PEOPLE v. SAMARO (1988)

After denial of his motion to suppress evidence, appellant pled guilty to possession of a concealable firearm by a convicted felon (Pen.Code, § 12021, subd. (a)), possession of cocaine (Health & Saf.Code, § 11350, subd. (a)), possession of phencyclidine for sale (Health & Saf.Code, § 11378.5), and a prior prison term (Pen.Code, § 667.5).   On appeal, he challenges only the denial of his motion to suppress (Pen.Code, § 1538.5).

The facts pertinent to the search and seizure issues raised on appeal are as follows.

At approximately 11:00 p.m. on August 15, 1986, Officer Unger of the San Jose Police Department, who, along with his partner, was on patrol in a marked police vehicle, observed a car without a license plate light exceeding the speed limit.   The officers initiated a vehicle stop.   Appellant, the driver of the car, parked in the driveway of his home at 1937 Mandarin Way in San Jose.   The officers stopped their police vehicle in the driveway behind appellant's car.

Appellant exited his car and “rapidly went towards the front of the residence.”   Officer Unger felt appellant might be attempting to get into the residence, so he quickly followed.   The officer intercepted appellant, “told him to stop and requested his driver's license and registration.”   Appellant was also asked by the officer to fill out a field identification card with his name, address and date of birth.

Appellant initially told the officer that he had never been arrested.   He also said his driver's license was inside the house.   But later appellant admitted that his driver's license was suspended for a prior drunk driving arrest.   Appellant asked the officer the reason for the detention.   He appeared nervous and was hesitant in answering questions.

A warrant check and local criminal history on appellant was requested by the officers.   When they confirmed that appellant's driver's license was suspended, appellant was informed that he was under arrest for driving on a suspended license.   The officers also learned that appellant was on parole.

Officer Unger then asked appellant for his car keys.   Appellant refused;  according to the officer, he became “agitated, nervous and upset.”   The officer said:  “[C]alm down and give me the keys.”   Then, when the officer tried to take hold of appellant's arm, a struggle ensued.   Appellant broke away and “ran away from the car stop.”   The officers unsuccessfully pursued on foot.

While his partner continued to search for appellant, with the assistance of other police personnel, Officer Unger returned to the scene of the vehicle stop.   He opened appellant's car by using a “slim jim”—a thin wire which slides between the window and door jam and hooks onto the locking mechanism.   The interior of the car was searched at the detention scene, but no evidence or contraband was found.

Officer Unger then requested a tow truck to impound appellant's vehicle.   He gave two reasons for ordering the impound:  the revocation of appellant's license;  and the fact “that the subject [Samaro] was on parole.”

At the tow yard, the officer was informed that appellant had been convicted of “possession of PCP, and PCP for sale,” and was subject to “an S5 search clause,” which provided:  “Your residence and any property under your control may be searched without a warrant by any agent of the Department of Corrections or any law enforcement officer.”   The officer's information also identified appellant's parole agent.

Possessed of this information, Officer Unger directed the tow truck driver to “remove the back seat area in an attempt to get into the trunk without causing any damage to the vehicle․”  A jacket was removed from the trunk through the back seat.   Within the jacket was found a “small rubber doll.”   Upon removing the head of the doll, the officer found what he “recognized to be a one gram amount of PCP.”   Also seized from the trunk were the following items:  a loaded handgun;  $400 in cash;  ten handrolled PCP cigarettes;  approximately one-quarter gram of cocaine;  marijuana;  parsley and razor blades.

Later, appellant's parole agent was notified that appellant had been arrested and his car searched.

Appellant argues that the warrantless search of his car was not lawfully conducted on the basis of the search condition of his parole.   He claims that the parole search was unlawful for both because it was not based upon sufficient grounds, and because the police officer acted without authorization from a parole agent.   The Attorney General responds that the parole search was based upon adequate cause.

