IN RE: MARCELLUS L.

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Court of Appeal, First District, Division 4, California.

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

No. A048369.

Decided: November 30, 1990

Christopher E. Judge, Richmond, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan Helfman, Supervising Deputy Atty. Gen., Morris Beatus, Supervising Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

By supplemental petition the Contra Costa County District Attorney alleged that ward Marcellus L. (minor) was in felonious possession of cocaine on or about November 17, 1989, and previously had been found to have committed a felony (sale of controlled substance).   The minor moved to suppress evidence.

At the combined hearing on the suppression motion and the supplemental petition, the referee took judicial notice that the minor had been adjudged a ward eight months earlier and was subject to a general search clause as a condition of probation.1  The court determined that the search, absent the search clause, was unconstitutional.   However, since the minor had given up his Fourth Amendment rights by accepting the clause, the court concluded the waiver, and the community's stake in that waiver, overrode the deterrent purpose of the exclusionary rule and, therefore, it denied the suppression motion and sustained the petition.

Thereafter the court committed the minor to the custody of the probation department for placement in a court-approved home or institution;  this appeal followed.   We conclude the scope of the minor's consent under the search clause authorized the instant search and, thus, the minor has waived his right to bring this challenge notwithstanding the arresting officer's ignorance of his probationary status.   Therefore, we affirm.

FACTS

At around noon on November 17, 1989, Richmond Police Officer Avon Dobie was in the vicinity of 420 20th Street, an area known for drug dealing, where loitering and shootings were common.   He had worked that beat for the past year, and had retrieved drugs from that address.   Dobie described the house at 420 20th Street as “a house where crack cocaine is sold.”

On that afternoon he spotted the minor and two other people, who appeared to be adults, sitting in front of the residence.   The minor looked “very young” to Dobie to not be in school.   He asked the minor why he was not in school.   The minor told him he was in between transfers.   Dobie asked the minor his name and decided to investigate why he was not in school.   But first he decided to conduct a pat-search “for safety reasons.”   The minor himself did nothing threatening, and Dobie did not have reason to believe he was armed and dangerous, but Dobie pat-searched the minor anyway “for my safety, as I do every time I go into the area and contact someone.”   Officer Dobie was unaware that the minor was on probation which was conditioned with a search clause.

During the pat-search Dobie saw a lump in the minor's pants pocket, felt it and concluded the lump was consistent with the feeling of rock cocaine.   Dobie then removed the bagged rock from the minor's pocket which tested out as 1.68 grams of cocaine base.

II. DISCUSSION

 Everyone, including this court, agrees there were no articulable facts justifying the pat-search.2  Our question is whether the probationary search clause renders the minor without standing to object to Officer Dobie's admittedly objectively unreasonable frisk.

 The minor approaches this case from the vantage point of the officer's conduct and state of mind, pressing reversal on the theory that the search clause does not validate the search since Dobie was neither pursuing a valid probationary purpose nor aware of the minor's probationer status.   Focussing solely on the minor's status, the People counter that the minor had no grounds to challenge the search because he waived Fourth Amendment protection in exchange for the benefits of probation.   We hold that by accepting the terms of his probation, the minor consented to this search.   The limited Fourth Amendment protection which the minor retains guards only against searches undertaken for harassment or other improper purposes or which lack any legitimate law enforcement aim.   The frisk here involved but minimal invasion of the minor's privacy and was pursued for the officer's perceived protection;  while it does not comply with an objectively reasonable standard, it cannot be classified as harassment.

The United States Supreme Court recently upheld a warrantless search of a probationer's home carried out pursuant to state administrative regulations which themselves satisfied the Fourth Amendment's reasonableness requirement.   (Griffin v. Wisconsin (1987) 483 U.S. 868, 873, 107 S.Ct. 3164, 3167, 97 L.Ed.2d 709.)   Under the Wisconsin scheme, probationers are subject to departmental conditions and regulations, one such regulation authorizing warrantless searches of a probationer's home if there are “reasonable grounds” to believe contraband is present.   The rules spell out a slate of factors which the officer should consider in deciding if reasonable grounds exist, and further provide that it is a violation of the terms of probation to refuse to consent to a home search.  (Id., at pp. 870–871, 107 S.Ct. at pp. 3166–3167.)

