PEOPLE v. ROOTERS II (1992)

OPINION

Upon sentence following a plea of guilty to a charge of possession of cocaine base for sale (Health & Saf.Code, § 11351.5),¹ defendant and appellant Gaylon Rooters II appeals the denial of a Penal Code section 1538.5 motion.   In this opinion, we hold that consent to a probation condition allowing search and seizure without probable cause does not impliedly authorize arrest without the requisite probable cause.   Accordingly, we will reverse.

FACTS

At approximately 12:15 a.m. on January 6, 1991, Officer David Belluomini of the Fresno Police Department observed a vehicle in which defendant was a passenger pulling out of a gas station at the corner of Jensen and Nees.   The vehicle had no front or rear license plates.   As it continued onto Highway 99, Officer Belluomini noticed the vehicle was being driven “somewhat suspicious [ly]”;  the vehicle was travelling at 50 to 55 miles per hour, “slower than the rest of the traffic” and “weaving just ever so slightly.”

Officer Belluomini initiated a traffic stop.   Although the temporary vehicle registration tag was taped to the back of the window, Officer Belluomini did not check the registration.

Officer Belluomini noticed there were three people in the vehicle and none of them was wearing a seatbelt.   He initially made contact with the driver.   The driver had no driver's license or identification and was taken into custody.   The passenger was arrested for being under the influence of a controlled substance.

Officer Belluomini then contacted defendant, who was seated in the left rear seat, and asked him for his identification;  the officer intended to issue him a citation for not wearing a seatbelt in violation of Vehicle Code section 27315.²  Defendant was unable to provide identification.   He was thereafter taken into custody ³ pursuant to Vehicle Code section 40302, subdivision (a).⁴

After defendant was taken into custody, a patdown search revealed a pager and cash in the amount of $142.   A booking search revealed 35 “rocks” of cocaine in defendant's undershorts.   It was later determined that defendant was on probation and had consented to the following condition:  “Submit person and property, including vehicles and place of abode to search and seizure at any time of the day or night by an [sic ] law enforcement officer, including probation officers, with or without a search warrant or other process.”

DISCUSSION

It has already been held that a minor who consents to a “search and seizure condition” ⁵ as part of a grant of probation has no basis to challenge a search conducted without reasonable cause, even though the officer conducting the search was unaware of the minor's probation status or of the search and seizure condition.  (In re Marcellus L. (1991) 229 Cal.App.3d 134, 143–144, 279 Cal.Rptr. 901.)

It has also been held that the principle expressed in Marcellus L., supra, 229 Cal.App.3d 134, 279 Cal.Rptr. 901, also applies to detentions inasmuch as permission to detain is implicit in most Fourth Amendment waivers.  (People v. Viers (1991) 1 Cal.App.4th 990, 993, 2 Cal.Rptr.2d 667.)

The positions of defendant and the People are clearly drawn.   Defendant contends the arrest exceeded the scope of the consent given by him pursuant to the search and seizure condition, rendering invalid the booking search conducted at the jail.   The People argue defendant consented, at the time he accepted probation conditioned on a search and seizure provision, to seizure of his person and that arrest pursuant to the search condition is a logical extension of Marcellus L., supra, 229 Cal.App.3d 134, 279 Cal.Rptr. 901 and Viers, supra, 1 Cal.App.4th 990, 2 Cal.Rptr.2d 667.   Therefore, any subsequent search of his person was also legitimate under the same condition.

“[I]n determining suppression motions, courts generally examine ‘the challenged searches under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved.’  (Scott v. United States (1977) 436 U.S. 128, 138 [98 S.Ct. 1717, 1723, 56 L.Ed.2d 168] ․ )․”  (In re Marcellus L., supra, 229 Cal.App.3d 134, 143, 279 Cal.Rptr. 901.)

 Generally, it is required that the rearrest of a probationer be predicated upon probable cause.

“At any time during the probationary period of a person released on probation under the care of a probation officer pursuant to this chapter, or of a person released on conditional sentence or summary probation not under the care of a probation officer, if any probation officer or peace officer has probable cause to believe that the probationer is violating any term or condition of his or her probation or conditional sentence, the officer may, without warrant or other process and at any time until the final disposition of the case, rearrest the person and bring him or her before the court․”  (Pen.Code, § 1203.2, subd. (a).)

There is nothing in the record to indicate, nor do the People contend, that the arresting officer had probable cause to believe that defendant violated any term or condition of his probation.   Moreover, the People do not argue defendant was arrested upon probable or reasonable cause.