In People v. Burgener (1986) 41 Cal.3d 505, 534, 224 Cal.Rptr. 112, 714 P.2d 1251, our high court declared that the Fourth Amendment does not require application of the probable cause standard to parole searches, and that such searches are lawful if based upon reasonable suspicion.  (See also People v. Bravo (1987) 43 Cal.3d 600, 608, 238 Cal.Rptr. 282, 738 P.2d 336.)   The court explained:  “[T]he appropriate standard of reasonableness to justify a parole search is a reasonable suspicion on the part of the parole officer that the parolee is again involved in criminal activity, or has otherwise violated his parole, and that the search may turn up evidence of that activity, or that evidence of a proposed future violation by the parolee may be uncovered.   That suspicion must of course be based on articulable facts which together with rational inferences from those facts warrant objectively reasonable suspicion.”  (People v. Burgener, supra, 41 Cal.3d at p. 535, 224 Cal.Rptr. 112, 714 P.2d 1251;  see also People v. Brown (1987) 191 Cal.App.3d 761, 766–767, 236 Cal.Rptr. 506.)

 When the search of appellant's vehicle was undertaken, the investigating police officers were aware of the following information.   Upon being detained for routine vehicle violations, appellant was quite nervous and agitated.   He was disingenuous in responding to the officer's requests for identification and a driver's license.   He finally admitted that he was driving on a revoked driver's license.   A warrants check confirmed that appellant's driver's license had been suspended.   The officers also learned that appellant was on parole, having previously been convicted of possession of illegal narcotics.   And, when asked for his car keys, appellant responded by scuffling with the officers, then escaping on foot, leaving his vehicle behind.   In light of these specifically articulated facts, we conclude that it was reasonable for the officers to suspect that appellant was again involved in criminal activity.   Thus, sufficient cause for the parole search has been shown.

As to whether the parole search was unlawful because it was not instigated or authorized by appellant's parole agent, we must first determine whether an objection to the search on that ground was made at trial.   If so, appellant claims that his parole condition cannot justify the search absent the participation of his parole agent.   If trial counsel did not seek to invalidate the parole search on that ground in the lower court, appellant submits that she was for that reason incompetent.

Upon review of the record, we find that trial counsel made a sufficient objection to the search on the ground of lack of authorization by the parole agent.   At the preliminary hearing, counsel specifically argued:  “[C]an they search for any reason at all ․ and without any authorization from the parole officer, which is what the [People v.] Natale [ (1978) 77 Cal.App.3d 568, 143 Cal.Rptr. 629] case talks about.”   This objection was renewed in superior court as part of appellant's motion to suppress (Pen.Code, § 1538.5).   While trial counsel did not focus upon lack of authority from the parole agent in her challenge to the search—the emphasis in superior court was on the lack of reasonable suspicion for the parole search—the record shows that such an objection was brought to the attention of the prosecution and the trial court.¹

“An objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide.  (Code Civ.Proc., §§ 646, 647;  Cooper v. Mart Associates (1964) 225 Cal.App.2d 108, 118 [37 Cal.Rptr. 145] ․;  Grossblatt v. Wright (1951) 108 Cal.App.2d 475, 481 [239 P.2d 19]․)  In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented.  (People v. Bolinski (1968) 260 Cal.App.2d 705, 722–723 [67 Cal.Rptr. 347] ․;  see People v. Briggs (1962) 58 Cal.2d 385, 409–410 [24 Cal.Rptr. 417, 374 P.2d 257]․)”  (People v. Scott (1978) 21 Cal.3d 284, 290, 145 Cal.Rptr. 876, 578 P.2d 123.)   Trial counsel's repeated references to the failure of the police officers to obtain authorization from the parole agent adequately preserved the issue for appeal, as the Attorney General acknowledges in its brief.²

As to appellant's claim that the failure of the police to involve his parole agent in the search renders it unlawful, to justify the search respondent relies on the broad language of appellant's parole search condition, which authorized a search by “any agent of the Department of Corrections or any law enforcement officer.”  (Emphasis added.)   The Attorney General maintains that because appellant's parole search condition expressly provided for a search by “any law enforcement officer,” police officers were authorized to act without the authority or participation of a parole agent when they reasonably suspected criminal activity by appellant.  (People v. Palmquist (1981) 123 Cal.App.3d 1, 7–8, 176 Cal.Rptr. 173;  People v. Knox (1979) 95 Cal.App.3d 420, 429–430, 157 Cal.Rptr. 238;  People v. Icenogle (1977) 71 Cal.App.3d 576, 584–585, 139 Cal.Rptr. 637.)