The court explained that a probationer's home, like ours, is protected by the Fourth Amendment imperative that searches be reasonable.  (Griffin v. Wisconsin, supra, 483 U.S. at p. 873, 107 S.Ct. at p. 3167.)   However, the operation of a state probation system gives rise to special needs beyond normal law enforcement demands that may permit dispensing with the warrant and probable cause requirements.  (Id., at pp. 873–874, 107 S.Ct. at pp. 3167–3168.)   Liberties are restricted “to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large.  [Citation.]   These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed․   Supervision, then, is a ‘special need’ of the State, permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large․”  (Id., at p. 875, 107 S.Ct. at p. 3168.)

Griffin permits warrantless probation searches undertaken pursuant to valid state law responding to the special supervisory and other needs of its probation system.   The authority to search in that case existed by way of regulation, not because the defendant specifically agreed to submit to warrantless, unexpected searches.   Shortly after Griffin was decided our Supreme Court examined the scope of a defendant's consent pursuant to a search condition substantively identical to the case at bar.  (People v. Bravo (1987) 43 Cal.3d 600, 608–609, 238 Cal.Rptr. 282, 738 P.2d 336.)   The court in Bravo held there was no requirement of a “reasonable suspicion” for a probation search undertaken pursuant to such a clause, reasoning that where there is a valid consent, the resulting search does not violate the Fourth Amendment unless it exceeds the scope of the consent.  (Id., at p. 605, 238 Cal.Rptr. 282, 738 P.2d 336.)

 A defendant who has agreed to the standard probation search clause in order to obtain the benefits of probation has voluntarily waived “ ‘whatever claim of privacy he might otherwise have had.’ ”  (People v. Bravo, supra, 43 Cal.3d at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336, quoting People v. Mason (1971) 5 Cal.3d 759, 766, 97 Cal.Rptr. 302, 488 P.2d 630.)   This broad interpretation of the scope of the probationer's consent in turn facilitates the dual purposes of the search clause, namely, to deter further offenses and discover whether the probationer is obeying the terms of probation.  (43 Cal.3d at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336).  However, even this waiver is not absolute:  “We do not suggest that searches of probationers may be conducted for reasons unrelated to the rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes.   A waiver of Fourth Amendment rights as a condition of probation does not permit searches undertaken for harassment or searches for arbitrary or capricious reasons.”  (Ibid.)

Viewing Bravo through Griffin eyes, the standard California probation clause is a valid state practice calculated to respond to the special needs of our probation system by enabling probation officers and others to monitor the probationer's progress and compliance with the terms of probation.   It goes without saying that a search undertaken pursuant to that clause for monitoring or other probationary purposes would also be valid and pass review under Griffin and Bravo.   However, this search was not conducted pursuant to the authority granted by the probationary search clause.   Thus, we are faced with a dilemma—two conflicting social policies:  the need to enforce probationary conditions to make probation real and not illusory versus the need to insure that peace officers are not “rewarded” for unconstitutional behavior.   However, we need not here condone unreasonable frisks in order to effect legitimate probation conditions.   We hold only that the probationer who has agreed to submit his person to search by a peace officer without a warrant cannot object when a peace officer does so.   After all, his acceptance of the search condition was not itself conditioned upon the peace officer knowing the existence of the condition.   While we do not condone unreasonable police conduct and we do not hold that the probationer is without standing to object to indiscriminate police harassment, under the circumstances here present we do not ignore the probation violation because the constable has not followed the letter of the law.

 Contrary to the minor's assertion, we do not think his consent and waiver is dependent on the searching officer's knowledge of the condition.   Admittedly, both Griffin and Bravo involved officers who knew of the probationary status of the subject of their search.   Nevertheless, we are unaware of any controlling authority which invalidates the search of a probationer who has consented to subject himself or herself to search upon request by a peace officer, because that peace officer is ignorant of the subject's probationary status.   Our dissenting colleague cites only parolee search cases to support his contrary conclusion.   Nevertheless, as he correctly recognizes, there are important distinctions “between probation and parole searches.”   Not the least of these is that the probationer has consented to waive his Fourth Amendment rights, while a parolee has not;  a defendant may refuse probation, while a parolee must accept parole.  (People v. Bravo, supra, 43 Cal.3d at p. 608, 238 Cal.Rptr. 282, 738 P.2d 336.)   In rejecting the rule that a probationer's waiver of Fourth Amendment rights validates only searches which meet the reasonable-suspicion standard, our California Supreme Court clearly recognized this probation/parole distinction:  “The reasonable-suspicion standard adopted in [People v.] Burgener [1986] 41 Cal.3d 505 [224 Cal.Rptr. 112, 714 P.2d 1251], for parole searches, therefore, has no application to searches conducted pursuant to a consensual probation order.”  (Id. at p. 609, 238 Cal.Rptr. 282, 738 P.2d 336.)