We must therefore determine whether defendant, by consenting to the search and seizure condition, waived the right to assert the invalidity of his arrest, made without probable cause.

 It is well settled that by consenting to submit to a search and seizure at any time as a condition of probation, a probationer consents to a waiver of the protections of the Fourth Amendment.  (People v. Bravo (1987) 43 Cal.3d 600, 605–607, 238 Cal.Rptr. 282, 738 P.2d 336.)   There is no requirement of a “reasonable suspicion” (id. at p. 609, 238 Cal.Rptr. 282, 738 P.2d 336).   Unless the scope of the consent is violated, that is, unless the search is conducted arbitrarily, capriciously, or in an unreasonable manner, a search taken pursuant to a valid condition of probation does not violate the probationer's Fourth Amendment rights.  (In re Marcellus L., supra, 229 Cal.App.3d at p. 141, 279 Cal.Rptr. 901.)

Recently, in People v. Viers, supra, 1 Cal.App.4th 990, 2 Cal.Rptr.2d 667, the Fourth District Court of Appeal interpreted consent to search as a condition of probation to include the right of the law enforcement officer to temporarily detain the probationer.   The court reasoned:

“Although all of the published law has dealt with the lawfulness of searches, the cases speak broadly of a waiver of ‘Fourth Amendment protection.’   (People v. Mason, supra, 5 Cal.3d [759] at p. 765 [97 Cal.Rptr. 302, 488 P.2d 630];  People v. Bravo, supra, 43 Cal.3d at p. 607 [238 Cal.Rptr. 282, 738 P.2d 336].)   Permission to detain is implicit in most Fourth Amendment waivers.   A detention is a seizure of the person which is subject to Fourth Amendment protection.  [Citation.]  And, absent a detention the police cannot search a person and usually cannot search a container or vehicle under that person's control, items typically listed in Fourth Amendment waiver provisions.”  (1 Cal.App.4th at pp. 993–994, 2 Cal.Rptr.2d 667.)

The court reasoned that since Viers had expressly agreed to “ ‘submit [his] person ․ to ․ seizure,’ ” he expressly waived his right to complain the detention was a pretext or lacked adequate cause.⁶  (1 Cal.App.4th at pp. 992–993, 2 Cal.Rptr.2d 667.)

Had the instant situation involved merely a search incident to a detention, under the reasoning set forth in People v. Viers, supra, 1 Cal.App.4th 990, 2 Cal.Rptr.2d 667, In re Marcellus L., supra, 229 Cal.App.3d 134, 279 Cal.Rptr. 901 and People v. Bravo, supra, 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336, defendant's probation search condition would control and the search would have been lawful as based upon a legitimate law enforcement purpose.   It would have been lawful even if it exceeded the limited intrusion authorized by the detention and even if Officer Belluomini was unaware of the probation condition.

However, the initial detention and search of defendant did not prove fruitful.   It was not until after defendant was taken into custody for violating Vehicle Code section 27315 and transported to the police station that the cocaine was found.

The terms of the probation waiver provide that defendant submit his “person and property ․ to search and seizure ․ without a search warrant or other process.”   Although a strained interpretation of this language may appear to provide law enforcement the authority to “seize” or arrest defendant upon a mere showing of a legitimate law enforcement purpose, such an interpretation is unreasonable and without precedent.

Guidance in interpreting a search condition was provided by the California Supreme Court in People v. Bravo, supra, 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336.   The court stated:

“[A]ppellant's waiver of his Fourth Amendment rights must be interpreted on the basis of an objective test.   Law enforcement officers who rely on search conditions in probation orders, the probationer himself, and other judges who may be called upon to determine the lawfulness of a search, must be able to determine the scope of the condition by reference to the probation order.   We cannot expect police officers and probation agents who undertake searches pursuant to a search condition of a probation agreement to do more than give the condition the meaning that would appear to a reasonable, objective reader.   They can neither inquire into the subjective understanding of the probationer, nor analyze the condition in light of legal precedent drawing fine points based on minor differences in the wording of search conditions in other probation orders.   The search condition must therefore be interpreted on the basis of what a reasonable person would understand from the language of the condition itself, not on the basis of appellant's subjective understanding, or under a strict test in which a presumption against waiver is applied.”  (Id. at pp. 606–607, 238 Cal.Rptr. 282, 738 P.2d 336, fn. omitted.)