Appellant acknowledges that his parole search condition permitted a search by “any law enforcement officer.”   Nevertheless, he contends that in accordance with the rules governing parole searches announced by the court in People v. Burgener, supra, 41 Cal.3d 505, 224 Cal.Rptr. 112, 714 P.2d 1251, a search initiated solely by the police can no longer be sanctioned on the basis of consensual waiver of rights.³

In Burgener, our high court declared that under the Determinate Sentencing Act—where neither the prisoner nor Board of Prison Terms has any discretion as to when parole occurs—the parolee can no longer be deemed to have voluntarily consented to a waiver of Fourth Amendment rights in exchange for release on parole.  (41 Cal.3d 505, 529, fn. 12, 224 Cal.Rptr. 112, 714 P.2d 1251;  see also People v. Bravo, supra, 43 Cal.3d 600, 608, 238 Cal.Rptr. 282, 738 P.2d 336.)   Only the parolee's status as a felon and the societal interest in rehabilitation and supervision to protect the public justify imposing the warrantless search term of parole.  (Id. at p. 600, 238 Cal.Rptr. 282, 738 P.2d 336;  Burgener, supra, 41 Cal.3d at pp. 531–532, 224 Cal.Rptr. 112, 714 P.2d 1251.)

Thus, the court in Burgener, supra, 41 Cal.3d 505, 533, 224 Cal.Rptr. 112, 714 P.2d 1251, declared:  “The justification for exempting parole searches from the warrant requirement of the Fourth Amendment is that these searches are necessary for effective parole supervision.   If a search is to have a parole supervision purpose therefore it must be based on information which leads the parole agent who conducts or authorizes the search to believe that the parolee has violated the law or another condition of his parole, or is planning to do so.”  (Emphasis added, fn. deleted.)   The court also stated:  “The parole agent who authorizes the search must determine whether the information regarding a possible parole violation necessitates further investigation, and whether that investigation should include a search of the parolee and/or his residence for evidence of the suspected violation.”  (Id. at p. 534, 224 Cal.Rptr. 112, 714 P.2d 1251, emphasis added.)

It has often been observed that parolee status alone does not justify a search by peace officers other than parole agents.  (People v. Montenegro (1985) 173 Cal.App.3d 983, 987, 219 Cal.Rptr. 331;  People v. Natale (1978) 77 Cal.App.3d 568, 574, 143 Cal.Rptr. 629;  People v. Coffman (1969) 2 Cal.App.3d 681, 688, 82 Cal.Rptr. 782.)  “[T]he fact that a person is on parole does not in itself justify search by peace officers other than parole officers.  [Citations.]”  (People v. Gilkey (1970) 6 Cal.App.3d 183, 187, 85 Cal.Rptr. 642.)   The purpose of the search, not the physical presence or absence of the parole agent, is the determining factor.  (People v. Montenegro, supra, 173 Cal.App.3d at p. 987, 219 Cal.Rptr. 331;  People v. Natale, supra, 77 Cal.App.3d at p. 574, 143 Cal.Rptr. 629.)  “A parole search must therefore be directly and closely related to parole supervision in order to avoid unreasonable invasion of the privacy interests of the parolee․”  (People v. Burgener, supra, 41 Cal.3d 505, 533–534, 224 Cal.Rptr. 112, 714 P.2d 1251.)   A warrantless search primarily aimed at ordinary law enforcement rather than parole administration cannot be sustained as a lawful parole search.  (People v. Coffman, supra, 2 Cal.App.3d 681, 689, 82 Cal.Rptr. 782.)⁴

Under these standards, the fact that an officer unilaterally proceeds with a parole search does not invariably taint its validity.   The absence of the parole agent must be considered a significant factor in determining whether a proper parole purpose for the search has been demonstrated, however.   Here, Officer Unger not only acted without a request from appellant's parole agent, but did not even contact the parole agent before the search was undertaken.   He knew only that appellant was subject to search as a condition of his parole.   When asked why he opened the trunk, Officer Unger merely stated, “for the parole search,” without articulating any parole administration purpose for the warrantless search.