 The issue, as framed in Bravo, is the scope of the probationer's consent.  Bravo teaches us that the probationer retains a limited Fourth Amendment right to complain about searches which have nothing to do with the “rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes.”  (People v. Bravo, supra, 43 Cal.3d at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336.)   We cannot say that Officer Dobie's lack of knowledge concerning the minor's probationary status, rendered his pat-search without any rehabilitative or reformative effect;  without question the frisk advanced a legitimate law enforcement purpose.   Officer Dobie explained he wanted to pursue the school attendance matter with the minor but first decided to pat-search him, that being his standard practice when he contacted anyone in that particular area and location.   There was no harassment or other improper motive on Officer Dobie's part.   Finally, although the search was not occasioned by any suspicious or threatening conduct by the minor, we conclude a protective frisk in the course of questioning a minor about school attendance when encountered near a suspected crack house falls within the “other legitimate law enforcement purposes” language of Bravo.

By agreeing to probation instead of commitment to the California Youth Authority or some other more restrictive placement, the minor subjected himself to all unexpected searches save those prompted by improper motives.   His waiver of Fourth Amendment protections by earlier accepting probation with a search condition rendered him without any reasonable expectation of privacy in these later circumstances.   We will not judicially modify the scope of his consent after the fact.   He agreed to subject himself to exactly what he got;  he is, therefore, without standing to object.

The judgment is affirmed.

I respectfully dissent from the conclusion reached by my learned colleagues in the majority.   Today, we dispense with a requirement under existing law relating to the search of a probationer by police.   The requirement eliminated is knowledge by the searching officer that the person searched is a probationer with a search condition.   This holding takes us beyond Bravo (People v. Bravo (1987) 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336), and represents an extension that is not only unsupported by, but inconsistent with, Bravo and Griffin v. Wisconsin (1987) 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709, relied on by the majority.

In Bravo, supra, our Supreme Court held that a search of the home of a probationer with a search condition, by police officers with knowledge of that search condition (43 Cal.3d at p. 603, 238 Cal.Rptr. 282, 738 P.2d 336), was permissible in the absence of reasonable or probable cause.   In so holding, the court reasoned that a probationer's search condition was equivalent to a consent to search.   Therefore, if the searching officer was aware of the search condition or consent, nothing more by way of justification is required.  “Our interpretation of the scope of appellant's consent in agreeing to the search condition of his probation is consistent with the dual purpose of such a provision ‘to deter further offenses by the probationer and to ascertain whether he is complying with the terms of his probation’.”  (Id., at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336, citing People v. Mason (1971) 5 Cal.3d 759, 763, 97 Cal.Rptr. 302, 488 P.2d 630.)   The Bravo court, nonetheless, observed:  “We do not suggest that searches of probationers may be conducted for reasons unrelated to the rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes.”  (Ibid.)  This language, in my opinion, compels the conclusion that the searching officer must, at a minimum, know that the person to be searched is a probationer with a search condition.

Clearly, in order to have the requisite reason related to the “rehabilitative and reformative purposes of probation,” the searching officer must have knowledge that the defendant is indeed on probation.   In the absence of such knowledge, the objective of the search is simply unrelated to any proper probationary purpose.   Secondly, the language “other legitimate law enforcement purpose” must be construed in this same context.   In short, this terminology can only refer to observations of activity not amounting to reasonable or probable cause to search but which activity is inconsistent with defendant's status as a probationer, a status that requires the probationer to refrain from violations of the law.   In either or both situations, knowledge of the defendant's probationary status is essential.

Additionally, the very rationale of Bravo, that a probationary search condition is equivalent to consent, compels the conclusion that the search condition must be known to the searching officer.   It seems well settled that where a search is sought to be justified on the basis of consent, the consent must be known or apparent to the searching officer before the search is conducted.  (See, for example, People v. Poole (1986) 182 Cal.App.3d 1004, 1013, 227 Cal.Rptr. 594;  People v. Haven (1963) 59 Cal.2d 713, 719, 31 Cal.Rptr. 47, 381 P.2d 927.)   Without knowledge of consent, there can be no consensual search.  Bravo, therefore, not only fails to support the rule announced by the majority, but in fact by its rationale dictates a contrary result.

