PEOPLE v. DENISON (1998)

David Brian Denison appeals from his conviction for possession of cocaine and related drug paraphernalia.   He argues the police stop of the car he was driving to conduct a probation search of his passenger violated his right, under the Fourth Amendment of the United States Constitution, to be free from unreasonable searches and seizures.   He also argues his ensuing detention was unnecessarily prolonged and the seizure of a brown paper bag from his car, his subsequent arrest, and the search of his person and his residence were all improper, in violation of his Fourth Amendment rights.   We conclude the stop of appellant's car was permissible incident to the stop of his passenger, who was subject to warrantless searches as a condition of his probation.   Moreover, the brief detention of appellant, the seizure of the bag, appellant's subsequent arrest, as well as the search of his person and residence were also proper in the circumstances of this case.   We therefore shall affirm the judgment.

PROCEDURAL BACKGROUND

On February 14, 1996, a complaint was filed charging appellant with possession of cocaine (Health & Saf.Code, § 11350, subd. (a));  possession of a hypodermic needle and/or syringe (former Bus. & Prof.Code, § 4149);  and possession of a smoking device used for smoking a controlled substance (Health & Saf.Code, § 11364).   The cocaine possession count alleged two probation ineligibility clauses (Health & Saf.Code, § 11370, subds. (a), (c);  Pen.Code, § 1203, subd. (e)(4)).¹  After a preliminary hearing held on July 8 and July 11, 1996, the trial court denied appellant's motion, pursuant to section 1538.5, to suppress all evidence obtained from his car, person, and residence.

An information mirroring the complaint was filed on July 22, 1996.   Appellant's motion to set aside the information pursuant to section 995 was denied on October 18, 1996.

On October 29, 1996, appellant pleaded guilty as charged and admitted the probation ineligibility allegations.   On January 3, 1997, the trial court struck one probation ineligibility clause, found the case to be an unusual one pursuant to section 1203, subdivision (e)(4), and California Rules of Court, rule 413(c)(2)(ii), suspended imposition of sentence, and placed appellant on probation for three years on condition he serve six months in county jail on count 1, with 30-day concurrent terms on counts 2 and 3.² This timely appeal followed.

FACTUAL BACKGROUND 3

At about 5:40 p.m. on February 1, 1996, Marin County Sheriff's Department officer Kami Pfeffer went to the San Rafael home of William Magner to conduct a probation search of Magner, who was on probation and had a warrantless search and seizure condition.⁴  Pfeffer was accompanied by four other police officers and one probation officer.   After receiving no answer to their knocks on the front and rear doors, the officers were standing in the driveway talking when they saw a gold Ford Escort drive toward the house.   Pfeffer knew that such a car was “associated” with the residence and so informed the other officers.   As the vehicle slowed at the residence, probation officer Broom advised the other officers that Magner was in the car.   The car then accelerated and left the area of the residence.

Officer Hutchinson got into his patrol car and stopped the Ford Escort;  officers Pfeffer and Broom arrived seconds later.   Broom asked Magner, who was sitting in the front passenger seat, to step out of the car.   Appellant, who was in the driver's seat, remained in the car while Broom pat-searched Magner.⁵  Meanwhile, Pfeffer spoke with appellant in order to determine who owned the car.   Appellant told her that he had just recently purchased the car from someone named Bob Barnett.   A DMV check confirmed the car was registered to Bob Barnett.   After Magner had exited the car, Broom saw and retrieved a crumpled brown paper bag from the floor on the passenger side of the car.   Broom opened the bag and saw several Valium pills loose inside.   In response to a question from Broom, both men denied that the bag was theirs.

Appellant and Magner were then arrested.   During a search incident to appellant's arrest, Pfeffer found a syringe in one of appellant's jacket pockets and a small baggy of suspected cocaine in another.   Pfeffer then searched appellant's car and found a glass pipe used to smoke controlled substances under the front driver's side seat.

After the arrests, the officers returned to the residence and conducted a “protective sweep” of the house to ensure, for officer safety, that no one was inside.   While doing so, the officers found several syringes, another pipe, and other drug paraphernalia in appellant's bedroom;  these items were visible from the entrance to the bedroom.

DISCUSSION

 Appellant challenges the trial court's denial of his motion to suppress on several grounds.   In reviewing the reasonableness of a warrantless search and seizure, such as occurred here, we are bound by the trial court's factual findings as long as they are supported by substantial evidence.   (People v. Stoffle (1991) 1 Cal.App.4th 1671, 1677, 3 Cal.Rptr.2d 257.)   However, we independently determine whether, based on those factual findings, the search and seizure were reasonable.  (Ibid.)