 The interior of the car had been searched without result at the detention scene.   Thus, the officer, while acting with the requisite reasonable suspicion for a parole search (People v. Burgener, supra, 41 Cal.3d 505, 533, 224 Cal.Rptr. 112, 714 P.2d 1251) was not armed with full probable cause to believe that contraband or evidence of a crime would be found in appellant's vehicle trunk.   With the vehicle already impounded, the officer had ample time and opportunity to attempt to secure a warrant.   He chose instead to rely solely on the parole condition as his authority for the search.  (People v. Coffman, supra, 2 Cal.App.3d 681, 689, 82 Cal.Rptr. 782.)   Yet, the prosecution has failed to establish that the search was necessary for effective parole supervision, that it was related to legitimate parole administration rather than ordinary law enforcement, or even that the parole agent had prior notice of the search.   Under these circumstances, we conclude that the seizure of evidence from the trunk of appellant's vehicle cannot be justified as a lawful parole search.  (United States v. Merchant (9th Cir.1985) 760 F.2d 963, 969;  United States v. Jarrad (9th Cir.1985) 754 F.2d 1451, 1454.)   Were we to rule otherwise, any search of a parolee could be based upon a parole condition, a result not countenanced by Burgener.  (See also People v. Natale, supra, 77 Cal.App.3d 568, 573, 143 Cal.Rptr. 629.)   Diminution of a parolee's Fourth Amendment rights “ ‘can be justified only to the extent actually necessitated by the legitimate demands of the operation of the parole process.’  [Citations.]”  (People v. Burgener, supra, 41 Cal.3d 505, 534, 224 Cal.Rptr. 112, 714 P.2d 1251.)

By so ruling, we do not suggest that a parole search may never be conducted for a law enforcement purpose.   As the court noted in Burgener:  “The societal interest in parole supervision and in the speedy return of parole violators to prison in order to protect the public has added weight, not less, when a reasonable suspicion exists to believe that a parolee has been involved in criminal activity.   Any violation of the law is also a violation of the conditions of a parole.   The law enforcement purpose of the police who seek authorization from the parole agent for a warrantless search, and the parole supervision purpose of the agent who gives that authorization are indistinguishable.”  (People v. Burgener, supra, 41 Cal.3d 505, 536, 224 Cal.Rptr. 112, 714 P.2d 1251.)   But where, as here, the parole agent was ignored, and no parole supervision purpose for the intrusion has been stated, we cannot find authority for the search in appellant's parole condition.

 The Attorney General asks us to withhold the sanction of the exclusionary rule in this case, even if we find the parole search unlawful, because the officers “reasonably and in good faith relied on their apparent authority to conduct the search.”   To do so would require application to this case of the “good faith exception” to the exclusionary rule announced in United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677.   (People v. Fortune (1988) 197 Cal.App.3d 941, 950, 243 Cal.Rptr. 189.)   In Leon, the United States Supreme Court refused to suppress evidence seized in good faith pursuant to a warrant later found defective for lack of probable cause in the supporting affidavit.  (See also Massachusetts v. Sheppard (1984) 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737;  Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453, 1465, 245 Cal.Rptr. 617.)   The good faith exception saves evidence seized pursuant to invalid search warrant from exclusion if the officers' reliance upon the magistrate's determination of probable cause is objectively reasonable.  (People v. Smith (1986) 180 Cal.App.3d 72, 88, 225 Cal.Rptr. 348;  Jaurequi v. Superior Court (1986) 179 Cal.App.3d 1160, 1166, 225 Cal.Rptr. 308.)

Application of the “good faith exception” to the unlawful parole search of appellant's vehicle is not warranted.  “ ‘[T]he essential prerequisite to the reasonable good faith exception’ as a finding that ‘the officers had a good faith objectively reasonable belief that the search they conducted was authorized by a valid warrant [and] ․ “that the officers properly executed the warrant and searched only those places and for those objects that it was reasonable to believe were covered by the warrant.”  [Citation.]’ ”  (People v. Fortune, supra, 197 Cal.App.3d 941, 950, 243 Cal.Rptr. 189.)   The officer conducting the search of appellant's vehicle was not operating under authority of a warrant or other sanction of law.   Instead, he proceeded without a search warrant, based upon his unilateral belief that appellant's parole search condition provided grounds for the search.