The majority's reliance on Griffin v. Wisconsin, supra, is misplaced.   In Griffin, like Bravo, the person conducting the search knew that the person to be searched was a probationer.   In upholding a warrantless search of a probationer's home by a probation officer, the Supreme Court approved a regulation adopted under Wisconsin law that was described by the court as follows:  “One of the Department's regulations permits any probation officer to search a probationer's home without a warrant as long as his supervisor approves and as long as there are ‘reasonable grounds' to believe the presence of contraband—including any item that the probationer cannot possess under the probation conditions.”  (Griffin v. Wisconsin, supra, 483 U.S. at pp. 870–871, 107 S.Ct. at p. 3166.)  Griffin, therefore, upholds a state's regulation authorizing a probation officer to conduct a warrantless search of the home of the probationer that he is supervising when there are “reasonable grounds” to believe that contraband is present.   The decision does not support the proposition that a police officer may conduct an unreasonable search of an individual and have that search subsequently validated if the individual happens to be a probationer with a search condition, a fact unknown to the officer at the time of the search.   In fact, the courts of this state have repeatedly rejected this subsequent validation theory.

In In re Martinez (1970) 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734, a case involving a parolee with a search condition unknown to the searching officer, the court stated:  “The investigation involved suspected criminal activity, not parole violations.   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.”  (Id., at p. 646, 83 Cal.Rptr. 382, 463 P.2d 734.)   In People v. Gastelum (1965) 237 Cal.App.2d 205, 207, 46 Cal.Rptr. 743, involving a similar parolee search, the court observed:  “It is also true that when law enforcement officers are unaware of a defendant's parolee status the fact of parole is irrelevant and cannot justify an otherwise unlawful search.”  (See also People v. Gallegos (1964) 62 Cal.2d 176, 178, 41 Cal.Rptr. 590, 397 P.2d 174.)   Although the above cited authorities involved parolees and not probationers, and although there are recognized distinctions “between probation and parole searches” (People v. Bravo, supra, 43 Cal.3d at p. 608, 238 Cal.Rptr. 282, 738 P.2d 336), no distinction has ever been drawn to eliminate the requirement of knowledge that the person searched is either a parolee or a probationer.   No such distinction, in my opinion, should be drawn.1

Since Officer Dobie did not know that appellant was subject to a search condition, and there being no justification for the pat-search of appellant, the trial court erred in admitting the seized contraband.   The judgment, therefore, should be reversed.2

FOOTNOTES

1.   Specifically, the clause read:  “Submit person, any vehicle under minor's control, & residence to search & seizure by a peace officer at any time of the day or night with/without a warrant.”  (CT 28–29)We note that appellant's initial disposition on April 21, 1989, was a commitment to the county's boys' ranch;  he graduated from that program on August 22, 1989 (RT 28, 50).

2.   First, although Officer Dobie initiated contact with appellant to find out why he was not in school, a truancy detention is limited to the purpose of the stop and may not be used as a pretext for investigating criminal matters.  (In re James D. (1987) 43 Cal.3d 903, 915, 239 Cal.Rptr. 663, 741 P.2d 161.)   That Dobie had a legitimate reason to question appellant does not, and did not, mean he had a legitimate reason to frisk him.   Second, we cannot justify the search as a self-protective stop and frisk because Dobie had no belief, reasonable or otherwise, that appellant was armed or dangerous.  (Terry v. Ohio (1968) 392 U.S. 1, 32, 88 S.Ct. 1868, 1885, 20 L.Ed.2d 889.)   Finally, while the neighborhood profile, including its bustling drug activity, could be relevant when combined with additional factors (see People v. King (1989) 216 Cal.App.3d 1237, 1241, 265 Cal.Rptr. 370), we know of no authority validating a search on this factor alone, absent anything peculiar to the defendant to prompt the officer's suspicion.

1.   To dispense with the parole search requirement of “reasonable suspicion” in searching probationers (Bravo, supra, at p. 609, 238 Cal.Rptr. 282, 738 P.2d 336) is one thing;  to eliminate the requirement of knowledge of the search condition is an entirely different proposition.

2.   It is important to note that the proceedings on the supplemental petition in this case are not akin to probation revocation proceedings, where admissibility of illegally seized evidence is analyzed under a less stringent standard.  (See People v. Harrison (1988) 199 Cal.App.3d 803, 808–812, 245 Cal.Rptr. 204.)   Here, like an adult defendant facing new criminal charges, appellant was entitled to the full “panopoly of constitutional protections” (In re Michael V. (1986) 178 Cal.App.3d 159, 167, 223 Cal.Rptr. 503), including invocation of the exclusionary rule where evidence has been obtained as the result of an unreasonable search.

ANDERSON, Presiding Justice.

PERLEY, J., concurs.