I.

Appellant first contends the officer's stop of his car to initiate a probation search of Magner violated appellant's constitutional right to be free from unreasonable searches and seizures.

 Under California law, reasonable cause is not required before officers may invoke a probation search and seizure condition, and a search pursuant to a probation search condition without reasonable cause is permissible so long as the decision to search is not arbitrary or intended to harass.  (People v. Bravo (1987) 43 Cal.3d 600, 609, 238 Cal.Rptr. 282, 738 P.2d 336.)   Here, the evidence supports the trial court's finding that the officers harbored no impermissible motives in stopping appellant's car.   Appellant does not argue that the officers were attempting to harass Magner or were using the probation search as a pretext for searching appellant or his car.  (See People v. Bravo, supra, 43 Cal.3d at p. 609, 238 Cal.Rptr. 282, 738 P.2d 336;  see also People v. Woods (1998) 61 Cal.App.4th 246, 71 Cal.Rptr.2d 511.)   Rather, the officers were simply trying to effect a search of Magner pursuant to the terms of his probation.

Most courts agree that a stop of a vehicle includes a stop of all of its occupants.  (See People v. Bell (1996) 43 Cal.App.4th 754, 761-764, 51 Cal.Rptr.2d 115 [citing cases].)  While acknowledging that Magner had relinquished his Fourth Amendment rights as a condition of his probation, appellant contends that his own Fourth Amendment rights precluded the stop because the officer had no reasonable suspicion that either he or Magner was involved in criminal activity.  (See Terry v. Ohio (1968) 392 U.S. 1, 19, 88 S.Ct. 1868, 1878-1879, 20 L.Ed.2d 889.) ⁶

We have found no cases addressing the precise question presented here, although several cases have addressed relevant issues to the one before us in this case.   First, in United States v. Hensley (1985) 469 U.S. 221, 224, 105 S.Ct. 675, 677-678, 83 L.Ed.2d 604, police stopped a car in reliance on information that the driver was the subject of a “wanted flyer” before confirming whether an arrest warrant had been issued.   On approaching the vehicle, an officer recognized the passenger as a convicted felon and saw the butt of a revolver protruding from underneath the passenger's seat.  (Ibid.) The passenger was arrested and, following a search of the car in which additional guns were found, the driver also was arrested.  (Id. at pp. 224-225, 105 S.Ct. at p. 678.)   The United States Supreme Court held that such a stop was justified even though it was a stop to investigate an already completed crime, which “does not necessarily promote the interest of crime prevention as directly as a stop to investigate suspected ongoing criminal activity.”  (Id. at pp. 228, 232, 105 S.Ct. at pp. 680, 682.)

In determining the limits on stops to investigate past criminal activity, the court applied a test, “grounded in the standard of reasonableness embodied in the Fourth Amendment, [which] balances the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion.”  (United States v. Hensley, supra, 469 U.S. at p. 228, 105 S.Ct. at p. 680.)   The court then discussed the importance of the governmental interest in investigating past crimes:  “[W]here police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice.   Restraining police action until after probable cause is obtained would not only hinder the investigation, but might also enable the suspect to flee in the interim and to remain at large.”  (Id. at p. 229, 105 S.Ct. at p. 680.)

In In re William J. (1985) 171 Cal.App.3d 72, 217 Cal.Rptr. 163, a police officer stopped the car the defendant was driving because there was an outstanding arrest warrant for the passenger.   When the stop revealed the defendant was in possession of a billy club, the officer arrested him as well.  (Id. at p. 75, 217 Cal.Rptr. 163.)   On appeal, the defendant argued that the stop was unlawful because the officer had no reasonable suspicion that he was involved in criminal activity.   The defendant asserted that Hensley allows an investigatory stop only if there is a reasonable suspicion that the person driving was involved in a completed felony.   He argued that since the police only had reason to suspect the passenger, he-the driver-should not have been stopped.   The Court of Appeal disagreed:  “If we were to adopt such an untenable rule, then legions of criminals throughout the land could hire drivers, who are upstanding citizens with no past criminal involvement, to chauffeur them around our streets and highways in open, notorious view.   As smug passengers they could wave to the police who could only watch in frustration as they passed by.   A momentary stop of an automobile by police to investigate a passenger reasonably believed to be involved in a past crime is proper.   It creates a minimal inconvenience to the driver of that automobile, when balanced against the government's interest in apprehending criminals.”   (Id. at p. 77, 217 Cal.Rptr. 163.)