In People v. Barbarick (1985) 168 Cal.App.3d 731, 739, 214 Cal.Rptr. 322, the court found “that the rationale of Leon is directly applicable” to the case of a search conducted pursuant to an invalid probation search condition attached to the defendant's own recognizance release—during the pendency of his appeal—for a misdemeanor offense.   The officer read the search condition of the OR release order, and did not know that it was contrary to the law.   (Id. at p. 740, 214 Cal.Rptr. 322.)   The court concluded:  “As in Leon, the judge made a mistake of law;  neither insuring defendant's future court appearance nor protecting the community from danger sufficiently justified the search condition.   Although the judge who authorized the search condition made an improper legal determination, again as in Leon he had a substantial basis for doing so and did not act unreasonably.  (See id., 468 U.S. at p. 916 [104 S.Ct. at p. 3417, 82 L.Ed.2d at p. 693];  Illinois v. Gates (1983) 462 U.S. 213, at pp. 238–239 [103 S.Ct. 2317, at pp. 2332–2333, 76 L.Ed.2d 527, at pp. 548–549].)  [¶ ]  It is true, of course, that no search warrant was involved in the instant case.   However, the judicial role was similar to that involved in issuing a search warrant.   Both here and in Leon the judiciary was weighing state interests against an individual's Fourth Amendment rights.   Therefore, we hold Leon applicable to the judicial search condition in this case.  (But cf. People v. Ciraolo (1984) 161 Cal.App.3d 1081, 1086, fn. 2 [208 Cal.Rptr. 93].)”  (People v. Barbarick, supra, 168 Cal.App.3d at pp. 739–740, 214 Cal.Rptr. 322.)

 No such mistake of law was made here;  in fact, no judicial role entered into the search process at all.   We have found the search unlawful not because the parole condition is invalid, but rather because of the manner in which it was conducted.   The officer did not act in good faith pursuant to a judicial declaration of cause;  he acted without authority of a warrant.   (United States v. Merchant, supra, 760 F.2d 963, 968, fn. 6;  United States v. Morgan (6th Cir.1984) 743 F.2d 1158, 1165;  United States v. Rule (D.Maine 1984) 594 F.Supp. 1223, 1238–1239.)   Accordingly, the good faith exception cannot save the fruits of the unlawful parole search from exclusion.  (See U.S. v. Winsor (9th Cir.1988) 846 F.2d 1569, 1579.) ⁵

The Attorney General's final contention is that “any failure of the police officers to contact the parole officer before conducting the parole search of the car trunk was harmless․”  The Attorney General submits that “the parole agent would have been derelict in his duties had he ignored the information known to the officers and refused a search.”   In essence, the People seek to uphold the otherwise unlawful parole search under the inevitable discovery rule.

 The inevitable discovery rule is a corollary of the poison fruit doctrine.  “ ‘Although typically any evidence obtained, even indirectly, through the illegal actions of police is inadmissible as “fruit of the poisonous tree,” where the court finds that the challenged evidence would have been eventually secured through legal means regardless of the improper official conduct, the inevitable discovery exception allows the evidence to be admitted.’ ”  (People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 673, 145 Cal.Rptr. 795;  People v. Saam (1980) 106 Cal.App.3d 789, 796, 165 Cal.Rptr. 256.)   It may come into play only where the prosecution can show by a preponderance of the evidence that the information obtained would have been discovered ultimately by lawful means.  (Nix v. Williams (1984) 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377;  U.S. v. Boatwright (9th Cir.1987) 822 F.2d 862, 864–865;  United States v. Merriweather (9th Cir.1985) 777 F.2d 503, 506.)  “The test is not one of certainty, but rather of a reasonably strong probability.”  (People v. Superior Court (Tunch), supra, 80 Cal.App.3d at p. 681, 145 Cal.Rptr. 795.)   Thus, evidence which “ ‘would have been ultimately revealed by usual and commonplace police investigative procedures' ” or “ ‘in the normal course of a lawfully conducted police investigation’ ” is admissible despite its tainted character.  (Id. at p. 681, 145 Cal.Rptr. 795.)

In Nix v. Williams, supra, 467 U.S. 431, 104 S.Ct. 2501, police officers discovered the location and condition of the victim's body through an unlawful interrogation of the defendant.   Nevertheless, the United States Supreme Court permitted the admissibility of this evidence on the ground that an independent search simultaneously conducted by the police could have inevitably led to the discovery of the body.  (Id. at pp. 449–450, 104 S.Ct. at pp. 2511–2512.)

