, is entirely different from that of an adult probationer.   An adult probationer “consents to waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term.   Probation is not a right, but a privilege.  ‘If the defendant considers the conditions of probation more harsh than the sentence the court would otherwise impose, he has the right to refuse probation and undergo the sentence.  [Citations.]’ ”  (People v. Bravo, supra, at p. 608, 238 Cal.Rptr. 282, 738 P.2d 336.)   On the other hand, the imposition of probation in a juvenile case is not an act of leniency.   The consent of the juvenile is not required.   The conditions of probation are not offered and voluntarily accepted.   The condition is imposed by the court.

In In re Nathaniel Z. (1986) 187 Cal.App.3d 1132, 1140, 232 Cal.Rptr. 378, the court held:

“Moreover, the county fails to appreciate the difference between adult and juvenile probation.   Unlike adult probation, juvenile probation is not a grant of leniency imposed as an alternative to the legally authorized sentence.   An adult may reject the sentencing court's offer of leniency and refuse probation;  juveniles may not.”

Again, in In re Wayne J. (1979) 97 Cal.App.3d 776, 780, 159 Cal.Rptr. 106, the court stated:

“Any right of a minor to refuse probation as contended for here because its terms are more onerous than the $100 fine, would be entirely inconsistent with the purpose, nature, reasons for and consequences of probation in juvenile proceedings.”  (See also Welf. & Inst. Code, § 730.)

Thus the minor in this case did not voluntarily accept the search condition of his probation and did not waive his expectation of privacy nor consent to the invasion of his privacy without probable cause.   Accordingly, since the officer did not have probable cause to search, the search was invalid and the judgment should be reversed on this ground alone.

Reversal on this ground—that is that the juvenile in this case did not waive his right to privacy or consent to the search—would render unnecessary the observations and lengthy discussion regarding the officer's lack of knowledge of the search condition and the generalities regarding the necessity of the search being pursuant to the condition.   All such discussion in the lead opinion is unnecessary to the resolution of this case.   The vice of relying upon such unnecessary observations is that they may be applied for example to an adult probationer thus requiring the searching officer to have knowledge of the search condition and the search be conducted pursuant to the condition even where the suspect has expressly waived any right of privacy.   This question apparently has not been resolved to date and is not before us in this case.   In my opinion there is no dependency between the validity of a waiver and the officer's knowledge or lack thereof of a search condition.   If a defendant has totally waived his right to a privacy, the knowledge or lack thereof of the officer of the search condition would be irrelevant.   In any event, we should not include language in this juvenile case which may dispose of the issue in an adult context.

Lastly, I dissent from that part of the opinion which states:  “․ a search of a juvenile pursuant to ․ a probation search condition must be based on a reasonable suspicion that the officer will find evidence of conduct violative of a condition of probation․” and accompanying discussion.  (Maj. opn., ante at p. 29.)   Again, that issue is not before us and it was not briefed or argued by the parties.   Since the court holds in this case that probable cause to search is necessary to sustain the search, it is self-evident that the non-issue of reasonable suspicion to search is unnecessarily addressed.   Further, People v. Bravo, supra, 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336 expressly addressed this issue in the context of an adult probationer and resolved the issue against imposing the requirement that a searching officer must have reasonable suspicion before he may search an adult probationer.

In this juvenile case, reliance on the terse and conclusory statements in the adult parole cases (People v. Burgener (1986) 41 Cal.3d 505, 224 Cal.Rptr. 112, 714 P.2d 1251;  In re Martinez (1970) 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734) does not satisfactorily resolve the issue in light of the broad authority of a juvenile court over and the interest of society in the welfare, reformation and rehabilitation of minor wards.  (Welf. & Inst. Code, §§ 730, 726 & 727.)

Although minors are protected by constitutional rights, it is well recognized that the state has broader authority to regulate the activities of minors than of adults.  (Planned Parenthood of Central Missouri v. Danforth (1976) 428 U.S. 52, 74–75, 96 S.Ct. 2831, 2843–2844, 49 L.Ed.2d 788;  In re Roger S. (1977) 19 Cal.3d 921, 928, 141 Cal.Rptr. 298, 569 P.2d 1286.)   As was accurately stated in In re Binh L. (1992) 5 Cal.App.4th 194, 203, 6 Cal.Rptr.2d 678:

“․ Indeed, the power of the juvenile court is even broader than that of a criminal court:  ‘Because of its rehabilitative function, the juvenile court has broad discretion when formulating conditions of probation.  “A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.”  [Citation.]  “[I]n planning the conditions of appellant's supervision, the juvenile court must consider not only the circumstances of the crime but also the minor's entire social history.  [Citations.]”  [Citation.]’  (In re Frankie J. (1988) 198 Cal.App.3d 1149, 1153 [244 Cal.Rptr. 254] ․) ‘Even conditions which infringe on constitutional rights may not be invalid if tailored specifically to meet the needs of the juvenile [citation].’  (In re Michael D., [ (1989) ], supra, 214 Cal.App.3d 1610, 1616 [264 Cal.Rptr. 476] ․)  But every juvenile probation condition must be made to fit the circumstances and the minor.”

Thus the question of whether reasonable suspicion is required to search a minor subject to a juvenile court probation search condition presents a close question and should not be decided before the parties are given an opportunity to brief and argue the point, particularly where it is unnecessary to the decision in this case.

FOOTNOTES

1.   Officer Villemin observed that appellant was wearing a T-shirt that hung over the front area of his pants.   Officer Villemin testified that once he reached around the front of appellant's crotch area up to the top of his pants, he noticed they were not fully zipped or buttoned.   Through appellant's clothing, he felt the soft object which he determined was neither a weapon nor anything else he could identify.   While Villemin described the “bag” as protruding over the top of appellant's pants as he conducted the frisk, he did not feel or observe anything that revealed itself as contraband.   He testified that only after he had completely removed the bag from appellant's pants did he think this object was a bag of marijuana.   Respondent argued below that the search was valid based on appellant's probation search condition.   It is only in the very last sentence of respondent's appellate brief that an argument is made in passing for the first time that the marijuana was in “plain view.”   This argument is neither consistent with the facts nor properly raised.

2.   Here, appellant was on probation for misdemeanor battery committed while on school property.The only evidence in the instant record going to appellant's knowledge of his probation search condition was judicially noticed by the juvenile court based upon the following offer by the People:  “When the conditions of his probation were announced and on page two of that minute order under, ‘Conditions of Probation’, line number 28, it is checked that the condition to submit to a search of your person and property with or without warrant by any law enforcement officer, probation officer or school official has been checked.   And minor was present at the time.”   The court added that the record of the earlier proceedings reflected that appellant was represented by counsel and his mother was present.   Nothing in the record suggests that appellant ever acknowledged, whether orally or in writing, that he understood any of the terms of his probation.

VARTABEDIAN, Associate Justice.

BEST, P.J., concurs.