Finally, in United States v. Pagel (7th Cir.1988) 854 F.2d 267, 268-269, officers executed a parole search of a parolee's motel room.   During the search, which occurred in the presence of the parolee, one of the officers went outside to look for the parolee's car.  (Id. at p. 269.)   The officer observed the defendant driving the parolee's car past the motel and, after stopping the car, officers searched in and near it, finding drug paraphernalia and cocaine.  (Id. at p. 270.)   The Appeals Court rejected the defendant's argument that the authority to conduct a parole search of the car did not give the officer the right to stop the car while he was driving it.   The court explained:  “The target of the stop and search was [the parolee's] property, not [defendant] Pagel, and the search of the car by [officer] Lane was lawful under the applicable Wisconsin regulations.   It was, of course, necessary to stop the car before Lane could search it, but the stop itself did not violate Pagel's Fourth Amendment rights.   That Pagel happened to be driving the car at the time [officer] Endres executed the stop to enable Lane to search it cannot render an otherwise legal stop and search illegal.   Indeed, under Pagel's reasoning, any time a third person not the target of a lawful search pursuant either to a warrant or a valid regulation such as Wisconsin's happened to be in the residence or car that was the target of the search, the search would be rendered illegal.   Nonsense.”  (Id. at p. 271.)

 Hensley and In re William J. stand for the proposition that investigative stops of vehicles may be justified even when there is no suspicion of present or ongoing criminal activity, and that, in determining the propriety of a stop, it is necessary to balance the security and privacy interests of the individual against the government interests at stake.  (United States v. Hensley, supra, 469 U.S. at p. 228, 105 S.Ct. at p. 680;  In re William J., supra, 171 Cal.App.3d at pp. 76-77, 217 Cal.Rptr. 163.)  United States v. Pagel instructs that the existence of a probation search condition justifies the stop of a probationer's vehicle, even if there is no independent justification for stopping the driver.  (854 F.2d at p. 271.)  In re William J. stands for the additional proposition that if a stop is permissible as to a passenger in a car, it is also permissible as to the driver, the rationale being that the government's interest in preventing criminals from insulating themselves from capture by being perpetual passengers far outweighs the minimal inconvenience to the car's driver.  (171 Cal.App.3d at p. 77, 217 Cal.Rptr. 163;  see also People v. Bell, supra, 43 Cal.App.4th at p. 761, 51 Cal.Rptr.2d 115;  People v. Williams (1995) 33 Cal.App.4th 467, 476-477, 39 Cal.Rptr.2d 358.)

 The similar, but not identical, question we face is:  Can probationers with a search condition insulate themselves from probation searches by being a passenger in the vehicle of another?   While we do not attempt to answer this question as to every such case, we do find that the reasoning of Hensley, William J., and Pagel support the conclusion that the stop of appellant's car to effect a search of Magner was justified in the circumstances of the present case.

Probation search conditions further the important government interests of deterring “'further offenses by the probationer and [of ascertaining] whether he is complying with the terms of his probation.”'  (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, 763, 97 Cal.Rptr. 302, 488 P.2d 630;  see also People v. Constancio (1974) 42 Cal.App.3d 533, 540, 116 Cal.Rptr. 910 [“The [probation search] condition is obviously designed to minimize the risk to the public safety inherent in the conditional release of a convicted offender.”].) In addition, although appellant is correct that those who merely associate with probationers retain their right to be free from unreasonable searches and seizures, it is also true that the privacy interests of one who owns or controls items or areas jointly with a probationer “'must be to some extent restricted in the public interest.”'  (People v. Boyd (1990) 224 Cal.App.3d 736, 749, 274 Cal.Rptr. 100, citation omitted.)   Although this lessened expectation of privacy is most often applied to individuals living with probationers, that is not the only circumstance in which a non-probationer's privacy interests may be restricted.  (See, e.g., People v. Boyd, supra, 224 Cal.App.3d at p. 749, 274 Cal.Rptr. 100 [finding that defendant who had spent night with one parolee in another parolee's trailer consequently had lessened expectation of privacy].)