While the existence of two independent searches is not a necessary predicate to application of the inevitable discovery rule, “the doctrine requires that the fact or likelihood that makes discovery inevitable arise from circumstances other than those disclosed by the illegal search itself.”  (U.S. v. Boatwright, supra, 822 F.2d at pp. 864–865.)   To allow otherwise would be to allow the inevitable discovery exception to swallow the rule.  (United States v. Satterfield (11th Cir.1984) 743 F.2d 827, 846.)

 Here, only the unlawful parole search was conducted.   And, as the Attorney General now acknowledges, no basis for the search has been offered other than appellant's parole condition.   The officer executing the search had neither probable cause nor a warrant.⁶  Thus, no independent lawful means of discovery of the evidence has been presented.   We have been asked to ignore the illegality on the theory that the officers could have conducted a proper parole search if they had contacted appellant's parole officer.   Such a boot-strapping argument would render the exclusionary rule meaningless.   Finding no lawful authority for the search, we must order suppression of the evidence seized from the trunk.

The judgment is reversed and the case is remanded to the trial court for proceedings consistent with the views expressed herein.

I dissent:

In this case police officers with reasonable suspicion that a parolee was involved in criminal activity searched the trunk of his vehicle.   Although finding the officers' suspicions afforded sufficient reason to conduct a parole search, my colleagues hold that because the officers were searching for evidence of a crime, and had not obtained authorization for the search from appellant's parole officer, their search was not shown to have a proper parole administration purpose.   They suppress the fruits of this search and reverse appellant's convictions.   Since, “(a)ny violation of the law is also a violation of the conditions of a parole,” (People v. Burgener (1986) 41 Cal.3d 505, 536, 224 Cal.Rptr. 112, 714 P.2d 1251), it is tautological that the search of a parolee's person or property by an officer who has reasonable suspicion that the parolee is involved in criminal activity has a proper parole administration purpose.

“The fundamental command of the Fourth Amendment is that searches and seizures be reasonable, and although ‘both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, ․ in certain limited circumstances neither is required.’  [Citation.]  ․ Where a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard.”  New Jersey v. T.L.O. (1985) 469 U.S. 325, 340–341, 105 S.Ct. 733, 743, 83 L.Ed.2d 720.  “Release of the parolee before the end of his prison sentence is made with the recognition that with many prisoners there is a risk that they will not be able to live in society without committing additional antisocial acts.”  Morrissey v. Brewer (1972) 408 U.S. 471, 483, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484.   Thus, the fact that the parolee has been found guilty of a crime justifies imposing extensive restrictions on his liberty, and parole searches conducted by police officers without authorization of a parole officer have been upheld where there is reasonable suspicion that the parolee is engaged in criminal activity.  People v. Knox (1979) 95 Cal.App.3d 420, 429–430, 157 Cal.Rptr. 238.

Prior to the enactment of the Determinate Sentence Law courts analyzed both parole and probation ¹ searches under similar, “consent”, theories.  People v. Mason (1971) 5 Cal.3d 759, 765–766, 97 Cal.Rptr. 302, 488 P.2d 630, disapproved on other grounds, People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545;  People v. Icenogle (1977) 71 Cal.App.3d 576, 583–585, 139 Cal.Rptr. 637.  “Although there does not appear to be a direct holding that it is a reasonable condition of parole that the parolee be required to give his consent to a search—not only to a parole agent, but to any law enforcement officer—such a required consent would not appear to constitute a violation of a parolee's constitutional protection against unreasonable searches and seizures, provided, however, the police officers have reasonable grounds for believing that the parolee is engaged in criminal activity.”  People v. Icenogle, supra, 71 Cal.App.3d at 584, 139 Cal.Rptr. 637.   Since prisoners are entitled to release on parole (Pen.Code, § 3000(a)), parole searches are now analyzed using the balancing of interests approach of Hudson v. Palmer (1984) 468 U.S. 517, 524–529, 104 S.Ct. 3194, 3199–3202, 82 L.Ed.2d 393.   This process begins with the recognition that parolees “have a reduced expectation of privacy, thereby rendering certain intrusions by governmental authorities ‘reasonable’ which otherwise would be invalid under traditional constitutional concepts, at least to the extent that such intrusions are necessitated by legitimate governmental demands.”  People v. Mason, supra, 5 Cal.3d at 764–765, 97 Cal.Rptr. 302, 488 P.2d 630.  “What is called for once a prisoner has been released on parole is a reweighing of the balance between individual and societal interests in light of the parolee's current status in the community.”  People v. Burgener, supra, 41 Cal.3d at 531, 224 Cal.Rptr. 112, 714 P.2d 1251.