 As stated above, the consent to search has recently been interpreted to include the consent to a limited detention or seizure of the person.  (People v. Viers, supra, 1 Cal.App.4th at pp. 992–993, 2 Cal.Rptr.2d 667.)   We find a substantial distinction, however, between the seizure contemplated in a detention to effectuate a search and a seizure in the form of an arrest.   Detention seizures are strictly limited in scope, duration and purpose and may be undertaken even in the absence of consent upon a mere showing of articulable suspicion that a person committed or is about to commit a crime.  (Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889;  In re Tony C. (1978) 21 Cal.3d 888, 892, 148 Cal.Rptr. 366, 582 P.2d 957.)   In contrast, seizures in the form of arrest contemplate custody and actual restraint;  arrest is permissible only if the police have probable cause to arrest the individual for a crime.  (People v. Ford (1984) 150 Cal.App.3d 687, 198 Cal.Rptr. 80.)   The probable cause requirement extends to probationers who are suspected of violating their probation.  (Pen.Code, § 1203.2, subd. (a).)

 A detention is a far lesser intrusion on a person's liberty than an arrest.  (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 591, fn. 5, 156 Cal.Rptr. 198, 595 P.2d 975.)   The detention enables law enforcement officers to determine whether to make an arrest, investigate further, or take no action, that is, to do all procedures necessary to effectuate the purpose of the probation condition.

 The only reasonable interpretation of the consent to search and seizure of person as a condition of probation is that it refers to seizure in the form of a detention.   Any alternative interpretations subject a probationer to the risk of substantial intrusions upon a minimal showing of law enforcement purposes and exceed the scope of any reasonable interpretation of the probation condition.   Thus, the fruits of the search should have been suppressed.

Inevitable Discovery

The People suggest, without citation of authority, that the search can be upheld under some version of inevitable discovery.   They state that although Officer Belluomini may have been premature in removing defendant from his vehicle, “it was inevitable that [he] would be removed from the Oldsmobile either to check his sobriety or after the Oldsmobile was secured following the arrest of the driver.   The officer would have noticed as he did in the instant case that defendant was under the influence of a controlled substance.”

“ ‘ “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.   The doctrine was developed to prevent unjustly granting criminals immunity from prosecution.”  (Novikoff, The Inevitable Discovery Exception to the Constitutional Exclusionary Rules (1974) 74 Colum.L.Rev. 88;  fns. omitted.)'  (People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 673 [145 Cal.Rptr. 795]․)”  People v. Jaquez (1985) 163 Cal.App.3d 918, 931, 209 Cal.Rptr. 852.)

 This case does not present the typical inevitable discovery situation in which the challenged evidence would have been discovered through truly independent sources.  (People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 145 Cal.Rptr. 795.)   The People are asking this court to find that it was inevitable that Officer Belluomini would have noticed defendant was under the influence, it was inevitable that defendant would have been arrested and therefore it was inevitable that defendant would have been searched incident to the arrest.   We find such reasoning, at best, speculative.

We have neither been cited to nor are aware of any case in which inevitable discovery can be justified via an “inevitable arrest” and search incident thereto.   It is true that, had Officer Belluomini exercised restraint and patience and investigated defendant's condition more thoroughly, he probably would have been justified in arresting defendant for being under the influence.   He did not.

DISPOSITION

The judgment is reversed.

FOOTNOTES

1.   Rooters was also sentenced on a violation of Health and Safety Code section 11550 and on an underlying probation.   That underlying probation status is the focus of this case.

2.   Vehicle Code section 27315, subdivision (e), provides:  “No person 16 years of age or over shall be a passenger in a private passenger motor vehicle on a highway unless that person is restrained by a safety belt.”   Violation of this section is an infraction.   Subdivision (k) specifically prohibits arrest of a person solely on the basis of section 27315.

3.   It was not until after the arrest was made and defendant was placed in the patrol vehicle that Officer Belluomini observed symptoms indicating that defendant might be under the influence of a controlled substance.   Later tests confirmed that suspicion.   Because the observations were made subsequent to the arrest, the People are precluded from arguing that factor as a basis for the arrest.

4.   Vehicle Code section 40302 states in part:“Whenever any person is arrested for any violation of this code, not declared to be a felony, the arrested person shall be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made in any of the following cases:“(a) When the person arrested fails to present his driver's license or other satisfactory evidence of his identity for examination.”

5.   The search and seizure condition entered in the instant case is representative of those typically given in other cases.

6.   To the degree that Viers stands for the proposition that a search and seizure condition encompasses arrest, as well as detention and search, we respectfully disagree.

BUCKLEY, Associate Justice.

MARTIN, Acting P.J., and DIBIASO, J., concur.