Here, not only was appellant transporting Magner in his car, but an officer recognized appellant's car as “associated” with Magner's residence.   Moreover, appellant's actions upon seeing the officers at the house are consistent with an effort to avoid contact with them.⁷  We therefore conclude that the minimal inconvenience to appellant of a brief stop of his car was outweighed in this case by the strong government interest in effecting a probation search of Magner.   To decide otherwise would enable a person in Magner's position to flout an agreed-upon probation search condition, and thus to effectively frustrate the substantial government interest involved.

II.

 Having found the stop permissible, we must now decide whether, nonetheless, appellant's detention was unnecessarily prolonged in violation of his Fourth Amendment rights.   As a preliminary matter, we disagree with respondent's assertion that appellant waived this issue by failing to raise it before the judge hearing his section 1538.5 motion.⁸  (See People v. Auer (1991) 1 Cal.App.4th 1664, 1670, 2 Cal.Rptr.2d 823 [prohibiting defendant from raising an issue on appeal since “the People were not placed on notice of the necessity to present evidence refuting the theory defendant [sought] to raise․”].)  We find that the facts and legal principles applicable to the issue of appellant's detention are not substantially different from those raised pursuant the motion to suppress.   Thus, because our review of this issue will work no injustice to respondent, we find that the issue is not waived.

 Appellant argues that a non-probationer's right to be free from unnecessary intrusion could be respected if the officer executing the search condition were to detain him or her no longer than necessary to “(1) remove the probationer from the car, and (2) inquire as to whether he or she has any belongings in the car.”   In the present case, the evidence shows that after the car was stopped, the officers focused on removing Magner from the car in order to execute the probation search.   Their only interest in appellant at that point was in determining whether he (as opposed to Magner) owned the car.   This brief detention pursuant to the legitimate stop of Magner did not violate appellant's Fourth Amendment rights.  (Cf. United States v. Hensley, supra, 469 U.S. at p. 228, 105 S.Ct. at p. 680;  In re William J., supra, 171 Cal.App.3d at pp. 76-77, 217 Cal.Rptr. 163.)   Furthermore, it was not until officer Broom seized the paper bag and found Valium inside-which we conclude was permissible (see § III., infra )-that appellant was arrested.   Appellant does not dispute that the contents of the bag gave the police probable cause to arrest him.   Accordingly, we reject appellant's challenge to his detention.

III.

Appellant's next contention is that officer Broom's seizure of the brown paper bag violated his constitutional right to be free from unreasonable searches and seizures.

Magner's probation search condition included the right to search and seize “any ․ property under his[ ] control at any time․”   Thus, the critical question is whether Broom reasonably suspected the bag was controlled by Magner.   If so, it was within the scope of the probation search.  (See People v. Boyd, supra, 224 Cal.App.3d at p. 745, 274 Cal.Rptr. 100.)   The evidence at the preliminary hearing showed the paper bag was on the floor of the front passenger side of the car near Magner's feet.   The trial court found that this alone was sufficient to support Broom's seizure of the bag pursuant to the probation search.

Appellant argues the evidence does not support a finding that the bag was possessed or controlled by Magner rather than appellant.   Although there was nothing to show the bag belonged to Magner, the issue is whether he had control over the bag regardless of whether appellant also had control over it, or even owned it.   As the Court of Appeal explained in People v. Boyd, supra, 224 Cal.App.3d at p. 749, 274 Cal.Rptr. 100:  “Even if the nonparolee roommate's claim of ownership sounds reasonable, reasonable suspicion may be predicated on the parolee's possession or control of the object.”  (See also People v. Palmquist (1981) 123 Cal.App.3d 1, 12-13, 176 Cal.Rptr. 173.) ⁹

 Appellant cites a Fifth District case, People v. Montoya (1981) 114 Cal.App.3d 556, 562, 170 Cal.Rptr. 624, for the proposition that if there is “but a 50-50 chance” that an item belongs to a person subject to warrantless search pursuant to a parole or probation condition, the police are under a duty to inquire as to who owns the item before seizing or searching it.  Montoya's “50-50” rule has been criticized, however, in several subsequent cases, including two cases from the Fifth District.   In People v. Boyd, supra, 224 Cal.App.3d at p. 749, 274 Cal.Rptr. 100, the Fifth District “reject[ed] a mechanical application of the Montoya rule to every parole search[,]” finding that “[s]uch a rigid rule would unnecessarily bind the officer to the answer given, regardless of its veracity.”  (See also People v. Britton (1984) 156 Cal.App.3d 689, 701, 202 Cal.Rptr. 882 [Fifth District case, finding “[a]n officer could hardly expect a parolee would claim ownership of an item which he knew contained contraband.”];  People v. Palmquist, supra, 123 Cal.App.3d 1, 12, 176 Cal.Rptr. 173 [finding Montoya's reasoning “less than persuasive”].)  We agree with the Boyd court that the better rule is that “[t]he officer must reasonably suspect that the object is owned, controlled or possessed by the parolee [or probationer] for the search to be valid.   Depending upon the facts involved, there may be instances where an officer's failure to inquire, coupled with all of the other relevant facts, would render the suspicion unreasonable and the search invalid.”  (People v. Boyd, supra, 224 Cal.App.3d at p. 749, 274 Cal.Rptr. 100, fn. omitted.)