Although no longer confined in prison, parole status requires and permits supervision and surveillance under restrictions which may not be imposed on members of the public generally.   Thus, a warrantless search condition is a reasonable term in any parole of a convicted felon from state prison.  People v. Burgener, supra, at 531–532, 224 Cal.Rptr. 112, 714 P.2d 1251.  “The importance of the state's interest in public safety through parole supervision nonetheless justifies the conduct of parole searches on the basis of information which does not meet the standard of probable cause required for the issuance of a search warrant.”  People v. Burgener, supra, at 534, 224 Cal.Rptr. 112, 714 P.2d 1251.  “(T)o justify a parole search [there must be] a reasonable suspicion ․ that the parolee is again involved in criminal activity, or has otherwise violated his parole, and that the search may turn up evidence of that activity, or that evidence of a proposed future violation by the parolee will be uncovered.   That suspicion must of course be based on articulable facts which together with rational inferences from those facts warrant objectively reasonable suspicion.”  People v. Burgener, supra, at 535, 224 Cal.Rptr. 112, 714 P.2d 1251.²

Appellant was observed committing two minor traffic violations at 11:00 p.m.   He pulled into the driveway of his house when the officers tried to stop his car, exited the car and went rapidly towards the front of the house.   When intercepted by the officers he could produce no identification and claimed he had never previously been arrested.   He appeared nervous and was hesitant in answering the officers' questions.   A warrant check revealed that his license was suspended and he was on parole.   When appellant admitted he knew his license had been suspended since 1984 the officer erroneously believed he could impound the vehicle under Vehicle Code section 22651(p).   When the officer asked for the keys to the automobile appellant became agitated, nervous and upset.   He struggled with the officer, broke away and fled with the keys to the vehicle.   The officer then searched the interior of the car and found no contraband or evidence of a parole violation.   After the car was impounded the officers were informed that appellant was suspected of being involved in narcotic activity and had a search condition to his parole which provided for searches of his property by any parole agent “or law enforcement officer.”   The officers then searched the trunk of appellant's car and discovered evidence which supports the charges to which he pled guilty:  possession of a concealable firearm by a convicted felon;  possession of cocaine;  and possession of PCP for sale.

There can be no doubt that appellant's actions gave the officers reasonable suspicion to believe he was either in violation of the law, or contemplating a future crime.   There is always a reasonable nexus between the search of a parolee's property and the parole process when law enforcement officers have a reasonable suspicion, based on articulable facts, that the parolee is engaged in criminal activity.³  “That the search was conducted by law enforcement officers for a law enforcement purpose is irrelevant.   The societal interest in parole supervision and in the speedy return of parole violators to prison in order to protect the public has added weight, not less, when a reasonable suspicion exists to believe that a parolee has been involved in criminal activity.”  People v. Burgener, supra, at 536, 224 Cal.Rptr. 112, 714 P.2d 1251.⁴

By invalidating this search, my colleagues place parole officers in the position of magistrates who must concur that the officers' suspicions are reasonable.   To impose such a formality in this case would be meaningless for any parole officer who had refused to authorize the search of the trunk of appellant's vehicle “would have been derelict in his duties․”  People v. Montenegro (1985) 173 Cal.App.3d 983, 988, 219 Cal.Rptr. 331.   Nor will upholding this search open parolees to random searches of their persons, property, or residences by police officers who only suspect they are in violation of a term of their parole.   Unless the suspected parole violation is also a crime, only a parole officer can authorize a search which would have a proper parole administration purpose.

In determining whether the search of appellant's vehicle was reasonable under the Fourth Amendment, People v. Burgener, supra, requires a balancing of society's interest in public safety through parole supervision against appellant's interest in privacy, in light of his status in the community.   When appellant's vehicle was searched he was a paroled narcotics offender who had fled the scene of his arrest for a minor traffic offense and was still at large.   Appellant had no reasonable expectation of privacy in the trunk of his vehicle.   The evidence found should be admissible whether his parole officer authorized this search or not.

I would affirm the judgment.

FOOTNOTES

1.   In her memorandum of points and authorities in support of the motion to suppress, trial counsel argued:  “In the instant case, Mr. Samaro's parole agent did not authorize the search of his automobile trunk.   In fact, the parole agent was not contacted until well after the search was completed.   Furthermore, Officer Unger was unable to confirm the information he received from a fellow officer that Mr. Samaro's parole was subject to a search condition and, in any event, he did not know whether the search condition authorized law enforcement officers to conduct the search.  [¶]  Therefore, the facts in this case fail to establish either authorization by a parole agent or Officer Unger's knowledge that Mr. Samaro had agreed as a condition of parole to be subject to search by any law enforcement officer.   As a result, the search of Mr. Samaro's automobile trunk cannot be properly characterized as a parole search.”Then, during oral argument on the motion to suppress, counsel stated:  “And that, of course, is the People's burden, which goes to the first part of our argument, namely that a police officer in order to do a valid parole search has to have either authorization from a parole officer or he can go ahead and do it himself, but only if he knows that there's a search and seizure clause which gives any law enforcement officer in other words, me as a police officer the authority to go ahead and do the search.   That isn't demonstrated from this record.”

2.   We need not address the issue of incompetence of counsel in light of the conclusion that counsel argued at trial that the failure of the police to contact and obtain authorization from the parole agent flawed the search.

3.   Such was the rationale articulated to justify parole searches by police officers in Palmquist, Knox and Icenogle.

4.   Coffman stands for the proposition that absent a proper parole purpose, the parole agent's mere presence or authorization for the search cannot alone give it validity, a result not inconsistent with the standards promulgated in Burgener.   We acknowledge that Burgener disapproved of any suggestion in Coffman that parole supervision purposes and police investigation purposes may never coexist.

5.   In U.S. v. Winsor, supra, 846 F.2d at p. 1579, the court held:  “The Supreme Court has applied the so-called ‘good faith’ exception to the exclusionary rule only to searches conducted in good faith reliance on a warrant or a statute later declared to be unconstitutional.   See Illinois v. Krull, [480] U.S. [340], 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987).   We decline to extend Leon's good faith exception to searches not conducted in reliance on a warrant or a statute.   See United States v. Whiting, 781 F.2d 692, 698–99 (9th Cir.1986) (refusing to apply Leon exception to search conducted in reliance on regulations later determined not to authorize the search at issue).”

6.   We further note that the trunk search cannot be justified as an impound search, since appellant's vehicle was seized from a private driveway rather than a public highway.  (Veh.Code, § 22651.)

1.   When probationers subject to warrantless search are discovered conducting themselves in a manner that suggests a resumption of the misconduct that brought about the condition of their probation it is clear that any law enforcement officer may exercise the authority of the general search order.  People v. Lilienthal (1978) 22 Cal.3d 891, 150 Cal.Rptr. 910, 587 P.2d 706;  People v. Garcia (1975) 44 Cal.App.3d 1029, 119 Cal.Rptr. 128;  People v. Bremmer (1973) 30 Cal.App.3d 1058, 1065, 106 Cal.Rptr. 797.

2.   Burgener's parole conditions, as Samaro's, also provided for search by “ ‘any agent of the Department of Corrections or any law enforcement officer.’ ”  People v. Burgener, supra, 41 Cal.3d at 528, fn. 10, 224 Cal.Rptr. 112, 714 P.2d 1251.   Since the search in that case was authorized by Burgener's parole officer (id., at p. 529, 224 Cal.Rptr. 112, 714 P.2d 1251) the court's references to searches conducted with authorization of a parole officer can not be read as overruling cases which recognize the validity of searches conducted by other law enforcement officers without authorization of a parole officer.

3.   Compare, People v. Lilienthal, supra, 22 Cal.3d at 900, 150 Cal.Rptr. 910, 587 P.2d 706, upholding the validity of the search of the trunk of a probationer's vehicle after he had been arrested for possession of narcotics and transported to jail.

4.   The court in People v. Burgener disapproved, to the extent inconsistent with its conclusion, People v. Coffman (1969) 2 Cal.App.3d 681, 688–689, 82 Cal.Rptr. 782 which had invalidated a parole search conducted by police officers which was primarily aimed at ordinary law enforcement and not at parole administration.

NEWSOM, Associate Justice.

RACANELLI, P.J., concurs.