 In the present case, inquiry as to ownership of the bag was not required both because the evidence regarding the bag's location created a reasonable suspicion that the bag was under Magner's control, and also because of the unlikelihood that such an inquiry would have resulted in a truthful answer.¹⁰  (See People v. Tidalgo (1981) 123 Cal.App.3d 301, 306, 176 Cal.Rptr. 463 [“[W]here police officers do not know who owns or possesses a residence or item and such information can be easily ascertained, it is incumbent upon them to attempt to ascertain ownership in order to protect the privacy interest of both probationer and nonprobationer.”], emphasis added.)

Because we conclude that, in the particular circumstances of this case, officer Broom reasonably suspected that Magner had control-whether joint or not-over the brown paper bag, appellant's claim must fail.  (See People v. Boyd, supra, 224 Cal.App.3d at p. 745, 274 Cal.Rptr. 100.) ¹¹

IV.

 Appellant's final contentions are that his arrest and the search of his person and his residence violated his Fourth Amendment rights, and that the additional items seized were the “fruit of the poisonous tree” (Wong Sun v. United States (1963) 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441), that is, their discovery resulted from the illegal search of appellant's car in which the Valium was discovered.   However, because we have found that the stop, the brief detention of appellant, and the seizure of the brown paper bag were proper (see §§ I., II., and III., supra ), the consequent arrest of appellant and the searches of his person and residence did not violate his constitutional right to be free from unreasonable searches and seizures.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise indicated.

2.   On March 6, 1997, appellant's probation was revoked and then reinstated on the same terms, with an additional 30 days in jail on count 1.

3.   These facts are taken from the preliminary hearing transcript, at which officer Kami Pfeffer was the sole witness.

4.   Specifically, this probation condition stated:  “Defendant shall submit to search and seizure of his/her person, vehicle, residence, or any other property under his/her control at any time day or night, by any probation officer or peace officer, with or without probable cause, with or without a warrant.”

5.   Although the officers did not know it at the time of the stop, appellant lived with Magner in the San Rafael home.

6.   In Terry v. Ohio,supra, 392 U.S. at p. 19, 88 S.Ct. at p. 1878, the United States Supreme Court explained that the central inquiry in deciding what circumstances short of probable cause justify an investigative stop or detention is “the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.”

7.   We observe that had appellant stopped at his home and, with Magner, exited the car (which appeared to be their plan until they spotted the officers), the stop of which he now complains would never have occurred.

8.   Although appellant briefly raised this issue during the argument on his section 995 motion in the superior court, “[u]pon review of a motion to set aside an information, this court disregards the superior court's ruling and directly examines that of the magistrate [or judge at the preliminary hearing].”  (People v. Eid (1994) 31 Cal.App.4th 114, 125, 36 Cal.Rptr.2d 835.)

9.   Appellant's reliance on numerous cases, most of which involve receipt of stolen property, to argue that “mere proximity or opportunity to possess is insufficient to establish control over an item” is misplaced.  (See, e.g., People v. Leib (1976) 16 Cal.3d 869, 129 Cal.Rptr. 433, 548 P.2d 1105;  People v. Martin (1973) 9 Cal.3d 687, 108 Cal.Rptr. 809, 511 P.2d 1161;  People v. Zyduck (1969) 270 Cal.App.2d 334, 75 Cal.Rptr. 616.)   These cases simply are not analogous to the issue we address here.

10.   Indeed, after the paper bag was seized, both Magner and appellant denied ownership of it.

11.   That most of the cases in which courts have found joint control of an item involve cohabitants of residences does not mean, as appellant suggests, that it is not possible for a passenger in a car to have joint control over an item found in the car.

KLINE, Presiding Justice.

LAMBDEN and RUVOLO, JJ., concur.